Terry Haddock says he wasn’t really Shannon Williams’ lawyer, though that didn’t stop him from taking a free from Williams.  But as he sat in the jail’s conference room where he “snuck” in a cellphone and recorded conversations, Haddock claims “he had to do it.” 

Do what? From the ABA Journal.

At issue is whether attorney Terry Haddock was acting as a lawyer for inmate Shannon Williams when Haddock carried a government-wired cellphone into the Douglas County Jail and recorded Williams allegedly orchestrating the movement of millions of dollars worth of marijuana.

Plus, a lawyer representing Williams in related civil matters tells the ABA Journal, discovery shows that the feds also wired an attorney-client conference room at the jail, collecting, all told, some 50 compact discs containing 300 hours of conversation. About 80 percent of that material is recordings of Williams and his lawyer, estimates attorney Ray Richards II, and the other 20 percent is spillover recording of other inmates and their lawyers who happened to use the room subsequently.

Nowhere in the post is there any explanation for Haddock’s actions.  In the Omaha World-Herald, however, an allegation appears:

Haddock has told others he did so because Williams talked of eliminating witnesses, an accusation Williams denies.

One would expect that if Williams spoke of “eliminating witnesses,” then there would be some confirmation in the 300 hours of conversation recorded.  This is further undermined by other information.

Law enforcement officials say Haddock did so after becoming infatuated with a woman who initially was charged in a related drug conspiracy. She is a Zimbabwean immigrant who described herself as a former escort.

This makes it smell of Haddock selling out Williams for the benefit of the object of his infatuation.

Both articles leave huge questions about what happened here and why.  What doesn’t appear to be in issue is that Shannon Williams believed that he had retained Terry Haddock to be his lawyer, paid him some amount of money for that service, and spoke with him in that capacity.  Yet Haddock and the government contend that he wasn’t.

Few things undermine the integrity of the legal system than the idea that one’s lawyer isn’t one’s lawyer, but a government agent.  How can a criminal defendant ever be secure in the knowledge of undivided loyalty if a government agent can be allowed to feign the role of criminal defense lawyer while serving another master? 

This isn’t merely a suppression issue, though suppression would be the appropriate mechanism to challenge the conduct, but rather a facial attack on the constitutional right to counsel.  If this were permissible, then no defendant could be assured that the person across the table, the person he paid, the person upon whom he relies, is really his lawyer.  It’s nuts.

Haddock’s excuse, which is discounted for lack of evidence despite the obvious and huge opportunity to provide evidentiary support, raises the more interesting question.  If, and this is a purely hypothetical “if”, Williams had in fact stated that he intended to “eliminate witnesses,” what would that mean for Haddock as his attorney.

Clearly, a crime to be committed is not protected by privilege; there’s no comfort to be taken in telling a lawyer that you plan to commit a crime, whether perjury, murder or anything in between. The lawyer is no longer bound to maintain the confidence, but permitted to reveal it.  A sound statement of the rule is set forth in  Formal Opinion 2002-1 of the Association of the Bar of the City of New York:

Our conclusion is fortified by the confidentiality provision of the ABA Model Rules, which allows a lawyer to disclose client confidences “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. “ABA Model Rule 1.6(h)(i) (emphasis added). The comment to this Rule provides that the lawyer may make disclosure to prevent harm she “reasonably believes is intended by the client” because “it is very difficult for a lawyer to ‘know’ when such a heinous purpose will actually be carried out . . .” Similarly, the Restatement (Third) of the Law Governing Lawyers allows a lawyer to “use or disclose client confidential information when the lawyer reasonably believes that its use or disclosure is necessary to prevent a crime or fraud” in certain circumstances. Id. § 67 (emphasis added); see also id. § 66 (permitting disclosure of client confidential information when the lawyer “reasonably believes that its use or disclosure is necessary to prevent reasonably certain death or serious bodily harm to a person” (emphasis added)). The Restatement also makes clear that “a client’s subjective state of mind[] may be difficult to ascertain” and therefore “the lawyer must make a reasonable effort to determine the relevant facts” before making any disclosure. Restatement, § 67, comment h.

In other words, if the lawyer “reasonably believes” that a client will, in fact, cause the death of another, then the lawyer is permitted to disclose that information.  Notably, the lawyer isn’t require to do so, but merely permitted.

But the permission extends to disclosure of the communication.  It offers absolutely no absolution to Haddock for becoming a rat against his own client, regardless of how sincere or heartfelt his concern.  Assuming that it happened, the most Haddock could do is inform authorities of Williams’ communication and walk away (and return the fee).  He cannot serve as a government agent against his own client.

Perhaps more hard information will come out during Williams’ suppression hearing, that will provide something, some tiny bone, that offers any sort of rationale that could conceivably justify the government’s use of Haddock as its rat.  What that might be eludes me, but the opportunity will be there should there be anything for the government to claim.

We’ve seen other cases where dirty lawyers try to work off their own cases by ratting out clients.  These lawyers are the scum of the earth, and if there is a deity, should end up sleeping in a prison cell with a very large, angry, horny person. 

However, there is no circumstance where a criminal defense lawyer can ethically or morally engage with a person who believes him to be his attorney if he cannot give that person his undivided loyalty.  That the government might think otherwise comes as no great shock, but it’s fundamentally wrong, no matter what comes out of this suppression hearing.

And let’s not even talk about the “spillover” recordings of other lawyers and defendants discussing their cases in the jailhouse conference room.