You’re about to hear some hard truth. But first, a little background.
When you’re hiring a military defense attorney or a lawyer to represent you in a civilian criminal case, you are creating one of the strongest confidentiality arrangements known to the law. When you’re seeking legal advice, and you talk privately with an attorney about your case or your history, everything you discuss is protected under the extremely strong attorney-client privilege.
The purpose behind the attorney-client privilege is simple. Society wants to encourage you (and everyone) to seek legal advice if you need it, without fear that your attorney might disclose your statements to anyone else, including law enforcement, prosecutors, or the media. This confidentiality even extends to attorneys you talk to when you’re shopping around for the right attorney; if you’re talking to them in the process of seeking legal advice, and you’re speaking with them privately, then those communications are protected regardless of whether you hire that attorney.
There are very few exceptions to this rule, and they tend to involve a client’s misuse of the attorney. For example, most people seek the services of a defense attorney because they’ve been accused of a crime that has allegedly already happened, and the person is seeking help to deal with the accusation. No problem here. The problem arises when a person seeks a defense lawyer’s advice in order to enable or aid them in planning or committing an ongoing or future crime or fraud. In such a case, a lawyer may be compelled by a judge to disclose what he or she has been told. In practicing for almost 20 years, I have never seen this actually happen.
So again, the benefit of the attorney-client privilege is that you can seek full and fair exploration of your issue without fear that your attorney is going to tell anyone else what you said. This is a HUGE advantage for a person accused of a crime. Why am I mentioning that a second time? Because now I want to help you understand the quickest way to LOSE this incredibly valuable benefit of being able to communicate fully and effectively with your lawyer.
Yep. Lying. Being untruthful. BS’ing your lawyer.
Just don’t do it. To borrow the words of Marine General “Mad Dog” Mattis, I’m begging you, with tears in my eyes. Don’t do it.
Now I am not going to pretend that I don’t understand why someone might lie to their criminal defense attorney. I do understand. I think the most common reason is the person is scared and is having a hard time trusting anybody – particularly somebody wearing a suit who works in the court system. This can be particularly true for court-appointed clients who didn’t choose the lawyer who is now representing them. Frankly, this is much more of a problem in the civilian world than in military practice, although every military defense attorney has heard a client say some sad version of, “I don’t trust you, because you wear the same uniform as the prosecutor does.” It’s heartbreakingly dumb, but it’s understandable. There also may be mental health or other cognitive problems that might make it hard for a client to understand that the ONLY person who cares about them in this process, the ONLY person who has their best interests at heart, is the defense lawyer sitting across the desk or on the other side of the partition from them.
It’s even more sad when willful ignorance or arrogance is the reason, for example, a client who thinks he’s smart enough to fool everyone, thinking that lawyers, investigators, judges, and juries will all be too stupid to figure it out. And so I hope anyone needing a defense lawyer may come to know and accept a very simple truth. A critically important truth. A truth that can save your life. The truth is this:
There is almost nothing you can do to HURT YOURSELF worse, in any criminal or court-martial case, than lying to your lawyer. Period. Full stop.
Believe it. Seriously. Believe it like your life and your liberty depends on you believing it, because it actually does. Here’s why.
Lies result in bad strategy and tactics. As a defense attorney, I have to make dozens of decisions based on what my client tells me. All kinds of decisions – how to plan the defense investigation, what witnesses to call, what kinds of motions would be effective, whether to advise the client to testify under oath at trial or to stay as far from the witness stand as possible. When I make those decisions based on the truth, everything might be fine, no matter what that truth is or how bad it is. But when I make those decisions based on a client’s lies, and then we get ambushed at trial, the consequences can very often be horribly devastating.
Lies waste time and resources. Every important claim made by any client has to be investigated, planned around, and incorporated into the overall defense of the case. If the lawyer is spinning his or her wheels running down rabbit trails for absolutely no good reason, time and effort and funds are being wasted. There is NEVER a good reason for this. All that time and effort is far better spent doing things that will have a real positive impact on the client’s case.
Lies erode and destroy trust. Unfortunately, most lies begin right away, in the first consultation with the client. Too often a client will be earnestly spinning falsehoods in that first meeting, usually to try to convince the lawyer that the client is as pure as the driven snow, is totally surprised by all of this, doesn’t know any of these people, and has no earthly idea how any of it happened. This is rarely the truth.
You might notice your lawyer taking detailed notes about what you’re saying in that initial consultation. This effort begins the lawyer’s overall perception of the case. First impressions are important in all walks of life, but particularly in the defense of a criminal case, because your lawyer will begin to have a good idea about how your judge or jury will be initially looking at things when they get their chance.
Then the client’s lie is found out. As lawyers, we tend to be pretty good at getting down to the truth, even in areas where you might not think we can. The lie will be found out. And what happens then? Well, if the lawyer is fortunate, the client will admit that he wasn’t being entirely truthful. And then the second story comes out. Is it the truth? Well, the lawyer certainly hopes it is. But way too often, after more time and effort and resources are spent, then that story too is shown to be unbelievable. And this pointless dance continues as long as the client decides he or she wants it to.
Ever heard the fable of The Boy Who Cried Wolf? Because if you have, you know how the erosion and destruction of trust can have disastrous results. I have had cases where the client has made me spin my wheels for months, only admitting the truth days before trial, when it has become far to late to plan a defense that might have been successful. Only the client is to blame for sabotaging his case, and suffering terrible consequences that might never have happened if he had simply been honest with his lawyer in the first place.
So I caution you a final time: never, ever, lie to your defense attorney. Speaking for myself, and I believe most other attorneys feel the same way, I absolutely do not care what my client may have done. Truly. I do not make moral judgments about my clients. A good lawyer’s job is to fight zealously and defend the client and his rights no matter what the truth is. And I have absolutely never broken the attorney-client privilege, and never would.
No matter what the truth is, we need to know it inside and out. There is ZERO downside to being honest in private with your attorney. None. But telling lies to make yourself look good is ALWAYS a bad, bad move.
Smart clients tell the truth to their lawyers. Dumb clients tell lies. Be smart, and help your lawyer help you.