Next time, stick to baseball hypotheticals, Darrell.

From Panama City, Florida comes this rare legal ethics scenario. Darryl Mack, 22, accepted 20 years of prison in exchange for a no contest plea to a murder charge, after he learned that his original attorney in the case would be testifying for the prosecution. The revelation by an accused  criminal’s own lawyer of what most think are privileged statements would be devastating evidence, which is why lawyers are almost always prohibited by the ethics rules from doing this.  Mack had been trying to block the testimony on that basis. However, Circuit Court Judge James Fensom ruled those statements could be used against Mack at trial. Why? It is because of a useful and necessary exception to the ethics rules known as the crime-fraud exception.

If you are a “Breaking Bad” fan, this one of the reasons Saul is a crook, not a lawyer.

“The last thing a lawyer wants to do is testify against his client,” the prosecutor in the case explained. “But it is not reasonable to ask your lawyer to be your conspirator.” That means that a request for such advice is regarded by the profession as a request for assistance in breaking the law, and a lawyer cannot ethically give such advice. Such a request isn’t confidential, and isn’t privileged. A lawyer doesn’t have to reveal such information, but he also risks being charged as an accessory if the proposed crime is committed.

Timothy Hilley, Mack’s initial legal counsel, testified in a closed courtroom that Mack had posed a hypothetical to him at the end of a jailhouse interview, and Hilley viewed it as a veiled statement of  intent to commit murder. Mack allegedly asked his then defense counsel what would happen if a witness was unavailable for the trial, a question Hilley took to refer to a witness to the July shooting death of 24-year-old Tavish Greene, the victim in the murder Mack was charged with.

“Mack was on his way to leave, and he walked over to door and he said, ‘Could those statements be used if he was murdered,’” Hilley testified.
“I said, ‘No, it would be hearsay.’” Mack then asked, “How much time do I have?” Hilley said. “And I didn’t catch it at first, but then he asked again, ‘How long before trial?’ ” Mack left the room after Hilley told him the trial could begin as soon as June.  The lawyer reported the incident to the State Attorney’s Office, and withdrew as Mack’s attorney.

Most Americans don’t understand why defense attorneys represent guilty criminals, and would like lawyers to do this kind of thing routinely. They don’t, can’t and shouldn’t, but when a criminal defendant makes it clear that he has murder on his mind and a particular individual’s life is at risk, this is the most ethical course. Lawyers, being lawyers, have an out: if Mack had said, “It was just a hypothetical! There was no actual plot discussed!” no bar association would have penalized him. Indeed, this was the argument Mack’s new lawyer made to the judge to try to block Hilley’s testimony. Suuuure, it was just a hypothetical, no different from, say, “Suppose Ted Williams hadn’t lost almost five years in his prime to military service in Korea and World War II. Do you think he would have hit .400 again?”

Sometimes, though rarely, it is ethical for a lawyer to rat out his client. This was one of those times.

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Pointer: ABA Journal

Facts: News Herald