Trying to figure out a potential problem:

Defendant is arrested and is sitting in jail. Defendant's wife wants a divorce from him and has her own attorney. That attorney goes to the jail and talks to defendant. Wife wants defendant to authorize her attorney (under Power of Attorney) to take his property out of jail (i.e. wallet, credit cards). Defendant agrees and signs a power of attorney.

While at the jail, wife's attorney talks to Defendant about his criminal cases. Defendant confesses to those crimes. That attorney is willing to testify as to the defendant's admissions.

Does anyone see a problem or argument to be made that somehow there was some type of privilege or atty/client communication? Want to know if the testimony could be barred from admission. Thanks.

quote:

---

While at the jail, wife's attorney talks to Defendant about his criminal cases.

---

I can just about guarantee that even if the attorney disclosed that there was no way s/he could represent the defendant due to the obvious inherent conflicts (in that the attorney can use what the defendant said against him in representing the wife in the divorce as well), the defendant will come into court with his new bad-a$$ defense lawyer somehow believing that he entered into a privileged attorney-client communication with that attorney when the evidence of his admissions is presented.

The privileged communication must be for purposes of legal advice, and there's no requirement that the attorney ultimately represent him, so if D is seeking legal advice in that conversation, AT ALL, even if the attorney can't represent him due to the conflict, I think the privilege applies. It really depends on what was said, and whether it can be shown that the defendant was just having a conversation (as though to a cellmate) or was actually seeking advice on his criminal case from this lawyer.

Good luck!!

I agree with Flowergirl. I think the court's will look to what was in Defendant's mind when he had the communication, and surely by now some jailhouse lawyer has told him how he should recall the encounter. Sounds risky to me. Very risky. The power of attorney deal just makes a claim that an attorney client relationship had been created, at least for the limited purpose of consultation.

Very risky.