# Question about how defense attorneys operate.



## ironpony (Nov 25, 2017)

For my story, the prosecution fails to make it's case and the defendant is discharged.

However, the main character becomes obsessed with the case and wants to know what really happened.  He wants to find out the truth about the defendant's guilt, which the defendant is guilty, he just was smart enough to beat the prosecution.

However, I am not sure how the main character could figure this out.  I was thinking he could break into the defense attorney's office building, and take the file on the case, and photograph the pages and then put it back and leave.  That way, he can read on what really happened, cause the defendant would have told the lawyer, what really happened and how he committed the crime, in order for the lawyer to give the client a better defense, and find holes in the case.

However, in my research, I asked a lawyer and he said that they never write down anything in their files or type anything in their computer files about that would describe their client's complicity in the crime.

I also asked someone who worked in a law firm, who is more like an office assistant and she says differently, that the guilt is written down in the files all the time, and you a person wanted to know if someone really committed murder, and if they worked in the building, all the would have to do is open the file drawer and take a peak.

But I am not sure which one is true now, and maybe it's different based on different law firms?  Does anyone know?


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## K.S. Crooks (Nov 25, 2017)

A lawyer once told me they cannot lie in court so they should never ask their client whether they did the crime, otherwise they cannot say their client didn't do it. I suppose if the client is wealthy enough the lawyer would risk being disbarred.


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## Jack of all trades (Nov 25, 2017)

K.S. Crooks said:


> A lawyer once told me they cannot lie in court so they should never ask their client whether they did the crime, otherwise they cannot say their client didn't do it. I suppose if the client is wealthy enough the lawyer would risk being disbarred.



I think you misunderstood. The question is about whether the attorney would write down the client's actual actions and/or guilt or innocence. 


To respond to the OP -- I don't personally know. It might depend on the specific attorney. Does the assistant work for one of the attorneys you asked? In other words, are the conflicting answers from the same office?


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## ironpony (Nov 25, 2017)

No I asked two different people in two different cities actually, and got both different answers.

Well the client doesn't have to tell his attorney that he committed the crime, but what if special circumstances were at play though...  For example, in my case, one of the officers testifying against the defendant is actually a crooked cop, that the defendant has evidence on and is blackmailing him with it.

It's kind of like in the movie The Departed for example.  In that movie, Frank Costello's lawyer, had collateral on Sullivan, in case Sullivan were to ever turn on him.  So in a case like that, how do lawyer's handle their client's blackmail collateral on crooked cops? 

 The client doesn't have to tell him he's guilty, but isn't the lawyer is still going to know he is guilty, if he is handling the legal side of things, when it comes to legally handling the collateral on crooked cops, right?


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## Bayview (Nov 25, 2017)

This may be a jurisdictional issue, but at least where I am, the defense lawyer can't lie to the court, nor can the lawyer allow any witnesses (including the accused) to lie.

So if the lawyer _knows_ the client committed the crime, the lawyer can't stand in court and say the client is innocent. The lawyer can still say the crown hasn't proved its case, etc., but can't flat out claim innocence. And can't allow the client to get on the stand and claim innocence.

Check the ethics of the bar association in the jurisdiction of your story. You'll get more authentic details if you limit the geographical differences.


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## ironpony (Nov 25, 2017)

Oh yeah for sure, the lawyer is not lying for my plot.  It's not like the lawyer is getting on the stand and lying about it.  But wouldn't the lawyer still need to know certain details to make a better defense?


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## Bayview (Nov 25, 2017)

ironpony said:


> Oh yeah for sure, the lawyer is not lying for my plot.  It's not like the lawyer is getting on the stand and lying about it.  But wouldn't the lawyer still need to know certain details to make a better defense?



It's a balancing act. Because it's not just a question of the lawyer getting on the stand - it's also the lawyer not claiming innocence in opening and closing statements, and not allowing the client or any other witnesses to claim innocence. So the lawyer wants to have as many facts as possible, but doesn't want to _know_​ the client committed the crime.


