Practical Ethics

If yesterday's post left you wondering just what kind of ethical dilemmas I encounter as a public defender, you're not alone.

So here's an example, which is somewhat fictionalized because as far as I know, the case is still ongoing.

I was in arraignments when I picked up a case where my client was charged with drunk driving, causing an accident with serious injury, and leaving the scene of an accident. She had been arrested many hours after the accident. The client was a student in a professional program and had never been arrested before.

Before speaking to my client, I realized that I'd need to get a lot of information from her because there were a few different defenses that might be worth pursuing. First, maybe my client wasn't really drinking. Second, maybe she was really drinking, but she wasn't intoxicated. (There wouldn't be an accurate breathalyzer because of the time that had passed.) Third, maybe the other driver caused the accident. Fourth, maybe my client wasn't even the one driving. Maybe someone else borrowed her car. And, finally, maybe once I learned more I would see an entirely different scenario.

So, I met the client and I asked her what happened. She told me she didn't remember. (Unfortunately, this is not uncommon in drunk driving cases.)

Immediately, she asked me, "Is my roommate here? She told me she was going to come get me." I told her that I didn't know, I'd have to check. "She told me not to talk to anyone until she got here." Alright, in that case, the easiest thing for me to do is go look for your roommate.

I found her roommate waiting in the audience. We went in the hallway to talk, where she told me, "Look, she shouldn't be in any trouble. Just tell me what you want me to say, anything I can do to help her." Wait, maybe I misunderstood. Maybe she meant, "She shouldn't be in any trouble (because I know she didn't do anything wrong), Just tell me (what questions you want answered honestly) and I'll do anything I can to help her."

So, I said, "Ok, were you with her tonight? What did you see?" She said, "No, no, I wasn't with her. But I could say she was with me if that helps. If she needs an alibi."

I told her friend that, while I appreciated her helpfulness, being dishonest wasn't going to be helpful in any case. For example, if she provided an alibi to say that my client wasn't really driving, they might have a videotape from a traffic camera to show that she was lying, and prove my client really was driving. In the alternative, if she provided testimony that my client wasn't drinking, they might have a witness from the bar or her credit card paying a big bar tab.

In my mind, even if I could ethically and legally get away with putting liars on the stand, I think there's just too much opportunity for it to backfire. My client got out of jail that day and one week later I received a call from a private attorney. I told the private attorney some general information about the case, and offered to send a copy of the papers I had received.

The private attorney asked me, "I understand there is an alibi witness. Did you get a chance to speak to her?" I said, "Well, I spoke to her roommate, but I'm not sure if that's who you're talking about." For all I know, my client could have remembered something about that night and come up with a real alibi witness. We ended the conversation with me telling the private attorney that I'd send the file to her.

About a week later, the private attorney left a message on my voicemail. "Hi, it's private attorney again. I spoke to client and she told me roommate is her alibi witness. You said you spoke to her, so I wanted to see if you took a written statement from her. I didn't see it in the file you sent me, but I just don't want to reinvent the wheel if you've already done it. Could you call me back and let me know?"

This was a situation where I checked with my supervisor. In the end, I called the private attorney, and, thankfully, she wasn't there. I left a message that said, "Hi, it's Blonde Justice returning your call. I didn't take any sort of written statement. Good luck with your case!" I tried to use my best not-too-friendly no-need-to-keep-calling-me tone. We'll see if it works.

I guess now we could play devil's advocate. What more could I have done? Could I have told her "If you're talking about the roommate, she's full of baloney?" Probably. It wasn't protected by privilege. But did I have to? I, obviously, don't think so. Should I? I figure that the private lawyer is going to figure it out sooner or later, but I don't think it's my job, at this point, to tell her how to handle her case.

