From: Black Unicorn <unicorn@schloss.li>
Date: Mon, 29 Apr 1996 16:54:02 +0800
To: Cypherpunks <cypherpunks@toad.com>
Subject: Attorney-Client / Nyms
Message-ID: <Pine.SUN.3.93.960428210311.25014E-100000@polaris.mindport.net>
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On Sun, 28 Apr 1996, E. ALLEN SMITH wrote:

> From:	IN%"unicorn@schloss.li"  "Black Unicorn" 27-APR-1996 23:07:10.42
> 
> >Well, using attorney client confidentality to shield things otherwise
> >discoverable just doesn't work.
> 
> 	Given discussions as to attorneys holding passphrases, et al, perhaps
> a tutorial from the lawyers on the list (yourself and others, since
> disagreements among J.D.'s have been known to happen) on what attorney-client
> confidentiality does cover?

Proposed FRE 503 probably has the best codification of the prevailing
common law on the subject.  I reproduce it in part below.  Typos are mine.

(a) Definitions.  As used in this rule:

(1)  A "client" is a person, public officer, or corporation, association,
or other organization or entity, either public or private, who is rendered
professional legal services by a lawyer, or who consults with a lawyer
with a view to obtaining progessional legal services from him.

[...]

(b) General rule of privilege.  A client has a privilege to refuse to
disclose and to prevent any other person from disclosing confidential
communications made for the purposes of facilitiating the rendition of
professional legal services to the client, [between the attorney and the
client directly or indirectly].

(c) Who may claim the privilege.  The privilege may be claimed by the
client [or his agents or assigns etc.]  The person who was the lawyer at
the time of the communication may claim the privilege but only on behalf
of the client.  His authoriety to do so is presumed in the absence of
evidence to the contrary.

(d) Exceptions.  There is no privilege under this rule:

(1) Furtherance of crime or fraud.  If the services of the lawyer were
sought or obtained to enable or aid anyone to commit or plan to commit
what the client knew or reasonably should have known to be a crime or
fraud; or

(2) Claimants through the same deceased client.  As to communication
relevant to an issue between parties who claim through the samed deceased
client, regardless of whether the claims are by testate or intestate
succession or by inter vivos transaction; or

(3) Breach of duty by lawyer or client.  As to a communication relevant to
an issue of breach of duty by the lawyer to his client or by the client to
his lawyer; or

(4) Document attested by lawyer.  As to a communication relevant to an
issue concerning an attested document to which the lawyer is an attesting
witness; or

(5) Joint clients.  As to a communication relevant to matter of common
interest between two or more clients if the communication was made by any
of them to a lawyer retained or consulted in common, when offered in an
action between any of the clients.

(end)

Generally speaking the particulars of attorney-client relationships are
regulated by state statute, though some states define the provisions 
through common law.

Note the confidentiality requirement.  A client is estopped from claiming
privilege if he discloses the content of the communication to a third
party not connected to the attorney-client relationship.

The identity of the client and the existance of the attorney client
relationship are not confidential.  There are some exceptions.

Physical evidence is generally not protected by attorney client privilege
unless it is a manifestation of communications between attorney and client
(letters, documents etc.)

Communications regarding future crimes or frauds are not protected.

What I think you will be most interested in, however are the exception for
stolen property and destruction of evidence.  

Stolen property may be held by an attorney for a reasonable time for
inspection purposes, but must be returned to the rightful owner or the
attorney will be a receiver of stolen goods and participating in an
ongoing crime.  Privilege will thus not apply.  In re Ryder, 263 F.Supp.
360 (E.D.Va 1967).  (Some courts will permit the attorney to refuse to
disclose the source from which he obtained the property, however).
Consider this in the context of trade secrets.

All states have laws against destroying or concealing evidence.  The
attorney who advises his client to destroy evidence is a co-consiprator.
Privilege does not apply.  Clark v. State, 261 S.W.2d 339 (Crim. App Tex.
1953).  (Interesting to wonder if advising a client to encrypt evidence is
'concealing' it).

> 
> >There are many mail forwarding services that don't use attornies.  An
> >attorney is going to charge you by the hour for this service.  I don't
> >think you really want to pay for it.
> 
> 	Most of them aren't anonymous, either... although that does give me
> the thought of going to one outside the US and its reporting requirements.
> They'd know who I was (or at least the address it was going to), but at least
> nobody else would know. Any suggestions, since you've been writing of the joys
> of nymdom recently?

I suggest you use a forwarding service, sign up with your nym name, and
provide the address of a P.O. box for them to forward to, also in the name
of your nym.

> 	-Allen


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