July 19, 2018 • 36 mins
One of the oldest protected forms of speech comes from when a lawyer speaks with their client. Over centuries, this legal privilege has been protected and defined and still stands stronger than ever. Find out why a person’s ability to speak freely to their counselor is so highly prized and protected.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Stuff You Should Know from How Stuff Works
dot Com. Hey, and welcome to the podcast. I'm Josh
Clark and there's Charles W. Chuck Bryant, and this is
Stuff you Should Know Flying Solo Edition. I was gonna
(00:23):
not say anything and just see if anyone out there
would think I just wasn't here at all. It's just me, everybody.
If you be like god, no, no, and cares. I
don't know about that. Man. Do you remember how berserk
everyone went with that one jokey three D printer April
Fool's episodes? Yeah, poor Ben. No. People were very respectful
(00:47):
to Ben. They were like, Ben, I really like you,
but this is a travesty, all right, So this is
a pretty relevant topic. Oh wait, hold on, will you
indulge me real quick? Sure? Speaking of Ben, so so
just I want to give a shout out real quick.
Ben and I worked on a How Stuff Works first
ever fiction podcast called The Control Group, and it's out.
(01:12):
The first five episodes are out and maybe by the
time this comes out, will be releasing the last five
once a week. Um. And it's pretty good. It's set
in the sixties, It's it takes place in a mental asylum. Uh,
and there's a doctor who is running the show who
is under the encouragement of a very shady organization, a secretive,
(01:34):
shady organization, starting to really go off the rails and
lose his ethics and immorality. It's pretty engrossing. It's a
really engrossing yeah, for sure. It's an engrossing radio drama basically. Yeah.
So yeah, if you like our mk Ultra podcast episodes, uh,
then this is kind of right up your alley for sure.
(01:55):
And it's really really well done. The acting is top notch,
music is really great to sound effects are great. Really
sucks you in. So go check it out on iTunes
the Control Group and um, if you like it, leave
a nice review maybe if you want whatever, even if
you just go and enjoy it, that's all I'm asking
(02:16):
you to do. Agreed. Okay, thanks for indulging me. Charge.
So we're moving on to attorney client privilege, which is
something that I knew just about everything about. It turns out, yeah,
because there's not that much to it. I mean, there's
some nuance here there, but basically everybody knows what it is. Yeah.
(02:37):
But here's the thing. There is nuance because our legal
system here in the United States and in Canada um
are very much based on precedent and legal precedent, and
attorney client privilege. Privilege is not It's not something that
was laid out in the Constitution. So it's something we've
had to formulate over the years, uh, through precedent on
(03:03):
prior cases to kind of figure out all the nuances
that you were talking about. That's right, it's just since
it comes from English common law, that means it's a
very old custom. But since, like you're saying, it's not
enshrined in the Constitution, you can't point to and be like,
here are the rules of attorney client privilege. You have
to work it out through court cases over the years. Yeah,
(03:23):
should we talk about that very first one or the
very first one that mattered? Yeah, for sure. And do
you remember this story from the Revenge episode we did?
Was that where this was okay, Yeah, it did smack
of something that I had heard before. Pretty fascinating, So
so tell it to them, all right, So this is
seventeen forty three, and prior to this there had been
(03:44):
references to an attorney client privilege, but it's all here
that only fourteen reported decisions on this predate, Uh, this
seventeen forty three K. So it wasn't something trotted out
there a lot, but uh Annestlely the and Glessia I
would say, anglesey anglese really yeah, I guess you could
(04:08):
pronounce it, and Glessia Huh it's Anestley Jennifer Aniston versus
Julio Iglesias. Well, regardless of it's let's just say a
v A is a very pivotal trial because it pitted.
This is a story of inheritance. When there was a
man named Arthur who died and his brother Richard said,
(04:29):
you know what I'm due to inherit this estate because
my brother didn't have any kids more. But it was
very inconvenient. When someone named James showed up and said, no, no, no,
I am his long lost son and rightful heir, he
said waw. And that's where the story kicks off. Right.
(04:50):
So James, it turns out, was very much telling the truth. Um,
he says, not only is this guy a jerk, he
knows full well that I'm the rightful heir because he
got rid of me when I was a mere twelve
year old pup growing up in England. All of a sudden,
I found myself kidnapped. Suddenly. This is like um uh
(05:11):
Robert Louis Stevenson book, right. So he's kidnapped and sent
off to Delaware to live as an addentured servant for
thirteen years. Yeah, which might as well have been Siberia
at the time, exactly, I mean still kind of. And
he's working it off as a like. He just basically said,
this is my fate. So he worked for thirteen years
(05:33):
as an addentured servant and worked it off and made
his way down to Jamaica at age twenty five, and
then made his way back to England to claim as inheritance.
So he shows up and his uncle Richard, who was
the Earl of Well and Glessia or angle Sea, one
of the two, and um, he said, he said, this
(05:53):
guy is a fraud. I'm the rightful heir. So first
of all, Richard thinks he got rid of this kid forever. Now,
all of a sudden, the kids shows up and he
does another even dastardly thing and frames him for murder.
I guess yeah he was. There was this accident that
happened and Earl got his attorney, one John Gifford, to
(06:14):
kind of go for a murder prosecution even though he
knew that the death was an accident. So, like you said,
he sort of framed it up in such a way
that he could really get rid of this kid now
a young adult, and even said in pre trial hearings
of his nephew he would give a ten thousand pounds
to have him hanged. And how this all relates back
to attorney client privileges is that, like we said, Gifford
(06:37):
was his attorney and was sort of in on this thing,
and when it all came out, the attorney was the
one the only person really that could give testimony that
this happened. And uh, the original Uncle Dick said no, no, no,
this is attorney client privilege. This is protected, and it
(06:58):
would violate that. It into all the way to to
uh to court and they said, no, no, no, that's
that's not the case. I'm sorry to tell you. Yeah,
because uh, Annesley Um argued that or his lawyer argued
that Um these other things, the kidnapping that the lawyer
helped arrange them, the statement about how we would have
(07:18):
him hanged for ten thousand pounds, that had nothing to
do with the inheritance, and what we were talking about
here was the inheritance, and thus that shouldn't be protected
communication between the client and his attorney. And the court said,
you know what, I don't even care what you just said.
This story is so bonkers and that guy is so
patently evil. I'm going to rule in favor of you.
(07:41):
And the first ruling, the first major clear concise ruling
on attorney client privilege, was registered in seventeen forty three. Right,
So the whole idea behind any attorney client privilege is
to give you the assurance as a client that you
can speak to your attorney in private, and that's very key,
(08:02):
as we will find out later, in private without fear
that they will then use that information against you somehow,
or that that information can be extracted from them under
threat of say jail time or something. Yeah, exactly. And
it's um It's defined pretty well in this other article
you sent. It's where legal advice of any kind it's
(08:24):
sought from a professional legal advisor uh in his or
her capacity. As such, the communications relating to that purpose
made in confidence by the client are at his or
her instance, permanently protected from disclosure by the client or
by the legal advisor, except the protection be waived. Yeah,
and that's I mean, that's a pretty big mouthful. But
(08:44):
what it's basically saying is that if you commit a
crime or committed tort, which is basically a civil a
civil act against somebody that they can sue you for
if you if you commit either one of those, and
you say, oh god, I need a lawyer, and you
go to a lawyer and say a I want you
to be my lawyer, and the lawyer says, okay, go ahead,
and you start talking, say you tell them everything. You
(09:08):
admit to guilt, You admit to everything. It doesn't matter
what you've admitted to. That that speech, that communication, that
conversation is to stay between you and your lawyer forever,
even after your death. They've ruled, as we'll see, and
that you, the client, are the only person who can
(09:28):
waive that right, that privilege of that communication, so that
your lawyer has to take it to their grave even
after you're dead, as long as you say I as
long as you never wave that right. Yeah, and that's
what you just said, would satisfy one of the four
basic elements necessary here, which is one. It was a communication,
uh too, it was made between the privileged persons, that
(09:51):
is you and the attorney. It was made in confidence.
