December 11, 2007
Criminal Lawyer As Witness Against Former Client
An interesting decision from the Mississippi Supreme Court (courtesy of the Lawyers' Manual on Professional Coduct) deals with the attorney-client privilege in a case where the criminal defendant was convicted for unlawful possession of a stolen vehicle. The defense attorney was removed as counsel and called as a state's witness in order to tesify that he had received two documents from his client. The attorney had turned the documents over to the state on the first day of trial consistent with discovery rules. As a result, a mistrial was ordered and the case reset for trial. The trial court appointed new counsel for the defendant. The lawyer was a witness at the retrial.
The court held that the documents were relevant and not confidential or privileged. As the documents were counterfeit, the attorney was "unwittingly involved in [a] fraud/crime, therefore destroying any privilege or confidentiality which arguably might have existed." The attorney was properly called as a witness. Two dissents would find reversible error. One states: "it is my fervent opinion that [former counsel] should not have been permitted to testify." The second states: "The trial court failed to make any attempt at balancing the...interests...In removing [the defendant's] retained counsel, the trial court denied [defendant] his fundamental right to counsel of choice...The trial court further exacerbated the unjust denial of [defendant's] constitutional rights when it allowed the State to use [the defendant's] former attorney as a witness to introduce otherwise inadmissible evidence." (Mike Frisch)
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