Was sleeping for the majority of the day, but I can take a stab. Third year law student/now former law clerk.
UnfairRepresent posted... Is the window cleaners testimony admissible?
Depends on local jurisdiction, but I would believe that they are admissible. Statements made in the presence of others are not confidential, and there is a requirement that the expectation of confidence be reasonable with the attorney doing everything reasonable to protect confidentiality.
UnfairRepresent posted... Could the opposing council get him to tell them everything he heard?
Potentially yes, which I'll go into after the next question. The fact of the window cleaner's testimony would, however, be disclosed as a part of typical discovery interrogatories/requests for production. So the party asserting confidentiality here would not be unaware of the fact that there was a leak.
UnfairRepresent posted... Including the defense council's strategy?
I would think the answer here is "yes," but I'm not entirely sure. Anything disclosing the mental impressions/strategy of an attorney are held to be virtually sacrosanct. There may be a tug of war between the failure of the attorney to maintain confidentiality and admissibility due to the various doctrines concerning strategy and work-product. I'm still inclined to think admissibility wouldn't be an issue because they were statements made in the presence of others. Nebraska (my home) would likely treat the content of the window cleaner's testimony as non-confidential. This is primarily because if someone could just hang out and overhear something, it doesn't sound like reasonable steps were taken to preserve confidentiality, which is central to the entire purpose of the privilege. For instance, my boss took efforts to maneuver furniture and other stuff around to absorb sounds that could be heard from his office because he is a rather loud man when he gets into things. So if you had facts indicating such steps as being taken, then the privilege may be salvaged still. As it stands, I would imagine courts would deem the attorney to be careless if a random passerby could, as you say, zone out and overhear the conversation while outside.
As an example of this, here in Nebraska we have a case (
Dunmire v. Cool, 195 Neb. 247, 237 N.W.2d 636 (1976)) where communications concerning a will were held to be non-confidential because non-essential staff were present at the time the communication was made.
UnfairRepresent posted... He's not bound by privilege right?
The window cleaner? No. There are specific elements required for attorney-client privilege to attach. Here's the abridged version from my evidence textbook:
1. The client or the client's representative on behalf of the client asserts the lawyer-client privilege.
2. The information the client or the client's representative seeks to protect is a communication.
3. The communication was made by the client (or reveals the client's communications).
4. The communication was made to a lawyer or a lawyer's representative.
5. The communication was made in confidence.
6. The communication was made for purposes of facilitating the rendition of legal services.
7. The communication does not fall within any exception.
8. The privilege has not been waived.
UnfairRepresent posted... Does the lawyer have to withdraw from the case?
No, neither attorney
must withdraw. The client for the attorney asserting privilege may choose to fire his attorney, and that attorney may be subject to discipline for his failure to maintain confidentiality.
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Party leader, passive-aggressive doormat, pasta eater extraordinaire!