And this one's really important. It's for the purpose of
seeking or obtaining a legal assistance. So it's you can't
It doesn't count if you go to your pal who's
a lawyer and ask them for legal advice. If you're
not retaining them for their services, that's a big one.
(10:11):
That's a really big one. Even if you do go
to a pal and retain them as a lawyer officially,
or even if your lawyer is not your pal and
you retain them as a lawyer. If you say I
committed this crime, I need your help to cover it up,
that's not protected either. Correct. You also can't go to
your lawyer and say, um, hey, i've been thinking that
(10:32):
we could come up with a pretty great real estate
scam with your lawyering skills and my my scamming skills.
Let's come up with something that would not be protected
either because it's a crime. It's you're planning a crime.
Either planning a crime or covering up a crime. You
just lost your your privilege, your attorney client privilege. All right,
should we take a break? I think so that's a
good little overview, and we'll come back and talk about
(10:54):
all the ins and outs right after this. Alright, Chuck,
(11:22):
so we're back. We're talking about some ins and outs, yeah,
and and and exceptions. And you you mentioned one that
you would probably that would probably fall under the crime
fraud exception. Uh. And again that's the in our own article.
The thing they reference here is like, hey, let's set
up a phony company UM as a front. Can you
(11:43):
help me do that as an attorney? Right, then there
is obviously no protection there attorney client privilege, right, or
I want you to go make this bribe to an
elected official or whatever. It doesn't matter what it is.
If it's if it's on the law books as a crime,
you're you just lost your privilege. Yeah. And another way
it can get gray too is if UM lawyers do
(12:07):
a lot of things for people, it's not always providing
legal counsel. So this is where it can get a
little little hinky on both sides. You can have a
communicative act, but uh, as they say in our article,
business is business and the laws the law. Right. You know,
it's only pertaining to legal matters, not if your attorney
is doing some sort of business deal for you, right,
(12:29):
And that really comes in play more for corporate law,
which is they're really big into attorney client privilege because
they're frequently letting their clients or their attorney in on
um tax evasion, UM, maybe selling knowingly selling tainted products,
or even like on the more innocent end of the
spectrum like trade secrets UM, intellectual property secrets there, and
(12:55):
a business attorney will have a lot of knowledge about
their come any or their clients business that you just
don't want them going and spilling the beans, even in
open court. Right, So that but that's where you want it.
You want that very much if you're a company with
your corporate lawyer. But in the same time, as far
(13:16):
as the courts have said over the years, that's very
very murky because what constitutes legal advice what constitutes business advice.
Sometimes it's clear, you know, like what's our what is
our legal implication for this tax evasion that we just
found out our accounting department did that would be protected
not um uh, I don't know. Help us, help us
(13:39):
figure out some ways to evade our taxes or even
even beyond that, even legal ways. Help us figure out
some legal ways to evade our taxes that might not
cut muster because that's more business than law. You could
make an argument, yeah, and and likely like I said earlier,
it can get super gray as too far as far
as whether or not you have obtained the services of
(14:02):
an attorney, because this can come about in a lot
of ways. Uh, Like if you have to you're trying
to prove this in court, you can bring an engagement letter, um,
some sort of contract that you've signed the outlines fees,
or just the relationship. It can be an oral agreement, UM,
as long as it's you know, both sides are acknowledging
that it could be that they have appeared for you
(14:24):
in court. Um, like you you know you don't go
to court that first day, Like your attorney goes on
your behalf and like file some something for you in court,
some sort of document. Then that is an official expressed acknowledgement.
So there are all kinds of ways that you can
have an attorney officially represent you. But it has to
go beyond just sitting in a room and saying like
(14:45):
I could use a little advice, like you have to
agree that you're engaging one another, right, um, So are
non legal legal advice to you. That is not legal
advice in any way, shape or form. Is if you
ever hire a lawyer, doesn't matter what kind of lawyer
it is. Before you tell them anything, say I would
like to take you on as my lawyer. Will you
(15:05):
take me on as your client? And if they say yes,
everything after that is now privileged as long as you're
not planning a crime, right yes, And you'll know that
happens because they start a little time or on their desk,
little dollar bill clinks. But even even without um an
express say like an engagement letter, or even them expressly
saying yes, I'm your lawyer. UM, I think courts have
(15:28):
kind of found over the years that there are certain
things that a person could reasonably expect that the the
lawyer has agreed to represent them. Right Like, if you
go to a lawyer that you've used before, UM, and
but you aren't currently engaged with, and they start doling
out legal advice because you told them your problem, the
(15:49):
a court would probably find that you had an attorney
client relationship and therefore there is attorney client privilege. UM.
If they quote you fees and then follow up with
some advice, I same thing. It's more just like the
client can't unilaterally say we had an attorney client relationship.
So this is protected that there has to be some
(16:11):
sort of sign or signal from the lawyer as well
that that there's a relationship there. Yeah, And speaking of
signs or signals, uh, apparently it doesn't even have to
be like a verbal communication that like you could look
at your attorney and say like, well, you can ask
him a question and they could just sort of give
you a wink and tap their nose and that could
(16:34):
be used in court. You know. They don't have to
expressly say something out loud even no, that can't be
used in court. That's protected. Yeah, that's what That's what
I mean. I mean that would come up, but it
doesn't have to. Yeah, I think I just confused everybody.
But but yeah, you don't even have to be talking.
Like if if they say did you kill that person?
And you nod, that's protected community exactly, you know, um or.
(16:56):
I think they've even found that like a um a
sigh islens like a complete silence has protected communication too,
because you're not you're not denying things left unsaid pretty much. Yeah,
because if somebody's like, did you kill that person? And
you didn't. You're gonna say, hell, no, I didn't kill
that person. Get me out of this. If you're just
completely silent, I think a reasonable person might take that
(17:19):
as an ambition of guilt. But it's still a protected
communication between you and your lawyer. Should we talk about
people versus Meredith. I think so people v. Meredith. So
this was in California nineteen seventy six and a man
named Michael Meredith convinced his friend Frank Scott to uh
commit a crime, which was let's jump this guy, Mr
(17:41):
David Wade. Uh. They ended up shooting and killing him.
I don't know if that was the original intent, but
that's what happened. They ran for it, they got arrested,
found and arrested, and then they were in jail. So
Scott's appointed counsel was one Mr James Shank, and he
went by to talk and they were kind of it
chatting around, and uh, Scott said something about a wallet.
(18:04):
He was like, yeah, we got the wallet from the victim.
