What Information May an Attorney Disclose in a Pending Case?
It is quite common for a family member of the client to call our office and ask to discuss the case. Girlfriends, landlords and employers often also call.
The motivation behind such calls may not be benevolent concern for the person in custody at all. Such calls are often financially motivated. The ex-wife who calls may be worried about continued alimony and child support payments. The girlfriend may be pregnant with our client’s child, but seeing more than one man (one of whom is out of custody) and is calculating who to claim as the father. The landlord may be calling to find out whether to lock out the rental apartment, condo or house and find a new tenant.
The caller usually hopes to find out information about the plea bargain pending, what future work remains to be considered and performed and what our opinion is of going to trial. Some of these questions clearly seek the disclosure of privileged attorney-client information, which cannot be shared without the client’s consent.
Occasionally, a newspaper reporter will call our office. It is tempting to use the press to “try the case in the court of public opinion,” if possible.
However, regardless of the caller’s motivation, what information may an attorney share?
What to Take Away: When in doubt about what information to share with a person calling our office, we keep in mind that certain information if publicly available online concerning the charges, the date the complaint was filed and the courtroom assigned, depending upon the county in which the case is filed. We can share that information and will, but any discussion of the facts is problematic, so we try to avoid any discussion of the facts.
The caller sometimes shares information with us that is helpful toward the victim’s credibility, i.e. because the victim has a prior criminal history or history of making similar false claims. We often also learn about new witnesses. Sometimes, the caller makes a suggestion that is truly helpful, too.
However, such a phone conversation must be handled carefully, as well as politely. Anything one states to such a caller must be expected to be repeated to the client as “I called up your attorney and he told me . . .” Therefore, the tone of the conversation must be respectful, rather than patronizing or condescending.
Some criminal defense attorneys simply refuse to discuss the case with anyone but the client, but our office tries to avoid such a policy. However, when multiple family members of the client (i.e. uncles, grandparents and parents) begin calling, we often ask that the client designate just one person who they trust to share information with the remainder of the extended family.
We think that in dealing with anyone who calls us asking about the case, it is prudent to follow California Rules of Professional Conduct 5-120, although traditionally, this rule is generally understood to apply only to statements made to the press. We think it should apply to any statement made, except to the client. Rule 5-120 bars “an attorney who is investigating or litigating a matter from making an extrajudicial (out of court) statement that a reasonable person would expect to have disseminated through public communication if the attorney knows or reasonably should know that the statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”
Such a rule does not apply to the girlfriend of the client, who might speak to the attorney and then immediately call up the press to repeat what the attorney just told her. Therefore, we think that if in doubt about whether to say something, do not say it.
What can one share with others about the case? One can state the claim involved, the defense involved (without details) and unless the victim is a minor or otherwise protected from identification, the identity of the parties (named defendants, but not witnesses or victims) involved. The attorney may also disclose the residence (city only is best), the occupation and family status of the accused, as well as the date, time and location of the arrest.
The attorney may lawfully disclose the identities of the arresting and investigating officers or the agencies involved.
One can share the date of the next court hearing and the rulings on certain motions, again without too much detail.
One can tell the caller that the attorney is seeking assistance in obtaining information or evidence necessary to the case.
Lastly, while anything the client tells the attorney is generally protected from disclosure by the attorney-client privilege, there is an exception to this: the attorney may warn the police of danger concerning the behavior of the person involved, when there is a reason to believe there is a likelihood of substantial harm to another individual or the public interest.
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