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## Ralph Rotten (Nov 25, 2017)

A high priced lawyer will want the client to tell them EVERYTHING.  The reason is that they have to know what the prosecution will pull out, and practice how they will answer those questions when they come up.  A lawyer cannot get ahead of the prosecution if they are kept in the dark.  Sure, your public defender may not wanna know if you really did it, but a real lawyer needs to know every detail, even the incriminating ones.  And no, they do not write some of these things down.

But the overall question originally posted makes me think of a classic writer's philosophy: Write what you know, and it sounds like you need to really research this topic.  Remember, your book will be competing with books written by real lawyers, so mebbe talk to one.  You can always offer them a plug in the appendix of your book. :|  It's not much, but lawyers have vanity too.


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## ironpony (Nov 25, 2017)

Okay thanks.  So basically if a lawyer wants to know everything in order to know what the prosecution will pull out, why would the lawyer not write it down?  I mean he has to make notes, to keep track of everything for his reference, wouldn't he?  Since the conversation is protected, it doesn't matter if anyone reads the file on the client's guilt, because it's protected, right?

As for doing research on the topic, it's why I asked.  I tried asking real lawyers, but they charge a lot just for a simple question, and the criminal attorneys I tried asking, didn't seem interested in talking to me, unless I was charged with a crime.

But I am trying to put myself in my main characters shoes.  If you want to know details of the crime, wouldn't breaking into the lawyer's files and looking at the what the client told him be a logical way to find out the truth?

Part of my plot is similar to the movie The Departed though, where the villain has recordings on his co-conspirators as collateral, so his co-conspirators don't turn on him.  Now in the movie The Departed, the villain gave the collateral recordings to his lawyer and allowed him to handle it.  So if my lawyer in my story, had incriminating recordings on his client's co-conspirators as collateral -- then where would a lawyer keep such recordings?  Is this legal, like in The Departed?


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## VonBradstein (Nov 27, 2017)

Not a lawyer, but the child of two defense lawyers.

First of all, it is naive to think that lawyers don't know their client's guilt. If that was true, if lawyers were prohibited from representing people they thought were guilty, then the majority of public defenders would be unable to work. I asked my mom once, after she defended a serial rapist, how she could live with herself (what can i say, I was nineteen) and she told me straight up that the way lawyers approach these things is that guilt or innocence is not terribly relevant because EVERYBODY is entitled to a defense. I find that kind of emotional disconnect difficult to get past personally, which is part of why I never wanted to be a lawyer.

Ralph Rotten got it right. A good lawyer will know everything about their client, including their guilt. There have been cases lawyers have turned down due to knowing the guilt of their client and having a personal objection to representing a client. Vincent Bugliosi, probably one of the best known lawyers in American legal history (and a great writer too, btw) stated he turned down multiple defense cases due to believing his prospective client was guilty. Unfortunately (or fortunately) most lawyers take my mother's approach, and the money helps.

With that in mind, it is possible that the lawyer in the OP's story _might _have something incriminating on the defendant. It is definitely unlikely due to the fact it would be extremely negligent of the lawyer to hold on to something like that (why would you?) and by law most evidence has to be made available to the prosecution anyway. So as it stands I do not think the OP's solution of breaking into the file would work.

There could be a work around though. This is where you have to engage your imagination as a writer. A possibility would be for the lawyer to be either incompetent or corrupt in some fashion. Incompetent probably doesn't work because I assume the lawyer was pretty good to win the acquittal. 

Corrupt might be workable - perhaps the lawyer is holding onto a tape of a secret confession so he can extort money from the newly-acquitted criminal later on? Alternatively you can introduce a 'lucky break'. 

How about while the main character is going through the lawyer's case files he finds something the guy's office that somehow proves guilt but that the lawyer would not have realized the significance of? I'm thinking like a personal item that the MC somehow knew had belonged to the victim and had been taken during the murder, only for the defendant to gift it to the lawyer?


