[LAW] Attorney-Client Privilege (when the attorney is the witness). How does it work?


If the prosecutor of a criminal case refuses to charge anyone unless there is a witness who can testify to criminal intent, what happens then if the only witness is the attorney of the suspected perpetrator? Does attorney-client privilege still apply?

In: 1

You would have to ask an attorney for the specifics #notlegaladvice

But in general no, an Attorney cannot be asked to testify against their own client otherwise the legal system would break down.

In many jurisdictions Attorney’s can testify but only with the written consent of the client.

> Does attorney-client privilege still apply?

it should, otherwise there is no point in having an attorney as your system clearly doesnt respect the rights of the accused.(the one exception one isaware off is if the attorney witnesses you actually commiting the crime).

> what happens then if the only witness is the attorney of the suspected perpetrator?

the prosecution needs to work harder ot build a case worthy of facing trial, most western system give the suspects the assumption of innocence.Until then it woudl be very stupid of them to go ahead with a charge.

The attorney-client privilege covers communication made by the client to the attorney for the purpose of the legal representation. It also includes the attorney’s communication to the client based on confidential information from the client, and there are exceptions like if it wasn’t made with a reasonable expectation of privacy. How useful it is to the prosecution isn’t a factor–there’s not a balancing of competing interests.

Note that this doesn’t mean your attorney can never be called to testify. For example if your attorney witnesses you committing the crime, that isn’t privileged; unlike with you confessing the crime to him, there’s no *communication*. Attorneys have an ethical responsibility not to represent clients in cases they are likely to be called as a witness on contested issues.

>what happens then if the only witness is the attorney of the suspected perpetrator?

Two things, one has already been covered by u/TheLittleLauren in which what is said, and what the attorney works on for the case, is protected by privilege. What the accused’s attorney witnessed separate or excluded from attorney-client privilege may, depending on the circumstances, still be presented in court.

Two, there may be ethical complications here for the attorney. An attorney is ethically required not to assist a crime. Attorney-client privilege exists because the accused has a right to competent defense for any allegations of a crime that threatens to seriously inhibit rights to liberty. But that is only for past offenses. Present or future offenses which involve an attorney aren’t privileged. In the interest of crime prevention, an attorney as a member of the judiciary is required to report, or at least disassociate, from potential criminal planning/occurrence.

For example, you are charged with a murder and you tell your lawyer where you buried to body for plea bargaining purposes. The prosecution can’t call on the lawyer to disclose where the body is buried. But if you ask the lawyer to help you bury the body the lawyer has an ethical obligation to warn you not to discuss that with anyone, cannot help you, and that he may be required to disclose that you asked him/her to help you move the body.

> Does attorney-client privilege still apply?

Yes it would apply. An attorney cannot for most reasons be compelled to testify against their client.