Practical Ethics, Part 2

My previous post on an ethical dilemma garnered quite a response, so I'll just add a few more of my cents before we move on.

I chose to write about this particular scenario because I think it's an interesting challenge between our first instinct (both as lawyers and as laymen) that it's more ethical to be honest, and the actual Rules of Professional Conduct, which place confidentiality before honesty.

Obviously, I agree with ACS regarding confidentiality. While I didn't consult the Professional Rules (other than what I remembered from law school) in this situation, I did consult my supervisor (And, we're back to the "My supervisor told me to do it," which is where this all started).

My supervisor's position, conforming with the rules on confidentiality, was that when new counsel takes over, we only hand over what is part of the public record (the file that the court gives us at arraignment, any discovery received, and anything that was stated on the record).

That's what I've done throughout my tiny career, and this is the first time I've had an attorney call me back to ask me something substantive (as opposed to, "Page 5 is hard to read, can you fax that again?"). Thus, putting me in the situation of, ethically, having to place confidentility before honesty.

And which also makes me wonder whether "jasonpw" is right, and there was a specific reason why new counsel asked about a "written statement." For example, I sometimes have to use my clients' written statements to confront them ("This is a fine story you're telling now, but it's very different that what you wrote out for the police"). There may also be other reasons where a lawyer feels that they need any written statements.

I think that I was in an easier situation because I didn't have a written statement to turn over, either for or against my client. I found it much easier to say, "No, I don't have what you're looking for," than to have one and be unsure of whether to disclose it.

Now, as for the interview-by-suggestion technique that I addressed briefly in my original post, and which some of the responses mention. I know that there are attorneys who do this regularly. I know at least one attorney who barely asks his client a question before he provides them with what he believes to be their ideal defense. ("But it was for your own personal use, ok?" or "But you thought you were allowed to use that car, right?") While, I can't think of any particular ethical rules this violates, I think that (1) it just isn't my style - I'm in this job because I like to hear my clients' stories; and (2) I think it does a real disservice to your client has a unique defense or just really wants to be heard.

I've had trials where I know that if I could have given my client the ideal defense, if I could have told my client exactly what to say or how to testify, they could have had a better chance at acquittal. But I know that my clients aren't always that good at following suggestions, and I know that, ultimately, if those clients lose after telling their own story, they feel better that they had their day in court. Conversely, if they were convicted after telling the story the way that I coached them (or, more likely, some mixture of the my story and their story), they'll just feel that they were screwed by the system again. Which isn't to say that I don't help my clients by saying, "Here's why I think you can leave that part of the story out," but that's very different than saying, "Let's present an entirely different story than the one you originally told me, or than the one you would have originally told me if I ever gave you a chance to speak."

At this point, I don't think it's necessary to address every other comment but I am interested in throwing another fact into the hypothetical to see if it changes anyone's mind (particularly those of you that were with me).

What if the private attorney's message had instead said, "Hi, it's private attorney again. I spoke to client and she told me roommate is her alibi witness. I also spoke to the prosecutor, and she said that she'd just dismiss the case if I can get a written statement from the roommate. You said you spoke to the roommate, 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? I'd really like to get client's case dismissed as soon as possible so she can get on with her life."

Anyone feel like this changes anything? Does anyone think that I have more of an obligation to come forward if the case is likely to be dismissed? Anyone feel like maybe I have less of an obligation, since, if the prosecutor is so willing to dismiss the case, maybe he knows something else that we don't know?

Just curious.


  1. Despite the situation (additional prosecutor issues or not) I think my approach would be to keep the confidential information confidential. But that doesn't mean I'd let the lying witness completely off the hook.

    My response would be something like, "No, I didn't take a written statement. And I can't disclose what she told me. But honestly, I got a bad vibe from her. I'm not sure if she's truthful." That way the content is kept, but my own personal impressions are out there and available for the attorney to investigate. Since nobody likes finding out their witness is lying at the last minute.

