A portly O.J. Simpson is challenging his recent conviction on the time-worn theory that his lawyer screwed him. The Juice is no longer running through airports, like his old commercials. He doesn’t look like he could run to the bathroom having decided to eat his way through his prison sentence for robbery and kidnapping. Now the former Heisman winner is whining that his longtime attorney, Yale Galanter, has done him wrong.
Like Connecticut’s Michael Skakel, Simpson is pursuing a petition for a writ of habeas corpus, claiming ineffective assistance of counsel at his trial. Like so many convicts before him Simpson is attempting to re-write history. He claims he was prohibited from taking the witness stand by Galanter. This, despite a thorough interrogation of him during the trial, by the judge, on the record. He joins the ranks of the “I said it but I didn’t really understand it” defendants, who will say or do anything in a desperate effort to weasel out of responsibility for their wrongs
So now he wants a redo. He wants to testify and tell a new jury that he was drunk and really didn’t know his accomplices were armed. Like Skakel, O.J. took the stand to condemn his lawyer.
As in Skakel, the Juice’s lawyer will now testify to his recollection of the events. But what about the attorney-client privilege? Aren’t lawyers required to keep their silence regarding confidential discussions with their clients? The answer is maybe!
The privilege is the core of an attorney-client relationship. In almost all instances it is as sacred as the seal of the confessional or the communications with your doctor. But there are reasonable limits on the obligation of lawyer silence.
The privilege is codified in each state’s Rules of Professional Responsibility. Different states subscribe to several different formats for their ethical precepts; but the core concepts are the same. “Rule 1.6. Confidentiality of Information: (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by subsection (b), (c), or (d).”
The rule is clear, client communications cannot be revealed, except as the rules provide. In the case of a lawyer’s competence being challenged, either in a habeas claim or a legal malpractice lawsuit, the rules change. A disgruntled client cannot mount a challenge to his lawyer’s former representation and then demand that the lawyer remain silent and not defend himself.
The rule goes on to state: “(d) A lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”
This glove may not fit any better than before. No more privilege; no longer is the lawyer bound to keep secret what the client has shared with him. Former clients make a clear choice when pursuing such a challenge: testify and the cloak of privilege is lifted. In the Juice’s case I suppose he can later claim these new lawyers never told him about this waiver of the privilege if Galanter takes the stand the reveals information O.J. would rather not hear.