December 2, 1987
A lawyer representing a criminal defendant in an appeal from a guilty plea who escaped confinement and is being held in another jurisdiction must dismiss the pending appeal upon the direction of the client.
A lawyer instructed by a client in writing to dismiss a pending appeal of a criminal conviction should dismiss the appeal even though the client may be mentally incompetent where there has been no determination, judicial or extrajudicial, regarding the incapacity.
A lawyer who has been subpoenaed to testify for a client in a trial in another jurisdiction on other charges must assert the lawyer/client privilege to any inquiry directed toward confidences or secrets of the client or impressions concerning the client's mental capacities, condition or competency as well as conclusions, opinions or legal theories of the lawyer, unless an informed waiver of the lawyer/client privilege has been given by the client.
A lawyer who has been subpoenaed to testify in a matter involving information or impressions falling within the lawyer/client privilege must assert the privilege in order to obtain a judicial ruling as to whether the information must be disclosed, unless the client waives the privilege. If the lawyer is ordered by a court of competent jurisdiction to disclose the confidential information privileged, the lawyer is ethically required to abide by the order of the court.
Conversations and communications between two lawyers who represent the same client in different matters are subject to the lawyer/client privilege to the extent that they involve confidences and secrets of the client, the lawyers mental impressions, conclusions, and opinions, or legal theories and cannot be disclosed without informed waiver by the client or upon court order.
References: MCPR DR 101(A) and (B), DR 1-102(A)(5), DR 4-101(C)(1) and (2), DR 7-101(A) and (B); CI-184, CI-386, CI-550, CI-702, CI-1055; MCR 2.302(B)(3)(a), MCR 6.125; MCL 600.001, MCL 330.2020; Schwimmer v. United States, 232 F2d 855 (CA 8, 1956).
A court-appointed appellate defender filed an appeal dealing with sentencing of the client. While the appeal was pending, the client attempted suicide several times and was transferred to a prison hospital. Shortly before the client was scheduled to be returned to the general prison population, the client escaped and remained at large approximately one month, during which time the client allegedly committed eight murders. Capital murder charges are pending in at least three other states. The client advised the lawyer by phone, letter and affidavit that the client wished to dismiss the appeal, and the lawyer agrees it is in the best interest of the client to do so.
The lawyer has been subpoenaed by the client's counsel defending one of the murder charges in another state to testify regarding the client's right to counsel while being held by the authorities. The client has never been adjudicated mentally incompetent, although the client's competency may be at issue as a defense to the various charges now pending against the client.
The lawyer asks whether the lawyer may ethically dismiss the appeal at the client's request, given the client's possible incompetency, and whether the lawyer may ethically respond under the subpoena regarding:
- Communication between the client and the lawyer concerning the appeal and the prison escape;
- Communication between the client and the lawyer concerning the client's activities while at large in other states and pending criminal/civil proceedings against the client;
- Observations and impressions of the lawyer as to the client's mental capabilities, condition and competency during the Michigan representation, and subsequent to the client's escape from Michigan, arrest and detention elsewhere;
- Communications between the lawyer and defense counsel in another jurisdiction.
MCPR DR 7-101 states:
"(A) A lawyer shall not intentionally:
"(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B)."
It is certainly a lawful objective of the client to dismiss a pending appeal. A lawyer's function is to represent the interest the client. To the extent that the directions of the client are lawful and the objectives of those directions permissible, a lawyer is duty-bound to follow them. This is especially crucial when failure to follow the client's direction may result in significant jeopardy to the client. It is not the lawyer's function to weigh the efficiency of decisions made by a client, especially when the client stands to benefit or lose from the action taken by counsel and must therefore bear the ultimate responsibility of the consequences of any material decision made.
Michigan law presumes that a defendant is competent to stand trial, and by implication can assist in the pursuit of an appeal. MCL 330.2020. Action can be taken to determine mental competency in criminal cases pursuant to MCR 6.125, which deals with trials, and by implication could apply to an appeal. The procedures set forth in statute and court rule to determine competency cannot be pursued by virtue of the client's incarceration in another state. The client might never return to Michigan since the charges pending against the client elsewhere are much more serious than those for which the client was incarcerated in Michigan.
CI-184 opined that a lawyer representing a client in an incompetency matter may make recommendations to the client with respect to the disposition of the incompetency matter, but that "the determination of a client is binding on the lawyer and if unacceptable to the lawyer, he or she must proceed to a hearing or trial or withdrawal."
CI-1055 addressed whether a lawyer is required to withdraw from representation on the request of the client, if the lawyer has good reason to believe the client is mentally incompetent. The opinion quotes with approval ABA Model Code of Professional Responsibility Ethical Consideration EC 7-12, which states in part:
"Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf causes additional responsibilities upon his lawyer . . . . If a client under disability has no legal representative, his lawyer may be compelled in Court proceedings to make decisions on behalf of the client . . . . If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client."
The substance of these opinions is that a lawyer owes an obligation to represent a mentally impaired client by exercising the lawyer's best judgment in the performance of professional services on behalf of such client.
MCPR DR 7-101(B) provides:
"In representation of a client, a lawyer may:
"(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client . . . ."
