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How Attorney-Client Privilege Works · Stuff You Should Know

0:01
Speaker 1: Welcome to Stuff You Should Know from How Stuff Works
0:04
Speaker 1: dot Com. Hey, and welcome to the podcast. I'm Josh
0:13
Speaker 1: Clark and there's Charles W. Chuck Bryant, and this is
0:16
Speaker 1: Stuff you Should Know Flying Solo Edition. I was gonna
0:23
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0:35
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0:49
Speaker 1: but this is a travesty, all right, So this is
0:54
Speaker 1: a pretty relevant topic. Oh wait, hold on, will you
0:57
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1:01
Speaker 1: just I want to give a shout out real quick.
1:02
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1:06
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1:12
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1:15
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1:53
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2:16
Speaker 1: you to do. Agreed. Okay, thanks for indulging me. Charge.
2:20
Speaker 1: So we're moving on to attorney client privilege, which is
2:25
Speaker 1: something that I knew just about everything about. It turns out, yeah,
2:32
Speaker 1: because there's not that much to it. I mean, there's
2:34
Speaker 1: some nuance here there, but basically everybody knows what it is. Yeah.
2:37
Speaker 1: But here's the thing. There is nuance because our legal
2:40
Speaker 1: system here in the United States and in Canada um
2:45
Speaker 1: are very much based on precedent and legal precedent, and
2:49
Speaker 1: attorney client privilege. Privilege is not It's not something that
2:53
Speaker 1: was laid out in the Constitution. So it's something we've
2:56
Speaker 1: had to formulate over the years, uh, through precedent on
3:03
Speaker 1: prior cases to kind of figure out all the nuances
3:06
Speaker 1: that you were talking about. That's right, it's just since
3:08
Speaker 1: it comes from English common law, that means it's a
3:11
Speaker 1: very old custom. But since, like you're saying, it's not
3:15
Speaker 1: enshrined in the Constitution, you can't point to and be like,
3:18
Speaker 1: here are the rules of attorney client privilege. You have
3:20
Speaker 1: to work it out through court cases over the years. Yeah,
3:23
Speaker 1: should we talk about that very first one or the
3:26
Speaker 1: very first one that mattered? Yeah, for sure. And do
3:29
Speaker 1: you remember this story from the Revenge episode we did?
3:33
Speaker 1: Was that where this was okay, Yeah, it did smack
3:36
Speaker 1: of something that I had heard before. Pretty fascinating, So
3:39
Speaker 1: so tell it to them, all right, So this is
3:41
Speaker 1: seventeen forty three, and prior to this there had been
3:44
Speaker 1: references to an attorney client privilege, but it's all here
3:47
Speaker 1: that only fourteen reported decisions on this predate, Uh, this
3:52
Speaker 1: seventeen forty three K. So it wasn't something trotted out
3:55
Speaker 1: there a lot, but uh Annestlely the and Glessia I
4:03
Speaker 1: would say, anglesey anglese really yeah, I guess you could
4:08
Speaker 1: pronounce it, and Glessia Huh it's Anestley Jennifer Aniston versus
4:13
Speaker 1: Julio Iglesias. Well, regardless of it's let's just say a
4:17
Speaker 1: v A is a very pivotal trial because it pitted.
4:22
Speaker 1: This is a story of inheritance. When there was a
4:25
Speaker 1: man named Arthur who died and his brother Richard said,
4:29
Speaker 1: you know what I'm due to inherit this estate because
4:33
Speaker 1: my brother didn't have any kids more. But it was
4:38
Speaker 1: very inconvenient. When someone named James showed up and said, no, no, no,
4:43
Speaker 1: I am his long lost son and rightful heir, he
4:46
Speaker 1: said waw. And that's where the story kicks off. Right.
4:50
Speaker 1: So James, it turns out, was very much telling the truth. Um,
4:54
Speaker 1: he says, not only is this guy a jerk, he
4:59
Speaker 1: knows full well that I'm the rightful heir because he
5:02
Speaker 1: got rid of me when I was a mere twelve
5:04
Speaker 1: year old pup growing up in England. All of a sudden,
5:07
Speaker 1: I found myself kidnapped. Suddenly. This is like um uh
5:11
Speaker 1: Robert Louis Stevenson book, right. So he's kidnapped and sent
5:15
Speaker 1: off to Delaware to live as an addentured servant for
5:19
Speaker 1: thirteen years. Yeah, which might as well have been Siberia
5:22
Speaker 1: at the time, exactly, I mean still kind of. And
5:27
Speaker 1: he's working it off as a like. He just basically said,
5:30
Speaker 1: this is my fate. So he worked for thirteen years
5:33
Speaker 1: as an addentured servant and worked it off and made
5:36
Speaker 1: his way down to Jamaica at age twenty five, and
5:39
Speaker 1: then made his way back to England to claim as inheritance.
5:42
Speaker 1: So he shows up and his uncle Richard, who was
5:46
Speaker 1: the Earl of Well and Glessia or angle Sea, one
5:50
Speaker 1: of the two, and um, he said, he said, this
5:53
Speaker 1: guy is a fraud. I'm the rightful heir. So first
5:57
Speaker 1: of all, Richard thinks he got rid of this kid forever. Now,
6:00
Speaker 1: all of a sudden, the kids shows up and he
6:02
Speaker 1: does another even dastardly thing and frames him for murder.
