All right, lawyer talk off the record, on the air.

Going to talk today about the attorney client privilege.

I've covered some of this before, but it was a unique.

Not unique question, but a question I got from an actual client at Palmer Legal Defense called me yesterday.

And it's a criminal case that's just at the beginning.

And this client, or this potential client, rather, is looking for legal help.

They're doing what they should do.

They're talking to lawyers.

And the question was this.

If I tell you, or is this comp.

Do I have an.

I'm summarizing it.

But what they're really asking in a roundabout way is whether the conversation I was having on the telephone at 8pm at my house, as I'm doing whatever I do, is that a privileged conversation?

In other words, the things that that person is telling me as a prospective.

Not even a current client, a prospective client, is that privileged?

And what they're really asking is, if I tell you what I did or what I didn't do or anything about the case, can the other side call you up and ask you what I told you, or will you tell anybody else what I said?

They teach you this one in law

school at the time, you have a privilege, I believe.

Pr.

Pr.

Professional responsibility.

Oh, that's what we call it.

We call that public relations.

You're correct.

So a prospective client talking to a lawyer, the lawyer still, all those communications are subject to the attorney client privilege, even if they don't hire me.

And I've got.

Look, I've got.

We used to keep them in a big accordion file in our storage room up there, back before the days of electronic media.

But I've got volumes, banker boxes full of what I called PNCs, potential new clients, where we would get this little blue sheet that would go to me and I would call the person back.

I would take notes on the blue sheet about what the client's problem is.

We'd quote a fee or an estimated fee for the case, and if they never hire us, it goes into the PNC files.

That's all privileged.

Nobody, nobody is allowed to come and get that from me and say, hey, we know that John Doe bank robber tried to call you and get your representation.

Please tell us what he told you.

Be like, no, no.

Now, what's interesting, it's different than other professions is this doesn't exist.

I have an accountant, and I always say if.

If I'm any.

If I'm a enterprising assistant United States attorney and I want to get somebody for some Sort of fraud.

I'm going to after.

I'm not going to go after that person.

I want to go after that person's accountant.

Because there is no accountant privilege.

The accountant can be forced to give up tax returns, financial documents, everything.

And in theory, if I told my accountant something like, hey, look, I found this great scam.

I don't have to pay tax on this.

If my client pays me in cash, I can just stick it under here in my drawer and I'll buy dinner for, you know, whatever.

Some, like the attorney or the U.S. attorney or the government can go force the accountant to divulge that communication.

But it's not the same with lawyers.

It's not the same.

So if a client told me, look, I killed this person, I want you to represent me.

Nobody knows I did it.

That's a privileged communication.

I'll take that to my grave.

And I've had some really, really crazy conversations with clients over the years and even those from clients who have not hired me later.

And they're locked up here in my brain.

In fact, I probably forgotten more than I can remember, but they're locked up here in my brain.

I'll never tell anybody about it.

There's another component to the privilege.

It's probably worth a little bit of at least a comment.

So we've got privilege which covers

anything said between communication.

Yeah.

And then Ohio and most jurisdictions have something that even is broader than that.

These are client confidences, things that are not said, but things that I learned during the course and scope of representation.

Meaning I'm representing you in some case and as a result of representing you, I start going out and I find out some information about it that's really damaging to you that because, well, why wouldn't that be privileged?

I'll give you a little Socratic drilling here.

So you went out, found some stuff and it wouldn't be privileged.

Yeah.

Why is it not privileged?

Because I didn't communicate to you.

It's not a communication.

Privilege is only written or verbal or some other type of communication.

But this is something that I learned and this falls in the scope of my representation.

Typically would call these client confidences.

And there are different rules, but it's similar.

I can't just go divulge that in to the other side.

I recently had a case where for one reason or another, I had to withdraw from the case.

And then another lawyer took it over and there was a big concern, I think, from my client about whether I would divulge any privileges.

And the answer is absolutely Categorically, no, no.

There's some exceptions.

One, if it helps my client sometimes that's sort of implicit.

My client tells me something, and I'm negotiating with the other side.

There might be an implicit waiver of that privilege that permits me to do things that help my client.

Another would be if my client authorizes me, I've got a waiver of the privilege.

And then the old sort of law school example is like, somebody's in.

There's life or limb in danger.

Yeah.

I have a kidnapped girl in my trunk right now.

I have a kidnapped girl.

