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!
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.
Legal Question: If You Give a Lawyer a Dollar
This week’s question is from me watching a lot of Breaking Bad. No real spoliers below, but if you are concerned about me ruining a 12-ish year old show, by all means skip. Along those same lines, I am only on season 3, so don’t email me any spoliers please.
On to the question:
Does giving a lawyer a dollar make everything you say subject to attorney-client privilege?
While watching an early episode in Season 2, we see Saul Goodman speaking with Jesse and Walt. He’s tied up, kneeling on his knees, and tells Walt and Jesse to “put a dollar in my pocket” so they could start an attorney client/relationship thus making any meth-dealing info the pair told him subject to the attorney-client privilege.
As we watched, Paris asked whether what Saul did was necessary.
Great question, Paris! I thought I told you to use the form next time you had a question like this?! Anyway, thank you for insisting that we watch Breaking Bad. I am very much enjoying it!
Quick note: I don’t live in New Mexico. I live and practice in Texas, so I’m going to answer with references to Texas rules of evidence and professional conduct, though I’m sure New Mexico’s rules are similar. I’ll also refer to federal rules because – this may come as a surprise to you – drug-dealing across state lines is a federal offense.
What kicks off the attorney-client relationship?
Walt and Jesse didn’t even need to give Saul a dollar to start the relationship. Attorney-client privilege and confidentiality extend even between a lawyer and a person who is considering hiring that lawyer for legal work. Information given to the attorney even before money changed hands is subject to confidentiality and, without careful clarification, can inadvertently create an attorney-client relationship.
Once you and a lawyer are in an attorney-client relationship, that lawyer is subject to a LOT of responsibilities. Keeping you informed about the status of your problem, providing you with diligent and zealous representation, not having sexual relations with you (sorry!), etc. So we try our best as lawyers not to even set up that relationship in the first place, or at the very least, clarify the parameters of that relationship and when it ends as soon as possible.
This may be why your lawyer friends are hesitant to give you off-the-cuff legal advice (that and the fact that we hate it and it’s annoying and anyway you haven’t even talked to us since that freshman biology class we had together like 15 years ago and now you’re DMing us for legal advice? Really?)
But I digress.
The exchange of money is not necessarily required to begin an attorney-client relationship. Even just asking for and being provided with legal advice can possibly make the information exchanged subject to confidentiality and privilege.
That being said, it sure feels cool and clandestine to hand somebody a dollar and be like “You’re my lawyer now.” I know. It’s happened to me before. And it was cool as hell.
What is the attorney-client privilege?
The attorney-client privilege is outlined in the Texas Rules of Evidence at Rule 5.03 and the Federal Rules of Evidence at Rule 5.01. These rules say that a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client. People governed by this privilege include the lawyer, the lawyer’s representatives, and other lawyers the client’s lawyer consulted with.
In addition, the Texas Rules of Professional Conduct generally require lawyers to keep confidential any information provided to us in the course of representation or giving legal advice. In fact, the communications that are protected by the attorney-client privilege are only those that the client or attorney makes for the purposes of providing/obtaining legal services AND that are confidential.
The communications have to be confidential to be protected. If you’ve ever accompanied a friend or a family member to a lawyer’s office and the lawyer makes you wait outside in the waiting room, this is why. Having non-client third-parties in the room can waive the privilege.
This set up of confidentiality and privilege is important. If we’re going to give you competent and thorough legal representation, we need to know what we’re working with. If you’re paranoid that we could rat you out to the cops for what you tell us, you may withhold information and, in turn, we may give you bad advice.
It’s a bit like going to the doctor (by the way, lawyers LOVE equating ourselves with doctors. We can even call ourselves “Doctor” by Texas professional standards, but when a lawyer calls themselves “Doctor” most people substitute in the word “douche bag” so most of us don’t do that).
When you go to the doctor, she will listen to your symptoms then prescribe a treatment to you – either a medication or a course of action. If you don’t tell her all the other medicines you’re taking, she could inadvertently prescribe something that kills you.
We lawyers need to know allll the facts of a given situation to advise you of all the possible outcomes and courses of action available to you. That absolute honesty includes telling us about crimes you may have done. If you go confessing crimes to your lawyer, then your lawyer is called on the stand and forced to testify against you, that would eliminate the whole purpose of lawyers in the first place.
Instead, the Rules of Evidence, both state and federal, and the Rules of Professional Conduct require attorneys to keep the information our clients tell us to ourselves.
But not always.
Exceptions to the Attorney-Client Privilege and Confidentiality
So you found your Saul Goodman. You paid him his unnecessary dollar or even just asked him for legal advice, which requires him to keep your info private. But then he helps you commit a crime or series of crimes. It’s all privileged because he’s your lawyer, right? Wrong.
The attorney-client privilege is not absolute. The Rules of Evidence lay out specific exceptions to which the privilege does not apply. One of these is called the Crime/Fraud Exception. If the lawyer’s services were “sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud,” the communication is no longer privileged
Because Walt and Jesse were seeking Saul’s services, not to help them navigate having been charged with a crime, but to continue to commit those crimes and get away with it, the privilege does not apply. Walt and Jesse could not assert the privilege and keep Saul from testifying.
As recently as 2016, a pair of lawyers were required to disclose confidential information that would otherwise be protected by the attorney-client privilege in a case of tax evasion. A man had used the lawyers’ services to write a tax protest letter, appeal the results of an audit, and allegedly engage in other sneaky tax-hiding behavior to the IRS and Tax Court.
Because the lawyers’ services were used to aid the man in his tax evasion, the court required the lawyers to produce the incriminating evidence they had about their client.
In an interesting twist of loyalty, the man insisted that the lawyers continue to represent him even after they were required to reveal information about him to the Department of Justice. I would say they sound like very good lawyers, but then again, their client was sentenced to 70 months in jail for the ordeal. Who knows, maybe they were just really good friends.
As much as we love him, Saul is a serial violator of the rules of professional conduct, except the rule of confidentiality. As for his illegal behavior, of course it’s against the law. It’s also against the Rules of Professional Conduct, one of which is, basically, don’t do crime. The exact language is a little more flowery, but you tell me if it boils down to anything other than “don’t do crime.”
A lawyer shall neither “engage in conduct involving dishonest, fraud, deceit, or misrepresentation” nor shall he “commit a serious crime…or any other criminal act that reflects adversely on the lawyer’s honest, trustworthiness, or fitness as a lawyer.”
I may be a prude, but I think money laundering and/or facilitating connections between a meth cooker and meth distributor fits squarely in that definition.
Amongst other pretty obvious ethical concerns, there is also some concern about representing both Walt and Jesse. In fact, at one point, Jesse even asks Saul, “Yo, whose lawyer are you?” when Saul jumps at the chance to offer Walt a deal that he previously offered to Jesse.
It is just as important to know when someone is your lawyer as it is to know whether someone has a duty to keep your confidential information confidential, or when you as a client can assert privilege and keep your lawyer from testifying against you.
Don’t let Saul fool you – it doesn’t take a dollar for those rules to apply. And once they do, they can stop applying if your lawyer jumps into the criminal bed with you, so to speak.
Thanks for asking and for forcing me to watch Breaking Bad, babe! I am loving it!
(PS – For realskis, don’t send me spoilers because I already accidentally saw some when I was researching this, and I am actively trying to forget them so I can be surprised when I see the finale, please and thank you.)
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.