What about the flip side? Could I have coached the roommate through a perfect story? Could I have made her the star witness of my case? Ethically? I suppose that if I wanted to, there could have been a way to skirt the ethical rules. I could have asked the roommate all leading questions. I could have said, "Oh, good, so what you're telling me is that you were there with her at the bar? And she was only ordering soda the whole night? You're positive? And then you're telling me that you were at the corner when the other car ran a red light? You're positive? Ok, and then you're telling me that the other driver said she was alright, no damage done, go on home? Oh, ok. Thanks. Let me just get your contact information so I can put you on my witness list." A witness that wanted to help her friend out would have figured out exactly how to answer my questions. And a witness who couldn't figure it out isn't too bright and wouldn't be of much use to me anyway. So, would that be unethical? Probably not. I would have no reason to know that my witness was lying.

But, practically, none of this really came into play. I know that messing with a lying witness isn't worth it, and I know that asking only the question answered ("Did you take a written statement?" as opposed to "Did you take a written statement? Why not?") is one of the greatest tactics of lawyering. And, I think that's how real life ethics differ from classroom ethics.

But feel free to "dispute!"

18 comments:

  1. Interesting set of posts Blondie. My associate and I were just having this conversation yesterday. A client was faced with a problem. He is guilty, his co defendant is not. He has no record, and faces a maximum of 4 years his codefendant if convicted faces a minimum of 15 years.

    He is related to and loves his co-defendant. He also can win if he shuts up and says nothing. His co-defendant can too but it is by far not a sure thing.

    Ethically I have an obligation to protect him. I cannot agree to let him testify and fall on the sword. I told him I can't stop him either. They both have young children.

    There is a defense that deals with intent, where he can claim, if it is true, that he was unaware of the circumstances and although he engaged in the conduct the unknown circumstances rendered his actions blameless.

    He acknowledged after I told him of the defense that that is exactly what happened!! Fortiuous no? I cannot say for sure it didn't happen. I wasn't there. The facts fit the circumstances though somehow he didn't remember (or know) to assert the defense when he first told me the story.

    If a woman kills her lover, and admits to it saying at the time of arrest "I shot the bastard and watched him bleed to death." after relaying her story of the shooting to her lawyer, instead of asking why she did it, the lawyer explains a battered woman's defense, and she acedes to it, is it unethical?

    Juxtapose that against the cop who participates in a bad search. He tells the district attorney about it and the DA sees that it is bad, but coaches the witness to explain that he was going to impound the car anyway so that the evidence can come in under an Inevitable discovery test. In case one we have the building of a defense. In case two we have the failing to investigate, but a suggested defense that doesn't change the facts of the case but does mess with the theory. In case three we have a party protecting an arrest of a guilty person who would go free but for the constitutional protection.

    Ethically I can live with both section one and two. Section three seems unethical to me. I think that the government needs to be held to a higher standard than the individual so as to protect from an innocent party going to jail.

    In example one, an innocent party may be convicted but a guilty party aquitted. Suggesting a theory of defense, without changing the facts seems to be within the bounds of ethical conduct. In example two it is ambiguous as to the facts, but the lawyer wouldn't know the truth and is not subjourning perjury. He failed to figure out the truth and that may be sloppy, but it is not unethical conduct. I example three an otherwise guilty party will go free but for the coaching. The danger however, is not to that party. It is to the rest of us who must now depend on that police officer to enforce all the laws of the land, including those constitutional ones that may make our streets less safe from criminals but keep us far safer from the hands of a corrupted government.

    I will take my chances with the individual criminal. Teaching a democracy how to cheat its citizens is too dangerous to me. One nut committing crimes will not affect our nation, no matter how many he hurts. Our nation turning its collective back on our constitutional rights is a systemic danger that might never be righted.

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  2. Oh for any young lawyer reading this, my associate who is practicing two years got the job not on the basis of her experience and ability. She had equals there. She didn't get it based on her ability to bring in work. (She brings in little) She got the job because of her tremendous moral and ethical compass. Good ethics really is a way a young lawyer can distinguish herself from the rest of the pack.