6:06
Speaker 1: I guess yeah he was. There was this accident that
6:09
Speaker 1: happened and Earl got his attorney, one John Gifford, to
6:14
Speaker 1: kind of go for a murder prosecution even though he
6:17
Speaker 1: knew that the death was an accident. So, like you said,
6:20
Speaker 1: he sort of framed it up in such a way
6:22
Speaker 1: that he could really get rid of this kid now
6:24
Speaker 1: a young adult, and even said in pre trial hearings
6:28
Speaker 1: of his nephew he would give a ten thousand pounds
6:30
Speaker 1: to have him hanged. And how this all relates back
6:33
Speaker 1: to attorney client privileges is that, like we said, Gifford
6:37
Speaker 1: was his attorney and was sort of in on this thing,
6:41
Speaker 1: and when it all came out, the attorney was the
6:45
Speaker 1: one the only person really that could give testimony that
6:48
Speaker 1: this happened. And uh, the original Uncle Dick said no, no, no,
6:55
Speaker 1: this is attorney client privilege. This is protected, and it
6:58
Speaker 1: would violate that. It into all the way to to
7:01
Speaker 1: uh to court and they said, no, no, no, that's
7:03
Speaker 1: that's not the case. I'm sorry to tell you. Yeah,
7:06
Speaker 1: because uh, Annesley Um argued that or his lawyer argued
7:10
Speaker 1: that Um these other things, the kidnapping that the lawyer
7:14
Speaker 1: helped arrange them, the statement about how we would have
7:18
Speaker 1: him hanged for ten thousand pounds, that had nothing to
7:21
Speaker 1: do with the inheritance, and what we were talking about
7:24
Speaker 1: here was the inheritance, and thus that shouldn't be protected
7:28
Speaker 1: communication between the client and his attorney. And the court said,
7:32
Speaker 1: you know what, I don't even care what you just said.
7:35
Speaker 1: This story is so bonkers and that guy is so
7:38
Speaker 1: patently evil. I'm going to rule in favor of you.
7:41
Speaker 1: And the first ruling, the first major clear concise ruling
7:46
Speaker 1: on attorney client privilege, was registered in seventeen forty three. Right,
7:51
Speaker 1: So the whole idea behind any attorney client privilege is
7:55
Speaker 1: to give you the assurance as a client that you
7:57
Speaker 1: can speak to your attorney in private, and that's very key,
8:02
Speaker 1: as we will find out later, in private without fear
8:06
Speaker 1: that they will then use that information against you somehow,
8:11
Speaker 1: or that that information can be extracted from them under
8:14
Speaker 1: threat of say jail time or something. Yeah, exactly. And
8:18
Speaker 1: it's um It's defined pretty well in this other article
8:20
Speaker 1: you sent. It's where legal advice of any kind it's
8:24
Speaker 1: sought from a professional legal advisor uh in his or
8:27
Speaker 1: her capacity. As such, the communications relating to that purpose
8:31
Speaker 1: made in confidence by the client are at his or
8:34
Speaker 1: her instance, permanently protected from disclosure by the client or
8:38
Speaker 1: by the legal advisor, except the protection be waived. Yeah,
8:42
Speaker 1: and that's I mean, that's a pretty big mouthful. But
8:44
Speaker 1: what it's basically saying is that if you commit a
8:47
Speaker 1: crime or committed tort, which is basically a civil a
8:51
Speaker 1: civil act against somebody that they can sue you for
8:54
Speaker 1: if you if you commit either one of those, and
8:56
Speaker 1: you say, oh god, I need a lawyer, and you
8:58
Speaker 1: go to a lawyer and say a I want you
9:01
Speaker 1: to be my lawyer, and the lawyer says, okay, go ahead,
9:04
Speaker 1: and you start talking, say you tell them everything. You
9:08
Speaker 1: admit to guilt, You admit to everything. It doesn't matter
9:11
Speaker 1: what you've admitted to. That that speech, that communication, that
9:15
Speaker 1: conversation is to stay between you and your lawyer forever,
9:21
Speaker 1: even after your death. They've ruled, as we'll see, and
9:25
Speaker 1: that you, the client, are the only person who can
9:28
Speaker 1: waive that right, that privilege of that communication, so that
9:32
Speaker 1: your lawyer has to take it to their grave even
9:35
Speaker 1: after you're dead, as long as you say I as
9:38
Speaker 1: long as you never wave that right. Yeah, and that's
9:41
Speaker 1: what you just said, would satisfy one of the four
9:43
Speaker 1: basic elements necessary here, which is one. It was a communication,
9:48
Speaker 1: uh too, it was made between the privileged persons, that
9:51
Speaker 1: is you and the attorney. It was made in confidence.
9:55
Speaker 1: And this one's really important. It's for the purpose of
9:57
Speaker 1: seeking or obtaining a legal assistance. So it's you can't
10:03
Speaker 1: It doesn't count if you go to your pal who's
10:05
Speaker 1: a lawyer and ask them for legal advice. If you're
10:08
Speaker 1: not retaining them for their services, that's a big one.
10:11
Speaker 1: That's a really big one. Even if you do go
10:14
Speaker 1: to a pal and retain them as a lawyer officially,
10:17
Speaker 1: or even if your lawyer is not your pal and
10:19
Speaker 1: you retain them as a lawyer. If you say I
10:22
Speaker 1: committed this crime, I need your help to cover it up,
10:25
Speaker 1: that's not protected either. Correct. You also can't go to
10:29
Speaker 1: your lawyer and say, um, hey, i've been thinking that
10:32
Speaker 1: we could come up with a pretty great real estate
10:35
Speaker 1: scam with your lawyering skills and my my scamming skills.