She's buried underground.

She's got 12 hours of air.

What do you do?

Well, there's privilege.

I'm just kidding.

Well, there is.

There actually is privilege.

But the law.

Most jurisdictions would permit disclosure, I think, under that circumstance.

But I tell you what I would do under that circumstance.

Before I disclosed anything, I would hire my own lawyer.

And I do this regularly.

I have an attorney I've worked with for years.

I call them up and I say, hey, look, I got this problem.

I've got an ethics issue.

Help me with this.

What are my obligations?

What can I do?

What can't I do?

And almost always it says, protect the client first.

Knock on wood.

I've never had a client tell me that there's a kidnap victim that's about to die.

And so I've never had to deal with that, but I would if I had to.

So, look, the communications you have, just like I told my client last night, with prospective lawyers, is privileged, and you can't divulge it.

I guess I'll tell one more war story.

Okay.

All right.

This.

This is.

I'm not going to mention any names, but there's a case that was bouncing around probably maybe 30, 40 years ago where a lawyer learned.

Here's.

Here's where something comes up like this a lot.

I get a call from a client, went out to, I don't know, pick a bar in Grandview.

What's a good bar in Grandview?

Local Zenos.

Zeno's goes to Xeno's Lounge and gets all liquored up and is dry.

What's that?

3rd and Pennsylvania and 3rd or something like that.

Or Pennsylvania.

It's on Pennsylvania Avenue here in Columbus.

And you pull out of the Xeno's parking lot, which is rather small, as I recall, and on your way home, you sideswipe three or four cars going down Pennsylvania Avenue because you had a little too much to drink and, you know, you couldn't control it.

Then you get Home, and you wake up the next day and you say, crap, I think I hit like, four cars on the way home.

And maybe even go back, and you walk your dog back through there and you say, well, look.

Yeah, that car's pretty screwed up.

It looks like I took the bumper off that one, did some damage there.

And you go back and look at your car in the garage, and that's all screwed up, too.

And.

But you didn't get caught.

You call up your lawyer.

Raling, a linguist.

I sideswiped a bunch of cars last night.

What do I do?

Had a couple too many.

It was a good evening.

Besides that part, at that point, I mean, that's privileged.

I think the only time that would not be privileged is if you say during that court, like during the conversation, I can't be your attorney anymore.

But I don't know why you'd say that for that.

The things that you learned up until that time.

I can't be your lawyer.

Yeah, but after you say that, then it closes the door if he continues and then go on a rant.

No, no, no, please.

Like, I. I still think that would be privileged.

I would hear the side of.

That's privileged.

Okay.

I. I don't see the issue with it, though.

Well, here's what.

Here's what happened in the case that.

Or in this hypothetical we're talking about.

Lawyer calls up the local Roscoe P. Coltrane.

You know who that is?

No.

All right.

Calls up the.

It's pathetic.

The lawyer calls up Roscoe P. Coltrane from the Dukes of Hazzard or your version of that in your local police department and says, hey, Officer Smith or Sergeant Flanagan, I'm representing Troy over here, and he had a rough night.

He wants to make it right.

He just wants to.

You know, he's got insurance.

He's going to call, you know, just tell these people who he is, and we'll get this all worked out nice and neat and a tidy bow.

Officer Flanagan hangs up, says, boy, that guy's a dummy.

Meaning a lawyer.

And he goes out to your place and arrests you for hit, Skip.

Leaving the scene of an accident, causing property damage.

And it could be worse.

You could have hit somebody.

Yeah, and then it's a real big problem, and there's no.

The lawyer had a privileged communication with the client and then divulged that communication to the police, and the police used it to charge you with a crime.

Well, that escalated quickly.

Yeah.

You're saying.

What the f. Is going on?

Lawyer.

Is that a defense?

No.

Can't Suppress it or anything?

No.

You can maybe sue the lawyer for being a dummy and malpractice and the lawyer could be disciplined.

Because when I violate an attorney, county pleros, I'm subject to the disciplinary counsel for that.

But it doesn't give you a remedy to suppress or defend the case.

That's terrible.

It's awful.

Yeah.

So it's a story I use when I used to give seminars a lot.

I would use a story like that on what you do.

Because in my line of work I get Those calls at 2 in the morning all the time.

Ring.

I just hit some.

What do I do?

There is a way to do it.

Any idea what you do?