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  3. What is worse is when you know your client didn't do it. You are 100% sure of it. But, there is no witness. There is a person who wants to say they were there, that wants to back up your clients story. But, you have to decide whether to put that person on the stand and sacrifice your ethics, whether to tell your client to take the risk of losing if they don't come on the stand, or reccomend your client take the commonwealth's offer of probation and plead guilty to something she didn't do. It is those cases that make it very difficult for me to sleep.

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  4. I think you did the right thing. I don’t think you had any ethical obligation to tell the private attorney that the roommate would provide “helpful” information. Besides, if he is a good attorney, he will see through the BS.

    The other question is would you really have wanted to coach a witness who may be less than truthful? Granted, we attorneys are not psychic, but sometimes you have to go with instinct. And I think that is the difference between the ethics we learn in law school and real life.

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  5. This latest "ethical" situation also includes an element of professionalism, and while I enjoy your blog, and generally agree with your posts, I think you handled this incorrectly. If I understand correctly, you were representing Client X at the time you questioned Roommate and determined that she was NOT an alibi witness. I believe that you then had an obligation to turn over everything you knew about the case to New Counsel. If New Counsel is inexperienced or hurried, or doesn't pick up an inconsistency (certainly Roommate and Client X have had time to get their stories straight), Roommate could wind up hurting Client X's case for EXACTLY the reasons you outlined -- the lies could backfire.

    At this point, it appears neither you nor New Counsel has informed Client X that having someone lie for her could be bad news. You didn't, because the case got handed off before you had a chance. And New Counsel hasn't had a chance because you didn't tell him. And as a result, it's possible that Client X's case could ultimately be prejudiced by your actions.

    I can't think of one good reason not to tell New Counsel. I can think of two (the possible prejudicing of Client X's case if she concocts a story with Roommate, you're the only lawyer who knows about it, and you didn't advise her of the consequences and plain old professionalism -- not letting New Counsel get bit by the information) to share. My $.02.

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  6. I agree that there was something sketchy about saying, "Well, I spoke to her roommate, but I'm not sure if that's who you're talking about." You didn't lie, but the statement is obviously misleading. That's part of why it counts as an ethical dilemma. I think that if you aren't going to say anything about the roomate's offer to lie, it's better to follow through and really not say anything. "The only person I talked to was the roomate," and "I didn't take a written statement," and maybe even, "When I talked to her, she didn't say anything that made me think I could use her as an alibi witness." If you left that message on his voicemail, you could avoid confirming the lie, and it clues the other lawyer in that there might be a problem (I wonder why the roommate didn't seem useful, when now she's providing this great alibi?), and it does it without telling him how to resolve the issue and without you needing to step in and point your finger.

    I also think that when you say there would be no ethical problem with the leading question only first interview, you are being to forgiving. One reason (not the only one) that isn't the standard way to interview people is that you don't know the answers yet, and suggesting them in a leading question is crossing a line. The Lawyer Dude describes a different approach that I think stays on the right side of the line. If you describe the legal intricacies of a particular defense that seems to fit the story so far, and then your client's story turns out to match that defense exactly, of course he may be lying. At some point, you are obviously obligated to explain to him the defense that you think might work, and you don't need to have confirmed every supporting detail before letting your client in on the point of the questions. I think your obligation is to avoid suggesting the right answers to your questions before you get an answer, but you don't need to hide the significance of the questions. Doing that wastes time and damages your relationship with your client.

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  7. I believe you should have told the private lawyer that Roommate previously offered to fabricate an alibi.

    To do otherwise is to become complicit by inaction in a likely fraud on the court.

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  8. Everbody lies...kids lie, cops lie. DAs know cops are lying and put them on the stand. Judges know DAs know cops are lying, and refuse to sanction.

    Like Leonard Cohen sings, "everybody knows."

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  9. It seems to me that if you're located in NY, or in a jurisdiction with similar discovery rules, than you were clearly well within your bounds to provide the answer you did.

    What I mean (for those readers who don't already know) is that in NY, any written statement would be discoverable by the DA. Therefore, unless you've taken the time to write it up as work product format, you're not going to have a written statement. In fact, having one would be unusual.

