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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger589125
Updated: 11 min 58 sec ago

The duty of confidentiality: a broad duty with few and narrow exceptions

Tue, 05/14/2019 - 10:44
Don't snitch on your client. Not to the prosecutor (duh), not to the Court (in a motion to withdraw, for instance), not to probation (in discussing terms of release, for instance), not to anyone.

"The ethical requirement of confidentiality is . . . interpreted broadly, with the exceptions being few and narrowly limited." So cautioned the Kansas Supreme Court last week in an opinion disciplining a Kansas criminal-defense lawyer for breaching this sacred duty. The opinion reminds us of three important points when it comes to confidentiality:

There is no waiver when it comes to the duty of confidentiality. A client may give informed consent to a disclosure, but the client's actions or statements to others cannot be said to waive the duty. Waiver "is an evidentiary matter" not relevant to the lawyer's ethical duty.

The fact that the client has given the same (or related) information to a third party does not allow the lawyer to reveal confidential communications without the client's informed consent. In other words, there is no third-person-disclosure exception to the duty of confidentiality.

The Kansas rule states that “[a] lawyer may [not must] reveal such information to the extent the lawyer reasonably believes necessary . . . [t]o prevent the client from committing a crime.” KRPC 1.6(b)(1). Three cautionary notes with respect to this exception: First, the lawyer must "reasonably believe" that the disclosure is necessary. Second, the lawyer should seek to dissuade the client from taking illegal action before resorting to the disclosure. And third, the disclosure should be no greater than necessary to prevent the commission of the crime.

D.Kan. CJA Panel Applications Due May 15

Mon, 05/06/2019 - 16:39
Please help spread the word that the deadline for submitting applications for the District of Kansas CJA panel is Wednesday, May 15, 2019. Applications for attorneys who are not currently on the panel and reapplications for those nearing the end of their three-year term are available here. All attorneys whose terms are expiring (and thus need to reapply) have been notified by email. The new terms begin July 1, 2019, and end on June 30, 2022.

Drug quantity estimates: "not a license to calculate drug quantities by guesswork"

Wed, 05/01/2019 - 09:45
Can a sentencing judge estimate drug quantity from the seized drug's packaged weight plus photos of the drugs as they appeared in their packaging? Yes, but this authority is "not a license to calculate drug quantities by guesswork," and the judge must "err on the side of caution."

That's according to the Tenth Circuit this week in United States v. Aragon. In Aragon, the Tenth Circuit reversed the defendant's guideline sentence on grounds that the judge had insufficient evidence to support his drug-quantity estimate. The photos in the case were a poor basis for determining how much weight was attributable to the drugs, and how much to the packaging. The Court noted "the great disparities between gross and net weights in other cases," listing several of those cases.

In the end, yes, the judge may estimate drug quantity. But "the best evidence of net weight is net weight itself." Any other evidence must be viewed with caution.