Well, I disagree with you about the privilege, but it's irrelevant here. The key paragraph in Napalitano's idiotic op-ed is:

Ms. Stewart's constitutional right to speak to the news media about a matter of public interest is absolute and should prevent the government from prosecuting her. And since when does announcing someone else's opinion about a cease-fire - as Ms. Stewart did, saying the sheik no longer supported one that had been observed in Egypt - amount to advocating an act of terrorism?

In other words, she passed along the Sheik's instructions to his followers to restart their terror campaign. She should rot in jail.

Of course lawyers like insulation from justice.

I wonder if Napolitano is subbing for Tony Snow on his radio show again this morning. If he is, based on this op-ed piece, the Fox Radio screeners ought to be having a busy time keeping the judge away from the angry callers.

OJ
Are you saying that Defense Lawyers have a right to eavesdrop on the Prosecution, while they are deliberating on strategy etc?

The attorney-client privilege extends only to completed acts. There is no privilege for ongoing or future acts, or for participation by the lawyer in a crime. To illustrate with examples:

1. Bugsy tells his lawyer "I whacked Joey the Fish last night." The privilege applies and the lawyer cannot reveal that statement to anyone without his client's permission.

2. Bugsy tells his lawyer "I'm gonna whack Joey the Fish tonight." The privilege does not apply, and the lawyer may (and in some states, may be obligated to) report his client's threat to the police.

3. Bugsy tells his lawyer "I want you to deliver a message for me. Tell Guido and Vinnie to go whack Joey the Fish tonight." The privilege does not apply, of course. If the lawyer delivers the message to the hit men, not only is it outside the attorney-client privilege, but the lawyer is at that point a participant in a criminal conspiracy.

I litigate corporate-law cases. I don't see how the Court's truth-seeking function would be enhanced if, in every case I handled, I got deposed and then called as a trial witness so I could testify about what representatives of my client told me about the client's actions, intentions, etc. Which is what would happen if there were no privilege. The bottom-feeding plaintiff's lawyers I deal with every day would do it as a matter of course because they know 99% of their cases are garbage, but if they can inflict enough expense and bad publicity on the target, the target will settle and the plaintiff's lawyers will get paid. And occasionally I'll slip up and remember something they can twist into a damaging admission that proves my client's evil motives. (I'm sure there are other slimy and inefficient ways to use opposing counsel's testimony, but I'm just talking about what I know here.)

I do think this is pretty funny, though: "In the good old days, only Congress could write federal criminal laws. After 9/11, however, the attorney general was allowed to do so. Where in the Constitution does it allow that?" Probably the same place that allowed FDR to erect the administrative state in the 30s, if I had to guess.

Random:

You needn't be called to testify in every case. You should have an ethical obligation to reveal wrongdoing to the Court.

Well, there's a loophole there that any lawyer could drive a truck through, but let's move on:

1. All you would accomplish with such a rule is to stop people from sharing information with their lawyers. The courts and the prosecutors wouldn't get any more information and people who have a good defense wouldn't get the benefit of that defense.

2. Lawyers and the law are not as corrupt as you seem to think. Protected disclosure allows lawyers to advise their clients how to obey the law as well as when their best option is to plead out. Other than political cases, lawyers usually don't waste their time making losing arguments.

3. The state is still the enemy, and people accused of a crime need an agent, skilled at the law, who can give them as good a legitmate defense as they would give themselves, if they were able.

Belmont Club's got a snippet of transcript here, if you want a taste of the particulars of Stewart's case.

Thing is, the Lynne Stewart case is not a privilege case. See Example #3 above.

No problem here. The attorney-client privilege is a rule of evidence--it has nothing to do with running messages for your client. This Commie b***h went way over the line.

Now a true sea-lawyer story about lawyers spying on each other. Back in th '70's when I was an active-duty Judge Advocate I had been IMC'd out to a GCM half-way around the world. The case was a hopeless loser--confessions all around, snitches, physical evidence, you name it, they had it.

But they also had a corrupt Trial Counsel who illegally and unethically optained copies of letters typed for Defense Counsel. At that time there was a quasi-jurisdictional defense to UCMJ cases known as '"Catlow-Russo," for the cases which barred military prosecution of those recruited either involuntarily or illegally through recruiter misconduct.