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## Bayview (Nov 27, 2017)

VonBradstein said:


> Not a lawyer, but the child of two defense lawyers.
> 
> First of all, it is naive to think that lawyers don't know their client's guilt. If that was true, if lawyers were prohibited from representing people they thought were guilty, then the majority of public defenders would be unable to work. I asked my mom once, after she defended a serial rapist, how she could live with herself (what can i say, I was nineteen) and she told me straight up that the way lawyers approach these things is that guilt or innocence is not terribly relevant because EVERYBODY is entitled to a defense. I find that kind of emotional disconnect difficult to get past personally, which is part of why I never wanted to be a lawyer.
> 
> Ralph Rotten got it right. A good lawyer will know everything about their client, including their guilt. There have been cases lawyers have turned down due to knowing the guilt of their client and having a personal objection to representing a client. Vincent Bugliosi, probably one of the best known lawyers in American legal history (and a great writer too, btw) stated he turned down multiple defense cases due to believing his prospective client was guilty. Unfortunately (or fortunately) most lawyers take my mother's approach, and the money helps.



I'm not naive, and I _am _a law-school graduate (but never practised). And I think you're missing the distinction I'm making...

Lawyers may or may not know their clients are guilty. They certainly aren't prohibited from representing clients they know are guilty. But they _cannot_ ethically lie about it in court (ie. in their opening or closing statements) or allow others to lie about it (in testimony). At least in my jurisdiction, and I think in others.... yup, check out the ABA rules at https://www.americanbar.org/groups/professional_responsibility/publicatieons/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html

This means that a defense lawyer may or may not know about a client's guilt, and may or may not _want_ to know about it. A lawyer should receive a full picture of the facts of the case, _from the prosecution's perspective_, well before trial. And that's the perspective the lawyer needs to be dealing with. Trials aren't about truth, they're about discovering whether the prosecution can prove guilt beyond a reasonable doubt.

Some lawyers may want the full story from their clients, but if they get a confession of guilt they'll need to change their trial tactics to work around that. If they feel as if a client is working toward a confession in an interview they may very well try to discourage the client from confessing, or at least not record the confession in their notes.


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## ironpony (Nov 27, 2017)

Well perhaps I don't need to use the lawyer.  The only reason why I thought of it, is cause a friend suggested that it was done in the movie The Departed, where a lawyer has all the blackmail leverage on his client's co-conspirators.  The lawyer wasn't blackmailing his client, he was just handling his client's affairs that dealt with holding on to the leverage on the others.

So I thought if it worked in that movie, maybe I could use it.  But even if the client didn't hand over the leverage for the lawyer to handle, wouldn't the client still talk to the lawyer about it?  I mean in the case of my plot, one of the officers that is testifying against the defendant is actually a crooked cop and a co-conspirator in the defendant's crime.  The prosecution doesn't know this and think they have called an honest officer to testify.  But the cop is keeping out the details of his complicity and telling some lies in his statements and testimony to cover it up.

Now the defendant knows the officer is complicit with him of course.  So wouldn't he tell his lawyer "Oh by the way, one of the prosecution's witnesses, is actually complicit with me and will be lying in his statement to cover that up, most likely, but is actually on ours side, and can be used to our advantage if possible".

So wouldn't the defendant still have to tell his lawyer that?  If so, wouldn't the lawyer keep it in his notes, and the main character can still find that out, if he looks there?


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## VonBradstein (Nov 27, 2017)

Bayview said:


> I'm not naive, and I _am _a law-school graduate (but never practised). And I think you're missing the distinction I'm making...
> 
> Lawyers may or may not know their clients are guilty. They certainly aren't prohibited from representing clients they know are guilty. But they _cannot_ ethically lie about it in court (ie. in their opening or closing statements) or allow others to lie about it (in testimony). At least in my jurisdiction, and I think in others.... yup, check out the ABA rules at https://www.americanbar.org/groups/professional_responsibility/publicatieons/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html
> 
> ...



It’s not a terribly relevant point - that lawyers cannot lie to the court regarding their clients innocence - because that question would never come up and would be objected to if it did.

Good criminal lawyers are not generally ethical people. They are legal people. Do you honestly think OJ Simpson’s lawyers never had any quiet, off the record conversations referencing his guilt? I would suggest they likely did. From legal perspective it isn’t about what is known or not known but what is provable versus what can be denied. I am aware the bar has codes, but the responsibility of trying to defend somebody who is guilty makes it impossible to work to stringent ethical standards sometimes, in my opinion. I️ do think it is a bit naive to believe there are lawyers holding their ears in confidential meetings for fear of hearing anything that might sound a bit naughty.

Don’t want to hijack the thread, so if you continue to disagree let’s leave it there, if that’s all right?