    And of course, private counsel knows this. And of course private counsel was specific in her question. Not "did you get a statement" but "did you take a written statement."

    Look, she didn't ask what she told you. She asked if you took a written statement. Period.

    Moreover, anybody doing criminal defense work better have a reasonably tuned bullshit detector. If you don't you'd better do something else. If private counsel doesn't, I for one have utterly no sympathy for her.

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  10. I'm no expert, but it seems that a conversation may not be privileged, but still be confidential.

    Thus, an attorney has no obligation to turn over some 'truth.' In fact, one violate ethical rules by doing so (good thing for you that this is anonomous!). If you want to disclose a confidential conversation gathered during your representation of a client and your view of it, you must first ask the client if you can and secure permission. Our confidence and trust must always be held sacred by a client or else clients won't admit when they broke the law so we can honestly advise them that you will do your best for them, but they should seriously plead because judges hammer people who lose at trial.

    And as far as the 'truth,' it is relative, in my view. People confess wrongly all the time or tell you what they want you to hear. Witness are constantly full of it and, as jasonpw knows, that attorney probably already has a BS detector. If they don't, you can't do anything to help your poor former client stuck with this horrible private. The lawyer was probably just seeking if you have any discoverable stuff so he wasn't slammed with a written statement later and that he didn't have any obligation to prove it up. Under the model rules, since you're off the case, no fear of running afoul of Rule 3.3 Candor Toward the Tribunal, and because of Rule 1.6, you have no fear of running afoul of Rule 8.3 Reporting Professional Misconduct.

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  11. Wow -- seems like a good case for a textbook one of these days. I say that as a journalist, not a lawyer, so I could be wrong.

    My first impulse would be to spill all. But that could be my male ego talking. From a selfish point of view, I'd want the credit for flushing out a liar, and I wouldn't want the private lawyer to think I was an idiot for not taking a written statement.

    The latter point also would speak to the relative importance of keeping a good relationship with this lawyer. You may put yourself in good graces with a colleague if you save him/her a bit of work. Whether that's important to you, only you can answer.

    Ethically -- again, I'm not a lawyer, and I don't know if this "alibi witness" has any rights you'd violate by answering only what needed to be answered. If there are no such rights, then I'm with those who think there was no reason for you NOT to say what happened.

    Speaking of ethical dilemmas involving coming forward, would you care to comment on my blog about the Duke lacrosse situation?

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  12. I agree with the comment above regarding confidential communications.

    This is information you obtained in the course and scope of your representation. Consequentially, Rule 1.6 makes this information confidential. And the general rule is that you may not disclose that information without the client's consent. (Subject to some exceptions in subparagraph (b)).

    So I think that the best decision here would have been to tell the new attorney, "I have turned over my complete file, but I can't discuss with you what the roommate told me unless your client gives me express consent."

    And if I heard that from another attorney a klaxon would go off in my head.

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  13. Hey Blonde, great stuff. I've been off blogospere for a while (very busy with a death penalty case), but came back just in time to see your 2 great posts.

    I think that you handled the situation with the roommate perfectly. To be certain, there is no reason to go and solicit a false statement from the roommate. It is ethically wrong (morally wrong as well, but we don't deal with morals here) and not professionally prudent to stick your neck out like that for a client (I was taught as a law clerk your order of priorities is 1) bar card, 2) client, 3) society). If you got different stories from her, California discovery statutes would require you to turn over all of her statements if she was a witness at trial, so her ambivalence at the start would actually be discoverable.

    Another wrinkle, of course, is the fact that she will inevitably deny the waffling, and this will require you to be a witness against your own witness when the prosecution seeks to impeach her, hence a conflict of interest (and the reason you always have investigators speak with witnesses when possible).

