New York City? Get a Rope.

Here is a sample question from an exam I’m preparing to take on Texas criminal law. The question was provided by the authors of the exam:

In a jury trial the assistant district attorney calls the defense attorney to the stand to attempt to establish that the defendant visited the attorney at a certain time and location in order to demonstrate that the defendant was in town on the day of offense. The defense attorney:

a. May refuse to answer the questions because of attorney client privilege

b. Cannot be forced to testify

c. Can be forced to testify, but he cannot be questioned about the physical characteristics of the client during that visit, e.g. complexion, demeanor, and dress.

d. Can be forced to testify regarding physical characteristics of the client during that visit including the physical characteristics of the client such as complexion, demeanor, and dress

e. a and b 

This question invokes the “special rule of privilege” in Texas Rule of Evidence 503(b)(2):

In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. 

Where the defendant was, and his physical characteristics, are “facts that came to the lawyer’s knowledge by reason of the attorney-client relationship.” A court might order the lawyer to answer, and the lawyer might find herself in need of the strike force, but the rule of privilege is clear, and the lawyer would be violating the disciplinary rules by answering the prosecution’s questions without a court order. Not only may the lawyer refuse to answer the questions, but she must. Answer (a) is clearly correct; (b) is arguably correct as well, which would make (e) the proper answer.

That’s not the answer that the writers of the exam want, though. Here’s their answer:

d. United States v. Kendrick. 408 F. Supp. 1169 (S.D.N.Y. 1976).

There is so much wrong with that.

First, U.S. v. Kendrick says no such thing. The case isn’t about “the physical characteristics” of a client during his visit to a lawyer. It’s not even about a client visiting a lawyer. It is, rather, about a client telling a lawyer his address and the lawyer trying to protect that information based on privilege.

Second, the lawyer in U.S. v. Kendrick wins that battle: he cannot be compelled to reveal his client’s location.

Third, U.S. v. Kendrick is not decided under Texas law. The court cites Wigmore on Evidence for its definition of privilege:

The scope of the privilege, as set forth by Wigmore, has been adopted by this Circuit as follows: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” Wigmore, § 2292.

Texas’s special rule of privilege is not recognized by Wigmore, and was not at issue in Kendrick. The answer to the question would be much different under Texas law (whether it is (a) or (e) might depend on our definition of “cannot” and the intestinal fortitude of the lawyer—is she willing to be held in contempt for the sake of her client’s privilege?).

I’m about to take an exam, the authors of which apparently have no idea what they’re doing. Should this worry me?

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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26 Responses to New York City? Get a Rope.

  1. shg says:

    For those of us for whom the Southern District of New York is home, have you never seen the New Yorker’s View of the World?

    http://strangemaps.files.wordpress.com/2007/02/steinberg-newyorker.jpg

    (Irony. I posted a link in a comment. My bad.)

  2. Great catch, and one of the places Texas rules are better drafted than most. I suppose he “can” be forced to testify and he “can” do anything the test-writer says, but that doesn’t mean it is within the Texas rules. Perhaps this is a relic from multistate tests, which might be cause for even more concern.

  3. a) only if you’re the worrying type

    b) sounds like a “legal specialty” exam, which is a racket by the state bar to raise $$. Potential clients don’t care about such nonsense; why take it?

    c) ridiculous hypo. would never happen.

    d) sorry. can’t think of another smart ass answer.

    e) none of the above

    f) maybe it was a typo. I also thought the correct answer was e.

    g) all of the above

    • Mark Bennett says:

      a) I’m not.
      b) Treks to climb Everest are a racket by Nepal to raise $$. Why climb it? Because it’s there.
      c) I’ve seen it happen.
      f) I would have thought that too, except for the link to the case.

      • a)hmmmm….not sure I buy this response.
        b)but on Everest you have the view; at a legal specialty exam you only have a headache
        c)really?!?
        f)maybe they completed switched one “answer” with another, complete with case link…?

        BTW, I’m troubled by my avatar on your site…a green frog? I would have preferred blue.

      • Mark Bennett says:

        At 29,000 feet you’re not paying much attention to the view. And you might get the headache to boot, but on Everest the headache might kill you.

  4. Mr. B., the one that has something to worry about over here is the friggin client of the attorney / lawyer that doesn’t catch it and other fakeouts or exam BS. When I caught a similar issue on a Business Law exam the Professor simply smerked and said It was a trick Q. to see if we paid attention.

    The hypo client is doomed if she / he has a valid I. A. claim & the State Bar waves it due to – “I took the stand and spilled my guts due to the Qs & As on an exam.” The joke is on the clients’. Thanks.

  5. Alex Bunin says:

    “the authors of which apparently have no idea what they’re doing”

    Hopefully, they will have a sense of humor as they grade your test.

    • Mark Bennett says:

      Imagine the blog posts I’ll get out of failing the exam based on questions I got demonstrably right.

      • Alex Bunin says:

        I support your adherence to the rules of professional responsibility, despite how that might affect your score. Better to be board certified in zealous advocacy.

  6. Gideon says:

    (I’m not talking about the response they want or the correct answer to the question)

    Do you think, given the privilege, that a lawyer must and should answer if ordered by the court to do so? I’d rather face the contempt than do that.

    • Mark Bennett says:

      I think it’s a good question. A lawyer should follow lawful court orders, of course, and a lawyer may reveal privileged information if ordered to. But would the order be lawful?

      If the situation can’t be fixed on appeal—the lawyer is being ordered to let a cat out of a bag—it might be worth being held in contempt to protect the privilege (mandamus might be a better option).

      Bennett’s Rule of Laws applies: Iff* it’s worth being held in contempt to protect the privilege, do so.

      *Pronounced “if and only if.”

      • Gideon says:

        I’m imagining a scenario where you and I might think the order to reveal communications is unlawful, but the trial court determines that it is lawful and orders you to spill, as it were. There was a somewhat famous case in CT revolving around similar circumstances: This one.

      • Mark Bennett says:

        The reason we have courts of appeals is theoretically that trial courts are often wrong.

        If the Court of Criminal Appeals holds that the privilege doesn’t apply and the Supreme Court of the U.S. denies cert., I will concede the point. Ullmann did the right thing for his client, and it only cost him $100.

  7. Matthew X. Economou says:

    I doubt it will be any consolation to you, but you are not alone. I see this all the time on certain high-end information security certification exams (which Must Not Be Named). Since these certifications’ sole purpose is to get my foot in the door, I don’t feel too bad about giving the answer the test writer wants, instead of the right answer.

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