We split the money up and put it in a
trash can. The lawyer then sends an investigator and actually
found that wallet and took it and gave it to
the cops. So obviously this was a key piece of
evidence that ended up um well, I mean it ended
up backfiring because his client rightfully went to prison, right
(18:27):
but Schenk was subpoenaed and said, you're going to be
found in contempt of court unless you admit like how
this thing went down and how you got this wallet.
And the whole key here is if he had never
went and got the wallet, then it still would have
been attorney client privilege. Yeah, because all he did was
received information in confidence from his client. It was when
(18:50):
he basically broke through into the real world and manipulated evidence,
that's when all that just changed everything and apparently broke
the broke the veil or the privilege of that communication. Well, yeah,
which is rightfully so because the courts I believe this one. Yeah.
I went all the way to the California Supreme Court. Uh,
they ruled rightfully that you can't do this because all
(19:13):
this is gonna do we allowed it. It would incentivize
defense attorneys to go out and like try and find
evidence right and collect it, and you don't want attorneys
doing that, yeah, because once they collected it, it would
enter the veil of privacy. And would be protected, and
you couldn't. You could never discover it. Um. Similarly, though,
and I think I agree with you. I think that
(19:34):
that's just logical and sensible, Like you can't you can't
allow attorneys to go do that kind of thing. Um. Similarly,
just because you communicated a fact doesn't mean that the
fact itself is protected from discovery, just that your communication
of that fact to your lawyer was protected. So if
(19:54):
there's other ways to find out that you did something,
and this seems just boneheadedly, I've yes, but apparently it
was worth spelling out and at least one of these articles.
If you said, yes, I killed that person, your lawyer
can't tell anybody you said that to them, But if
you said that to your wife, well, and your co worker,
(20:15):
your coworker can go can go testify against you. So
it's not like the fact that you have admitted that
you killed that person is protected. It's that the communication
between you and your lawyer about that fact is what's protected. Right,
So if it's otherwise discoverable, then it's fair game. Yeah,
It's not like you can enshrine a fact with your
lawyer and then it belongs to them and them only
(20:36):
and the rest of the world can never learn of
it legally speaking. That's good point. It doesn't make any sense,
but I guess it was worth working out. Uh, you
want to take a break, I think we shall. All right,
we'll go back and talk about this extending beyond the grave,
(21:16):
all right, Chuck. So, um, you have a relationship with
your attorney. Your attorney is like ten years old at
the time you hire him, and you're seventy, so you
pass on before your lawyer. Well, it turns out that
something comes up later on and somebody wants info from
your lawyer, private info that you gave them. Your lawyer says,
(21:39):
no way, Jose, this is covered by attorney client privilege.
That is true. Yeah, because that happened very famously with
Vincent Foster, who us most people know was a big
h He worked for the Clintons in Arkansas. He was
an attorney. He was one of their close attorneys, personal attorneys.
I think, yeah. So, uh, he ended up killing himself.
(22:02):
And if you if you have on your tinfoil hat
or if you go to these conspiracy websites, then h
then you firmly believe that Bill and Hillary Clinton murdered
this man with their with their parents. If you're a
reasonable human, you know that he fell into clinical depression.
And every single investigator an investigative unit, and there were
quite a few, including one Kinneth Star went out and said, yes,
(22:26):
he definitely committed suicide. Um, all the evidence was there.
So I feel like that's a spectrum you could you
could be somewhere on that spectrum between those two beliefs.
Oh what between thinking he killed himself and was murdered. Yeah,
so he was obviously involved in the infamous Whitewater real
estate deal. And when Kenneth Starr was investigating this stuff,
(22:50):
he tried to get his hands on notes created by
Foster's lawyer, and the lawyer said, no attorney client privilege,
even though this man is dead, And it went all
the way to the Supreme Court and they ruled six
to three that it must be honored even after the grave. Yeah.
I was really surprised that that was as recent as
it was. I thought that that would have been a
(23:10):
really old case that came up long ago. But yeah,
that was from the nineties, so that one was established
in um, well the nineties. I don't see when the
actual case or when the Supreme Court ruled on it um.
But that was that was one thing that was tested
in court. There was another one UM that had to
do with like employees giving testimony for their company. For
(23:36):
a long time, it was if you hired, if you
were a director level or a m an executive level
person in a company and you were talking to corporate council,
whatever communication was being made was protected. But then cases
started to come up, like what if somebody from accounting
was talking to corporate council about that case? Like is
(23:59):
that for tected and um. For a long time there
was this test called the control group test appropriately which
was basically, just are you one of the people who
is in a position to take the advice of legal
counsel and either run with it or decide not to
do with that? Are you like pretty high up in
the company. And if you weren't, then that speech wasn't protected.
(24:22):
But then over time they decided that no. One of
the reasons why we have this privilege is that we
want lawyers to be fully briefed on the facts of
the case so that they can figure out the best
defense or the best legal route to resolving this thing um.
And if they're not fully informed. Then we're kind of
(24:43):
hamstringing our attorneys. So we want them to know everything,
and they won't know everything unless people feel comfortable telling
them everything. Hence the attorney client privilege. Well, they said
that extends to employees as well, because employees sometimes have
information that members of that control group won't have. And
as long as they're talking about something that directly reflects
their job and the case at hand to that council,
(25:06):
that would be considered protected by the by the attorney
client privilege. That was the up John ruling I believe. Yeah.
And just this year, um, it's been making a lot
of headlines because of the Mueller investigation. When Trump's personal attorney,
or one of his personal attorneys, one Michael Cohen, had
(25:27):
his office rated in April this year into two thousand eighteen,
and the FBI sees all sorts of documents looking for
evidence of bank fraud, came back that it was part
of the Mueller investigation, and Trump starts tweeting about how
attorney client privilege is dead. Uh, And the attorney that
was quoted in this article said, no, it's not dead
(25:49):
at all. This is very typical. What's going on is uh?
There's a judge that his UH in the Cohen cases,
appointed what they call a taint team, one of the
more unfortunate unfortunately named teams UH. And what they do
this is a third party what they call an arms
length group of qualified people, so they're not involved with
(26:12):
with anyone in this investigation. And they go through all
the evidence gathered and say what's pertinent to the case,
what's not pertinent, and here's the pertinent stuff. It's not
like we're just trying to release everything ever said between
these two men right there, and they they are. They
take all the stuff they saw that didn't relate to
the case to their grave. So it is a form
(26:34):
and extension of attorney client privilege. Yeah, and especially in
the in the Cohen case, this UH. This attorney goes
on to say, because Cohen was performing little to know
actual legal work for Trump, UM, not much of what
was seized in the raid would be protected anyway. So
that's what this attorney says, that's his expert opinion. So
(26:54):
can't you see like one member of the taint team
at the bar being like the snow it it means
deterrek I quit saying that it's really important and vital
Oh that's good stuff. So we should talk about another
famous recent case of attorney client privilege or attorney client
privilege being violated. Actually with the Jodi Arias case. Yeah,
(27:17):
I don't know a whole lot about this one except
that um, she murdered someone right, yes, in cold blood. UM.
From what I read most recently, one of the alternate
jurors believes that she killed her ex boyfriend because he
was breaking up with her and she wanted to be
the last person he had sex with or the only
(27:39):
person he had sex with her the last one of
the two. UM went off the rails, stabbed him like
twenty nine times, cut his throat, shot him in the head,
and just left him for dead and ran off to
California and was caught within like a week or so
of his body being discovered. So she UM. She mounted
a defense that he was a pedophile, he abused her, UM,
(28:01):
and that he was in the act of physically abusing
her when she fought back and snapped and killed him.
