WEBVTT - How Attorney-Client Privilege Works 0:00:01.120 --> 0:00:04.560 Welcome to Stuff You Should Know from How Stuff Works 0:00:04.600 --> 0:00:13.200 dot Com. Hey, and welcome to the podcast. I'm Josh 0:00:13.240 --> 0:00:16.319 Clark and there's Charles W. Chuck Bryant, and this is 0:00:16.360 --> 0:00:22.919 Stuff you Should Know Flying Solo Edition. I was gonna 0:00:23.000 --> 0:00:26.520 not say anything and just see if anyone out there 0:00:26.520 --> 0:00:29.280 would think I just wasn't here at all. It's just me, everybody. 0:00:29.360 --> 0:00:35.839 If you be like god, no, no, and cares. I 0:00:35.880 --> 0:00:38.280 don't know about that. Man. Do you remember how berserk 0:00:38.400 --> 0:00:42.320 everyone went with that one jokey three D printer April 0:00:42.360 --> 0:00:47.600 Fool's episodes? Yeah, poor Ben. No. People were very respectful 0:00:47.680 --> 0:00:49.519 to Ben. They were like, Ben, I really like you, 0:00:49.560 --> 0:00:54.520 but this is a travesty, all right, So this is 0:00:54.560 --> 0:00:57.480 a pretty relevant topic. Oh wait, hold on, will you 0:00:57.520 --> 0:01:01.120 indulge me real quick? Sure? Speaking of Ben, so so 0:01:01.360 --> 0:01:02.920 just I want to give a shout out real quick. 0:01:02.960 --> 0:01:06.120 Ben and I worked on a How Stuff Works first 0:01:06.560 --> 0:01:12.720 ever fiction podcast called The Control Group, and it's out. 0:01:12.800 --> 0:01:15.160 The first five episodes are out and maybe by the 0:01:15.200 --> 0:01:18.160 time this comes out, will be releasing the last five 0:01:18.240 --> 0:01:21.559 once a week. Um. And it's pretty good. It's set 0:01:21.600 --> 0:01:27.080 in the sixties, It's it takes place in a mental asylum. Uh, 0:01:27.120 --> 0:01:29.960 and there's a doctor who is running the show who 0:01:30.080 --> 0:01:34.520 is under the encouragement of a very shady organization, a secretive, 0:01:34.600 --> 0:01:38.240 shady organization, starting to really go off the rails and 0:01:38.319 --> 0:01:42.959 lose his ethics and immorality. It's pretty engrossing. It's a 0:01:43.000 --> 0:01:48.200 really engrossing yeah, for sure. It's an engrossing radio drama basically. Yeah. 0:01:48.240 --> 0:01:53.320 So yeah, if you like our mk Ultra podcast episodes, uh, 0:01:53.480 --> 0:01:55.760 then this is kind of right up your alley for sure. 0:01:55.840 --> 0:01:59.720 And it's really really well done. The acting is top notch, 0:02:00.200 --> 0:02:03.360 music is really great to sound effects are great. Really 0:02:03.480 --> 0:02:06.240 sucks you in. So go check it out on iTunes 0:02:06.720 --> 0:02:10.399 the Control Group and um, if you like it, leave 0:02:10.480 --> 0:02:13.639 a nice review maybe if you want whatever, even if 0:02:13.639 --> 0:02:16.000 you just go and enjoy it, that's all I'm asking 0:02:16.000 --> 0:02:19.360 you to do. Agreed. Okay, thanks for indulging me. Charge. 0:02:20.320 --> 0:02:25.520 So we're moving on to attorney client privilege, which is 0:02:25.560 --> 0:02:31.480 something that I knew just about everything about. It turns out, yeah, 0:02:32.120 --> 0:02:34.000 because there's not that much to it. I mean, there's 0:02:34.040 --> 0:02:37.600 some nuance here there, but basically everybody knows what it is. Yeah. 0:02:37.639 --> 0:02:40.440 But here's the thing. There is nuance because our legal 0:02:40.440 --> 0:02:44.040 system here in the United States and in Canada um 0:02:45.360 --> 0:02:49.560 are very much based on precedent and legal precedent, and 0:02:49.680 --> 0:02:53.480 attorney client privilege. Privilege is not It's not something that 0:02:53.560 --> 0:02:56.680 was laid out in the Constitution. So it's something we've 0:02:56.680 --> 0:03:03.080 had to formulate over the years, uh, through precedent on 0:03:03.120 --> 0:03:06.000 prior cases to kind of figure out all the nuances 0:03:06.040 --> 0:03:08.720 that you were talking about. That's right, it's just since 0:03:08.760 --> 0:03:11.360 it comes from English common law, that means it's a 0:03:11.480 --> 0:03:15.560 very old custom. But since, like you're saying, it's not 0:03:15.680 --> 0:03:17.960 