I did a deep dive into attorney-client privilege and how it applies when representing multiple related clients.
Clearly, I am not a lawyer, and I understand that the law can be interpreted in many different ways. You'd probably be surprised at the arguments made over things that appear to be pretty black and white.
First, the law does allow attorney-client privilege for legal advice given to potential clients when the attorney is "acting" as an attorney and giving legal advice, even if the client does not end up hiring the attorney. There are a couple of exceptions to the rule, but in general any conversations SB had with BL, CL, & RL regarding their options is likely covered.
While representing multiple clients on the same matter is allowed, it is not encouraged. There are numerous risks to attorneys attempting to represent multiple parties, especially defendants.
ABA Model Rule 1.7 allows attorneys to represent one or more clients as long as the clients “are not directly adverse to each other” and “there is no significant risk that the representation of one or more clients will be limited by the attorney's responsibilities to another client, former client, third person or personal interest of the lawyer.”
The issue I see, and an attorney can correct me if I'm wrong, is that BL, CL & RL would not have been receiving legal advice on the same matter.
CL & RL were not on the trip. Any information they have regarding events that occurred during the trip would have come from BL and possibly GP, if they spoke to her before her passing. They are not, to my knowledge, POIs in the disappearance/murder of GP. They are not, to my knowledge, under investigation related to the disappearance/murder of GP. They are not co-defendants in the action regarding the fraudulent use of her bank card. There are no actions currently pending against CL & RL. Therefore, any legal advice they sought from SB would have been to determine the best course of action to protect themselves for any potential future charges/actions related to BL staying with them upon his return to Florida, if he had been found guilty on the pending charges and/or potential charges.
Since they were not on the trip, they could only testify to what BL told them upon his return, his emotional state, behaviors, etc. At the time the conversations were being held, there was no arrest warrant out for BL on any matter so they weren’t hiding a fugitive. According to SB, BL left for the hike prior to the arrest warrant being issued, so they truly didn’t assist him in avoiding the warrant. They directed LE to speak with their attorney soon as they were approached and handed him the reigns, thereby eliminating any obstruction of the investigation.
Any advice that BL sought would have been related to his potential involvement in the disappearance/murder of GP. Those are not the same circumstances.
If that was the extent of their involvement, then I’m not sure where criminal charges would come from. BUT SB has very clearly stated they have information, which leads me to believe they were involved in more detailed communications. He’s also stated there are things that he needs to work out with the FBI regarding CL & RL before any conversations can be had about what they know. Is it possible he put his clients in a worse situation by not telling them to seek their own counsel?
There are instances in which courts have maintained privilege in the presence of third parties when their presence is necessary and aids in the representation of the client, such as when the client is a minor child, needs assistance in communicating, lacks the mental capacity to understand what is being communicated, etc. (See Kevlik v. Goldstein, Rosati v. Kuzman).
However, in 2018, the Supreme Court of Colorado found that a recording of a meeting between a client and her attorney was not protected under the privilege “given the presence of third parties who were not reasonably necessary to facilitate the communication.” (See Fox v. Alfini).
In the matter of a Grand Jury Subpoena, the Court stated:
In Paragraph 9 & 10 of the Fox opinion, the SC stated:
BL was an adult with no apparent cognitive deficits. We see him communicating clearly with LE in the Moab videos. SB has never indicated any concern about his ability to take care of himself or make decisions. In fact, his parents trusted his judgement and thought processes so much that they weren’t overly concerned when he went on a hike in a questionable emotional state because they thought he was just clearing his mind. There’s been no indication whatsoever that he was unable to understand any conversation had with SB or anyone else. CaL gave an interview stating everything seemed fine on the camping trip and neighbors have stated they saw him cutting grass, riding bikes with his mother.
Considering the above, it doesn’t seem likely that it would be reasonably necessary for CL & RL to participate in calls between BL & SB. I think those conversations will end up coming out.
I’ve been working on this off and on and now it’s late, so I’m not sold on my proofreading. Ignore any glaring spelling or grammatical errors, I just wanted to get it posted since there’s been a lot of discussion about it
Clearly, I am not a lawyer, and I understand that the law can be interpreted in many different ways. You'd probably be surprised at the arguments made over things that appear to be pretty black and white.
First, the law does allow attorney-client privilege for legal advice given to potential clients when the attorney is "acting" as an attorney and giving legal advice, even if the client does not end up hiring the attorney. There are a couple of exceptions to the rule, but in general any conversations SB had with BL, CL, & RL regarding their options is likely covered.
While representing multiple clients on the same matter is allowed, it is not encouraged. There are numerous risks to attorneys attempting to represent multiple parties, especially defendants.