Apparently that that was all just completely made up. That
he wasn't a pedophile, he wasn't an abuser, and he
was just trying to break up with her. That's the
way it stands now. And she was convicted of I
think premeditated murder, initially sentenced to death, a mistrial was
(28:23):
declared and she ended up with life without the possibility
of parole. So that's where it stands now. She um
publicly criticized her public defender, a guy named Kirk Nermi
and Um over the years. Kirk kind of put up
with it and then was diagnosed with cancer and said,
to hell with it, I'm writing to tell all book.
(28:46):
That's what he says. He says that he was he
had a bit of an epiphany, a reversal of his
his life in that cancer diagnosis, and said, I might
be dead. I can't let her be the only person
telling the side. The side of the story is he's
saying like a canary in this book. Oh yeah, man.
He he revealed stuff that didn't come out at trial.
He he gave his own personal assessment of her guilt
(29:08):
that she was definitely guilty, talked about how her mother
lying on the stand for her was laughable. Um, just
all sorts of stuff just ripped apart their attorney client privilege.
And so as a result, she's suing him big time.
So that's still in the middle of I mean, this
hasn't been decided, right, not as far as I know.
I think the article I read was from two thousand
(29:30):
and eighteen, so I don't think it's been decided yet.
I think he and he's defending himself saying no, when
she gave public interviews and talked about our private attorney
client conversation, she revoked privilege. She weighed her privilege in
doing so, and so I'm free to tell anybody anything
(29:50):
about it. So the California Bar, the Arizona Bar, I
think disbarred him. He agreed to disbardment without admitting misconduct.
And he's like a life coach or a professional coach
for lawyers. Interesting, Yeah, it is very interesting. Um, the
whole thing is super interesting. Her cases just gut wrenching
(30:12):
and the the this this new piece of it. He
basically hates her, hates her. He says that he was
forced into the smear campaign as a defense, that he
didn't want to have anything to do. He just hates
her guts and even her defense team said that that
he's developed some bizarre hatred of her. And he he
(30:33):
said in this quote in this Reuter's article that um
he was he was standing up to years of abuse
from her, So it's like a deep seated hatred. Um
one way or another, they ruined each other's lives. I
think she blames him for botching her defense. He blames
her apparently for a whole whole slate of stuff. So
so this will probably be another precedent center. Huh, I
(30:57):
would guess so. But it's a it's a civil so yeah,
I could still set president. But yeah, the fact that
he was disbarred that doesn't bode well for him. But
I have the feeling he's like, I'm dying of cancer,
so what ofs Yeah, screw it. So that's attorney client privilege.
I don't think we missed anything, did we? I don't
think so. There are probably little nitpicky things here and there.
(31:18):
It is, Uh, there are some definitely some gray areas,
but it's been shaped and reformed over the years. Imagine
will continue to be someone. Hey, one more thing I
want to say is um, I read and this is
kind of apropope, but not really. I read an article
probably about six months ago, maybe a little longer. It
was by a lawyer, you know how, like lawyers will
write like blog posts or articles or stuff like their
(31:41):
clients is on general stuff. This one lawyer wrote one
about how if you ever talked to the FBI without
a lawyer, you are an idiot. And he put it
like that, but no, he makes this really great case
for why most people, especially innocent people, would would think
I don't need a lawyer. And he said everyone needs
(32:04):
a lawyer when they're talking to the FBI. And he
laid out this really exquisite case, multiple point case why
to where by the end of it you're like, oh, yeah,
you need a lawyer if you're talking to the FBI.
It's pretty pretty amazing stuff. He's like, you're not qualified
to talk to the FBI. A lawyer can make you qualified.
You can't go in there and expect to be qualified.
(32:25):
It was really fascinating. I don't remember who wrote it,
but I think if you search something like if you
don't have a lawyer and speak to the FBI, you're
an idiot, something along those lines. It was fascinating. Just
call FED Protect Josh will pat you through for the people. Ah,
you got anything else? Nope? Okay, Well, if you want
(32:46):
to know more about attorney client privilege, you can type
that word in the search part how stuff works. And
since I said privilege, it's time for a listener mail.
I do have one more thing to say without getting
too much on a soapbox. I hope people take the time,
like to understand something like attorney client privilege, because when
(33:07):
the president is tweeting out things and all exclamation points
like attorney client privilege is dead, I think a lot
of people believe that to be true when they don't
even really understand the true legal sense of what this means.
You know. Yeah, I totally agree with you, man. It's
just like it's misinformation that people think like a tweet
(33:28):
is means well, that's a fact, you know, and it's not.
It's a tweet, Yeah, something typed out on a phone
like do better? People with fat fingers sometimes too. Alright,
So moving on, I'm gonna call this Mercury Bobcat. Yeah. Hey, guys,
been listening for about a year and I just listened
(33:49):
to the Ford Pinto death Trap episode. To put this
timeline into context. I was born in This is what
makes this story perfect. If you ask me, Uh, when
I was a kid, my family had a powder blue
Mercury Bobcat sister card to the Pinto. Like he said,
my dad sold the car and bought it back eight
years later, just before my sixteenth birthday. And I drove
(34:11):
this car for two years in high school, eventually selling
it to buy a vehicle compatible with highway travel because
a Bobcat could not top ninety kilometers per hour, which
is what I don't even know something like that. Well,
I knew the Pinto was generally regarded as unsafe. I
somehow did not know the extent of the carnage until
listening to the episode that you guys did, And after listening,
(34:33):
I can't believe my parents ever allowed me to get
behind the wheel of this car, although mine was a
seventy eight, so maybe that time they had faith in
the upgraded flaming death bolts. It's been about seven years
and this dude, he was born in ninety three. He
was driving this old car around well after its prime. Yeah,
he would have been driving it in the two thousand's
Like that's great. Yeah, it was like me. I had
(34:56):
a sixty eight Beatle when I was in the eighties
and everyone just thought I was weird with the ankle burner. Yep. Yeah,
it's been about seven years since I'll let the car go,
and now twenty four my friends and I missed the
car so much. I frequently search the Canadian version of Craigslist,
uh called KEG, hoping to buy it back. So that's
(35:17):
made up. I love this guy. That guy just he
just said some code word that we just said on air.
The Bobcat never went up in flames, but it did burn.
We did burn it up in it a few times.
I hear you man, and this can't know what you mean.
This is Owen from Nova Scotia, and uh, I think
that's pretty great. And I hope you get to buy
(35:38):
that car back. Dude, Yeah, good luck in your quests Owen.
Anybody out there in s y s k Land, if
you know where Owen's Bobcat is, help him out. Let
us know. We'll connect to same with my sixty eight beetle.
Oh that'd be something. I'd like to buy that thing back. Well,
if you guys know the vin number, just shout at
(36:00):
out you and knowing. Okay, agreed. If you want to
get in touch with me and Chuck, you can hang
out with us at our home on the web. Stuff
you should know dot com and there you will find
links to all of our many myriad social media sites.
And in the meantime, while you're doing that, if you
want to dash off an email, you can send that
(36:20):
thing to Stuff podcast at how stuff works dot com.