enshrined in the Constitution, you can't point to and be like, 0:03:18.000 --> 0:03:20.640 here are the rules of attorney client privilege. You have 0:03:20.720 --> 0:03:23.600 to work it out through court cases over the years. Yeah, 0:03:23.600 --> 0:03:26.040 should we talk about that very first one or the 0:03:26.240 --> 0:03:29.040 very first one that mattered? Yeah, for sure. And do 0:03:29.080 --> 0:03:32.639 you remember this story from the Revenge episode we did? 0:03:33.080 --> 0:03:36.160 Was that where this was okay, Yeah, it did smack 0:03:36.200 --> 0:03:39.280 of something that I had heard before. Pretty fascinating, So 0:03:39.400 --> 0:03:41.440 so tell it to them, all right, So this is 0:03:41.480 --> 0:03:44.840 seventeen forty three, and prior to this there had been 0:03:44.880 --> 0:03:47.480 references to an attorney client privilege, but it's all here 0:03:47.560 --> 0:03:52.560 that only fourteen reported decisions on this predate, Uh, this 0:03:52.680 --> 0:03:55.680 seventeen forty three K. So it wasn't something trotted out 0:03:55.680 --> 0:04:03.120 there a lot, but uh Annestlely the and Glessia I 0:04:03.160 --> 0:04:08.440 would say, anglesey anglese really yeah, I guess you could 0:04:08.440 --> 0:04:13.400 pronounce it, and Glessia Huh it's Anestley Jennifer Aniston versus 0:04:13.440 --> 0:04:17.480 Julio Iglesias. Well, regardless of it's let's just say a 0:04:17.600 --> 0:04:22.159 v A is a very pivotal trial because it pitted. 0:04:22.400 --> 0:04:25.479 This is a story of inheritance. When there was a 0:04:25.480 --> 0:04:29.640 man named Arthur who died and his brother Richard said, 0:04:29.680 --> 0:04:33.600 you know what I'm due to inherit this estate because 0:04:33.839 --> 0:04:38.800 my brother didn't have any kids more. But it was 0:04:38.920 --> 0:04:42.719 very inconvenient. When someone named James showed up and said, no, no, no, 0:04:43.440 --> 0:04:46.120 I am his long lost son and rightful heir, he 0:04:46.200 --> 0:04:50.039 said waw. And that's where the story kicks off. Right. 0:04:50.080 --> 0:04:54.440 So James, it turns out, was very much telling the truth. Um, 0:04:54.560 --> 0:04:59.200 he says, not only is this guy a jerk, he 0:04:59.240 --> 0:05:02.160 knows full well that I'm the rightful heir because he 0:05:02.240 --> 0:05:04.000 got rid of me when I was a mere twelve 0:05:04.040 --> 0:05:07.480 year old pup growing up in England. All of a sudden, 0:05:07.520 --> 0:05:10.680 I found myself kidnapped. Suddenly. This is like um uh 0:05:11.000 --> 0:05:15.760 Robert Louis Stevenson book, right. So he's kidnapped and sent 0:05:15.800 --> 0:05:19.080 off to Delaware to live as an addentured servant for 0:05:19.279 --> 0:05:22.520 thirteen years. Yeah, which might as well have been Siberia 0:05:22.560 --> 0:05:26.880 at the time, exactly, I mean still kind of. And 0:05:27.120 --> 0:05:30.280 he's working it off as a like. He just basically said, 0:05:30.320 --> 0:05:32.960 this is my fate. So he worked for thirteen years 0:05:33.000 --> 0:05:36.080 as an addentured servant and worked it off and made 0:05:36.160 --> 0:05:38.960 his way down to Jamaica at age twenty five, and 0:05:39.000 --> 0:05:42.360 then made his way back to England to claim as inheritance. 0:05:42.400 --> 0:05:46.120 So he shows up and his uncle Richard, who was 0:05:46.200 --> 0:05:50.240 the Earl of Well and Glessia or angle Sea, one 0:05:50.240 --> 0:05:53.640 of the two, and um, he said, he said, this 0:05:53.680 --> 0:05:57.520 guy is a fraud. I'm the rightful heir. So first 0:05:57.520 --> 0:05:59.880 of all, Richard thinks he got rid of this kid forever. Now, 0:06:00.000 --> 0:06:02.200 all of a sudden, the kids shows up and he 0:06:02.240 --> 0:06:06.120 does another even dastardly thing and frames him for murder. 