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## Jack of all trades (Nov 27, 2017)

Bayview said:


> I'm not naive, and I _am _a law-school graduate (but never practised). And I think you're missing the distinction I'm making...
> 
> Lawyers may or may not know their clients are guilty. They certainly aren't prohibited from representing clients they know are guilty. But they _cannot_ ethically lie about it in court (ie. in their opening or closing statements) or allow others to lie about it (in testimony). At least in my jurisdiction, and I think in others.... yup, check out the ABA rules at https://www.americanbar.org/groups/professional_responsibility/publicatieons/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html
> 
> ...



The OP never claimed the lawyer was going to testifying, or that the accused was going to claim innocence. Your points, valid or not, are simply not relevant!

The question is, I believe, would the attorney have, in the form of written notes, the guilt or innocence of the client and the true details of what happened.

Back to the OP : I believe the attorney would probably have notes. I have no idea how detailed those notes would be. There's the possibility of someone breaking in and getting copies to be used for blackmail. That goes against the notes being detailed.

You would have to trust what the lawyers say, I guess.


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## Ralph Rotten (Nov 27, 2017)

One way to resolve the entire problem for your story is if the lawyer were disgusted in what his client did.  He's stuck representing the guy, but what if his conscience forces him to reveal some details to your hero.  They'd be fruit of the poison tree if the source were ever revealed, but that doesn't mean the hero couldn't just pretend that he discovered it on his own, never mentioning that the lawyer pointed him in the right direction (after all, the lawyer gets paid, win or lose.)

So since the lawyer knows all the dirty details, all he (or she!) needs to do is tell him which thread to tug on and the whole shirt unravels.  Y'know what I mean, Vern?


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## ironpony (Nov 27, 2017)

Well, the thing is is that the lawyer has no reason to tell the main character specifically.  He would probably go to the media and say he is disgusted with his clients actions or something.  But he doesn't know the main character hardly or would tell him.  Plus I wanted the main character to be the one to go out of his way to find out the truth, and if the lawyer tells him, it feels more like the main character is getting a freebie, plot wise.

But maybe it could work.  The lawyer is hardly a main character though, so he would have to be developed a lot more for the plot if so.  But I don't see him telling the main character specifically, rather than telling someone of a higher position.  The lawyer would probably tell the main characters superiors if he was guilt stricken but then the superiors would be ahead of the main character's game.

What I could do, is have the main character, perhaps aim a parabolic microphone towards the villain's window, and record the phone conversations the villain has, and find out what he needs to know that way.  But parabolic mics are illegal and would need to figure out how the main character could just whip one up on short notice.

How come in the movie The Departed though, the villain had his lawyer handle the blackmail evidence?  If the lawyer, was able to blackmail his client, by being in possession of it, why did the villain let the lawyer handle it and hold onto the collateral?

The O.J. Simpson case, is probably a good example though.  A lot of people believed he was innocent and a lot of people believed he is guilty and there was a controversial debate about it back then of course.

So in order to find out if he was innocent or guilty, why didn't anyone just break into the office of OJ's lawyers and take the file where they had the notes written down of what really happened?  If OJ would give specifics of his crime in order for the lawyers to build a better defense, why didn't anyone just break into the office and take the file, so they could just show the public if he was guilty or not?

Sure stealing the file would be a crime, but so many people were passionate about whether or not he was guilty, so you think someone would have taken the file to expose to the public, no?


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## Jack of all trades (Nov 27, 2017)

Maybe he could plant a listening device outside the window and jam the air conditioning unit, so it won't work, forcing the guy to open the window, so he can record conversations. Just a thought.


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## VonBradstein (Nov 27, 2017)

I think you've been given a lot of good advice beyond what you originally asked for as part of research. This isn't the place to endlessly brainstorm plots - that's your job.


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## ironpony (Nov 27, 2017)

Yep thanks. I think I will go with the parabolic microphone idea to listen in on conversations or something like that maybe, if having the info in the lawyer's file will not work.  But I don't think you have to open a window for a parabolic mic to work, cause the purpose of a parabolic mic is to be used for espionage, so it can record through a wall I think.  But I will research it, if that's a better route than the lawyer's file.


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