10:39
Speaker 1: Let's come up with something that would not be protected
10:42
Speaker 1: either because it's a crime. It's you're planning a crime.
10:44
Speaker 1: Either planning a crime or covering up a crime. You
10:47
Speaker 1: just lost your your privilege, your attorney client privilege. All right,
10:50
Speaker 1: should we take a break? I think so that's a
10:52
Speaker 1: good little overview, and we'll come back and talk about
10:54
Speaker 1: all the ins and outs right after this. Alright, Chuck,
11:22
Speaker 1: so we're back. We're talking about some ins and outs, yeah,
11:26
Speaker 1: and and and exceptions. And you you mentioned one that
11:28
Speaker 1: you would probably that would probably fall under the crime
11:31
Speaker 1: fraud exception. Uh. And again that's the in our own article.
11:36
Speaker 1: The thing they reference here is like, hey, let's set
11:39
Speaker 1: up a phony company UM as a front. Can you
11:43
Speaker 1: help me do that as an attorney? Right, then there
11:45
Speaker 1: is obviously no protection there attorney client privilege, right, or
11:50
Speaker 1: I want you to go make this bribe to an
11:53
Speaker 1: elected official or whatever. It doesn't matter what it is.
11:56
Speaker 1: If it's if it's on the law books as a crime,
11:59
Speaker 1: you're you just lost your privilege. Yeah. And another way
12:02
Speaker 1: it can get gray too is if UM lawyers do
12:07
Speaker 1: a lot of things for people, it's not always providing
12:10
Speaker 1: legal counsel. So this is where it can get a
12:12
Speaker 1: little little hinky on both sides. You can have a
12:15
Speaker 1: communicative act, but uh, as they say in our article,
12:20
Speaker 1: business is business and the laws the law. Right. You know,
12:23
Speaker 1: it's only pertaining to legal matters, not if your attorney
12:26
Speaker 1: is doing some sort of business deal for you, right,
12:29
Speaker 1: And that really comes in play more for corporate law,
12:32
Speaker 1: which is they're really big into attorney client privilege because
12:36
Speaker 1: they're frequently letting their clients or their attorney in on
12:40
Speaker 1: um tax evasion, UM, maybe selling knowingly selling tainted products,
12:46
Speaker 1: or even like on the more innocent end of the
12:48
Speaker 1: spectrum like trade secrets UM, intellectual property secrets there, and
12:55
Speaker 1: a business attorney will have a lot of knowledge about
12:59
Speaker 1: their come any or their clients business that you just
13:03
Speaker 1: don't want them going and spilling the beans, even in
13:05
Speaker 1: open court. Right, So that but that's where you want it.
13:11
Speaker 1: You want that very much if you're a company with
13:13
Speaker 1: your corporate lawyer. But in the same time, as far
13:16
Speaker 1: as the courts have said over the years, that's very
13:19
Speaker 1: very murky because what constitutes legal advice what constitutes business advice.
13:23
Speaker 1: Sometimes it's clear, you know, like what's our what is
13:27
Speaker 1: our legal implication for this tax evasion that we just
13:30
Speaker 1: found out our accounting department did that would be protected
13:35
Speaker 1: not um uh, I don't know. Help us, help us
13:39
Speaker 1: figure out some ways to evade our taxes or even
13:44
Speaker 1: even beyond that, even legal ways. Help us figure out
13:47
Speaker 1: some legal ways to evade our taxes that might not
13:50
Speaker 1: cut muster because that's more business than law. You could
13:53
Speaker 1: make an argument, yeah, and and likely like I said earlier,
13:57
Speaker 1: it can get super gray as too far as far
13:59
Speaker 1: as whether or not you have obtained the services of
14:02
Speaker 1: an attorney, because this can come about in a lot
14:04
Speaker 1: of ways. Uh, Like if you have to you're trying
14:07
Speaker 1: to prove this in court, you can bring an engagement letter, um,
14:10
Speaker 1: some sort of contract that you've signed the outlines fees,
14:13
Speaker 1: or just the relationship. It can be an oral agreement, UM,
14:18
Speaker 1: as long as it's you know, both sides are acknowledging
14:20
Speaker 1: that it could be that they have appeared for you
14:24
Speaker 1: in court. Um, like you you know you don't go
14:26
Speaker 1: to court that first day, Like your attorney goes on
14:29
Speaker 1: your behalf and like file some something for you in court,
14:33
Speaker 1: some sort of document. Then that is an official expressed acknowledgement.