For more on this and thousands of other topics. Is
that how stuff works dot com.
Welcome to Stuff You Should Know from How Stuff Works
dot Com. Hey, and welcome to the podcast. I'm Josh
Clark and there's Charles W. Chuck Bryant, and this is
Stuff you Should Know Flying Solo Edition. I was gonna
(00:23):
not say anything and just see if anyone out there
would think I just wasn't here at all. It's just me, everybody.
If you be like god, no, no, and cares. I
don't know about that. Man. Do you remember how berserk
everyone went with that one jokey three D printer April
Fool's episodes? Yeah, poor Ben. No. People were very respectful
(00:47):
to Ben. They were like, Ben, I really like you,
but this is a travesty, all right, So this is
a pretty relevant topic. Oh wait, hold on, will you
indulge me real quick? Sure? Speaking of Ben, so so
just I want to give a shout out real quick.
Ben and I worked on a How Stuff Works first
ever fiction podcast called The Control Group, and it's out.
(01:12):
The first five episodes are out and maybe by the
time this comes out, will be releasing the last five
once a week. Um. And it's pretty good. It's set
in the sixties, It's it takes place in a mental asylum. Uh,
and there's a doctor who is running the show who
is under the encouragement of a very shady organization, a secretive,
(01:34):
shady organization, starting to really go off the rails and
lose his ethics and immorality. It's pretty engrossing. It's a
really engrossing yeah, for sure. It's an engrossing radio drama basically. Yeah.
So yeah, if you like our mk Ultra podcast episodes, uh,
then this is kind of right up your alley for sure.
(01:55):
And it's really really well done. The acting is top notch,
music is really great to sound effects are great. Really
sucks you in. So go check it out on iTunes
the Control Group and um, if you like it, leave
a nice review maybe if you want whatever, even if
you just go and enjoy it, that's all I'm asking
(02:16):
you to do. Agreed. Okay, thanks for indulging me. Charge.
So we're moving on to attorney client privilege, which is
something that I knew just about everything about. It turns out, yeah,
because there's not that much to it. I mean, there's
some nuance here there, but basically everybody knows what it is. Yeah.
(02:37):
But here's the thing. There is nuance because our legal
system here in the United States and in Canada um
are very much based on precedent and legal precedent, and
attorney client privilege. Privilege is not It's not something that
was laid out in the Constitution. So it's something we've
had to formulate over the years, uh, through precedent on
(03:03):
prior cases to kind of figure out all the nuances
that you were talking about. That's right, it's just since
it comes from English common law, that means it's a
very old custom. But since, like you're saying, it's not
enshrined in the Constitution, you can't point to and be like,
here are the rules of attorney client privilege. You have
to work it out through court cases over the years. Yeah,
(03:23):
should we talk about that very first one or the
very first one that mattered? Yeah, for sure. And do
you remember this story from the Revenge episode we did?
Was that where this was okay, Yeah, it did smack
of something that I had heard before. Pretty fascinating, So
so tell it to them, all right, So this is
seventeen forty three, and prior to this there had been
(03:44):
references to an attorney client privilege, but it's all here
that only fourteen reported decisions on this predate, Uh, this
seventeen forty three K. So it wasn't something trotted out
there a lot, but uh Annestlely the and Glessia I
would say, anglesey anglese really yeah, I guess you could
(04:08):
pronounce it, and Glessia Huh it's Anestley Jennifer Aniston versus
Julio Iglesias. Well, regardless of it's let's just say a
v A is a very pivotal trial because it pitted.
This is a story of inheritance. When there was a
man named Arthur who died and his brother Richard said,
(04:29):
you know what I'm due to inherit this estate because
my brother didn't have any kids more. But it was
very inconvenient. When someone named James showed up and said, no, no, no,
I am his long lost son and rightful heir, he
said waw. And that's where the story kicks off. Right.
(04:50):
So James, it turns out, was very much telling the truth. Um,
he says, not only is this guy a jerk, he
knows full well that I'm the rightful heir because he
got rid of me when I was a mere twelve
year old pup growing up in England. All of a sudden,
I found myself kidnapped. Suddenly. This is like um uh
(05:11):
Robert Louis Stevenson book, right. So he's kidnapped and sent
off to Delaware to live as an addentured servant for
thirteen years. Yeah, which might as well have been Siberia
at the time, exactly, I mean still kind of. And
he's working it off as a like. He just basically said,
this is my fate. So he worked for thirteen years
(05:33):
as an addentured servant and worked it off and made
his way down to Jamaica at age twenty five, and
then made his way back to England to claim as inheritance.
So he shows up and his uncle Richard, who was
the Earl of Well and Glessia or angle Sea, one
of the two, and um, he said, he said, this
(05:53):
guy is a fraud. I'm the rightful heir. So first
of all, Richard thinks he got rid of this kid forever. Now,
all of a sudden, the kids shows up and he
does another even dastardly thing and frames him for murder.
I guess yeah he was. There was this accident that
happened and Earl got his attorney, one John Gifford, to
(06:14):
kind of go for a murder prosecution even though he
knew that the death was an accident. So, like you said,
he sort of framed it up in such a way
that he could really get rid of this kid now
a young adult, and even said in pre trial hearings
of his nephew he would give a ten thousand pounds
to have him hanged. And how this all relates back
to attorney client privileges is that, like we said, Gifford
(06:37):
was his attorney and was sort of in on this thing,
and when it all came out, the attorney was the
one the only person really that could give testimony that
this happened. And uh, the original Uncle Dick said no, no, no,
this is attorney client privilege. This is protected, and it
(06:58):
would violate that. It into all the way to to
uh to court and they said, no, no, no, that's
that's not the case. I'm sorry to tell you. Yeah,
because uh, Annesley Um argued that or his lawyer argued
that Um these other things, the kidnapping that the lawyer
helped arrange them, the statement about how we would have
(07:18):
him hanged for ten thousand pounds, that had nothing to
do with the inheritance, and what we were talking about
here was the inheritance, and thus that shouldn't be protected
communication between the client and his attorney. And the court said,
you know what, I don't even care what you just said.
This story is so bonkers and that guy is so
patently evil. I'm going to rule in favor of you.
(07:41):
And the first ruling, the first major clear concise ruling
on attorney client privilege, was registered in seventeen forty three. Right,
So the whole idea behind any attorney client privilege is
to give you the assurance as a client that you
can speak to your attorney in private, and that's very key,
(08:02):
as we will find out later, in private without fear
that they will then use that information against you somehow,
or that that information can be extracted from them under
threat of say jail time or something. Yeah, exactly. And
it's um It's defined pretty well in this other article
you sent. It's where legal advice of any kind it's
(08:24):
sought from a professional legal advisor uh in his or
her capacity. As such, the communications relating to that purpose
made in confidence by the client are at his or
her instance, permanently protected from disclosure by the client or
by the legal advisor, except the protection be waived. Yeah,
and that's I mean, that's a pretty big mouthful. But
(08:44):
what it's basically saying is that if you commit a
crime or committed tort, which is basically a civil a
civil act against somebody that they can sue you for
if you if you commit either one of those, and
you say, oh god, I need a lawyer, and you
go to a lawyer and say a I want you
to be my lawyer, and the lawyer says, okay, go ahead,
and you start talking, say you tell them everything. You
(09:08):
admit to guilt, You admit to everything. It doesn't matter
what you've admitted to. That that speech, that communication, that
conversation is to stay between you and your lawyer forever,
even after your death. They've ruled, as we'll see, and
that you, the client, are the only person who can
(09:28):
waive that right, that privilege of that communication, so that
your lawyer has to take it to their grave even
after you're dead, as long as you say I as
long as you never wave that right. Yeah, and that's
what you just said, would satisfy one of the four
basic elements necessary here, which is one. It was a communication,
uh too, it was made between the privileged persons, that
(09:51):
is you and the attorney. It was made in confidence.
