South Carolina Criminal Defense Blog

Nebraska lawyer Terry L. Haddock wore a wire while visiting with client Shannon Williams at the Douglas County jail, allegedly allowed Williams to use his cell phone to run a drug operation and to order a hit on someone from his jail cell. (H/T Bennett, Hall, and Kennedy )

Like the tale of Frank Pignatelli, a defense lawyer who turned informant against his clients to get help on his own charges, this scenario reeks. Does it violate any ethics rules? I'm not sure - there is no duty of confidentiality in regards to an ongoing crime, and a lawyer cannot give advice to a client who is participating in an ongoing crime (this would make the lawyer an accomplice). But it does seem to violate the Sixth Amendment in a very ugly way to use the sanctity of the attorney client relationship to get evidence on a defendant.

There is no confidentiality and society has no interest in protecting the type of communications that were occurring. But society has a tremendous interest in protecting the trust between attorneys and clients, and this type of situation destroys that by creating an appearance of impropriety. If a defendant fears that his or her lawyer could be an informant working for the government or that anything he or she says is not confidential, the process breaks down.

When I talk to my clients, I need to know the truth and I need my client to trust that I am not going to sell them out. If they start telling me about an ongoing criminal enterprise, then I have to stop them and remove myself from the situation but I still am not going to reveal their confidences. The lawyer who participates in this, like Pignatelli, probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?