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Legal Ethics

Prosecutors in contraband cellphone case want lawyer to testify about texts with jailed client

Posted Sep 6, 2013 8:20 AM CDT
By Debra Cassens Weiss

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Prosecutors are trying to force a New Orleans lawyer to testify about text messages exchanged with a jailed client as evidence the client was using a contraband cellphone.

Prosecutors say messages between lawyer Jason Williams and his then-client, Keith Kisack were social in nature and not protected by attorney-client privilege, the New Orleans Times-Picayune reports. Even if the texts were privileged, the prosecutors say, they are not protected because the mode of discussion was illegal and it comes under the state’s crime-fraud exception.

Prosecutors are not accusing Williams of any criminal conduct.

Deputies found the cellphone in December 2011 during a search of a common area. The phone contained photos of Kisack, and messages sent to the phone by Williams that addressed the recipient as “KK.” Williams’ texts wished KK a happy Thanksgiving and Merry Christmas, asked whether the recipient had seen his son, and said he would try to make sure KK spent no more Thanksgivings in prison, prosecutors said.

Loyola University law professor Dane Ciolino said the prosecutor’s office has a valid argument about the lack of attorney-client privilege, although Williams was bound by ethics rules to not report his client for using a cellphone.

"Lawyers often know their clients are engaged in wrongdoing," Ciolino said. "The lawyer can't give them advice about how to engage in wrongdoing, but the lawyer can know about it and certainly has an obligation not to disclose it."

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