0:06:06.160 --> 0:06:09.520 I guess yeah he was. There was this accident that 0:06:09.640 --> 0:06:13.960 happened and Earl got his attorney, one John Gifford, to 0:06:14.400 --> 0:06:17.760 kind of go for a murder prosecution even though he 0:06:17.880 --> 0:06:20.560 knew that the death was an accident. So, like you said, 0:06:20.600 --> 0:06:22.080 he sort of framed it up in such a way 0:06:22.400 --> 0:06:24.320 that he could really get rid of this kid now 0:06:24.360 --> 0:06:27.800 a young adult, and even said in pre trial hearings 0:06:28.200 --> 0:06:30.440 of his nephew he would give a ten thousand pounds 0:06:30.480 --> 0:06:33.640 to have him hanged. And how this all relates back 0:06:33.680 --> 0:06:37.280 to attorney client privileges is that, like we said, Gifford 0:06:37.320 --> 0:06:40.360 was his attorney and was sort of in on this thing, 0:06:41.120 --> 0:06:45.599 and when it all came out, the attorney was the 0:06:45.600 --> 0:06:48.800 one the only person really that could give testimony that 0:06:48.920 --> 0:06:55.320 this happened. And uh, the original Uncle Dick said no, no, no, 0:06:55.360 --> 0:06:58.280 this is attorney client privilege. This is protected, and it 0:06:58.279 --> 0:07:00.839 would violate that. It into all the way to to 0:07:01.080 --> 0:07:03.839 uh to court and they said, no, no, no, that's 0:07:03.920 --> 0:07:06.200 that's not the case. I'm sorry to tell you. Yeah, 0:07:06.279 --> 0:07:10.679 because uh, Annesley Um argued that or his lawyer argued 0:07:10.720 --> 0:07:14.680 that Um these other things, the kidnapping that the lawyer 0:07:14.720 --> 0:07:18.720 helped arrange them, the statement about how we would have 0:07:18.800 --> 0:07:21.800 him hanged for ten thousand pounds, that had nothing to 0:07:21.840 --> 0:07:24.520 do with the inheritance, and what we were talking about 0:07:24.560 --> 0:07:28.320 here was the inheritance, and thus that shouldn't be protected 0:07:28.400 --> 0:07:32.120 communication between the client and his attorney. And the court said, 0:07:32.320 --> 0:07:34.760 you know what, I don't even care what you just said. 0:07:35.240 --> 0:07:37.840 This story is so bonkers and that guy is so 0:07:38.080 --> 0:07:41.040 patently evil. I'm going to rule in favor of you. 0:07:41.320 --> 0:07:45.960 And the first ruling, the first major clear concise ruling 0:07:46.080 --> 0:07:51.640 on attorney client privilege, was registered in seventeen forty three. Right, 0:07:51.800 --> 0:07:55.080 So the whole idea behind any attorney client privilege is 0:07:55.160 --> 0:07:57.760 to give you the assurance as a client that you 0:07:57.800 --> 0:08:01.960 can speak to your attorney in private, and that's very key, 0:08:02.240 --> 0:08:05.920 as we will find out later, in private without fear 0:08:06.800 --> 0:08:10.880 that they will then use that information against you somehow, 0:08:11.320 --> 0:08:14.520 or that that information can be extracted from them under 0:08:14.560 --> 0:08:18.080 threat of say jail time or something. Yeah, exactly. And 0:08:18.200 --> 0:08:20.920 it's um It's defined pretty well in this other article 0:08:20.960 --> 0:08:24.200 you sent. It's where legal advice of any kind it's 0:08:24.240 --> 0:08:27.720 sought from a professional legal advisor uh in his or 0:08:27.720 --> 0:08:31.240 her capacity. As such, the communications relating to that purpose 0:08:31.320 --> 0:08:34.080 made in confidence by the client are at his or 0:08:34.080 --> 0:08:38.720 her instance, permanently protected from disclosure by the client or 0:08:38.720 --> 0:08:42.680 by the legal advisor, except the protection be waived. Yeah, 0:08:42.720 --> 0:08:44.720 and that's I mean, that's a pretty big mouthful. But 0:08:44.800 --> 0:08:47.880 what it's basically saying is that if you commit a 0:08:47.880 --> 0:08:51.080 crime or committed tort, which is basically a civil a 0:08:51.120 --> 0:08:53.520 civil act against somebody that they can sue you for 0:08:54.480 --> 0:08:56.680 if you if you commit either one of those, and 0:08:56.720 --> 0:08:58.640 you say, oh god, I need a lawyer, and you 0:08:58.679 --> 0:09:01.000 go to a lawyer and say a I want you 0:09:01.040 --> 0:09:03.920 to be my lawyer, and the lawyer says, okay, go ahead, 0:09:04.160 --> 0:09:07.920 and you start talking, say you tell them everything. You 0:09:08.000 --> 0:09:11.760 admit to guilt, You admit to everything. It doesn't matter 0:09:11.800 --> 0:09:15.480 what you've