Page 95 of Maddy's Justice

“What is that?” Marc asked pointing at the boxes.

“Oh, you mean the boxes? It’s um, discovery answers Connie told me to have you look over before we have it delivered to Lori Quinn.”

Marc looked at Connie who was stifling a laugh and avoiding his eye contact. He then bent down and removed the lid from one of the boxes.

“Looks fine to me,” he said.

“Marc!” Connie said.

“Is there anything incriminating in here?” Marc asked both of them.

“No, it’s mostly junk,” Jeff admitted.

“If we go to trial, you’re going to…”

“Shoot myself,” Marc said.

“…need to know what’s in there,” Connie said.

“I’ll worry about that when the time comes. At least when I get swamped with discovery in a criminal case, I can boil it down to almost nothing and most of that is kind of interesting.”

“What do you want me to do?” Jeff asked.

“Take it away and wait until Quinn starts screaming for it. Then, we’ll decide,” Connie said. “Or, better still, we’ll go to court and fight about it while billing a couple of weeks’ worth of time for it.”

By now Kellie Johnson had joined them. She helped Jeff carry the boxes out of Marc’s office and into the conference room.

After Jeff and Kellie left, Connie pulled a chair over to the window, opened it and lit a cigarette.

“Don’t say it,” she said.

“I’ve given up,” Marc replied.

“Ethically,” Connie said to begin the conversation, “where are we?”

“I’m not exactly an expert. I do mostly criminal defense,” Marc said. “Ethics are not necessarily real big on our agenda.”

“Okay, but our investigators are going to Chicago to commit who knows how many felonies and, they’re doing it to investigate our own client.”

“No, they’re not going to Chicago to investigate our client,” Marc said. “We don’t have actual knowledge of any criminal behavior by anyone at Stafford, Hughes. We don’t know what Maddy and Tony are up to. We don’t know for certain if our client is involved in anything.”

“Okay, hypothetically, assume two investigators employed by lawyers, but working for someone else, do illegal surveillance. During the course of this hypothetical behavior they come across incriminating evidence of an ongoing criminal conspiracy involving a hypothetical client of our hypothetical lawyers whose case the two investigators have worked on and have the same privilege responsibility toward that client that the lawyers do. What is the responsibility of the lawyers?” Connie asked.

While she laid it out, Marc was thinking it through. He looked at her and said, “Assume we find that our civil case client is involved in a criminal conspiracy, but we don’t find it from a communication from our client. It comes to us from the investigators working for an outside source and it is not past crimes, but your ongoing conspiracy. Future crimes.”

“Would we have an obligation to inform the proper authorities about that future criminal behavior?” Connie said.

“Normally, I think so,” Marc said. “But we have not obtained this information via a communication from our client. Are we certain they will commit future crimes? Not necessarily. I think we would have to go to the client, tell them what we know, advise them to stop and withdraw our representation. It’s the same as if a client tells you he is going to commit perjury. Sort of, only maybe worse.”

“But what if we are provided with this information through the criminal behavior of our investigators? Crimes committed by people we don’t want to see convicted?”

“We say they are clients of ours. The crimes they committed are in the past. They are not future crimes. Therefore, we claim privilege and shield them. I don’t think the information they obtained is admissible. Fruit of the poisonous tree kind of thing.”

Connie tossed the remnant of her cigarette out the window while thinking this through. “But if the information is not obtained by a communication from the client…?”

“It would be admissible, and we would have an obligation to inform the proper authorities,” Marc replied.

“What about a “fruit of the poisonous tree” kind of thing?” Connie asked making air quotes with her fingers.

---