14:37
Speaker 1: So there are all kinds of ways that you can
14:39
Speaker 1: have an attorney officially represent you. But it has to
14:42
Speaker 1: go beyond just sitting in a room and saying like
14:45
Speaker 1: I could use a little advice, like you have to
14:47
Speaker 1: agree that you're engaging one another, right, um, So are
14:51
Speaker 1: non legal legal advice to you. That is not legal
14:54
Speaker 1: advice in any way, shape or form. Is if you
14:56
Speaker 1: ever hire a lawyer, doesn't matter what kind of lawyer
14:59
Speaker 1: it is. Before you tell them anything, say I would
15:02
Speaker 1: like to take you on as my lawyer. Will you
15:05
Speaker 1: take me on as your client? And if they say yes,
15:08
Speaker 1: everything after that is now privileged as long as you're
15:11
Speaker 1: not planning a crime, right yes, And you'll know that
15:13
Speaker 1: happens because they start a little time or on their desk,
15:16
Speaker 1: little dollar bill clinks. But even even without um an
15:20
Speaker 1: express say like an engagement letter, or even them expressly
15:24
Speaker 1: saying yes, I'm your lawyer. UM, I think courts have
15:28
Speaker 1: kind of found over the years that there are certain
15:31
Speaker 1: things that a person could reasonably expect that the the
15:35
Speaker 1: lawyer has agreed to represent them. Right Like, if you
15:39
Speaker 1: go to a lawyer that you've used before, UM, and
15:43
Speaker 1: but you aren't currently engaged with, and they start doling
15:46
Speaker 1: out legal advice because you told them your problem, the
15:49
Speaker 1: a court would probably find that you had an attorney
15:52
Speaker 1: client relationship and therefore there is attorney client privilege. UM.
15:56
Speaker 1: If they quote you fees and then follow up with
15:59
Speaker 1: some advice, I same thing. It's more just like the
16:03
Speaker 1: client can't unilaterally say we had an attorney client relationship.
16:08
Speaker 1: So this is protected that there has to be some
16:11
Speaker 1: sort of sign or signal from the lawyer as well
16:13
Speaker 1: that that there's a relationship there. Yeah, And speaking of
16:16
Speaker 1: signs or signals, uh, apparently it doesn't even have to
16:20
Speaker 1: be like a verbal communication that like you could look
16:25
Speaker 1: at your attorney and say like, well, you can ask
16:28
Speaker 1: him a question and they could just sort of give
16:30
Speaker 1: you a wink and tap their nose and that could
16:34
Speaker 1: be used in court. You know. They don't have to
16:35
Speaker 1: expressly say something out loud even no, that can't be
16:38
Speaker 1: used in court. That's protected. Yeah, that's what That's what
16:41
Speaker 1: I mean. I mean that would come up, but it
16:43
Speaker 1: doesn't have to. Yeah, I think I just confused everybody.
16:46
Speaker 1: But but yeah, you don't even have to be talking.
16:49
Speaker 1: Like if if they say did you kill that person?
16:51
Speaker 1: And you nod, that's protected community exactly, you know, um or.
16:56
Speaker 1: I think they've even found that like a um a
16:59
Speaker 1: sigh islens like a complete silence has protected communication too,
17:03
Speaker 1: because you're not you're not denying things left unsaid pretty much. Yeah,
17:07
Speaker 1: because if somebody's like, did you kill that person? And
17:09
Speaker 1: you didn't. You're gonna say, hell, no, I didn't kill
17:12
Speaker 1: that person. Get me out of this. If you're just
17:14
Speaker 1: completely silent, I think a reasonable person might take that
17:19
Speaker 1: as an ambition of guilt. But it's still a protected
17:21
Speaker 1: communication between you and your lawyer. Should we talk about
17:24
Speaker 1: people versus Meredith. I think so people v. Meredith. So
17:30
Speaker 1: this was in California nineteen seventy six and a man
17:33
Speaker 1: named Michael Meredith convinced his friend Frank Scott to uh
17:38
Speaker 1: commit a crime, which was let's jump this guy, Mr
17:41
Speaker 1: David Wade. Uh. They ended up shooting and killing him.
17:45
Speaker 1: I don't know if that was the original intent, but
17:46
Speaker 1: that's what happened. They ran for it, they got arrested,
17:50
Speaker 1: found and arrested, and then they were in jail. So
17:54
Speaker 1: Scott's appointed counsel was one Mr James Shank, and he
17:58
Speaker 1: went by to talk and they were kind of it
18:00
Speaker 1: chatting around, and uh, Scott said something about a wallet.
18:04
Speaker 1: He was like, yeah, we got the wallet from the victim.
18:06
Speaker 1: We split the money up and put it in a
18:08
Speaker 1: trash can. The lawyer then sends an investigator and actually
18:12
Speaker 1: found that wallet and took it and gave it to
18:15
Speaker 1: the cops. So obviously this was a key piece of
18:18
Speaker 1: evidence that ended up um well, I mean it ended
18:22
Speaker 1: up backfiring because his client rightfully went to prison, right
18:27
Speaker 1: but Schenk was subpoenaed and said, you're going to be
18:30
Speaker 1: found in contempt of court unless you admit like how
18:34
Speaker 1: this thing went down and how you got this wallet.
18:36
Speaker 1: And the whole key here is if he had never
18:39
Speaker 1: went and got the wallet, then it still would have
18:41
Speaker 1: been attorney client privilege. Yeah, because all he did was
18:46
Speaker 1: received information in confidence from his client. It was when
18:50
Speaker 1: he basically broke through into the real world and manipulated evidence,
18:55
Speaker 1: that's when all that just changed everything and apparently broke
18:59
Speaker 1: the broke the veil or the privilege of that communication. Well, yeah,
19:03
Speaker 1: which is rightfully so because the courts I believe this one. Yeah.
