Saturday, June 20, 2009

Selling out the client - Part I

Today's question: What do I owe my client?

In law school ethics class, we were taught that the attorney's duty is to represent the client "zealously within the bounds of the law." That's what Canon 7 of Ohio's Code of Professional Responsibility (the ethics rules for lawyers - yes they exist) said. But in 2007, Ohio replaced the Code with Rules of Professional Conduct, and the rules very specifically do not call for zealous representation. As a comment to the new Rules explains, they purposely omitted the requirement and, really, despite the language, they never meant it.
Neither Model Rule 1.3 nor any of the Model Rules on advocacy states a duty of “zealous representation.” The reference to acting “with zeal in advocacy” is deleted from Comment [1] because “zeal” is often invoked as an excuse for unprofessional behavior. Despite the title of Canon 7 of the Ohio Code of Professional Responsibility and the content of EC 7-1, no disciplinary rule requires “zealous” advocacy. Moreover, the disciplinary rules recognize that courtesy and punctuality are not inconsistent with diligent representation [DR 6-101(A)(3)], that a lawyer, where permissible, may exercise discretion to waive or fail to assert a right or position [DR 7-101(B)(1)], and that a lawyer may refuse to aid or participate in conduct the lawyer believes to be unlawful, even though there is some support for an argument that it is lawful [DR 7-101(B)(2)].
That part about how they never meant it is true. You see, while lawyers like to tell people (especially prospective clients) that the first duty is to the client, the courts tend to say otherwise. The first duty, they say, is to the system and the court. That's why we can't lie, which isn't much of a burden. But it's also why we need to sort of make clear when we know that the client is lying (a complicated dance that the Supreme Court cooked up in Nix v. Whiteside).

But that's really not what I want to talk about. I don't know any decent lawyers who think they're supposed to flat out lie or to suborn perjury. And while lots of clients would like us to, the actual problem of defense lawyer lying or knowingly facilitating perjury is fairly rare.

There are other more common problems though. Sometime soon, I'll talk about whether and when lawyers should be willing to fall on their swords for the sake of their clients. Today I want to talk about Anders briefs. The term comes from the case of Anders v. California where SCOTUS set out a procedure for appellate lawyers to avoid making frivolous arguments.

Here's the problem.

A lawyer's duty to the client on appeal is to make the best presentation possible. We write briefs saying to the appellate courts, "Here's what went wrong in the trial court, and here's what you should do about it." We know that most of those arguments will fail (most criminal appeals do fail), but we make them because our job is, again, to do our utmost for the client. It's that zealous representation withing the bounds of the law, thing. Except, a lawyer isn't allowed to make a frivolous argument because that would violate the lawyer's duty to the court.

So, what happens when the only argument you can make is frivolous? The answer, of course, is that the duty to the client is to be abandoned in favor of the duty to the court. You file an Anders brief explaining how it is that the best you can do is to sell out the client.

Of course, there's a catch. Sometimes you're wrong. Oh, the court of appeals is supposed to look for winning issues, but that's not what they do. They don't advocate for the client. It's the wrong role, and they're not equipped to handle it. Except once in a while . . . . Like, say, yesterday.

Brandon Robinson entered a guilty plea in Erie County Common Pleas Court to the offense of failing to register as a sex offender. Then he filed an appeal. His lawyer decided there was nothing worthwhile to say and filed an Anders brief. In that case, State v. Robinson I, the court of appeals thought there might be an issue. So it took that lawyer off the case and appointed a new lawyer for Robinson. Yesterday, in State v. Robinson II, the court of appeals agreed with the new lawyer that the trial court screwed up the plea and granted Robinson a chance to do it over - go to trial, enter a plea, whatever.

We can be advocates or we can say we owe more to the court than to the client. If we do the latter, we have a conflict of interest that really can't be overcome. And if we act that way, why should our clients trust us?

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