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Can an Atty be called to testify against client? Wouldn't that violate Atty/Client privilege or be a Conflict of Interest?

Chicago, IL |
Filed under: Professional ethics

Atty doesnt want to meet with client in person to get details, told client to write them down and email them. He said because if client verbally tells Atty anything, he (atty) could be used as a witness. Said he would just put email in a file and save it. I have never heard of an Atty not bringing his client in after being retained to get the facts and go over the details before pretrial. Doesn't the paying client have a right to give the facts in person and tell the Atty what he hopes to accomplish by retaining him????
(This is a minor offense)

Attorney Answers 3

Posted

I am not sure your question provides all of the information that is needed to accurately answer this, but I will take a stab at it. If you are saying that a client with a criminal legal problem has hired an attorney to represent him/her, and the attorney has stated that he does not want to meet with the client in person prior to a pre-trial hearing, but instead wants the client to email the attorney with information regarding the case on the basis that the attorney could be called as witness to testify against the client and the attorney would be required to disclose the information because the client gave it to the attorney in person, this strikes me as very odd. I am not aware of any law which states that information provided to an attorney in person or over the phone is more susceptible to being discoverable than information contained in an email.

If there is a legal basis to compel an attorney to testify as to information provided to him or her by the client, it would not matter whether the information was provided in person, over a phone, or in writing.

On the other hand, there is some basis for the proposition that a client who provides information electronically to an attorney has no or little expectation of privacy and therefore it is vulnerable to being discoverable, especially if the email were inadvertently addressed to the wrong person.

Without any additional facts--which could exist--based on this hypothetical question I cannot think of any reason why the attorney/client privilege would be weakened or pierced by a client providing privileged information to their retained attorney (provided there are no third parties present, the communication is not in furtherance of a crime, etc.).

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kane County. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you this answer helpful.

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Asker

Posted

Thank you for your input. I've never heard of not meeting in person with your atty nor have I heard your Atty can testify against you in a municipal traffic forfeiture case! Odd is right!

Judith Anne Schening

Judith Anne Schening

Posted

To my knowledge, the METHOD of communicating with your attorney is not usually a basis for finding that the privilege was waived, except that some court cases have held that if a client communicates with an attorney over a non-land line phone, the client has no expectation of privacy that therefore the privilege waived. I have also heard of some cases holding that a mis-directed email also waives a privilege, but have not personally done the research so I cannot say with certainty. However, if that is the case, then you can see where communicating via email could actually create a greater argument for waiver of privilege than meeting in person with the attorney with no other persons present.

Posted

An attorney that by law or court order is compelled to testify against his own client must do so whether the details were given in an email or in person.

I believe your situation sounds most odd, so confirm exactly what the instructions are with the lawyer.

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Posted

I agree, this is an odd scenario. The means in which the information is exchanged does not impact privilege.

For a free consultation related to medical malpractice, personal injury, workers' compensation, social security disability or nursing home abuse, please contact Lowenthal & Abrams, PC at 1-800-876-5299. I am licensed in Pennsylvania, but members of my firm are licensed in Pennsylvania, New Jersey and New York. This post is not legal advice, but instead contains general educational information. Please do not act or refrain from acting based upon what you read in this post. Also please remember that this post does not form an attorney/client relationship between you and me. If you have specific legal questions, you should contact an attorney in your state for assistance. I am licensed to practice law in the state of Pennsylvania.

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