19:07
Speaker 1: I went all the way to the California Supreme Court. Uh,
19:10
Speaker 1: they ruled rightfully that you can't do this because all
19:13
Speaker 1: this is gonna do we allowed it. It would incentivize
19:16
Speaker 1: defense attorneys to go out and like try and find
19:19
Speaker 1: evidence right and collect it, and you don't want attorneys
19:22
Speaker 1: doing that, yeah, because once they collected it, it would
19:24
Speaker 1: enter the veil of privacy. And would be protected, and
19:27
Speaker 1: you couldn't. You could never discover it. Um. Similarly, though,
19:32
Speaker 1: and I think I agree with you. I think that
19:34
Speaker 1: that's just logical and sensible, Like you can't you can't
19:37
Speaker 1: allow attorneys to go do that kind of thing. Um. Similarly,
19:42
Speaker 1: just because you communicated a fact doesn't mean that the
19:47
Speaker 1: fact itself is protected from discovery, just that your communication
19:51
Speaker 1: of that fact to your lawyer was protected. So if
19:54
Speaker 1: there's other ways to find out that you did something,
19:57
Speaker 1: and this seems just boneheadedly, I've yes, but apparently it
20:01
Speaker 1: was worth spelling out and at least one of these articles.
20:04
Speaker 1: If you said, yes, I killed that person, your lawyer
20:07
Speaker 1: can't tell anybody you said that to them, But if
20:09
Speaker 1: you said that to your wife, well, and your co worker,
20:15
Speaker 1: your coworker can go can go testify against you. So
20:19
Speaker 1: it's not like the fact that you have admitted that
20:21
Speaker 1: you killed that person is protected. It's that the communication
20:25
Speaker 1: between you and your lawyer about that fact is what's protected. Right,
20:29
Speaker 1: So if it's otherwise discoverable, then it's fair game. Yeah,
20:32
Speaker 1: It's not like you can enshrine a fact with your
20:34
Speaker 1: lawyer and then it belongs to them and them only
20:36
Speaker 1: and the rest of the world can never learn of
20:38
Speaker 1: it legally speaking. That's good point. It doesn't make any sense,
20:41
Speaker 1: but I guess it was worth working out. Uh, you
20:44
Speaker 1: want to take a break, I think we shall. All right,
20:47
Speaker 1: we'll go back and talk about this extending beyond the grave,
21:16
Speaker 1: all right, Chuck. So, um, you have a relationship with
21:21
Speaker 1: your attorney. Your attorney is like ten years old at
21:24
Speaker 1: the time you hire him, and you're seventy, so you
21:28
Speaker 1: pass on before your lawyer. Well, it turns out that
21:31
Speaker 1: something comes up later on and somebody wants info from
21:35
Speaker 1: your lawyer, private info that you gave them. Your lawyer says,
21:39
Speaker 1: no way, Jose, this is covered by attorney client privilege.
21:43
Speaker 1: That is true. Yeah, because that happened very famously with
21:48
Speaker 1: Vincent Foster, who us most people know was a big
21:53
Speaker 1: h He worked for the Clintons in Arkansas. He was
21:56
Speaker 1: an attorney. He was one of their close attorneys, personal attorneys.
21:59
Speaker 1: I think, yeah. So, uh, he ended up killing himself.
22:02
Speaker 1: And if you if you have on your tinfoil hat
22:05
Speaker 1: or if you go to these conspiracy websites, then h
22:09
Speaker 1: then you firmly believe that Bill and Hillary Clinton murdered
22:12
Speaker 1: this man with their with their parents. If you're a
22:15
Speaker 1: reasonable human, you know that he fell into clinical depression.
22:18
Speaker 1: And every single investigator an investigative unit, and there were
22:22
Speaker 1: quite a few, including one Kinneth Star went out and said, yes,
22:26
Speaker 1: he definitely committed suicide. Um, all the evidence was there.
22:31
Speaker 1: So I feel like that's a spectrum you could you
22:34
Speaker 1: could be somewhere on that spectrum between those two beliefs.
22:37
Speaker 1: Oh what between thinking he killed himself and was murdered. Yeah,
22:42
Speaker 1: so he was obviously involved in the infamous Whitewater real
22:46
Speaker 1: estate deal. And when Kenneth Starr was investigating this stuff,
22:50
Speaker 1: he tried to get his hands on notes created by
22:53
Speaker 1: Foster's lawyer, and the lawyer said, no attorney client privilege,
22:57
Speaker 1: even though this man is dead, And it went all
23:00
Speaker 1: the way to the Supreme Court and they ruled six
23:02
Speaker 1: to three that it must be honored even after the grave. Yeah.
23:06
Speaker 1: I was really surprised that that was as recent as
23:08
Speaker 1: it was. I thought that that would have been a
23:10
Speaker 1: really old case that came up long ago. But yeah,
23:13
Speaker 1: that was from the nineties, so that one was established
23:17
Speaker 1: in um, well the nineties. I don't see when the
23:20
Speaker 1: actual case or when the Supreme Court ruled on it um.