admitted to. That that speech, that communication, that 0:09:15.559 --> 0:09:21.200 conversation is to stay between you and your lawyer forever, 0:09:21.800 --> 0:09:25.520 even after your death. They've ruled, as we'll see, and 0:09:25.559 --> 0:09:28.280 that you, the client, are the only person who can 0:09:28.360 --> 0:09:32.640 waive that right, that privilege of that communication, so that 0:09:32.679 --> 0:09:35.000 your lawyer has to take it to their grave even 0:09:35.040 --> 0:09:38.120 after you're dead, as long as you say I as 0:09:38.200 --> 0:09:41.040 long as you never wave that right. Yeah, and that's 0:09:41.080 --> 0:09:43.200 what you just said, would satisfy one of the four 0:09:43.240 --> 0:09:47.320 basic elements necessary here, which is one. It was a communication, 0:09:48.000 --> 0:09:51.040 uh too, it was made between the privileged persons, that 0:09:51.200 --> 0:09:54.680 is you and the attorney. It was made in confidence. 0:09:55.280 --> 0:09:57.840 And this one's really important. It's for the purpose of 0:09:57.880 --> 0:10:03.000 seeking or obtaining a legal assistance. So it's you can't 0:10:03.080 --> 0:10:05.120 It doesn't count if you go to your pal who's 0:10:05.160 --> 0:10:08.319 a lawyer and ask them for legal advice. If you're 0:10:08.360 --> 0:10:11.400 not retaining them for their services, that's a big one. 0:10:11.559 --> 0:10:14.440 That's a really big one. Even if you do go 0:10:14.600 --> 0:10:17.240 to a pal and retain them as a lawyer officially, 0:10:17.360 --> 0:10:19.160 or even if your lawyer is not your pal and 0:10:19.160 --> 0:10:22.120 you retain them as a lawyer. If you say I 0:10:22.240 --> 0:10:24.760 committed this crime, I need your help to cover it up, 0:10:25.400 --> 0:10:29.400 that's not protected either. Correct. You also can't go to 0:10:29.440 --> 0:10:32.679 your lawyer and say, um, hey, i've been thinking that 0:10:32.720 --> 0:10:35.080 we could come up with a pretty great real estate 0:10:35.120 --> 0:10:38.640 scam with your lawyering skills and my my scamming skills. 0:10:39.120 --> 0:10:41.960 Let's come up with something that would not be protected 0:10:42.000 --> 0:10:44.520 either because it's a crime. It's you're planning a crime. 0:10:44.520 --> 0:10:46.920 Either planning a crime or covering up a crime. You 0:10:47.040 --> 0:10:50.720 just lost your your privilege, your attorney client privilege. All right, 0:10:50.760 --> 0:10:52.599 should we take a break? I think so that's a 0:10:52.640 --> 0:10:54.560 good little overview, and we'll come back and talk about 0:10:54.559 --> 0:11:22.760 all the ins and outs right after this. Alright, Chuck, 0:11:22.840 --> 0:11:26.120 so we're back. We're talking about some ins and outs, yeah, 0:11:26.200 --> 0:11:28.840 and and and exceptions. And you you mentioned one that 0:11:28.880 --> 0:11:31.080 you would probably that would probably fall under the crime 0:11:31.120 --> 0:11:36.120 fraud exception. Uh. And again that's the in our own article. 0:11:36.200 --> 0:11:39.000 The thing they reference here is like, hey, let's set 0:11:39.040 --> 0:11:43.160 up a phony company UM as a front. Can you 0:11:43.200 --> 0:11:45.800 help me do that as an attorney? Right, then there 0:11:45.880 --> 0:11:50.320 is obviously no protection there attorney client privilege, right, or 0:11:50.360 --> 0:11:53.040 I want you to go make this bribe to an 0:11:53.040 --> 0:11:56.280 elected official or whatever. It doesn't matter what it is. 0:11:56.320 --> 0:11:59.200 If it's if it's on the law books as a crime, 0:11:59.280 --> 0:12:02.880 you're you just lost your privilege. Yeah. And another way 0:12:02.880 --> 0:12:07.240 it can get gray too is if UM lawyers do 0:12:07.280 --> 0:12:09.959 a lot of things for people, it's not always providing 0:12:10.040 --> 0:12:12.800 legal counsel. So this is where it can get a 0:12:12.840 --> 0:12:15.640 little little hinky on both sides. You can have a 0:12:15.679 --> 0:12:20.280 communicative act, but uh, as they say in our article, 0:12:20.320 --> 0:12:23.280 business is business and the laws the law. Right. You know, 0:12:23.400 --> 