Monday, April 9, 2012

In Confidence Redux

An Illinois Hearing Board has found that an attorney engaged in misconduct in the representation of two criminal defendants. The board recommends a six-month suspension.

In one matter, the board rejected charges that the attorney provided incompetent representation in a murder case but found that the attorney revealed confidential information to the prosecutor.

The information involved the client's disclosure of new information about the charged offense five days before trial:

In this case, [the client] Mays testified that the Respondent asked him if he could inform the state's attorney about what Mays said, and that Mays told him "no." The Respondent, on the other hand, testified that he did not specifically asked Mays if he could tell anyone about what Mays told him, and that Respondent "did not get written [or] verbal permission" from Mays to disclose Mays' statements. However, the Respondent claimed that it "was implied" that he could disclose the statements.

As stated above, there is a sharp conflict as to what was said by the Respondent and Mays regarding the disclosure of Mays' statements. We conclude that it was not clearly established that the Respondent violated an express directive from Mays not to disclose the statements.

However, based upon the Respondent's own testimony he improperly disclosed Mays' statements.

We reject the position that consent to the disclosure a client's confidential statement may be implied. There is simply no reason for an attorney to rely on an implied consent when it is easy enough to specifically ask the client if he or she consents to disclosure. Also, to allow consent to be inferred would, we believe, lessen the strict requirements of the Rule. There is no doubt that Mays did not give consent to the Respondent to disclose Mays' statements to a prosecutor or to anyone else.

There is also no doubt that the Respondent failed to make any significant "disclosure" to Mays. In the Terminology section of the Rules of Professional Conduct, "disclosure" is defined as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." There was no evidence that the Respondent ever explained to Mays the possible ramifications of the strategy to disclose the confidential information to the state's attorney. Clearly, the Respondent did not advise Mays that his statements could establish his guilt of felony murder, because the Respondent did not realize, at the time, that Mays' statements could do so.

Consequently, the Respondent revealed the confidential statements of Mays without Mays' consent to do so, and without having informed Mays of the ramifications of the planned strategy resulting from revealing the statements.

The second case involved the conversion of and failure to return an unearned fee. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/04/an-illinois-hearing-board-has-found-that-an-attorney-engaged-in-misconduct-in-the-representation-of-two-criminal-defendants.html

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