23:24
Speaker 1: But that was that was one thing that was tested
23:27
Speaker 1: in court. There was another one UM that had to
23:30
Speaker 1: do with like employees giving testimony for their company. For
23:36
Speaker 1: a long time, it was if you hired, if you
23:38
Speaker 1: were a director level or a m an executive level
23:43
Speaker 1: person in a company and you were talking to corporate council,
23:48
Speaker 1: whatever communication was being made was protected. But then cases
23:52
Speaker 1: started to come up, like what if somebody from accounting
23:56
Speaker 1: was talking to corporate council about that case? Like is
23:59
Speaker 1: that for tected and um. For a long time there
24:03
Speaker 1: was this test called the control group test appropriately which
24:07
Speaker 1: was basically, just are you one of the people who
24:11
Speaker 1: is in a position to take the advice of legal
24:15
Speaker 1: counsel and either run with it or decide not to
24:17
Speaker 1: do with that? Are you like pretty high up in
24:19
Speaker 1: the company. And if you weren't, then that speech wasn't protected.
24:22
Speaker 1: But then over time they decided that no. One of
24:25
Speaker 1: the reasons why we have this privilege is that we
24:29
Speaker 1: want lawyers to be fully briefed on the facts of
24:32
Speaker 1: the case so that they can figure out the best
24:35
Speaker 1: defense or the best legal route to resolving this thing um.
24:39
Speaker 1: And if they're not fully informed. Then we're kind of
24:43
Speaker 1: hamstringing our attorneys. So we want them to know everything,
24:46
Speaker 1: and they won't know everything unless people feel comfortable telling
24:49
Speaker 1: them everything. Hence the attorney client privilege. Well, they said
24:52
Speaker 1: that extends to employees as well, because employees sometimes have
24:56
Speaker 1: information that members of that control group won't have. And
25:00
Speaker 1: as long as they're talking about something that directly reflects
25:03
Speaker 1: their job and the case at hand to that council,
25:06
Speaker 1: that would be considered protected by the by the attorney
25:09
Speaker 1: client privilege. That was the up John ruling I believe. Yeah.
25:14
Speaker 1: And just this year, um, it's been making a lot
25:16
Speaker 1: of headlines because of the Mueller investigation. When Trump's personal attorney,
25:24
Speaker 1: or one of his personal attorneys, one Michael Cohen, had
25:27
Speaker 1: his office rated in April this year into two thousand eighteen,
25:32
Speaker 1: and the FBI sees all sorts of documents looking for
25:36
Speaker 1: evidence of bank fraud, came back that it was part
25:38
Speaker 1: of the Mueller investigation, and Trump starts tweeting about how
25:42
Speaker 1: attorney client privilege is dead. Uh, And the attorney that
25:46
Speaker 1: was quoted in this article said, no, it's not dead
25:49
Speaker 1: at all. This is very typical. What's going on is uh?
25:52
Speaker 1: There's a judge that his UH in the Cohen cases,
25:55
Speaker 1: appointed what they call a taint team, one of the
25:59
Speaker 1: more unfortunate unfortunately named teams UH. And what they do
26:05
Speaker 1: this is a third party what they call an arms
26:08
Speaker 1: length group of qualified people, so they're not involved with
26:12
Speaker 1: with anyone in this investigation. And they go through all
26:15
Speaker 1: the evidence gathered and say what's pertinent to the case,
26:18
Speaker 1: what's not pertinent, and here's the pertinent stuff. It's not
26:22
Speaker 1: like we're just trying to release everything ever said between
26:25
Speaker 1: these two men right there, and they they are. They
26:28
Speaker 1: take all the stuff they saw that didn't relate to
26:31
Speaker 1: the case to their grave. So it is a form
26:34
Speaker 1: and extension of attorney client privilege. Yeah, and especially in
26:38
Speaker 1: the in the Cohen case, this UH. This attorney goes
26:40
Speaker 1: on to say, because Cohen was performing little to know
26:43
Speaker 1: actual legal work for Trump, UM, not much of what
26:46
Speaker 1: was seized in the raid would be protected anyway. So
26:50
Speaker 1: that's what this attorney says, that's his expert opinion. So
26:54
Speaker 1: can't you see like one member of the taint team
26:56
Speaker 1: at the bar being like the snow it it means
26:58
Speaker 1: deterrek I quit saying that it's really important and vital
27:04
Speaker 1: Oh that's good stuff. So we should talk about another
27:08
Speaker 1: famous recent case of attorney client privilege or attorney client
27:12
Speaker 1: privilege being violated. Actually with the Jodi Arias case. Yeah,
27:17
Speaker 1: I don't know a whole lot about this one except
27:20
Speaker 1: that um, she murdered someone right, yes, in cold blood. UM.
27:26
Speaker 1: From what I read most recently, one of the alternate
27:29
Speaker 1: jurors believes that she killed her ex boyfriend because he
27:33
Speaker 1: was breaking up with her and she wanted to be
27:36
Speaker 1: the last person he had sex with or the only
27:39
Speaker 1: person he had sex with her the last one of
27:40
Speaker 1: the two. UM went off the rails, stabbed him like
27:44
Speaker 1: twenty nine times, cut his throat, shot him in the head,
27:47
Speaker 1: and just left him for dead and ran off to
27:49
Speaker 1: California and was caught within like a week or so
27:52
Speaker 1: of his body being discovered. So she UM. She mounted
27:56
Speaker 1: a defense that he was a pedophile, he abused her, UM,
28:01
Speaker 1: and that he was in the act of physically abusing
28:04
Speaker 1: her when she fought back and snapped and killed him.