And this one's really important. It's for the purpose of
seeking or obtaining a legal assistance. So it's you can't
It doesn't count if you go to your pal who's
a lawyer and ask them for legal advice. If you're
not retaining them for their services, that's a big one.
(10:11):
That's a really big one. Even if you do go
to a pal and retain them as a lawyer officially,
or even if your lawyer is not your pal and
you retain them as a lawyer. If you say I
committed this crime, I need your help to cover it up,
that's not protected either. Correct. You also can't go to
your lawyer and say, um, hey, i've been thinking that
(10:32):
we could come up with a pretty great real estate
scam with your lawyering skills and my my scamming skills.
Let's come up with something that would not be protected
either because it's a crime. It's you're planning a crime.
Either planning a crime or covering up a crime. You
just lost your your privilege, your attorney client privilege. All right,
should we take a break? I think so that's a
good little overview, and we'll come back and talk about
(10:54):
all the ins and outs right after this. Alright, Chuck,
(11:22):
so we're back. We're talking about some ins and outs, yeah,
and and and exceptions. And you you mentioned one that
you would probably that would probably fall under the crime
fraud exception. Uh. And again that's the in our own article.
The thing they reference here is like, hey, let's set
up a phony company UM as a front. Can you
(11:43):
help me do that as an attorney? Right, then there
is obviously no protection there attorney client privilege, right, or
I want you to go make this bribe to an
elected official or whatever. It doesn't matter what it is.
If it's if it's on the law books as a crime,
you're you just lost your privilege. Yeah. And another way
it can get gray too is if UM lawyers do
(12:07):
a lot of things for people, it's not always providing
legal counsel. So this is where it can get a
little little hinky on both sides. You can have a
communicative act, but uh, as they say in our article,
business is business and the laws the law. Right. You know,
it's only pertaining to legal matters, not if your attorney
is doing some sort of business deal for you, right,
(12:29):
And that really comes in play more for corporate law,
which is they're really big into attorney client privilege because
they're frequently letting their clients or their attorney in on
um tax evasion, UM, maybe selling knowingly selling tainted products,
or even like on the more innocent end of the
spectrum like trade secrets UM, intellectual property secrets there, and
(12:55):
a business attorney will have a lot of knowledge about
their come any or their clients business that you just
don't want them going and spilling the beans, even in
open court. Right, So that but that's where you want it.
You want that very much if you're a company with
your corporate lawyer. But in the same time, as far
(13:16):
as the courts have said over the years, that's very
very murky because what constitutes legal advice what constitutes business advice.
Sometimes it's clear, you know, like what's our what is
our legal implication for this tax evasion that we just
found out our accounting department did that would be protected
not um uh, I don't know. Help us, help us
(13:39):
figure out some ways to evade our taxes or even
even beyond that, even legal ways. Help us figure out
some legal ways to evade our taxes that might not
cut muster because that's more business than law. You could
make an argument, yeah, and and likely like I said earlier,
it can get super gray as too far as far
as whether or not you have obtained the services of
(14:02):
an attorney, because this can come about in a lot
of ways. Uh, Like if you have to you're trying
to prove this in court, you can bring an engagement letter, um,
some sort of contract that you've signed the outlines fees,
or just the relationship. It can be an oral agreement, UM,
as long as it's you know, both sides are acknowledging
that it could be that they have appeared for you
(14:24):
in court. Um, like you you know you don't go
to court that first day, Like your attorney goes on
your behalf and like file some something for you in court,
some sort of document. Then that is an official expressed acknowledgement.
So there are all kinds of ways that you can
have an attorney officially represent you. But it has to
go beyond just sitting in a room and saying like
(14:45):
I could use a little advice, like you have to
agree that you're engaging one another, right, um, So are
non legal legal advice to you. That is not legal
advice in any way, shape or form. Is if you
ever hire a lawyer, doesn't matter what kind of lawyer
it is. Before you tell them anything, say I would
like to take you on as my lawyer. Will you
(15:05):
take me on as your client? And if they say yes,
everything after that is now privileged as long as you're
not planning a crime, right yes, And you'll know that
happens because they start a little time or on their desk,
little dollar bill clinks. But even even without um an
express say like an engagement letter, or even them expressly
saying yes, I'm your lawyer. UM, I think courts have
(15:28):
kind of found over the years that there are certain
things that a person could reasonably expect that the the
lawyer has agreed to represent them. Right Like, if you
go to a lawyer that you've used before, UM, and
but you aren't currently engaged with, and they start doling
out legal advice because you told them your problem, the
(15:49):
a court would probably find that you had an attorney
client relationship and therefore there is attorney client privilege. UM.
If they quote you fees and then follow up with
some advice, I same thing. It's more just like the
client can't unilaterally say we had an attorney client relationship.
So this is protected that there has to be some
(16:11):
sort of sign or signal from the lawyer as well
that that there's a relationship there. Yeah, And speaking of
signs or signals, uh, apparently it doesn't even have to
be like a verbal communication that like you could look
at your attorney and say like, well, you can ask
him a question and they could just sort of give
you a wink and tap their nose and that could
(16:34):
be used in court. You know. They don't have to
expressly say something out loud even no, that can't be
used in court. That's protected. Yeah, that's what That's what
I mean. I mean that would come up, but it
doesn't have to. Yeah, I think I just confused everybody.
But but yeah, you don't even have to be talking.
Like if if they say did you kill that person?
And you nod, that's protected community exactly, you know, um or.
(16:56):
I think they've even found that like a um a
sigh islens like a complete silence has protected communication too,
because you're not you're not denying things left unsaid pretty much. Yeah,
because if somebody's like, did you kill that person? And
you didn't. You're gonna say, hell, no, I didn't kill
that person. Get me out of this. If you're just
completely silent, I think a reasonable person might take that
(17:19):
as an ambition of guilt. But it's still a protected
communication between you and your lawyer. Should we talk about
people versus Meredith. I think so people v. Meredith. So
this was in California nineteen seventy six and a man
named Michael Meredith convinced his friend Frank Scott to uh
commit a crime, which was let's jump this guy, Mr
(17:41):
David Wade. Uh. They ended up shooting and killing him.
I don't know if that was the original intent, but
that's what happened. They ran for it, they got arrested,
found and arrested, and then they were in jail. So
Scott's appointed counsel was one Mr James Shank, and he
went by to talk and they were kind of it
chatting around, and uh, Scott said something about a wallet.
(18:04):
He was like, yeah, we got the wallet from the victim.
We split the money up and put it in a
trash can. The lawyer then sends an investigator and actually
found that wallet and took it and gave it to
the cops. So obviously this was a key piece of
evidence that ended up um well, I mean it ended
up backfiring because his client rightfully went to prison, right
(18:27):
but Schenk was subpoenaed and said, you're going to be
found in contempt of court unless you admit like how
this thing went down and how you got this wallet.