You have them sign a waiver of the privilege and explain the strategy.

No.

Look, just because he signed the waiver of the privilege, I'm still going to get him charged if I call up officer.

Sergeant Flanagan.

Maybe you just don't.

Can you not say the name?

You're getting closer.

So there's two things.

What you say and to whom you say it.

Maybe don't say it to the detective.

Maybe talk to the prosecutor.

Now we're getting somewhere.

All right, so here's what you do.

You call up the prosecutor's office and say, I have a client and my client wants to make things right.

Had a rough night.

This client of mine and knocked back too many beers or.

What's your drink of choice?

Jameson.

Too many Jameson.

At Lido's or Zeno's?

Lido's.

Another great place.

Lido's or Zeno's.

Last night and on the way home, he sideswiped four or five cars.

It's only property damage.

My client wants to make it right.

I don't even use pronouns.

Not even in this day and age.

I don't use pronouns.

I say client because I don't want my client to know.

I don't want the prosecutor.

No, it's a he, she, anything identifying whatsoever.

And I might not even say the night yet, might even keep that vague and ambiguous.

I say, Mr.

Prosecutor, I'm talking to you because you, Mr.

Prosecutor, have authority to negotiate with me.

Lawyer on behalf of client.

And because you have authority to negotiate deals that I cut with you, I can enforce.

The detective has no duty to negotiate.

This is why on the side of the road on tv, you see guys and say it's a dope bust.

And they're saying, hey, look, if you want to get out of this, all you have to do is cooperate.

And they cut a deal with a detective and everything Works out swimmingly, not in the real world, because there is.

The detective has no authority to cut a deal.

The detective, like you make a deal with a detective and he reneges.

Guess what?

It's tough.

Punch your TS car.

As my teacher used to say.

It's your tough shit card anyway, you get it.

But there is no deals with cops.

But we can have deals with prosecutors.

In law, we call that privity.

I have a privity of contracts, so to speak, with the prosecutor.

And here's how it would play out.

I would say, Madam Prosecutor or Mr.

Prosecutor, my client wants to make this right, but I'm not going to tell you anything about my client.

What I'd like to do first is have you tell me that if I come forward and disclose this information that either A, you won't file charges or B, it'll only be a hit skip or it'll only be a failure to control or an accident, minor misdemeanor traffic thing and not a drunk driving and not a serious reckless op or nothing more serious.

I would like you to cut a deal.

And typically speaking, I get this done a lot.

Then the prosecutor, what they do on their part is they call the cops and say, look, talking to a lawyer who's got some client apparently crashed into a bunch of cars last night on Pennsylvania Avenue.

Can you confirm that one?

There is no.

Nobody got hurt.

That's the first thing they want to confirm.

Nobody got hurt.

And into.

We don't have another way to prove the case without this guy coming forward.

And in other words, there's not.

It's not on any sort of ring cameras, or there's no eyewitnesses.

We don't have a license plate or description, nothing.

And if those two things are true, and by the way, even if they have a license plate, they got to put you behind the wheel.

So if those two things are true, I can ordinarily cut a deal.

Not always, but I've done that many, many times in my career.

And I, because I have this privilege of, or this privity of contract with the prosecutor who does have authority to cut a deal and they renege on it.

Now I can enforce that.

Now I can enforce that.

And plea negotiations, if for those scholars, under the rules of evidence, are not admissible.

So if I'm negotiating with the prosecutor, those types of negotiations are protected.

And that's how you handle that situation.

Now they won't do it.

Typically, I don't even think I would try.

If, say it's a really bad accident, somebody died, if you know they're going to want to, they're going to want to prosecute you for that and they're not going to give you a pass.

But that's why they, they confirm that first.

So look, that probably wasn't exactly what my client wanted to know last night at 8 o' clock when he called me, but it's a great jumping off point for these types of discussions if you've got a situation like that you want us to discuss.

And by the way, guys, this isn't legal advice.

I can't help you with your own legal problems.

Not down here.

Upstairs I can if it's Ohio or some jurisdiction where I practice.

Check us out.

Palmer LegalDefense@palmerlegaldefense.com Contact us up there.

I can't do it down here.

I'm not giving you legal advice.

I'm just talking about fun stuff here.

So if you've got fun stuff you want me to talk about or another topic you want me to cover, go to LawyerTalkPodcast.com or leave it right here in the socials.

We'll try to get to it.