0:12:26.680 it's only pertaining to legal matters, not if your attorney 0:12:26.720 --> 0:12:28.920 is doing some sort of business deal for you, right, 0:12:29.000 --> 0:12:32.560 And that really comes in play more for corporate law, 0:12:32.960 --> 0:12:36.120 which is they're really big into attorney client privilege because 0:12:36.160 --> 0:12:39.560 they're frequently letting their clients or their attorney in on 0:12:40.240 --> 0:12:45.880 um tax evasion, UM, maybe selling knowingly selling tainted products, 0:12:46.559 --> 0:12:48.640 or even like on the more innocent end of the 0:12:48.640 --> 0:12:55.360 spectrum like trade secrets UM, intellectual property secrets there, and 0:12:55.520 --> 0:12:59.319 a business attorney will have a lot of knowledge about 0:12:59.400 --> 0:13:03.040 their come any or their clients business that you just 0:13:03.080 --> 0:13:05.640 don't want them going and spilling the beans, even in 0:13:05.760 --> 0:13:10.760 open court. Right, So that but that's where you want it. 0:13:11.400 --> 0:13:13.520 You want that very much if you're a company with 0:13:13.559 --> 0:13:16.199 your corporate lawyer. But in the same time, as far 0:13:16.280 --> 0:13:19.320 as the courts have said over the years, that's very 0:13:19.400 --> 0:13:23.640 very murky because what constitutes legal advice what constitutes business advice. 0:13:23.800 --> 0:13:27.199 Sometimes it's clear, you know, like what's our what is 0:13:27.240 --> 0:13:30.920 our legal implication for this tax evasion that we just 0:13:30.960 --> 0:13:35.119 found out our accounting department did that would be protected 0:13:35.720 --> 0:13:39.960 not um uh, I don't know. Help us, help us 0:13:39.960 --> 0:13:44.200 figure out some ways to evade our taxes or even 0:13:44.240 --> 0:13:47.200 even beyond that, even legal ways. Help us figure out 0:13:47.240 --> 0:13:50.480 some legal ways to evade our taxes that might not 0:13:50.520 --> 0:13:53.559 cut muster because that's more business than law. You could 0:13:53.600 --> 0:13:57.040 make an argument, yeah, and and likely like I said earlier, 0:13:57.040 --> 0:13:59.000 it can get super gray as too far as far 0:13:59.040 --> 0:14:02.360 as whether or not you have obtained the services of 0:14:02.400 --> 0:14:04.800 an attorney, because this can come about in a lot 0:14:04.840 --> 0:14:07.320 of ways. Uh, Like if you have to you're trying 0:14:07.360 --> 0:14:10.360 to prove this in court, you can bring an engagement letter, um, 0:14:10.480 --> 0:14:12.880 some sort of contract that you've signed the outlines fees, 0:14:13.840 --> 0:14:18.000 or just the relationship. It can be an oral agreement, UM, 0:14:18.040 --> 0:14:20.920 as long as it's you know, both sides are acknowledging 0:14:20.960 --> 0:14:24.080 that it could be that they have appeared for you 0:14:24.160 --> 0:14:26.680 in court. Um, like you you know you don't go 0:14:26.720 --> 0:14:29.080 to court that first day, Like your attorney goes on 0:14:29.120 --> 0:14:32.600 your behalf and like file some something for you in court, 0:14:33.240 --> 0:14:37.080 some sort of document. Then that is an official expressed acknowledgement. 0:14:37.240 --> 0:14:39.720 So there are all kinds of ways that you can 0:14:39.760 --> 0:14:42.120 have an attorney officially represent you. But it has to 0:14:42.160 --> 0:14:45.000 go beyond just sitting in a room and saying like 0:14:45.120 --> 0:14:47.400 I could use a little advice, like you have to 0:14:47.480 --> 0:14:51.360 agree that you're engaging one another, right, um, So are 0:14:51.720 --> 0:14:54.760 non legal legal advice to you. That is not legal 0:14:54.800 --> 0:14:56.880 advice in any way, shape or form. Is if you 0:14:56.960 --> 0:14:59.680 ever hire a lawyer, doesn't matter what kind of lawyer 0:14:59.680 --> 0:15:02.880 it is. Before you tell them anything, say I would 0:15:02.960 --> 0:15:05.240 like to take you on as my lawyer. Will you 0:15:05.280 --> 0:15:07.760 take me on as your client? And if they say yes, 0:15:08.120 --> 0:15:11.040 everything after that is now privileged as long as you're 0:15:11.080 --> 0:15:13.320 not