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Can the Prosecutor Use a Defendant’s Attorney to Testify Against the Defendant in a Criminal Case?

Most people even marginally familiar with criminal law and evidentiary issues understand that there is a special relationship and privilege between a lawyer and his/her client and that a defendant’s lawyer would never be able to testify against the client in a criminal trial. However, that seemingly obvious conclusion may not always be so clear. It is fundamental that the prosecutor is not allowed to have a defendant’s lawyer testify against the client in a criminal case. However, whether the lawyer is actually that defendant’s lawyer leaves room for interpretation.

This ambiguity most often comes up in a case where a company and an employee(s) of the company are being investigated. A question may arise as to whether the defense lawyer represents the company or the employee. For the employee, it may be difficult to tell. The employee may believe the lawyer is his/her lawyer, but that lawyer may actually represent the company instead. In many cases, their company’s and the employee’s interests are the same making it difficult to distinguish the actual client. If that is the case, the communications between the employee and the company lawyer may not be privileged and confidential and may be accessible by the prosecutor.

In a pending criminal case out of Philadelphia, a CEO of a company was convicted of obstruction of justice and sentenced to 18 months in federal prison. During the trial, the prosecutor was allowed to call the CEO’s former lawyer to testify as to certain communications between the two that the CEO thought were privileged and confidential at the time. According to the CEO, he felt that he engaged the defense lawyer to be his individual lawyer, in which case all communications between the two should be privileged and confidential. However, the government alleged that the lawyer represented the company and was not the CEO’s individual lawyer in which case the lawyer-client privilege should not apply. The defense countered that the CEO reasonably believed that the lawyer was his individual attorney and the client’s/defendant’s belief controls whether the attorney-client privilege is in effect.

This case and the decision to allow the lawyer to testify against the defendant is currently under appeal. For company executives and other employees who are being investigated or have been charged with a crime, this issue has serious implications in circumstances where there is an attorney involved but it is not perfectly clear whether the attorney represents the company or the person individually.