I had been warned not to trust my typist, so, having first determined that my client did in fact have a good Russo motion, made up phony letters, to mythical witnesses in his home state nailing down the defense, with reference ti phone conversations that were never made. I never sent the letters, of course--I just sat back and waited. Events unfolded, the TC supposedly did his own investigation, and then threw in the towel on the Russo, giving my guy a virtual walk, instead of the 7 years in the USDB his buddies were getting. I never knew whether this Nazi A**hole ever figured out what I had done: I hope so. I did nothing wrong, never having intended that the letters be uttered to anyone. What he did could have cost him his JAG certification. Spying on Defense Counsel has its risks

No problem here. The attorney-client privilege is a rule of evidence--it has nothing to do with running messages for your client. This Commie b***h went way over the line.

Now a true sea-lawyer story about lawyers spying on each other. Back in th '70's when I was an active-duty Judge Advocate I had been IMC'd out to a GCM half-way around the world. The case was a hopeless loser--confessions all around, snitches, physical evidence, you name it, they had it.

But they also had a corrupt Trial Counsel who illegally and unethically optained copies of letters typed for Defense Counsel. At that time there was a quasi-jurisdictional defense to UCMJ cases known as '"Catlow-Russo," for the cases which barred military prosecution of those recruited either involuntarily or illegally through recruiter misconduct.

I had been warned not to trust my typist, so, having first determined that my client did in fact have a good Russo motion, made up phony letters, to mythical witnesses in his home state nailing down the defense, with reference ti phone conversations that were never made. I never sent the letters, of course--I just sat back and waited. Events unfolded, the TC supposedly did his own investigation, and then threw in the towel on the Russo, giving my guy a virtual walk, instead of the 7 years in the USDB his buddies were getting. I never knew whether this Nazi A**hole ever figured out what I had done: I hope so. I did nothing wrong, never having intended that the letters be uttered to anyone. What he did could have cost him his JAG certification. Spying on Defense Counsel has its risks

David:

That's a complete canard. If you're innocent there's no information you'll share with your lawyer that he'll have to rfeveal. If you're guilty we should want the information to come out even if from your lawyer.

Meanwhile, the argument that the best defense requires complete openness with your lawyer obviously compels such openness in and of itself. Unless you don't want the best defense, which is your right.

As for three, that's libertarian cant.

Speaking of complete canards.

Forgive me for wading out of my depth, not being a lawyer and all, but I thought a trials purpose was to determine guilt, innocence being presumed.

Silly me.

Jeff:

Precisely.

Mr. Morely correctly stated where the law on lawyer-client privilege is. Ms. Stewart, according to the evidence, actively participated in her client's conspiracy to commit further crimes.

There is no constitutional right to take part in a criminal conspiracy, no matter if you have passed the bar exam. As an attorney I am outraged - she has damaged my profession and I want the book thrown at her. She knew better, really knew better and she should be given the maximum penalty allowed by law.

[Yes, I've heard the one about the Bar being an unindicted criminal conspiracy before. (rolls eyes).]

The Constitution allows the death penalty for treason.

Lou:

Remind me not to cross you.

She stated a man's opinion on a political event. Big deal. I know this seems like libertarian cant to some, but most of you sound like fascists. I hope it doesn't become a crime to speak out for or against Bush's wars.

Orrin:

"If you're innocent there's no information you'll share with your lawyer that he'll have to rfeveal. If you're guilty we should want the information to come out even if from your lawyer."

That makes no sense. Guilt or innocence are legal concepts made up of a lot of individual facts. There is no way anyone can determine whether any one fact is a guilty or innocent one. I think you just want to see bad guys spanked.

You realize you are arguing for a European style inquisitorial system rather than a good old Anglospheric adversarial system. What's next--kilometres?

Peter:

You don't think someone knows whether they committed the crime they're charged with?

Orrin:

Premediated murder (vs. murder 2 or manslaughter), fraud, insider trading, sexual assault, income tax evasion, breach of trust, human rights violations, environmental offences, conspiracy and sedition are just a few of the many crimes where whether the facts constitute a crime is frequently more of an issue that what the accused did.

Peter:

In court, not in reality. Which is the point.