“To Tell or Not to
Tell” – Hollywood and Hogg
Stephen Hogg, a defense attorney in California, found himself right in the middle of a would-be movie scene turned actual life events. He received a phone call from a one-time client, Jesse Hollywood, asking for advice and potential consequences for abducting a minor due to drug debts. After the call, Hollywood and friends killed the young man. Hollywood is currently on the lamb from the law; however, the judge has ruled that Hogg could be compelled to testify against co-conspirators in the crime. In making his ruling, Superior Court Judge Gordon opened the door for prosecutors to seek Hogg’s testimony in trials of four other defendants. (1)
In California, CA Ev Code § 954 (2017) states:
Subject to
Section 912 and except as otherwise provided in this article, the client,
whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between client and lawyer
if the privilege is claimed by:
(a) The
holder of the privilege;
(b) A
person who is authorized to claim the privilege by the holder of the privilege;
or
(c) The
person who was the lawyer at the time of the confidential communication, but
such person may not claim the privilege if there is no holder of the privilege
in existence or if he is otherwise instructed by a person authorized to permit
disclosure. (2)
Hollywood
called Hogg during the commission of a crime but not the final murder. Hogg
also made contact with Hollywood’s family to express concern and encourage them
to find their son as he may be in serious trouble. Some allege the accused, Hollywood,
waived his rights by telling a friend about his client-attorney conversation
the night of the crime. Others feel Hogg may have breached his privilege by
contacting Hollywood's family. There are certain ways a breach of attorney-client
privileges can be achieved. This privilege protects most communications between
clients and their counsel, but the crime-fraud exception states a client’s
communication to his/her attorney isn’t privileged if it is with intention to
commit a crime. (3)
There is
no privilege under this article (dealing with attorney client privilege) if the
services of the lawyer were sought or obtained to enable or aid to commit or
plan to commit a crime or fraud – CA Evidence Code section 956 (4). In this
case, the attorney was unaware of the crime and the crime had not been
committed at the time of the conversation. California has some of the strictest
laws in the country protecting attorney-client privilege. Attorney's must walk the tight rope between morality and ethical professionalism.
Does this
substantiate the Crime-Fraud Exception? Did the judge get it right?
Is there
an ethical versus morality dilemma for attorneys?
If you
were Hogg, what would you have done?
3 3.)
https://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html
4 4.)
https://www.upcounsel.com/legal-def-crime-fraud-exception
WOW Cain what an excellent blog post.... does it count if you comment on your own blog?
ReplyDeleteNo, but a clever effort!
DeleteLOL..this is a great post and right in line with our homework! Hollywood did call Hogg and the question he asked him would lead a reasonable person to believe he was going to commit a crime. (a few actually) According to CA attorney-client privilege law they cannot disclose this information. However, there is an exception to the rule and under the exception the attorney client privilege is not protected if the client seeks out the assistance of his lawyer in carrying out or planning a crime or a fraud. When Hollywood called Hogg he was seeking the assistance of his lawyer in committing a crime. The exception also does not protect attorney client privilege if the lawyer believes communication is needed to prevent someone from being harmed due what their client has told them. Based on what Hollywood said to Hogg he did the right thing in calling the parents to check on their son. Yes, the judge did get it right. If I was Hogg I would have done the same thing. Attorney's always are facing ethical vs. morality all the time. As an attorney you have to follow the law and sometimes those ethics may not fall in line with someones personal morals.
ReplyDeleteI agree Angela. I would have absolutely called authorities or parents since there was potentially a life on the line.
DeleteExcellent post Cain! :) It got me thinking of my job and my duty to report. I think this did substantiate the crime-fraud exception because it really comes down to intent, so to me the judge got this right. As it states in the article “many courts distinguish present from future intent, and are more likely to apply the exception where the intent is current. The exception ordinarily doesn’t apply if the client is merely seeking advice about the consequences of some possible future action. Not surprisingly, the line between present intent and possible future intent can be hazy.” (1) Not only that, but in this situation, “most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury’”. (1) In the case of Jessie Hollywood they had already kidnapped Nicholas Markowitz. It wasn’t until after contacting the lawyer, Hogg, that Jessie must have felt he didn’t have much to lose since he was told by Hogg that his friends could face life in prison for kidnapping. (2) So although Hollywood didn’t tell Hogg that he did the kidnapping, Hogg still knew that a kidnapping was occurring. (3) A reasonable person would know that a kidnapping could lead to further risk of the person and Hogg should have reported this. As well, it goes back to that fact that the ‘intent is current’. It makes sense to me that there is a duty to report these types of situations. Although you want to protect your client, there was still an active crime happening, so everything should be done to prevent this from continuing and not furthering harm to someone else. If I was Hogg, I probably would have contacted a friend of mine in the police to report this because of that morality to protect someone. I feel like my conscious would get to me too much, and maybe I would even consider doing an anonymous report to protect this 15 year old kid if I was really against a wall. But it seems that the lawyer knew Hollywood for years so there was most likely a lot of other factors going on. In the end the lawyer did the right thing (maybe being forced too) and complied and told the courts what he knew. Ensuring ethical care of a client and yet also facing yourself each day would be a dilemma in some of these cases that lawyers are part of!
