Wednesday, July 29, 2009

Selling out the client - Part III

Here's the question (and I'm deliberately fuzzing it up) that's been the subject of fairly heated debate among Ohio criminal defense lawyers this afternoon:

The judge screws up the written entry (which in Ohio is what counts) and gives the client less time than everyone expected and less, almost surely, than the judge intended. Apparently, the only one who notices is defense counsel. What's counsel's obligation?

Maybe you'd think that would be an easy one? And it seems as if everyone thinks it is. Except that there are two dramatically different answers coming from members of the bar.

So let's step back for a minute and try to see what's going on.

First there's the law. Back in 1997, in Cincinnati Bar Assn. v. Nienaber, the Ohio Supreme Court said that lawyers could never lie to the court either explicitly or implicitly. Nienaber, the court said, "not only made affirmative representations to the courts which were untrue, but by his silence he allowed each court to make unwarranted inferences."

In reaching that conclusion, the rejected Nienaber's defense that he'd given precisely correct, albeit incomplete and misleading (that "albeit" is mine; it's not clear Nienaber conceded as much) answers to the courts' questions. Not good enough, the court said. He intentionally misled. Then came the kicker. Quoting the Nebraska Supreme Court from 1937, the court said:
We require complete candor with courts. We agree with the Supreme Court of Nebraska, which sixty years ago said, “An attorney owes his first duty to the court. He assumed his obligations toward it before he ever had a client. His oath requires him to be absolutely honest even though his client's interests may seem to require a contrary course. The [lawyer] cannot serve two masters; and the one [he has] undertaken to serve primarily is the court.”
So there you have it. In a contest between the client and the court, the lawyer is supposed to be on the court's side.

But that assumes there's a contest.

Lawyers are also supposed to represent their clients, er, just how? Not zealously, as I explained in an earlier post Ohio has abandoned that requirement which it never really meant. Instead, well, to quote the court itself,

[V]igorous and effective representation of a client is the responsibility of all attorneys.
With the caveat, of course, that the court comes first.

OK, that's all part of the same rule. You can't lie to the court directly by what you say or indirectly by what you omit. But it doesn't really say what you can do.

Along with the legal/ethical rules, there's the doing business problem. If you don't point out the probable mistake, you "risk your good name and reputation" with prosecutor and judge. If you do, you earn "brownie points" or "street cred." with them. (I'm quoting lawyers who staked out positions on this today). So, if you speak up, you might earn some favoritism in the future. And really, what's the harm since the client will end up with what the client expected.

OK, there's the problem and the issues.

Here's my answer.

We represent the client. We can't lie to the court by commission or omission. But we're under no obligation to volunteer information that will hurt our clients. In fact, we're under an obligation precisely not to do that.

If the court made a mistake that helps our client, so be it. Not our job to point it out.

And while it never hurts to be liked (even favored) by judges and prosecutors, we must never trade the obligation to this client for the possibility that not advocating forcefully today will redound to the benefit of others tomorrow. And certainly not for a pat on the head or a scratch behind the ears.

You know, it is an easy call. I just don't get why some people don't get it.

It's an easy call. But too many lawyers don't get it.

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