Legal Question: Can Your Lawyer Give an Interview About You?
This week’s question is from Amanda M. on Instagram. Amanda asks:
I just watched a documentary called Bodysnatchers of New York. I wondered about the defense lawyer in the documentary. In it, he recounts conversations he had with his client. Can he do that? Doesn’t that violate attorney-client privilege? The client is not dead, and he is participating in the documentary.
Great question, Amanda! First of all, this documentary is pretty pretty wild. For those interested, it covers the 2005 case of Biomedical Tissue Services which was shut down by the FDA for illegally harvesting body parts from individuals who did not consent to be harvested.
One of the people interviewed on the documentary is Mario Gallucci, lawyer for Dr. Michael Mastromarino, the mastermind of the parts-harvesting scheme. Mastromarino eventually pled guilty to body stealing, forgery, grand larceny, and enterprise corruption for harvesting over 1,600 bodies over the course of five years.
In the documentary, Gallucci speaks freely about the case, reminiscing on how he reacted when Mastromarino first approached him with the subpoena from the Kings County, New York district attorney’s office.
Throughout the documentary, Mastromarino laments what has happened and emphasizes how badly the media got his story wrong. He cries because “I really am a good person,” and says how upset he is about the version of the story that his kids heard in the news.
This footage is juxtaposed with footage of victims’ family members describing what Mastromarino did to their family member’s bodies, including selling bones and replacing them with PVC pipe. I SAID IT WAS WILD!
Can Gallucci participate in the documentary? Doesn’t that violate attorney-client privilege?
Let’s first address what the “attorney-client privilege” is exactly. It is a rule of evidence that keeps lawyers from testifying about their clients. Since Gallucci was giving an interview on the documentary, the attorney-client privilege would not apply. What would apply, however, is Gallucci’s ethical obligation not to reveal confidential client information.
The New York Professional Rules of Conduct dictate in Rule 1.6 that “A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person.”
The rule provides for a few exceptions:
If the client was informed and consented,
The disclosure is in the best interest of the client and is reasonable under the circumstances or customary in the profession, or
A few other exceptions including to prevent reasonably certain death or substantial bodily harm or to prevent the client from committing a crime.
Gallucci may have been able to participate in the documentary because Mastromarino gave his consent to have Gallucci talk on camera. Based on the poor-pitiful-me act that Mastromarino put on for the camera, he probably participated in the documentary in an effort to clear his name. Perhaps he thought letting his lawyer speak on camera would also help his crusade to repair his reputation. A swing and a miss, sir.
It could also be that nothing that Gallucci said counted as “confidential information.” One carve-out to the definition of “confidential information” is “information that is generally known in the local community or in the trade, field or profession to which the information relates.”
In his interviews, Gallucci explained that he and his colleagues were told by Mastromarino that what he was doing was perfectly legal. He also describes how Mastromarino turned himself in and what evidence the prosecutors used as the “smoking gun” that caused Mastromarino to plead guilty.
Those things would be “generally known” given how public this case was and how widely reported it had been in the media. If information is generally known, then it is not confidential and the lawyer may freely disclose it, according to the New York State Bar Association’s ethics opinions.
Gallucci also explains the severity of an “enterprise corruption charge” aka state-level racketeering. He outlines the process of DNA testing conducted in the case that sealed Mastromarino’s fate. Both of these pieces of information would fall into the other carve-out of what is not “confidential information” – that is “a lawyer’s legal knowledge or legal research.”
Although we lawyers have a duty of confidentiality to our clients, that only extends to certain information that falls under the definition of “confidential information.” If Gallucci kept his comments to publicly known details and general legal knowledge, he wouldn’t be violating his duty to Mastromarino.
Then again, Mastromarino may have given Gallucci the green-light to participate in an effort to help this real-life Dr. Frankenstein clean up his reputation. If you watch even 5 minutes of the 45-minute documentary, you’ll see that didn’t quite work.
Thanks for asking, Amanda!
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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.