28:08
Speaker 1: Apparently that that was all just completely made up. That
28:11
Speaker 1: he wasn't a pedophile, he wasn't an abuser, and he
28:14
Speaker 1: was just trying to break up with her. That's the
28:15
Speaker 1: way it stands now. And she was convicted of I
28:18
Speaker 1: think premeditated murder, initially sentenced to death, a mistrial was
28:23
Speaker 1: declared and she ended up with life without the possibility
28:26
Speaker 1: of parole. So that's where it stands now. She um
28:30
Speaker 1: publicly criticized her public defender, a guy named Kirk Nermi
28:36
Speaker 1: and Um over the years. Kirk kind of put up
28:39
Speaker 1: with it and then was diagnosed with cancer and said,
28:42
Speaker 1: to hell with it, I'm writing to tell all book.
28:46
Speaker 1: That's what he says. He says that he was he
28:48
Speaker 1: had a bit of an epiphany, a reversal of his
28:51
Speaker 1: his life in that cancer diagnosis, and said, I might
28:55
Speaker 1: be dead. I can't let her be the only person
28:57
Speaker 1: telling the side. The side of the story is he's
29:00
Speaker 1: saying like a canary in this book. Oh yeah, man.
29:02
Speaker 1: He he revealed stuff that didn't come out at trial.
29:05
Speaker 1: He he gave his own personal assessment of her guilt
29:08
Speaker 1: that she was definitely guilty, talked about how her mother
29:11
Speaker 1: lying on the stand for her was laughable. Um, just
29:14
Speaker 1: all sorts of stuff just ripped apart their attorney client privilege.
29:18
Speaker 1: And so as a result, she's suing him big time.
29:21
Speaker 1: So that's still in the middle of I mean, this
29:25
Speaker 1: hasn't been decided, right, not as far as I know.
29:27
Speaker 1: I think the article I read was from two thousand
29:30
Speaker 1: and eighteen, so I don't think it's been decided yet.
29:33
Speaker 1: I think he and he's defending himself saying no, when
29:37
Speaker 1: she gave public interviews and talked about our private attorney
29:42
Speaker 1: client conversation, she revoked privilege. She weighed her privilege in
29:47
Speaker 1: doing so, and so I'm free to tell anybody anything
29:50
Speaker 1: about it. So the California Bar, the Arizona Bar, I
29:54
Speaker 1: think disbarred him. He agreed to disbardment without admitting misconduct.
29:59
Speaker 1: And he's like a life coach or a professional coach
30:02
Speaker 1: for lawyers. Interesting, Yeah, it is very interesting. Um, the
30:07
Speaker 1: whole thing is super interesting. Her cases just gut wrenching
30:12
Speaker 1: and the the this this new piece of it. He
30:15
Speaker 1: basically hates her, hates her. He says that he was
30:20
Speaker 1: forced into the smear campaign as a defense, that he
30:23
Speaker 1: didn't want to have anything to do. He just hates
30:26
Speaker 1: her guts and even her defense team said that that
30:29
Speaker 1: he's developed some bizarre hatred of her. And he he
30:33
Speaker 1: said in this quote in this Reuter's article that um
30:36
Speaker 1: he was he was standing up to years of abuse
30:40
Speaker 1: from her, So it's like a deep seated hatred. Um
30:44
Speaker 1: one way or another, they ruined each other's lives. I
30:46
Speaker 1: think she blames him for botching her defense. He blames
30:50
Speaker 1: her apparently for a whole whole slate of stuff. So
30:53
Speaker 1: so this will probably be another precedent center. Huh, I
30:57
Speaker 1: would guess so. But it's a it's a civil so yeah,
31:00
Speaker 1: I could still set president. But yeah, the fact that
31:02
Speaker 1: he was disbarred that doesn't bode well for him. But
31:05
Speaker 1: I have the feeling he's like, I'm dying of cancer,
31:08
Speaker 1: so what ofs Yeah, screw it. So that's attorney client privilege.
31:14
Speaker 1: I don't think we missed anything, did we? I don't
31:16
Speaker 1: think so. There are probably little nitpicky things here and there.
31:18
Speaker 1: It is, Uh, there are some definitely some gray areas,
31:21
Speaker 1: but it's been shaped and reformed over the years. Imagine
31:24
Speaker 1: will continue to be someone. Hey, one more thing I
31:27
Speaker 1: want to say is um, I read and this is
31:30
Speaker 1: kind of apropope, but not really. I read an article
31:33
Speaker 1: probably about six months ago, maybe a little longer. It
31:36
Speaker 1: was by a lawyer, you know how, like lawyers will
31:38
Speaker 1: write like blog posts or articles or stuff like their
31:41
Speaker 1: clients is on general stuff. This one lawyer wrote one
31:44
Speaker 1: about how if you ever talked to the FBI without
31:48
Speaker 1: a lawyer, you are an idiot. And he put it
31:52
Speaker 1: like that, but no, he makes this really great case
31:56
Speaker 1: for why most people, especially innocent people, would would think
32:00
Speaker 1: I don't need a lawyer. And he said everyone needs
32:04
Speaker 1: a lawyer when they're talking to the FBI. And he
32:06
Speaker 1: laid out this really exquisite case, multiple point case why
32:11
Speaker 1: to where by the end of it you're like, oh, yeah,
32:14
Speaker 1: you need a lawyer if you're talking to the FBI.
32:16
Speaker 1: It's pretty pretty amazing stuff. He's like, you're not qualified
32:19
Speaker 1: to talk to the FBI. A lawyer can make you qualified.
32:23
Speaker 1: You can't go in there and expect to be qualified.