planning a crime, right yes, And you'll know that 0:15:13.400 --> 0:15:15.720 happens because they start a little time or on their desk, 0:15:16.680 --> 0:15:20.640 little dollar bill clinks. But even even without um an 0:15:20.640 --> 0:15:24.280 express say like an engagement letter, or even them expressly 0:15:24.320 --> 0:15:27.920 saying yes, I'm your lawyer. UM, I think courts have 0:15:28.000 --> 0:15:31.040 kind of found over the years that there are certain 0:15:31.680 --> 0:15:35.840 things that a person could reasonably expect that the the 0:15:35.960 --> 0:15:39.240 lawyer has agreed to represent them. Right Like, if you 0:15:39.280 --> 0:15:42.760 go to a lawyer that you've used before, UM, and 0:15:43.200 --> 0:15:46.800 but you aren't currently engaged with, and they start doling 0:15:46.840 --> 0:15:49.760 out legal advice because you told them your problem, the 0:15:49.920 --> 0:15:52.640 a court would probably find that you had an attorney 0:15:52.640 --> 0:15:56.360 client relationship and therefore there is attorney client privilege. UM. 0:15:56.400 --> 0:15:59.400 If they quote you fees and then follow up with 0:15:59.480 --> 0:16:03.800 some advice, I same thing. It's more just like the 0:16:03.920 --> 0:16:08.560 client can't unilaterally say we had an attorney client relationship. 0:16:08.640 --> 0:16:10.960 So this is protected that there has to be some 0:16:11.040 --> 0:16:13.160 sort of sign or signal from the lawyer as well 0:16:13.200 --> 0:16:16.880 that that there's a relationship there. Yeah, And speaking of 0:16:16.960 --> 0:16:20.840 signs or signals, uh, apparently it doesn't even have to 0:16:20.880 --> 0:16:25.000 be like a verbal communication that like you could look 0:16:25.040 --> 0:16:28.840 at your attorney and say like, well, you can ask 0:16:28.920 --> 0:16:30.720 him a question and they could just sort of give 0:16:30.760 --> 0:16:34.160 you a wink and tap their nose and that could 0:16:34.160 --> 0:16:35.760 be used in court. You know. They don't have to 0:16:35.760 --> 0:16:38.800 expressly say something out loud even no, that can't be 0:16:38.880 --> 0:16:41.280 used in court. That's protected. Yeah, that's what That's what 0:16:41.320 --> 0:16:43.680 I mean. I mean that would come up, but it 0:16:43.720 --> 0:16:46.200 doesn't have to. Yeah, I think I just confused everybody. 0:16:46.200 --> 0:16:49.160 But but yeah, you don't even have to be talking. 0:16:49.200 --> 0:16:51.360 Like if if they say did you kill that person? 0:16:51.760 --> 0:16:56.320 And you nod, that's protected community exactly, you know, um or. 0:16:56.560 --> 0:16:59.600 I think they've even found that like a um a 0:16:59.720 --> 0:17:03.360 sigh islens like a complete silence has protected communication too, 0:17:03.440 --> 0:17:07.760 because you're not you're not denying things left unsaid pretty much. Yeah, 0:17:07.760 --> 0:17:09.760 because if somebody's like, did you kill that person? And 0:17:09.800 --> 0:17:12.560 you didn't. You're gonna say, hell, no, I didn't kill 0:17:12.600 --> 0:17:14.879 that person. Get me out of this. If you're just 0:17:14.960 --> 0:17:19.199 completely silent, I think a reasonable person might take that 0:17:19.280 --> 0:17:21.880 as an ambition of guilt. But it's still a protected 0:17:21.920 --> 0:17:24.879 communication between you and your lawyer. Should we talk about 0:17:24.880 --> 0:17:30.360 people versus Meredith. I think so people v. Meredith. So 0:17:30.400 --> 0:17:33.080 this was in California nineteen seventy six and a man 0:17:33.160 --> 0:17:38.080 named Michael Meredith convinced his friend Frank Scott to uh 0:17:38.240 --> 0:17:41.640 commit a crime, which was let's jump this guy, Mr 0:17:41.720 --> 0:17:45.200 David Wade. Uh. They ended up shooting and killing him. 0:17:45.240 --> 0:17:46.840 I don't know if that was the original intent, but 0:17:46.880 --> 0:17:50.360 that's what happened. They ran for it, they got arrested, 0:17:50.760 --> 0:17:54.320 found and arrested, and then they were in jail. So 0:17:54.440 --> 0:17:58.399 Scott's appointed counsel was one Mr James Shank, and he 0:17:58.440 --> 0:18:00.040 went by to talk and they were kind of it 0:18:00.119 --> 0:18:04.240 chatting around, and uh, Scott said something about a wallet. 