In a TV drama, when a lawyer reveals a secret to an organized crime client, say, a member of a biker gang, it makes for a great episode or maybe even a great season. It gets you ratings and renewal.
In real life, when a lawyer reveals a secret to an organized crime client, say, a member of a biker gang, it makes for great TV news — because the lawyer and client get indicted. Recently a San Jose, CA criminal defense lawyer known for defending Hells Angels clients was indicted by a federal grand jury for obstruction of justice and lying to a federal agent.
The Government says the lawyer became aware of federal grand jury proceedings about the client-gang; the lawyer found out that a series of coordinated raids and warrants against the client-gang was in the offing, and the lawyer tipped off the client about the raids. The tipoff didn’t work; everyone got raided, caught and charged. And because grand jury proceedings are secret, the lawyer got indicted, too, for revealing information about the grand jury proceedings and then allegedly denying it when interviewed by federal agents.
The ethical line-crossing by the lawyer may seem obvious, and a good general rule is to act on information a client brings you, not to be a conveyor of information to a client, especially when telling a client would violate the law. But it’s not all black and white in this or similar situations. For example, if a lawyer acquires information lawfully about an ongoing investigation of a client, and to tell the client would violate no law, presumably the lawyer can tell the client about it. The key is what exactly the lawyer does with the information:
-if in response to lawfully acquired information you tell the client to do something unlawful, like destroy evidence, that’s a no-no.
-if the client tells you she is going to destroy evidence and you say nothing, your silence will be a no-no, and worse if you get caught, because you’ll have tried to be clever. State Bar and law enforcement investigators love going after lawyers who think they’re “all that and a bag of chips.”
-if the lawyer takes the information and directly or indirectly passes information on to anyone but a defense investigator or the client, the lawyer may be unleashing a third-party loose cannon who could end up, to quote Apocalypse Now, “giving the whole circus away,” as in, an outsider who tries to help but who ruins everyone’s lives.
It’s a bind, to be sure, when you as a lawyer have information you can’t or shouldn’t share with a client. And if your client is an organized crime figure, he or she may not be too understanding when they find themselves on the wrong end of an indictment and they discover that you withheld information they think could have helped them. In that situation, getting fired may be the least of your worries.
That’s why if you’re going to do business with criminal syndicates, I recommend (a) frequent communication and disclosure about your ethical obligations, and (b) a fully fueled and very fast motorcycle, accessible the moment you need to leave town, if your client thinks you should have obstructed justice to try and help them.