And the whole key here is if he had never
went and got the wallet, then it still would have
been attorney client privilege. Yeah, because all he did was
received information in confidence from his client. It was when
(18:50):
he basically broke through into the real world and manipulated evidence,
that's when all that just changed everything and apparently broke
the broke the veil or the privilege of that communication. Well, yeah,
which is rightfully so because the courts I believe this one. Yeah.
I went all the way to the California Supreme Court. Uh,
they ruled rightfully that you can't do this because all
(19:13):
this is gonna do we allowed it. It would incentivize
defense attorneys to go out and like try and find
evidence right and collect it, and you don't want attorneys
doing that, yeah, because once they collected it, it would
enter the veil of privacy. And would be protected, and
you couldn't. You could never discover it. Um. Similarly, though,
and I think I agree with you. I think that
(19:34):
that's just logical and sensible, Like you can't you can't
allow attorneys to go do that kind of thing. Um. Similarly,
just because you communicated a fact doesn't mean that the
fact itself is protected from discovery, just that your communication
of that fact to your lawyer was protected. So if
(19:54):
there's other ways to find out that you did something,
and this seems just boneheadedly, I've yes, but apparently it
was worth spelling out and at least one of these articles.
If you said, yes, I killed that person, your lawyer
can't tell anybody you said that to them, But if
you said that to your wife, well, and your co worker,
(20:15):
your coworker can go can go testify against you. So
it's not like the fact that you have admitted that
you killed that person is protected. It's that the communication
between you and your lawyer about that fact is what's protected. Right,
So if it's otherwise discoverable, then it's fair game. Yeah,
It's not like you can enshrine a fact with your
lawyer and then it belongs to them and them only
(20:36):
and the rest of the world can never learn of
it legally speaking. That's good point. It doesn't make any sense,
but I guess it was worth working out. Uh, you
want to take a break, I think we shall. All right,
we'll go back and talk about this extending beyond the grave,
(21:16):
all right, Chuck. So, um, you have a relationship with
your attorney. Your attorney is like ten years old at
the time you hire him, and you're seventy, so you
pass on before your lawyer. Well, it turns out that
something comes up later on and somebody wants info from
your lawyer, private info that you gave them. Your lawyer says,
(21:39):
no way, Jose, this is covered by attorney client privilege.
That is true. Yeah, because that happened very famously with
Vincent Foster, who us most people know was a big
h He worked for the Clintons in Arkansas. He was
an attorney. He was one of their close attorneys, personal attorneys.
I think, yeah. So, uh, he ended up killing himself.
(22:02):
And if you if you have on your tinfoil hat
or if you go to these conspiracy websites, then h
then you firmly believe that Bill and Hillary Clinton murdered
this man with their with their parents. If you're a
reasonable human, you know that he fell into clinical depression.
And every single investigator an investigative unit, and there were
quite a few, including one Kinneth Star went out and said, yes,
(22:26):
he definitely committed suicide. Um, all the evidence was there.
So I feel like that's a spectrum you could you
could be somewhere on that spectrum between those two beliefs.
Oh what between thinking he killed himself and was murdered. Yeah,
so he was obviously involved in the infamous Whitewater real
estate deal. And when Kenneth Starr was investigating this stuff,
(22:50):
he tried to get his hands on notes created by
Foster's lawyer, and the lawyer said, no attorney client privilege,
even though this man is dead, And it went all
the way to the Supreme Court and they ruled six
to three that it must be honored even after the grave. Yeah.
I was really surprised that that was as recent as
it was. I thought that that would have been a
(23:10):
really old case that came up long ago. But yeah,
that was from the nineties, so that one was established
in um, well the nineties. I don't see when the
actual case or when the Supreme Court ruled on it um.
But that was that was one thing that was tested
in court. There was another one UM that had to
do with like employees giving testimony for their company. For
(23:36):
a long time, it was if you hired, if you
were a director level or a m an executive level
person in a company and you were talking to corporate council,
whatever communication was being made was protected. But then cases
started to come up, like what if somebody from accounting
was talking to corporate council about that case? Like is
(23:59):
that for tected and um. For a long time there
was this test called the control group test appropriately which
was basically, just are you one of the people who
is in a position to take the advice of legal
counsel and either run with it or decide not to
do with that? Are you like pretty high up in
the company. And if you weren't, then that speech wasn't protected.
(24:22):
But then over time they decided that no. One of
the reasons why we have this privilege is that we
want lawyers to be fully briefed on the facts of
the case so that they can figure out the best
defense or the best legal route to resolving this thing um.
And if they're not fully informed. Then we're kind of
(24:43):
hamstringing our attorneys. So we want them to know everything,
and they won't know everything unless people feel comfortable telling
them everything. Hence the attorney client privilege. Well, they said
that extends to employees as well, because employees sometimes have
information that members of that control group won't have. And
as long as they're talking about something that directly reflects
their job and the case at hand to that council,
(25:06):
that would be considered protected by the by the attorney
client privilege. That was the up John ruling I believe. Yeah.
And just this year, um, it's been making a lot
of headlines because of the Mueller investigation. When Trump's personal attorney,
or one of his personal attorneys, one Michael Cohen, had
(25:27):
his office rated in April this year into two thousand eighteen,
and the FBI sees all sorts of documents looking for
evidence of bank fraud, came back that it was part
of the Mueller investigation, and Trump starts tweeting about how
attorney client privilege is dead. Uh, And the attorney that
was quoted in this article said, no, it's not dead
(25:49):
at all. This is very typical. What's going on is uh?
There's a judge that his UH in the Cohen cases,
appointed what they call a taint team, one of the
more unfortunate unfortunately named teams UH. And what they do
this is a third party what they call an arms
length group of qualified people, so they're not involved with
(26:12):
with anyone in this investigation. And they go through all
the evidence gathered and say what's pertinent to the case,
what's not pertinent, and here's the pertinent stuff. It's not
like we're just trying to release everything ever said between
these two men right there, and they they are. They
take all the stuff they saw that didn't relate to
the case to their grave. So it is a form
(26:34):
and extension of attorney client privilege. Yeah, and especially in
the in the Cohen case, this UH. This attorney goes
on to say, because Cohen was performing little to know
actual legal work for Trump, UM, not much of what
was seized in the raid would be protected anyway. So
that's what this attorney says, that's his expert opinion. So
(26:54):
can't you see like one member of the taint team
at the bar being like the snow it it means
deterrek I quit saying that it's really important and vital
Oh that's good stuff. So we should talk about another
famous recent case of attorney client privilege or attorney client
privilege being violated. Actually with the Jodi Arias case. Yeah,
(27:17):
I don't know a whole lot about this one except
that um, she murdered someone right, yes, in cold blood. UM.
From what I read most recently, one of the alternate
jurors believes that she killed her ex boyfriend because he
was breaking up with her and she wanted to be
the last person he had sex with or the only
(27:39):
person he had sex with her the last one of
the two. UM went off the rails, stabbed him like
twenty nine times, cut his throat, shot him in the head,
and just left him for dead and ran off to
California and was caught within like a week or so
of his body being discovered. So she UM. She mounted
a defense that he was a pedophile, he abused her, UM,
(28:01):
and that he was in the act of physically abusing
her when she fought back and snapped and killed him.
