Wednesday, July 8, 2009

Ethics v. Morals

Over at Defending People, blogger and criminal defense lawyer Mark Bennett has been carrying on a discussion with his readers about legal ethics. In a posts (here) and a follow-up (here) he's explored some of the implications of this story from the WindyPundit.

The very short version: Back in 1982, and under the confidentiality promised by attorney-client privilege, Andrew Wilson confessed to his lawyers that while robbing a Chicago McDonald's he killed Lloyd Wycliffe with a shotgun. Feeling themselves bound by the privilege, the lawyers said nothing while Alton Logan was tried, convicted, and sentenced to life for the killing. When Wilson died in November 2007, his lawyers asked a judge for permission to lift the privilege. It was granted, they went public. After 26 years in prison, Logan was released in 2008 and charges dropped against him later that year.

What actually set Bennett off is that one of the lawyers, speaking at an American Bar Association conference, said he had no choice under the rules of the profession but to honor the privilege. Nonsense, Bennett huffed. One always has choices. He should at least have thought about whether to violate those rules.

So let's take this opportunity to think about legal ethics a bit.

First, yes, there is such a thing as legal ethics. In fact, in all or nearly all states, one can't even get licensed to practice law without first passing a national multiple choice test on ethics. And all or nearly all states require that to maintain your bar license you have to spend an hour or so every year or two listening to someone lecture on ethics.

Wow! See how ethical we are! Can't imagine where all those lawyer jokes come from. And gee, who would ever accuse another lawyer of misconduct? OK, our standards aren't really that high, and though the establishment bar would likely deny it, the view in the trenches is that criminal defense lawyers and sole practitioners are treated more harshly by the legal ethics police than are prosecutors or folks from big law firms.

Further, the ethical Rules under which we operate (and they vary some from state to state) are designed to endorse the status quo and the power establishment. First rule: Be very careful criticizing judges. See, for instance, the treatment of Geoffrey Feiger (story here just for calling Michigan appeals court justices a series of offensive names and suggesting that they should have anal sex with a toilet plunger) and Mark Gardner (here for writing in a motion for reconsideration that a panel of Ohio appellate judges were result oriented, OK, he said it a lot more offensively than that).

I first took on those rules back when I was in law school, pointing out in a letter in the NY Times Magazine, responding to an article by Scott Turow, that one can adhere to the ethical rules of the profession and still be immoral.

But that doesn't mean the rules are bad. The problem with them is the problem with all rules. They're not much necessary in the easy cases and in the hard ones are either to vague or too rigid.

And the rules of privilege and confidentiality and client secrets (those are actually different categories of things, though they clearly bleed into one another) are especially problematic. What do we do when faced with those problems?

Here are a couple I've become intimately familiar with over the years, one because it was my problem, one because I was asked to represent the lawyer involved, one because I consulted with the lawyer involved. Everyone who's been in this business for a while has these sorts of tales. We each handle them differently, but always (if we have any sense of ethics and morality and integrity, with great difficulty).
  1. Lawyer comes upon letter, seemingly written by client who is facing capital charges, explaining to a third person how to acquire a rifle and kill the key witness against client. What is lawyer's obligation? Under the jurisdiction's ethical rules? Under human morality?
  2. Lawyer is told in confidence by one client that he is responsible for the murder for which another client faces death. The lawyer has a duty to represent the best interests of both. How is that possible?
  3. Lawyer represents client who is to testify against another client in a capital trial. Both clients are willing to sign waivers allowing waiver of any privilege the witness/client might have. But court says, "Whoa, I don't think they can waive that sufficiently for you to do your job." Now what?
Ethics classes mostly talk about things like not stealing money from your clients and not representing both sides in a contract dispute. Those are the easy ones.

But how about:
My client is on death row. I wants to accuse his trial counsel of incompetence for failing to interview witnesses. Trial lawyer thinks he had a good reason for not interviewing those witnesses. Can trial lawyer sign an affidavit that says, "I didn't interview them?" Should trial lawyer then tell the state's lawyer, when asked, that he had a good reason? What's the duty to the former client? Criminal lawyers often speak about defending themselves against claims by their former clients that they were constitutionally ineffective. Should they be doing that?
You won't find answers to these questions in the ethics rules. And they don't test you on them. How you answer, though, says a lot about the kind of lawyer you are. And the kind of person.
It's a tough profession.


  1. Excellent post. I read Mark's post as well and agree with you both.

    How did you respond to the three scenarios above?

    I'll suggest a few answers, though I couldn't necessarily fault anyone for acting differently -- it's just where my moral compass leads me:

    In the first case, if there is strong evidence that the client wrote that letter, protective measures should be taken ensure that the prosecution's witnesses are not killed. The prosecution should not necessarily be able to introduce the letter in its case in chief, but the state should pay for relocation of or a security detail for these key witnesses. The intended (or actual) recipient of the letter should be monitored.

    In the second case, it seems like a withdrawal of representation for the (possibly innocent) client is, at the very least, required. Ideally, the counsel for the (likely guilty) client could ask him to take the stand in as a the innocent man's trial as a defense witness, ask him to make a statement against penal interest, and suggest (before hand) that the client assert his 5th amendment right against self incrimination. Hopefully this would be enough to sway a jury. Obviously, for this to work, the two men could not be tried jointly, and a defense attorney in this situation should request separate trials. If the innocent man is convicted anyway, and if the innocent man is not already serving a life (or equivalent) sentence for other crimes, disclosing the confession seems like the only way to promote justice.

    In the third case, the lawyer can't and shouldn't represent both clients. Ideally, the lawyer should withdraw from both cases. The court should be asked to grant a continuance so that both clients can find new lawyers.

    How would you handle these situations?

  2. Fair question. I'll provide the answer in another post.