Can vested balances be used to reduce embezzled amount?
Posted 31 January 2001 - 04:32 PM
Posted 31 January 2001 - 06:54 PM
Posted 02 February 2001 - 04:15 PM
Posted 02 February 2001 - 04:25 PM
Thanks to all of you who responed. The prior threads were most helpful.
Posted 03 February 2001 - 03:13 PM
With some exceptions, communications between a lawyer and the lawyer's client are privileged. That means another person is not entitled to know the substance of the communication. Put either the lawyer or the client on the witness stand and ask "What was in the communication?" You don't get testimony about the contents of the communication.
With some exceptions, if the lawyer-client communication is "published," the privilege is lost. Suppose the client tells her mother, "I told my lawyer I wanted to offset retirement plan distributions against embezzled funds." Put the lawyer or the client on the witness stand and ask about the communication between the lawyer and the client. You will be able to get testimony about the lawyer-client communication concerning the offset. The client can waive the privilege by telling others.
There is no privilege when a lawyer communicates with someone who is not the lawyer's client. A communication received by a nonclient is not privileged even when the client is participating in the same communication with the client's lawyer. If the mother is present when the client talks to the lawyer, the communication is not secret between the lawyer and client so it is not privileged.
I don't don't know what was meant by the comment on the privilege, but the implication was that somehow it was OK for a client's lawyer to say something to the embezzler that the client could not. Despite certain mistaken beliefs to the contrary, lawyers have no right to lie, cheat or steal or otherwise not be accountable for their actions, and anything the lawyer said to the embezzler would not be protected by attorney client privilege because the statements would not be a communication to the client. Anything said to the embezzler by the lawyer acting on behalf of the client would be attributable to the client. And it would be discoverable because it was communicated to a person other than the client.
Perhaps I didn't get it or was being unfair. I don't think attorney client privilege has anything to do with statements to the embezzler. A lawyer can't say something to someone that the client can't. To the contrary, lawyers can't say things to others that their clients can. Perhaps a lawyer might be more skilled in the choice of words. What did you think the comments about use of an attorney meant?
By the way, I am not suggesting that legal advice in this situation is somehow not worthwhile. This is a sensitive situation. You should get competent legal advice before touching plan funds to right a wrong.
Posted 04 February 2001 - 03:18 PM
"Perhaps a lawyer might be more skilled in the choice of words." This might be just one more good reason to have some legal advice in this situation.