The Devil Made Me Do It

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.



  1. 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."

    Well, sure -- that must happen all the time. Prosecutors have conviction, right? ;-)

    I just took the MPRE last fall, and no, the law hasn't changed. You're right that prosecutors have the a clear obligation to stand up to supervisors or anyone else who encourages them to act unethically. Of course, don't you think that prosecutors commonly say the same thing about defense attorneys -- that they go too far and stretch or even break the lines of ethical conduct? We had a lifetime prosecutor come speak to a class recently who described this as a universally held attitude in the U.S. Attorney's office -- everyone there thinks the public defenders are a bunch of rule-breaking, unethical zealots who should have their law licenses revoked.

    My question is: When attorneys (on either side) see other attorneys acting badly, why don't they report it and press for formal discipline for the bar? I know there are reasons, but still, isn't that also one of our professional obligations?

    Finally, you could use Audioblogger to record and share the sound of your professor saying "dispute!" We would love to hear it!

  2. Your torts professor sounds way more adorable than my torts professor, who seemed to derive particular glee from telling horrible stories of awful deaths caused by negligence.

    It's far from a perfect parallel, but when I was an elementary school teacher, there were long lists of prohibited things (I'm talking innocuous things like bringing in home-baked cookies) where the chances of getting caught if you broke the rule were really slim. It was pretty easy to justify slipping a little for the sake of doing your job better- ie, "no one is going to catch me driving this kid home from school just this once and he really shouldn't be on the bus with the kids who are threatening him so I'll do it." And because you knew that the chances of getting caught were so small, you could say "I'm willing to lose my credential over this" and feel like you meant it.

    This is a very long way of saying that I think you've identified part of the problem when you note how hard it is to prove and how rarely people get caught. If a young prosecutor is weighing "pissing off my boss a LOT" against "maybe a very small chance of getting in trouble but also an increased chance of winning my case, which can only be good for my future prospects here, and which I truly believe is the better outcome" then you can see how it would be tempting to "slip" a little and not acknowledge the full risk and impact of that choice.

  3. The problem I have with Feige and with some of what you're saying is that it is only half the story. Do some prosecutors deliberately bend or even break the rules? Sure.

    But do some defense attorneys bend and even break the rules? Sure. The point is not which side is doing it, the point is that no attorney should be allowed to get away with it. We all "know" that prosecutors talk to witnesses during trials just as we all "know" that defense attorneys do the same thing with their witnesses or turn a blind eye to witness intimidation, or worse yet, engage in it themselves.

    That said, your fundamental point is absolutely dead-on: there's no case I can think of, up to and including the capital cases I've done, that are worth my law license, or almost as bad, my reputation among the bar and bench.

  4. Did Tom McKenna just admit that prosecutors are occasionally unethical as well? It is getting mighty cold down here in hell, but the pigs flying overhead are kind of neat.

  5. Hey ambib, ever reported someone? Especially in a relatively small town, the consequences are huge. It's hard. I did it and am still paying, mostly in small ways, but occasionally in large ways. There was no discipline meted out. (The discipline committee said statute of limitations had run. And prosecutors complain about technicalities!) My reputation was put on the line. The reported party, a bigwig 'round here, still has it out for me in a way that is not good for my clients. The price is dear. The only comfort besides the satisfaction of doing the right thing is the occasional thanks from my collegues, which does count for a lot.

  6. I left my first job as a prosecutor a few months (as soon as another job came along!) after inadvertently getting into a screaming match with my supervisor. I thought he was angry over a immaturely-worded I had sent to a police officer, returning a case submitted for charges that involved a VERY unconstitutional search. (As I recall, my memo included the phrase "jack-booted thugs" in description of the behavior of the police department in entering and searching a residence.) He was actually angry over the fact that I had sent the case back at all, since it was "the job of the defense to point out unconstitutional searches."

    The screaming came about when he "ordered" me to accept for charges cases such as this one, where the probable cause was nonexistent, and I informed him that because I believed that to be unethical behavior for a prosecutor, he couldn't order me to do it in such a way that I couldn't be disbarred.

    The punchline is this: other prosecutors in the office believed my position was correct, but told me privately they couldn't support me because they couldn't afford to be fired. A few were too close to retirement and some couldn't lose the health benefits.

    While I don't support THEIR position (and I ultimately WASN'T fired, but chose to leave), there is more at stake than a law license when a supervisor at a 9-5 orders you to do something.

  7. I heard a post grad law student once tell me about a colleague of his who worked as a prosecutor in the states for a while. He described a kind of bullying situation going on with that persons superiors, which was very disturbing.

    Also reminded of the famous Max D. Stauer case... with the warehouse on fire? The witness was reciting a pre prepared story by rote, and Stauer exposed it.

    I think that its just a good job all the good lawyers end up doing defence ;)

  8. I think the model ethical rules say that junior attorneys/associates have a right to rely on the advice of partners/supervisors as to the ethics of a situation, so long as that reliance is reasonable. I think a supervisor would be pretty hard pressed to take any retaliatory action if, instead of phrasing it as a refusal, the junior person just got a second opinion from another senior attorney. That's what I tell myself I'd do if it comes up with me. But I'm still hoping it won't.

  9. I've never worked as either a prosecutor or defender - only in private, corporate practice. But I have stood up to more senior attorneys on things that I didn't feel comfortable doing. Several times, in fact. And they've never given me a problem with it. I guess I've been lucky.

  10. I've posted before about the pressure I felt as a brand-new prosecutor when my boss wanted me to get an indictment when I felt there wasn't probable cause:

    What's hard is the combination of pressure from the higher-ups and the fact that most ethical situations aren't necessarily so clear-cut. So a young person winds rationalizing his decision to go along with his supervisor by convincing himself that it's not really an ethical violation.

    And yeah, I don't think prosecutors have a monopoly on unethical behavior.