0:18:04.400 --> 0:18:06.640 He was like, yeah, we got the wallet from the victim. 0:18:06.760 --> 0:18:08.520 We split the money up and put it in a 0:18:08.560 --> 0:18:12.200 trash can. The lawyer then sends an investigator and actually 0:18:12.280 --> 0:18:15.240 found that wallet and took it and gave it to 0:18:15.280 --> 0:18:18.679 the cops. So obviously this was a key piece of 0:18:18.680 --> 0:18:22.440 evidence that ended up um well, I mean it ended 0:18:22.520 --> 0:18:27.400 up backfiring because his client rightfully went to prison, right 0:18:27.440 --> 0:18:30.919 but Schenk was subpoenaed and said, you're going to be 0:18:30.920 --> 0:18:34.000 found in contempt of court unless you admit like how 0:18:34.040 --> 0:18:36.240 this thing went down and how you got this wallet. 0:18:36.840 --> 0:18:39.000 And the whole key here is if he had never 0:18:39.800 --> 0:18:41.960 went and got the wallet, then it still would have 0:18:41.960 --> 0:18:45.199 been attorney client privilege. Yeah, because all he did was 0:18:46.000 --> 0:18:50.600 received information in confidence from his client. It was when 0:18:50.640 --> 0:18:55.040 he basically broke through into the real world and manipulated evidence, 0:18:55.440 --> 0:18:59.280 that's when all that just changed everything and apparently broke 0:18:59.359 --> 0:19:03.840 the broke the veil or the privilege of that communication. Well, yeah, 0:19:03.840 --> 0:19:07.520 which is rightfully so because the courts I believe this one. Yeah. 0:19:07.520 --> 0:19:10.520 I went all the way to the California Supreme Court. Uh, 0:19:10.560 --> 0:19:13.200 they ruled rightfully that you can't do this because all 0:19:13.200 --> 0:19:16.000 this is gonna do we allowed it. It would incentivize 0:19:16.400 --> 0:19:19.320 defense attorneys to go out and like try and find 0:19:19.440 --> 0:19:22.320 evidence right and collect it, and you don't want attorneys 0:19:22.359 --> 0:19:24.600 doing that, yeah, because once they collected it, it would 0:19:24.680 --> 0:19:27.800 enter the veil of privacy. And would be protected, and 0:19:27.920 --> 0:19:32.240 you couldn't. You could never discover it. Um. Similarly, though, 0:19:32.280 --> 0:19:34.120 and I think I agree with you. I think that 0:19:34.119 --> 0:19:37.480 that's just logical and sensible, Like you can't you can't 0:19:37.480 --> 0:19:42.040 allow attorneys to go do that kind of thing. Um. Similarly, 0:19:42.720 --> 0:19:47.000 just because you communicated a fact doesn't mean that the 0:19:47.040 --> 0:19:51.480 fact itself is protected from discovery, just that your communication 0:19:51.560 --> 0:19:54.199 of that fact to your lawyer was protected. So if 0:19:54.240 --> 0:19:57.320 there's other ways to find out that you did something, 0:19:57.359 --> 0:20:01.159 and this seems just boneheadedly, I've yes, but apparently it 0:20:01.240 --> 0:20:03.440 was worth spelling out and at least one of these articles. 0:20:04.040 --> 0:20:07.439 If you said, yes, I killed that person, your lawyer 0:20:07.480 --> 0:20:09.800 can't tell anybody you said that to them, But if 0:20:09.800 --> 0:20:14.200 you said that to your wife, well, and your co worker, 0:20:15.080 --> 0:20:19.480 your coworker can go can go testify against you. So 0:20:19.560 --> 0:20:21.760 it's not like the fact that you have admitted that 0:20:21.800 --> 0:20:25.440 you killed that person is protected. It's that the communication 0:20:25.520 --> 0:20:29.120 between you and your lawyer about that fact is what's protected. Right, 0:20:29.200 --> 0:20:32.400 So if it's otherwise discoverable, then it's fair game. Yeah, 0:20:32.480 --> 0:20:34.359 It's not like you can enshrine a fact with your 0:20:34.440 --> 0:20:36.560 lawyer and then it belongs to them and them only 0:20:36.600 --> 0:20:38.240 and the rest of the world can never learn of 0:20:38.280 --> 0:20:41.439 it legally speaking. That's good point. It doesn't make any sense, 0:20:41.440 --> 0:20:44.000 but I guess it was worth