Once More Into This Tedious Breach: Legal Ethics Yet Again

In case you hadn't heard, the public is not crazy about lawyers.  There's particular distaste for criminal defense lawyers.  You know, those people who'll lie and cheat and blow smoke in their passion to unleash killers, rapists, and terrorists on the streets of America so they can continue their depredations.

Judges aren't crazy about us, either.  Oh, we have a job, but it's kind of a sleazy one, representing as we do the forces of evil in the world.

And as Liz Cheney [that's Voldemort Dick's daughter] & Co. made clear a few months ago, to represent the criminally accused is to think the underlying crime was a good thing.

And so it is that once again (for related commentary on a related discussion, see here), Ohio criminal defense lawyers were discussing their ethical obligations.  The general question involved when a lawyer has to tell a judge things the judge would like to know about the client but that the lawyer would rather the judge not know.

As I've explained before, the traditional view is that lawyers have a duty to represent their clients zealously within the bounds of the law.  In that same post, I reported that Ohio explicitly rejects that rule.  It's not the rule now, and even when it was the rule in Ohio, it isn't what they meant.  (The Supreme Court of Ohio makes something of a practice of declaring that they previously mispoke and didn't mean what they said - and how foolish of you lesser courts for actually relying on what we said instead of what we meant to say.  But I digress.)

Instead, as I discussed here, the Ohio Supreme Court has adopted the rule that attorneys owe their "first duty" to the court.  The case is Cincinnati Bar Assn. v. Nienaber, and the rule itself, was lifted verbatim from a decision of the Nebraska Supreme Court declaring that it had the power to order, and then actually ordering, the integration of the state bar, In re Integration of Nebraska State Bar Assn. (1937).*

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.

Got that?  Read the last sentence again.  Wait, I'll make it easy for you.

The [lawyer] cannot serve two masters; and the one [he has] undertaken to serve primarily is the court.

Now think about it.  Representation of the client is secondary, but in fact there can be no duty to the client.  One "cannot serve two masters."

OK, the good news, if you can call it good, is that this is another instance where the court pretty clearly didn't mean what it said.  (Though a lawyer charged with malpractice might try arguing it.)  Beyond that, and at least insofar as the Sixth Amendment applies, there is a constitutional duty to the client.

Anyhow, as I said, there was this discussion about when a lawyer has to tell a judge things the judge would like to know about the client but that the lawyer would rather the judge not know.

The problem, and it's one criminal defense lawyers really need to be clear about ourselves because it affects all of us, and our clients, every day, both in and out of court, is that we have a special role in the system.

A prosecutor's duty, as Justice Sutherland explained in Berger v. United States, is to do justice.

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

A criminal defense lawyer's duty is to zealously (yes, I know what I just said, but the Rule is wrong) represent our clients within the bounds of the law.  That's it.  Justice White set out the difference in roles as clearly as anyone ever has, with emphasis on our special duty, in United States v. Wade.

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often  than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we  countenance or require conduct which in many instances has little, if any, relation to the search for truth.

We know that most of our clients have done something within hailing distance of the charges they face.  And we know that the courts want (ostensibly) to get to truth and to factually accurate results.  We have no duty to help them get there - in fact our duty, often, is to interfere, to make it harder for judge and jury to discover and determine truth.  (One lawyer, one of us, once asked me if I were still "thwarting justice"; "proudly and properly," I could have said in response.)

The public thinks we're lying and cheating when we do that.  The judges berate us for doing that.  The prosecutors . . .  I don't even want to go there.  But no matter what the Ohio Supreme Court thinks, it's our solemn, ethical and constitutional obligation.  We take it on with honor, as we should.  But we need to make that clear.  It's not just that we do it, not just that we have some abstract constitutional vagary we can point to when challenged.  It is precisely our job.

And we can't do it if we are to be, also, handmaidens to the court.  Our duty to the court is (or should be, at least) to do our duty to the client.  It's really that simple.  We can't lie, affirmatively or perhaps even by indirection, because that duty is circumscribed by the fact that we act within the system and must, therefore, adhere to that baseline rule.  But there ought be no other.

And if we understand that, if we can explain that, if we can make others see that, we can undo such abominations as Nienaber (which, again, is at odds with the 6th Amendment) and the Gardner Rule (which is at odds with the 6th and also the 1st).  It may not be possible to get past those rules.  But we should never pretend that they have even the slightest justification or legitimacy.  And we should be declaring, from the rooftops if possible, that it's honorable and noble that we should do so.

Maybe there's another way of putting it.  Our duty to the court is our duty to the criminal justice system.  And the only way we can satisfy that duty is by representing our clients.

Within the bounds of the law.

And zealously.

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*Sorry, I can't find a free copy of the Nebraska case.  And, for non-lawyers (and any lawyers who don't know), integration of the bar means that all licensed attorneys in the state must be members of the state bar association.  This Wikipedia article (yeah, I know) explains.