Apparently that that was all just completely made up. That
he wasn't a pedophile, he wasn't an abuser, and he
was just trying to break up with her. That's the
way it stands now. And she was convicted of I
think premeditated murder, initially sentenced to death, a mistrial was
(28:23):
declared and she ended up with life without the possibility
of parole. So that's where it stands now. She um
publicly criticized her public defender, a guy named Kirk Nermi
and Um over the years. Kirk kind of put up
with it and then was diagnosed with cancer and said,
to hell with it, I'm writing to tell all book.
(28:46):
That's what he says. He says that he was he
had a bit of an epiphany, a reversal of his
his life in that cancer diagnosis, and said, I might
be dead. I can't let her be the only person
telling the side. The side of the story is he's
saying like a canary in this book. Oh yeah, man.
He he revealed stuff that didn't come out at trial.
He he gave his own personal assessment of her guilt
(29:08):
that she was definitely guilty, talked about how her mother
lying on the stand for her was laughable. Um, just
all sorts of stuff just ripped apart their attorney client privilege.
And so as a result, she's suing him big time.
So that's still in the middle of I mean, this
hasn't been decided, right, not as far as I know.
I think the article I read was from two thousand
(29:30):
and eighteen, so I don't think it's been decided yet.
I think he and he's defending himself saying no, when
she gave public interviews and talked about our private attorney
client conversation, she revoked privilege. She weighed her privilege in
doing so, and so I'm free to tell anybody anything
(29:50):
about it. So the California Bar, the Arizona Bar, I
think disbarred him. He agreed to disbardment without admitting misconduct.
And he's like a life coach or a professional coach
for lawyers. Interesting, Yeah, it is very interesting. Um, the
whole thing is super interesting. Her cases just gut wrenching
(30:12):
and the the this this new piece of it. He
basically hates her, hates her. He says that he was
forced into the smear campaign as a defense, that he
didn't want to have anything to do. He just hates
her guts and even her defense team said that that
he's developed some bizarre hatred of her. And he he
(30:33):
said in this quote in this Reuter's article that um
he was he was standing up to years of abuse
from her, So it's like a deep seated hatred. Um
one way or another, they ruined each other's lives. I
think she blames him for botching her defense. He blames
her apparently for a whole whole slate of stuff. So
so this will probably be another precedent center. Huh, I
(30:57):
would guess so. But it's a it's a civil so yeah,
I could still set president. But yeah, the fact that
he was disbarred that doesn't bode well for him. But
I have the feeling he's like, I'm dying of cancer,
so what ofs Yeah, screw it. So that's attorney client privilege.
I don't think we missed anything, did we? I don't
think so. There are probably little nitpicky things here and there.
(31:18):
It is, Uh, there are some definitely some gray areas,
but it's been shaped and reformed over the years. Imagine
will continue to be someone. Hey, one more thing I
want to say is um, I read and this is
kind of apropope, but not really. I read an article
probably about six months ago, maybe a little longer. It
was by a lawyer, you know how, like lawyers will
write like blog posts or articles or stuff like their
(31:41):
clients is on general stuff. This one lawyer wrote one
about how if you ever talked to the FBI without
a lawyer, you are an idiot. And he put it
like that, but no, he makes this really great case
for why most people, especially innocent people, would would think
I don't need a lawyer. And he said everyone needs
(32:04):
a lawyer when they're talking to the FBI. And he
laid out this really exquisite case, multiple point case why
to where by the end of it you're like, oh, yeah,
you need a lawyer if you're talking to the FBI.
It's pretty pretty amazing stuff. He's like, you're not qualified
to talk to the FBI. A lawyer can make you qualified.
You can't go in there and expect to be qualified.
(32:25):
It was really fascinating. I don't remember who wrote it,
but I think if you search something like if you
don't have a lawyer and speak to the FBI, you're
an idiot, something along those lines. It was fascinating. Just
call FED Protect Josh will pat you through for the people. Ah,
you got anything else? Nope? Okay, Well, if you want
(32:46):
to know more about attorney client privilege, you can type
that word in the search part how stuff works. And
since I said privilege, it's time for a listener mail.
I do have one more thing to say without getting
too much on a soapbox. I hope people take the time,
like to understand something like attorney client privilege, because when
(33:07):
the president is tweeting out things and all exclamation points
like attorney client privilege is dead, I think a lot
of people believe that to be true when they don't
even really understand the true legal sense of what this means.
You know. Yeah, I totally agree with you, man. It's
just like it's misinformation that people think like a tweet
(33:28):
is means well, that's a fact, you know, and it's not.
It's a tweet, Yeah, something typed out on a phone
like do better? People with fat fingers sometimes too. Alright,
So moving on, I'm gonna call this Mercury Bobcat. Yeah. Hey, guys,
been listening for about a year and I just listened
(33:49):
to the Ford Pinto death Trap episode. To put this
timeline into context. I was born in This is what
makes this story perfect. If you ask me, Uh, when
I was a kid, my family had a powder blue
Mercury Bobcat sister card to the Pinto. Like he said,
my dad sold the car and bought it back eight
years later, just before my sixteenth birthday. And I drove
(34:11):
this car for two years in high school, eventually selling
it to buy a vehicle compatible with highway travel because
a Bobcat could not top ninety kilometers per hour, which
is what I don't even know something like that. Well,
I knew the Pinto was generally regarded as unsafe. I
somehow did not know the extent of the carnage until
listening to the episode that you guys did, And after listening,
(34:33):
I can't believe my parents ever allowed me to get
behind the wheel of this car, although mine was a
seventy eight, so maybe that time they had faith in
the upgraded flaming death bolts. It's been about seven years
and this dude, he was born in ninety three. He
was driving this old car around well after its prime. Yeah,
he would have been driving it in the two thousand's
Like that's great. Yeah, it was like me. I had
(34:56):
a sixty eight Beatle when I was in the eighties
and everyone just thought I was weird with the ankle burner. Yep. Yeah,
it's been about seven years since I'll let the car go,
and now twenty four my friends and I missed the
car so much. I frequently search the Canadian version of Craigslist,
uh called KEG, hoping to buy it back. So that's
(35:17):
made up. I love this guy. That guy just he
just said some code word that we just said on air.
The Bobcat never went up in flames, but it did burn.
We did burn it up in it a few times.
I hear you man, and this can't know what you mean.
This is Owen from Nova Scotia, and uh, I think
that's pretty great. And I hope you get to buy
(35:38):
that car back. Dude, Yeah, good luck in your quests Owen.
Anybody out there in s y s k Land, if
you know where Owen's Bobcat is, help him out. Let
us know. We'll connect to same with my sixty eight beetle.
Oh that'd be something. I'd like to buy that thing back. Well,
if you guys know the vin number, just shout at
(36:00):
out you and knowing. Okay, agreed. If you want to
get in touch with me and Chuck, you can hang
out with us at our home on the web. Stuff
you should know dot com and there you will find
links to all of our many myriad social media sites.
And in the meantime, while you're doing that, if you
want to dash off an email, you can send that
(36:20):
thing to Stuff podcast at how stuff works dot com.
For more on this and thousands of other topics. Is
that how stuff works dot com.
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