ABA Model Rule 1.7 allows attorneys to represent one or more clients as long as the clients “are not directly adverse to each other” and “there is no significant risk that the representation of one or more clients will be limited by the attorney's responsibilities to another client, former client, third person or personal interest of the lawyer.”
The issue I see, and an attorney can correct me if I'm wrong, is that BL, CL & RL would not have been receiving legal advice on the same matter.
CL & RL were not on the trip. Any information they have regarding events that occurred during the trip would have come from BL and possibly GP, if they spoke to her before her passing. They are not, to my knowledge, POIs in the disappearance/murder of GP. They are not, to my knowledge, under investigation related to the disappearance/murder of GP. They are not co-defendants in the action regarding the fraudulent use of her bank card. There are no actions currently pending against CL & RL. Therefore, any legal advice they sought from SB would have been to determine the best course of action to protect themselves for any potential future charges/actions related to BL staying with them upon his return to Florida, if he had been found guilty on the pending charges and/or potential charges.
Since they were not on the trip, they could only testify to what BL told them upon his return, his emotional state, behaviors, etc. At the time the conversations were being held, there was no arrest warrant out for BL on any matter so they weren’t hiding a fugitive. According to SB, BL left for the hike prior to the arrest warrant being issued, so they truly didn’t assist him in avoiding the warrant. They directed LE to speak with their attorney soon as they were approached and handed him the reigns, thereby eliminating any obstruction of the investigation.
Any advice that BL sought would have been related to his potential involvement in the disappearance/murder of GP. Those are not the same circumstances.
If that was the extent of their involvement, then I’m not sure where criminal charges would come from. BUT SB has very clearly stated they have information, which leads me to believe they were involved in more detailed communications. He’s also stated there are things that he needs to work out with the FBI regarding CL & RL before any conversations can be had about what they know. Is it possible he put his clients in a worse situation by not telling them to seek their own counsel?
There are instances in which courts have maintained privilege in the presence of third parties when their presence is necessary and aids in the representation of the client, such as when the client is a minor child, needs assistance in communicating, lacks the mental capacity to understand what is being communicated, etc. (See Kevlik v. Goldstein, Rosati v. Kuzman).
However, in 2018, the Supreme Court of Colorado found that a recording of a meeting between a client and her attorney was not protected under the privilege “given the presence of third parties who were not reasonably necessary to facilitate the communication.” (See Fox v. Alfini).
In the matter of a Grand Jury Subpoena, the Court stated:
“Other jurisdictions that have considered whether a parent-child privilege exists as to communications with adult children unanimously have rejected recognition of such a privilege, often expressing doubts about the privilege, or its absence, and its actual effect on parent-child communications, or have deferred to their respective Legislatures [Note 10].”
In Paragraph 9 & 10 of the Fox opinion, the SC stated:
“In response to these after-the-fact suggestions of Fox’s diminished capacity, defendants submitted records of Fox’s social media communications after her stroke and both before and after the recorded consultation took place. In these posts, Fox stated that (1) her caregivers had told her that it was as if she had never had a stroke, ‘as great as [her] nervous system and brain are,’ and ‘it’s as if nothing . . . happened’; (2) ‘I am doing well and I will make a full recovery’; and (3) ‘They told me this morning that they expect me to make a full recovery and that I am a medical mystery because my stroke symptoms seem to have disapprared [sic].’
“The district court ultimately concluded, ‘I do not find [Fox’s] capacity diminished such that the presence of her parents was necessary to assist in the representation.’ The court thus ruled that the attorney-client privilege did not protect the recording and granted defendants’ request to compel the production of that recording.”
The SC agreed with the DC’s conclusion that Fox had provided sufficient evidence to support the claim that her diminished capacity required her parents’ presence. “The district court ultimately concluded, ‘I do not find [Fox’s] capacity diminished such that the presence of her parents was necessary to assist in the representation.’ The court thus ruled that the attorney-client privilege did not protect the recording and granted defendants’ request to compel the production of that recording.”
BL was an adult with no apparent cognitive deficits. We see him communicating clearly with LE in the Moab videos. SB has never indicated any concern about his ability to take care of himself or make decisions. In fact, his parents trusted his judgement and thought processes so much that they weren’t overly concerned when he went on a hike in a questionable emotional state because they thought he was just clearing his mind. There’s been no indication whatsoever that he was unable to understand any conversation had with SB or anyone else. CaL gave an interview stating everything seemed fine on the camping trip and neighbors have stated they saw him cutting grass, riding bikes with his mother.
Considering the above, it doesn’t seem likely that it would be reasonably necessary for CL & RL to participate in calls between BL & SB. I think those conversations will end up coming out.
I’ve been working on this off and on and now it’s late, so I’m not sold on my proofreading. Ignore any glaring spelling or grammatical errors, I just wanted to get it posted since there’s been a lot of discussion about it