    Finally, you answered the simple question that the other lawyer asked of you. I don't think that you should be volunteering information that will harm your client if it is non-responsive to the request of the lawyer. That's not black letter law, obviously, since it's not completely non-responsive, but it harms the client's interest and was not directly requested. There is no issue of confidentiality, though, as your statements to the new lawyer are all part of the attorney-client relationship.

    You really handled it well, and I think that your discussion is a good example of the ethical issues that hit us PDs more than other lawyers. It is also a good example of how very ethical lawyers respond, while still protecting the interests of their clients.

    Keep up the great work!

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  14. The thing about the leading question issue is, its almost impossible not to do it. Even a question that isn't explicitly leading can queue an intelligent person in to how they should answer.

    Lets say the elements require the suspect to have been previously instructed not to call by telephone. When the person describes a series of harassing telephone calls, I have to ask whether the suspect was ever told not to call. There's no other way I can think of in most cases than to just ask, "Have you ever told Suspect not to call?"

    To which the answer is, of course, "Oh, yes!"

    That's not a huge issue because telling someone who is calling and harassing you to stop calling is a common thing to do. But even if the person hadn't previously said this, it would be very easy for them to lie and say that they had. The fact that I was interested in asking the question implies that the answer should be "yes" if they want charges filed.

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  15. If a client retains another attorney in the same case I represented her on, I'm not sure I need the explicit consent of the client to provide information I learned during my representation... particularly when it is information not received from the client themselves.

    I would have told new attorney I thought roomie was ten pounds of shit in a five pound bag. Is it ethical? I think so. Would I fear a bar complaint or lawsuit as a result of my actions? No more than I would fear one from the other 475+ clients I will represent this year (which is to say not at all!!).

    A similar issue comes up when you have client and witnesses interviewed with a detailed story in your file and investigator's report. You break the news to client that his story is 1)utter bs and 2)not a valid defense under the statute anyways. Client hires private counsel and spills to him story number two which coincidentally fixes a few of the flaws with story one that were the basis of your conclusion. Do you disclose your prior conversation with client to new lawyer? Or, and much more likely, do you just thank providence that there's one less case on your plate? As for me, if a substitution of counsel is filed in the record, new lawyer gets all I have... then I marvel at how indigent family raised more cash than my yearly salary to hire new lawyer.

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  16. Frankly, Blond, I think I would have told the new attorney what the witness said and then left her to deal with whether or not to use her in the case. It wasn't the client who imparted any of what the witness said to you so I don't see an issue of priviledge of any kind. In this day and age of "Lets kill all of the lawyers" while trying to practice defensively, I always try to give a Professional courtesy as long as I protect my license and my ethics remain in tact. We need to be a little more like other professions and help each other when we can instead of tending to eat our young. Interesting post!

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  17. I have to say that I think this is a tempest in a teapot.
    If I were retained counsel in this case I would want to know what you have been told.
    I would want to know if you have a signed statement. However if I don't ask I would prefer you not tell.
    IF I spoke to the Roomie, I would want to know which statement was true, then I would chose whether to believe her.
    If there is no written statement then I am not required to turn it over. If there is a written statement then obviously I have another hurdle to climb, which is something that needs to go into the "can she testify?" conversation. I would also have to be concerned that you could be called as a witness which also may affect my case.
    It may come as a suprise to many but truth is not necessarily a by-product of a trial. Justice however is.

    It never fails to amaze me how many people sit convicted of crimes because a lawyer refused to believe the story the client told them and wouldn't put it before the jury.

    I have a rule. It is the rule of how I go about deciding if I am subjourning perjury.

    If someone tells me they are lying,and I have no reason to disbelieve that fact, I am subjourning perjury to put them on the stand. If I know for a fact something to be other than the the witness tells me, I should be off the case because I am a witness, but otherwise I still have a reason to keep the witness off the stand.

    If I am afraid the witness may be lying or that I think there is lying but I am not sure, I am not subjorning perjury. I feel legally and ethically bound to follow up on the information and barring proof beyond a reasonable doubt otherwise I will use the evidence if it enhances my case.

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  18. This is how it in Chicago, too.

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