Legal Question in Wills and Trusts in California
California forbids the use of one-party recorded evidence in court *when the parties were speaking under an expectation of privacy*. That's clear.
But what when they weren't, and no attorney client privilege applies- from my perspective?
I live in another state and I have been stolen from from a base in CA based on this long ago fraud - a description/confession?- whatever of which I recently, accidentally- caught - recorded... In most places, that would be actionable evidence.
Could I use it as notes only, KNOWING that IF they lied, I could then use it in that case, if they then lied? Under oath to the court?
This question goes right to an important issue - CA attorneys seem to me to be given what almost amounts to a green light to remain mum, even when frauds have been committed by their clients, and that is really wrong. But what when those clients are long dead and a very serious wrong has been done, and continues to be done?
___________________
The ABA Model Rules of Professional Conduct were recently revised in this area:
"Client-Lawyer Relationship
Rule 1.6 Confidentiality Of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
*****
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order."
________________
Are there exceptions made for situations where the relative wrongness of the two things is extremely unbalanced? (like this)
Is there some way, to say, use the evidence as one might use notes taken while speaking, and only use them as a recording, IF the witness then lies?
What happened?
I don't live in CA. However, I was talking to an older attorney in CA, who had represented a person who lived there who committed a fraud against me a very long time ago. A long time.
That person is long dead, but the consequences of that act live on.
I told this person at the beginning upfront who I was. In the middle of the conversation, because the facts that I am referring to are just part of a larger story, we just started talking about it.. I didn't trick him into saying it, I just asked him directly. He just admitted it to me. It was something I already knew, but when people talk about stuff like this, they do it verbally, and they rarely are willing to go on the record, so its my word against theirs.
For that reason, in this matter it has been hard for me to get evidentiary proof of it - However, I do have lots of proof showing people working to deny it to me.
You know how often how people behave in the real world is quite different than the law. In the real world many well to do people just ignore the law and do whatever they can get away with.
Basically, thats what I have been dealing with. This particular thing was extrinsic fraud by a fiduciary.
He was (a witness? an accessory?) to this extrinsic fraud by his (long dead) client,
The comments he made went right to the very heart of the matter. Its extremely clear in a transcript that I made of that segment of the conversation.
In the big picture, recording your own telephone is not a big thing. Its completely legal where I live. Businesspeople do it, as a matter of routine.
Also, it was incidental to a casual, non-private, non privileged conversation and there was no expectation of privacy, however, the (long deceased) client whose fraud he was casually talking about, over many years, stole a huge amount of money from me by making a false assertion, which (among other things) kept me out of court and unaware of my rights.
Is there anything that I can do to get this evidence into a court, any court, legally, on my side, without him being able to say "I didn't say that" and get away with it?
To make it even more difficult, apart from this mess, he's a nice guy. Someone I'd like to not just not antagonize, someone I'd like to know.
I'm banging my head against the wall on this and a number of other similar issues.
3 Answers from Attorneys
After your long rant, I can't tell what you are asking, or what the basic facts are to even provide you anything of a response.
See the following link for how I feel about your post:
http://www.youtube.com/watch?v=5hfYJsQAhl0&feature=autoplay&list=PLE38F0635E4202E1B&index=25&playnext=2
Try providing us with a context. Are you an attorney? If not, why do you feel the need to discuss attorney client privilege? Why are you telling us what others do? Does that justify your actions, or is some sort of legal defense? What relevance does the ABA model rule have in California, where we operate under different rules? Who is dead, the attorney or the lawyer? Where was the recorded phone call made? What relevance does the recorded conversation have?
If I understand you correctly, you do not have a case that you could successfully bring. Since the fraud occurred some time ago and your knowledge of it was many years ago, you are barred by the statute of limitations. The time in which to file begins when you know of the improper act and not when yo feel you have enough evidence to prove that act occurred. The attorney-client privilege can only be waived by the client, not by the attorney if the privilege exists. Even under the inapplicable ABA model rule, the privilege would still seem to exist as the attorney was consulted as to acts that had occurred before the attorney was retained. Also, the expectation of privacy exists in any telephone conversation unless the person is informed that the conversation may be tape recorded or is to a newspaper reporter, etc.
All telephone conversations are expected to be private, period. It is no different than sitting in a room together talking with no one else around. You don't expect anyone else to hear what is said, but if one of you secretly records it and plays it back to other people, that expectation of privacy is breached. If you have the conversation sitting in a crowded restaurant, you expect that if someone else wants to listen in, they can hear you, and if you see someone listening you can shut up or leave to continue the conversation. When you record a conversation between just two people, you deprive the other person of the right to shut up or walk away if they don't want to be heard by other people. That is why it is illegal. If you tried to use it in California, not only would it never be allowed, you could possibly be prosecuted. Lastly, nothing that an attorney says about a long ago fraud by a dead person would be admissible anyway, because it is all hearsay.
Related Questions & Answers
-
How can I find out if my deceased Father had a Will or Trust ? Asked 4/23/11, 10:30 am in United States California Probate, Trusts, Wills & Estates
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