working out. Uh, you 0:20:44.000 --> 0:20:47.000 want to take a break, I think we shall. All right, 0:20:47.000 --> 0:20:50.280 we'll go back and talk about this extending beyond the grave, 0:21:16.800 --> 0:21:21.080 all right, Chuck. So, um, you have a relationship with 0:21:21.119 --> 0:21:24.080 your attorney. Your attorney is like ten years old at 0:21:24.119 --> 0:21:27.959 the time you hire him, and you're seventy, so you 0:21:28.000 --> 0:21:31.480 pass on before your lawyer. Well, it turns out that 0:21:31.600 --> 0:21:35.560 something comes up later on and somebody wants info from 0:21:35.560 --> 0:21:39.440 your lawyer, private info that you gave them. Your lawyer says, 0:21:39.600 --> 0:21:43.360 no way, Jose, this is covered by attorney client privilege. 0:21:43.880 --> 0:21:48.040 That is true. Yeah, because that happened very famously with 0:21:48.280 --> 0:21:52.840 Vincent Foster, who us most people know was a big 0:21:53.920 --> 0:21:56.840 h He worked for the Clintons in Arkansas. He was 0:21:56.880 --> 0:21:59.560 an attorney. He was one of their close attorneys, personal attorneys. 0:21:59.560 --> 0:22:02.800 I think, yeah. So, uh, he ended up killing himself. 0:22:02.800 --> 0:22:05.360 And if you if you have on your tinfoil hat 0:22:05.440 --> 0:22:09.480 or if you go to these conspiracy websites, then h 0:22:09.600 --> 0:22:11.960 then you firmly believe that Bill and Hillary Clinton murdered 0:22:12.000 --> 0:22:15.600 this man with their with their parents. If you're a 0:22:15.680 --> 0:22:18.440 reasonable human, you know that he fell into clinical depression. 0:22:18.640 --> 0:22:22.520 And every single investigator an investigative unit, and there were 0:22:22.640 --> 0:22:26.680 quite a few, including one Kinneth Star went out and said, yes, 0:22:26.760 --> 0:22:31.120 he definitely committed suicide. Um, all the evidence was there. 0:22:31.200 --> 0:22:34.199 So I feel like that's a spectrum you could you 0:22:34.200 --> 0:22:36.880 could be somewhere on that spectrum between those two beliefs. 0:22:37.240 --> 0:22:42.040 Oh what between thinking he killed himself and was murdered. Yeah, 0:22:42.480 --> 0:22:46.360 so he was obviously involved in the infamous Whitewater real 0:22:46.480 --> 0:22:49.639 estate deal. And when Kenneth Starr was investigating this stuff, 0:22:50.119 --> 0:22:53.679 he tried to get his hands on notes created by 0:22:53.720 --> 0:22:57.640 Foster's lawyer, and the lawyer said, no attorney client privilege, 0:22:57.880 --> 0:23:00.760 even though this man is dead, And it went all 0:23:00.800 --> 0:23:02.680 the way to the Supreme Court and they ruled six 0:23:02.720 --> 0:23:06.000 to three that it must be honored even after the grave. Yeah. 0:23:06.080 --> 0:23:08.680 I was really surprised that that was as recent as 0:23:08.760 --> 0:23:10.600 it was. I thought that that would have been a 0:23:10.680 --> 0:23:13.040 really old case that came up long ago. But yeah, 0:23:13.080 --> 0:23:17.119 that was from the nineties, so that one was established 0:23:17.160 --> 0:23:20.359 in um, well the nineties. I don't see when the 0:23:20.400 --> 0:23:24.600 actual case or when the Supreme Court ruled on it um. 0:23:24.600 --> 0:23:27.040 But that was that was one thing that was tested 0:23:27.040 --> 0:23:30.000 in court. There was another one UM that had to 0:23:30.040 --> 0:23:36.320 do with like employees giving testimony for their company. For 0:23:36.359 --> 0:23:38.879 a long time, it was if you hired, if you 0:23:38.920 --> 0:23:42.760 were a director level or a m an executive level 0:23:43.560 --> 0:23:47.520 person in a company and you were talking to corporate council, 0:23:48.480 --> 0:23:52.800 whatever communication was being made was protected. But then cases 0:23:52.800 --> 0:23:55.440 started to come up, like what if somebody from accounting 0:23:56.320 --> 0:23:59.639 was talking to corporate council about that case? Like is 0:23:59.680 --> 0:24:03.240 that for tected and um. For a long time there 0:24:03.320 --> 0:24:07.120 was this test called the control group test appropriately which 0:24:07.200 --> 0:24:11.520