32:25
Speaker 1: It was really fascinating. I don't remember who wrote it,
32:27
Speaker 1: but I think if you search something like if you
32:30
Speaker 1: don't have a lawyer and speak to the FBI, you're
32:33
Speaker 1: an idiot, something along those lines. It was fascinating. Just
32:36
Speaker 1: call FED Protect Josh will pat you through for the people. Ah,
32:43
Speaker 1: you got anything else? Nope? Okay, Well, if you want
32:46
Speaker 1: to know more about attorney client privilege, you can type
32:50
Speaker 1: that word in the search part how stuff works. And
32:52
Speaker 1: since I said privilege, it's time for a listener mail.
32:56
Speaker 1: I do have one more thing to say without getting
32:58
Speaker 1: too much on a soapbox. I hope people take the time,
33:03
Speaker 1: like to understand something like attorney client privilege, because when
33:07
Speaker 1: the president is tweeting out things and all exclamation points
33:10
Speaker 1: like attorney client privilege is dead, I think a lot
33:13
Speaker 1: of people believe that to be true when they don't
33:16
Speaker 1: even really understand the true legal sense of what this means.
33:22
Speaker 1: You know. Yeah, I totally agree with you, man. It's
33:24
Speaker 1: just like it's misinformation that people think like a tweet
33:28
Speaker 1: is means well, that's a fact, you know, and it's not.
33:32
Speaker 1: It's a tweet, Yeah, something typed out on a phone
33:37
Speaker 1: like do better? People with fat fingers sometimes too. Alright,
33:41
Speaker 1: So moving on, I'm gonna call this Mercury Bobcat. Yeah. Hey, guys,
33:47
Speaker 1: been listening for about a year and I just listened
33:49
Speaker 1: to the Ford Pinto death Trap episode. To put this
33:52
Speaker 1: timeline into context. I was born in This is what
33:57
Speaker 1: makes this story perfect. If you ask me, Uh, when
34:00
Speaker 1: I was a kid, my family had a powder blue
34:01
Speaker 1: Mercury Bobcat sister card to the Pinto. Like he said,
34:04
Speaker 1: my dad sold the car and bought it back eight
34:07
Speaker 1: years later, just before my sixteenth birthday. And I drove
34:11
Speaker 1: this car for two years in high school, eventually selling
34:14
Speaker 1: it to buy a vehicle compatible with highway travel because
34:17
Speaker 1: a Bobcat could not top ninety kilometers per hour, which
34:22
Speaker 1: is what I don't even know something like that. Well,
34:25
Speaker 1: I knew the Pinto was generally regarded as unsafe. I
34:27
Speaker 1: somehow did not know the extent of the carnage until
34:30
Speaker 1: listening to the episode that you guys did, And after listening,
34:33
Speaker 1: I can't believe my parents ever allowed me to get
34:35
Speaker 1: behind the wheel of this car, although mine was a
34:37
Speaker 1: seventy eight, so maybe that time they had faith in
34:40
Speaker 1: the upgraded flaming death bolts. It's been about seven years
34:44
Speaker 1: and this dude, he was born in ninety three. He
34:46
Speaker 1: was driving this old car around well after its prime. Yeah,
34:51
Speaker 1: he would have been driving it in the two thousand's
34:53
Speaker 1: Like that's great. Yeah, it was like me. I had
34:56
Speaker 1: a sixty eight Beatle when I was in the eighties
34:58
Speaker 1: and everyone just thought I was weird with the ankle burner. Yep. Yeah,
35:03
Speaker 1: it's been about seven years since I'll let the car go,
35:05
Speaker 1: and now twenty four my friends and I missed the
35:07
Speaker 1: car so much. I frequently search the Canadian version of Craigslist,
35:12
Speaker 1: uh called KEG, hoping to buy it back. So that's
35:17
Speaker 1: made up. I love this guy. That guy just he
35:20
Speaker 1: just said some code word that we just said on air.
35:23
Speaker 1: The Bobcat never went up in flames, but it did burn.
35:26
Speaker 1: We did burn it up in it a few times.
35:30
Speaker 1: I hear you man, and this can't know what you mean.
35:33
Speaker 1: This is Owen from Nova Scotia, and uh, I think
35:37
Speaker 1: that's pretty great. And I hope you get to buy
35:38
Speaker 1: that car back. Dude, Yeah, good luck in your quests Owen.
35:43
Speaker 1: Anybody out there in s y s k Land, if
35:46
Speaker 1: you know where Owen's Bobcat is, help him out. Let
35:49
Speaker 1: us know. We'll connect to same with my sixty eight beetle.
35:53
Speaker 1: Oh that'd be something. I'd like to buy that thing back. Well,
35:56
Speaker 1: if you guys know the vin number, just shout at
36:00
Speaker 1: out you and knowing. Okay, agreed. If you want to
36:05
Speaker 1: get in touch with me and Chuck, you can hang
36:08
Speaker 1: out with us at our home on the web. Stuff
36:09
Speaker 1: you should know dot com and there you will find
36:11
Speaker 1: links to all of our many myriad social media sites.
36:16
Speaker 1: And in the meantime, while you're doing that, if you
36:18
Speaker 1: want to dash off an email, you can send that
36:20
Speaker 1: thing to Stuff podcast at how stuff works dot com.
36:29
Speaker 1: For more on this and thousands of other topics. Is
36:32
Speaker 1: that how stuff works dot com.