A week or two ago I was talking to a friend, who I went to law school with, about the Zacarias Moussaoui witness tampering situation. (David Feige had a nice piece to remind you of the situation here on Slate.)
My friend said "Yeah, that's what happened to [another friend we went to law school with.]" I asked her to elaborate and she said, "He was at the prosecutor's office, but he got in trouble for coaching a witness during a break in a hearing."
Hmmm. Mostly I was interested in how he got caught. Just like David Feige says, we all know it happens, but it's usually very difficult to prove.
My friend told me that she didn't really know how our classmate got caught, "but," she added, "you can't really blame him. His supervisor told him to do it."
My first thought, and my automatic response was, "No, that's no excuse. I don't give up my law license (or my credibility, or my reputation) for anybody."
"But really, he had to. When you're in a situation like that, and your supervisor tells you to do something, you have no choice."
"You have the choice to say no and deal with the consequences."
Maybe it's unfair for me to say that. I very rarely, if ever, have any ethical conflicts with my supervisors. Instead, it's usually my other "bosses," my clients, who challenge me. Fortunately for me, the rules of what I can and what I can't do on behalf of my clients have been pretty well hashed out in the appellate courts. If I'm not sure, though, I use my best judgment and check in with a supervisor.
On the other hand, I see a lot of prosecutors who, to put it nicely, skirt the lines of ethical behavior quite a bit. I wonder why. A lot of people in our office figure that they're trained to do it, and their supervisors reinforce it. But don't the young prosecutors have the same obligation to say, "Sorry, I'm pretty sure that's unethical and I'm not allowed to do it?"
And, I guess maybe I could imagine if a prosecutor let their emotions get the best of them and said, "I can't let this little girl's killer walk free. I'd rather lose my law license than this case." I'd say it's a bad decision, but I can imagine it could happen. However, the prosecutors that I have the most experience with are dealing with shoplifts or misdemeanor drug possession. How can it really be worth it? Except for the fact that you know that you'll either (a) never get in caught or (b) have nothing worse happen to you than a few embarassing minutes. (Meaning, a judge may call you out on it, and embarass you, but it won't go any further than that.) And maybe they think it'd be more embarassing to be the one who stands up to a supervisor.
Later, though, (and after a little bit of a debate with my friend), I wondered if I was wrong in my quick response of, "I don't give up my law license for anybody."
Obviously, it's easier for me to say no to a client than it might be for any young lawyer to say no to a supervisor. But we all agree that it's no excuse to say "A supervisor told me to do it," don't we? What I guess I want to know is, we all - even young prosecutors - know that you have an obligation to stand up to an unethical supervisor, right? For those of you who just took the MPRE, the law hasn't changed that much since I was in law school, has it? I realize that sometimes when you are really unsure of the right thing to do, you might cover your ass by checking in with a supervisor (so that you can always say, later, I wasn't sure but I sought the advice of a more experienced attorney), but that's clearly different than if a supervisor said, "Shred that Brady evidence," and you said, "Yes sir."
My torts professor used to (and probably still does) present two sides of an argument and then say "Dispute!" in this weird little mouse voice. If I knew how, I'd imitate it and leave a clip of it here for you.