ReplyDeleteThis reminds me in many way of being a mandatory reporter or campus security authority on campus. “Responsible employees are required to report any information about possible sexual misconduct or discrimination to the OEO/AA. CSAs are required to report crimes that occurred on campus to campus police.” (4). Since I am a CSA on campus than I have to make reports to the campus police if a student discloses certain information to me, or involve OEO, or Dean of Students. It goes into this thought of ‘start by believing. It isn’t your job to investigate the issue.” (4) I’ve had students lie to me about experiences, but it’s not my position to see if what they are saying is truthful. If they say they are a victim of a crime, or want to hurt someone, or that ‘their friend’ did something, then I have a duty to report this regardless of how I feel about the student, or if I believe them or not. So I understand this ethical/moral dilemma, but in this case of the attorney it seems pretty clear that he should have reported this right away. I also feel strongly that when you are in these types of positions (CSA/Mandatory reporter/Lawyer) then you should know when to report things and when you shouldn’t, so perhaps it seems like a grey area but as a CSA/mandatory reports it’s not as grey as you would think. It would be curious to see if lawyers think this is a grey area for them or not.
(1) https://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html
(2) https://www.independent.com/2009/06/03/lawyer-who-advised-hollywood-takes-stand/
(3) https://www.latimes.com/archives/la-xpm-2009-jun-03-me-jesse-james3-story.html
(4) https://sexualassault.utah.edu/reporting/mandatory-reporters/
It turns out that faculty are also mandatory reporters on instances of alleged sexual assault or harassment. This may create an uncomfortable situation where a student wishes to confide in a faculty member about a personal issue and wants the faculty member to keep the information confidential. The faculty member may not be able to honor a request of confidentiality if the issue involves an alleged sexual assault and needs to inform the student before the information is shared.
DeleteGreat perspective Jess. I agree he should have spoken out under the circumstances to help the 15yr old boy. In my research, I found it interesting that Stephen Malcolm Hogg (attorney listed in Simi Valley) received his license in 1972, had three disciplinary reports from 2000-2002 including a state bar court issue. In 2018, his state bar status became inactive (1). Makes you wonder about his ethics and career choices assuming this is the correct Stephen Hogg, Esq....
ReplyDelete(1) http://members.calbar.ca.gov/fal/Licensee/Detail/53765
To be fair, maybe all of the disciplinary actions are related to this one incident as I could not confirm the reasons. Secondly, he may have just retired in 2018. Not sure on either.
ReplyDeleteDamn Cain! What an excellent post.
ReplyDeleteThis is a great post, Cain! I really do think that Hollywood should have called the authorities to prevent the death of the boy. Hollywood could then have called Hogg to help him negotiate a deal of some sort with the authorities.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteGreat post, Cain.
ReplyDeleteTo determine whether the judge got it right. We need to revisit the intent of the attorney-client privilege. The purpose of the attorney-client privilege is to ensure clients can engage openly with an attorney to obtain legal advice without fear of the shared information being disclosed and used against them. The idea of being a client can get the best legal advice for their case. However, as you have mentioned, the Crime-Fraud Exception limits the application of the attorney-client privilege. Essential a person can not seek advice from while committing a crime in hopes of obtaining a favorable outcome in the purview of the law. These two concepts to outline the sandbox in which Hollywood and Hogg play. In this case, Hogg was unaware, and the crimes were in-process, and Hollywood attempted to game the system. Therefore, I believe Hollywood's intent substantiate the crime Fraud Exception. I also believe the judge got it right, allowing the privilege, in this case, would signal the system can be gamed.
Finally, I don't believe there is an ethical versus morality dilemma for attorneys. Attorneys have sworn an oath to represent their clients. Therefore regardless of their client's misdeeds, it is both moral and ethical for the attorney to represent his client's best interest. In this case, Hogg was unaware of the ongoing events. Therefore, he performed his duty as required and accordingly shouldn't be penalized.
I think to prevent the commission of a crime or the prevention of harm or death to a person is the key here. I think that Hogg would have been justified outside of privilege, to piggy back on Lenny's point, due to the fact that Hollywood was seeking advise as to how consequence and strategy to a crime not yet committed and Hogg would have reasonably assumed that a crime was going to happen that would likely cause harm to another. The attorney-client privilege is vital to due process and the maintaining of a functional judicial system in this country, but I believe that a careful analysis of professional ethics should always protect life over privileged communication via mandatory reporting, even in the case of attorney client protections.
ReplyDelete