In this inquiry, the lawyer and the client agree that it is in the best interest of the client to dismiss the appeal. The client's direction is determinative, but even were that not the case, the lawyer's exercise of professional judgment on behalf of the mentally impaired client would also result in the dismissal of the pending appeal.
With regard to the subpoena, to the extent that the client waives the lawyer/client privilege and seeks to have the lawyer's testimony given on the client's behalf, the lawyer is free to testify regarding confidential matters waived. The privilege is held by the client and thus can be waived by the client. It is clear from MCPR DR 4-101(C)(1) that "confidences or secrets" may be revealed after a knowing waiver of the client's privilege upon "full disclosure" of the client's rights.
MCPR DR 4-101(C) indicates that a lawyer may reveal:
"(2) Confidences or secrets when permitted under Disciplinary Rules are required by law or court order." Emphasis added.
Therefore, if the lawyer is called as a witness the lawyer will be required to divulge such confidences or secrets as the court orders. The client would be entitled to raise any objection before the appropriate appellate court of the forum where the testimony was allowed. CI-702 provides:
"An attorney who is served with a deposition notice or subpoena seeking the production or testimony of what may be confidential information has the duty to assert the attorney/client privilege in order to obtain a judicial ruling as to whether the information should be disclosed, unless the client consents to the disclosure.
"An attorney is ethically required to abide by an issued Court Order, notwithstanding the attorney's personal aversion to the issued Order."
In accord, CI-389.
Where there has been no waiver by the client, the lawyer is required to obtain the ruling of the tribunal before whom the testimony is sought to be given, on the issue of whether privileged information should be disclosed. MCPR DR 1-102 states in part:
Failure to follow the order to the court of another jurisdiction interpreting the law of that jurisdiction as it applies to the attorney/client privilege would be unethical. Lawyers, as officers of the court, are duty-bound to follow orders entered by a court. The appellate process is available in the event of an error made by the court requiring disclosure. Questions regarding disclosure of some confidential information acting as a waiver requiring the disclosure of other information obtained in confidence including the observations of a client by his or her lawyer are governed by substantive law of the various forums where the issues may be presented. This committee does not deal with issues involving substantive law.
A lawyer's impressions concerning a client's mental capabilities, condition and competency during the lawyer's representation and the client's escape go beyond information directly given to the lawyer by the client. CI-550 states:
"The ethical standard of client/attorney confidentiality applies not merely to a matter communicated in "confidence" by the client or prepared for litigation, but also to all information concerning the client whatever its source, except as stated in DR 4-101(B) and (C). This means you may not disclose information concerning the impressions and/or observations you received about your client's capacities during the criminal representations without the client's consent after full disclosure in the absence of a Court Order."
MCPR DR 4-101(A) defines confidence and secret. Confidence is "information protected by the lawyer/client privilege under applicable law" and secret "refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." The definition of confidence refers to substantive law but "secret" is broad enough to encompass counsel's impressions of a client's mental capabilities, condition and competency.
Several opinions, including CI-389, refer to a quote from Schwimmer v. United States, 232 F2d 855 (CA 8, 1956) which states:
"The lawyer will satisfy all ethical requirements if he conforms to the final rulings and judgment of the court. We emphasize the term 'final'; in some cases, the ruling of a district or other trial judge may not satisfy either the conscience of the testifying lawyer or the interest of the client concerning whose matters the lawyer may be directed to give testimony. In such cases, it may be incumbent upon the lawyer who is so directed to testify to test the question by way of appeal as 'a matter of professional responsibility in preventing the law from being violated.'" 232 F2d 855 at 863.
It is not clear from the Schwimmer opinion whether a lawyer owes an obligation to appeal from an adverse determination requiring the waiver of the lawyer/client privilege before making a disclosure to the ordering court regarding the confidences, or whether the appeal should be carried on after the disclosure of the confidences to preserve potential error. We believe that a lawyer is under the duty to disclose confidences as ordered by a court unless an interlocutory appeal to a higher court is possible without violating the lower court's order or subjecting the lawyer to contempt of court jeopardy. The lawyer ordered to disclose confidential information is governed by the existing law of the forum where such order is issued. A lawyer need not subject him or herself to a violation of a lawful order entered by a court of competent jurisdiction or a citation for contempt to satisfy the requirements of the ethics rules.
Is communication between the lawyer and defense counsel in another jurisdiction privileged? Certainly the content of any communication, either verbal or in writing, relating to confidences or secrets would be privileged. As stated earlier in this opinion, perceptions of either lawyer concerning the client's mental capabilities, condition and competency are privileged as well.
Privileged material in connection with trial preparation is enumerated in MCR 2.302(B)(3)(a): "The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
The Rules of Civil Procedure apply equally to criminal cases unless certain exclusionary conditions are met pursuant to MCR 600.001. The analogy is clear and the privilege that pertains to a lawyer's mental impressions, conclusions, opinions or legal theories should enjoy the same protection as confidences and secrets. Therefore, the lawyer must assert the lawyer/client privilege in any inquiry regarding conversations with a client's out-of-state lawyer that touch upon those areas earlier enumerated unless there has been informed waiver by the client. The fact that a conversation occurred between the lawyers, or the date and time of the conversation might not be privileged, but the substance of the conversation is privileged.