  2. The big missing question and answer in this hypothetical is...IS the witness lying now or was she lying then.
    Since we will never know, I do not see how it is an issue if you tell him what you heard or not. Ultimately he will have to decide whether to believe her based on his own investigation.
    She may have lied to you because she didn't trust you. She may have lied because she wanted to help her friend but was ambivalent about testfying. She may have lied because she is unsure if she has the facts to help her clearly help her friend. She may have been testing you.
    I as new counsel have to make my own decision. Your help is only one part of what I need to make the determination.

  3. I like Peachy's approach. I think it may preserve confidentiality while giving new counsel a tip towards your thoughts, if he or she didn't pick up on it already.

    Of course, you set yourself up for new counsel saying something like, "Oh, why is that?" At which point you have to stick to "I can't tell you." It's an awkward fact of the job.

  4. I would protect myself in that situation. The possiblity of slightly helping new counsel cover his arse (in case he lacks a B.S. detector) is nowhere close to my obligation to protect myself. You see, I believe that I'm pretty peachy (many clients tell me so and get sad when I leave them), so in my interest in not possibly running afoul of the rules and losing my license even for a short time, I wouldn't take a risk with a new lawyer that I don't even know. If he is a tool without discretion and goes and says to (possibly) lying witness 'hey, this lawyer says they don't believe you, how could that be?' then you might be facing a bar complaint and all that jazz. Nope, not worth the risk for me. Once the client is gone, I forget about them (except for the confidential part) because I have far too many current clients to do much but politely inquire next time I see them or their attorney (say, what happened with that case I had all set for trial and I conflicted off at the last minute? What, you yelled at them until they pled them out although they had a great case? Fantastic, and you got paid for that!)

    I try to only accuse people of doing anything bad when I'm defending my client and have witnesses to cross or whatever. I won't make a police report against people no matter how many times my clients ask (some of them are broken records ... I am not the freakin' police!), I won't help my clients get back at other people by filing charges, I avoid reporting judges and fellow attorneys unless I am compelled to, and basically won't report anyone unless it is hurting my clients so much so I must act and I am allowed to act. Stop snitching (on anyone) is my motto, unless I can and must do it to protect my current client.

  5. ACS makes a good point. An unknown lawyer may respond in any number of ways to that information. I'm fortunate enough to have a relatively small community of lawyers around. I often have to conflict out on something or will represent a co-defendant with a local lawyer but will know them well enough to behave accordingly. I'm sure it's different for y'all in larger cities.

  6. Yeah, I don't think it changes anything. The client isn't yours anymore - the private attorney should be in charge of getting it dismissed. I think you can still just tell him, "Nope, I didn't get the written statement. Good luck!"

  7. Keep up the good work. I found your Blog and another Blog you link to just today.

  8. I disagree that you only pass along limited info to a new attorney. As a habeas attorney, i can tell you that's just plain effing wrong. you owe it to your client to to do more than that. That kind of limited disclosure is ass-protection not client centered.

    I do agree with the comment that the big missing question is if "whether she was lying then or lying now," though I think I'd frame it as a matter of vacilation that allows an attorney to present facts, evidence, and argument of whichever end of the vacilation is most helpful (here an alibi), in good faith without an ethical quandry.

    In fact, you are a goddamn advocate for your client, and owe it to him or her not to adjudge them and the validity of that alibi because of witness vacilation. Like peachy says, though, you also owe it to your client to pass along possible holes and shortcomings in that alibi, since it's your client that will suffer if they are made to appear to have a lying sack testify on their behalf - whether they're lying or not in some platonic objective sense is a farce of an inquiry.

  9. Maybe I'm still missing something here, but I still think I would tell new counsel just what was said to me (or at least that something was said to me...ala peachy) and let her deal with the situation and how to handle it. "Yes, supposedly there is a witness, she gave me some info I wasn't sure I could work with, speak with her and evaluate it for yourself." There was no written statement, so you can leave out your opinion as to whether this witness was in fact lying or just said what she said for "effect." I think you have somewhat of an obligation however, to the client, to disclose that someone did come forward to you and then "drop it" in the lap of the other attorney as to how to use it.