For A-Plus Writer Only
patisa
the_study_of_law_14.pdf
The Study of Law
Currier, K.A., Eimermann, T.E. (2016). The study of law: A critical thinking approach (4th ed.).
New York: Wolters Kluwer
Aspen College Series
The Study of Law A Critical Thinking Approach
Fourth Edition
Katherine A. Currier • Thomas E. Eimermann
• ®Wolters Kluwer \'
Ethical Dilemmas Facing Attorneys
Virtually all difficult ethical problems arise from conflict between a lawyers responsibilities to clients,
to the legal system and to the lawyers own interest in remaining an ethical person.
Model Rules of Professional Conduct, Preamble, Comment 9
CHAPTER OBJECTIVES
_.\ft:er reading this chapter, you should be able to:
• Describe the principles and assumptions that underlie our adversarial system. • Give examples of how attorneys may find that following the Rules of
Professional Conduct will not always provide clear-cut answers to ethi- cal dilemmas.
• Distinguish between client confidentiality and attorney-client privilege. • Explain the ethical dilemmas presented by suspected client perjury. • Describe the types of conflict of interest situations that can arise in a law
practice. • Describe two access to justice issues.
561
• 562 Chapter 14: Ethical Di lemmas Facing Attorneys
INTRODUCTION
Legal decisions often involve ethical and moral choices. You have alrez.:. encountered several examples in the early chapters of this text: Should the _ support a system whereby couples who cannot have children of their own pa surrogate mother; should spouses be able to sue each other for tortious inju_~ that occur while they are married; should the court recognize the rights of - unborn child? These and other legal decisions involve a balance between Cti: - flicting goals and values in the search to reach the just or ethical result. In ± chapter, we will focus on the particular ethical dilemmas that are presentee ~ attorneys in their role as advocates for their clients.
As advocates, attorneys sometimes find themselves confronted with siro..z- tions in which they are torn between their loyalty to their client, their role as - member of the legal system, and their own sense of morality. For example, co-- sider the following true story.
Attorney Beige, along with his colleague Frank Armani, was appointed to represent a criminal defendant charged with murder. In the course of their conversations, the client revealed that not only had he committed the murder, but three others as well. The attorneys went to the location where his client had said one of the bod- ies was buried and found the corpse of a young girl, Alicia Hauck. For six months, neither attor- ney reported their gruesome discovery despite
repeated frantic pleas by Alicia's parents for any information they might have that would let them know if their daughter was still alive. Finally, the truth was revealed in court when the attorneys used the information to try to mount an insan- ity defense for their client. The townspeople were outraged. How could these attorneys, members of this small community, have kept silent so long while the parents agonized over whether their little girl was dead or alive?
Stories like this raise complex issues that do not have simple solutions. Di:. Beige and Armani act appropriately? Should they have notified the police or ~ least the parents either directly or through an anonymous telephone call? Wh2: harm would have been done if they had notified either the police or the parents~ Before you answer these questions, you need to learn more about the principles and assumptions that underlie our adversary system, the ethical rules that go' - ern attorney behavior, and the nature of the attorney-client relationship. We · then return to the Beige case and the tension created by the need to keep d ie-- confidences when doing so can cause harm to others. We will also examine t w other areas that raise ethical dilemmas: conflict of interest and access to justice. Conflict of interest issues arise when attorneys find themselves with divided lo; - alties. This can occur when attorneys try to represent two clients with differin:=. interests or when an attorney's personal loyalties jeopardize his or her ability
'For a fascinating discussion of the events that led up to this case, see Richard Zitrin & Carol M. Langfo:-:. The Moral Compass of the American Lawyer (1999).
A. The Adversarial System
give impartial representation. We end the chapter with a discussion of access to justice issues, including the need to represent unpopular clients and to ensure that those with limited resources receive representation.
A. THE ADVERSARIAl SYSTEM
In Chapter 4 we saw how our courts are organized to discover the facts under- lying a case and then to interpret and apply the law to those facts. In Chapter 5 we learned about the variety of things lawyers do in preparing cases for trial and that our legal system can best be described as an "adversarial system." Such a system places lawyers in an adversarial relationship and then relies on them to present all of the relevant facts and arguments needed for a neutral judge or jury to reach a proper decision.
You may also recall from Chapter 5 that our adversarial system can be contrasted with the "inquisitorial system" used in many European nations where judges are active participants in the search for truth rather than neutral arbi- trators. It is judges, rather than lawyers, who determine who will be called as witnesses, and it is the judges who ask most of the questions of the witnesses. Lawyers are present in the courtroom to assist the judge, and the lawyers' duty to the litigants is clearly secondary to their duty to the court.
The primary criticism of the inquisitorial system is that it puts too much power in the hands of judges, thereby creating an imbalance of power between the individual and the government. Our adversary system is thought to better serve the needs of the individual litigants because it places gteater emphasis on the lawyer's responsibility to serve the client's interests and limits the judge's role to that of a neutral arbitrator of the rules.
A constitutional basis for our adversary system can be found in the Bill of Rights. The Fourth Amendment prohibition against unreasonable searches and seizures and the Fifth Amendment privilege against self-incrimination demonstrate that due process rights take precedence over the government's search for the truth. Although the use of these rights may result in allowing some guilty persons to go free, they help ensure the innocent are not unjustly convicted. And, perhaps most significantly, the Sixth Amendment guarantee of the right to counsel recognizes the importance placed on the role of lawyers in our adversariallegal system.
Critics of the adversary system argue that it places too much reliance on the quality of the lawyers handling the case. It assumes that the lawyers will use skillful examinations of witnesses and well-researched arguments about the interpretation of the law to present the strongest possible case for their clients. H owever, if a lawyer is poorly prepared or lacks certain key skills, justice is not necessarily done, and the client will suffer for the lawyer's inadequacies.
DISCUSSION QUESTIONS
1. Approximately 90 percent of all criminal cases scheduled for trial are instead resolved through plea bargaining. In a plea bargain, the two sides work ogether to reach a compromise. Does this undermine the very notion that ours
is an adversarial system?
563 •
-
• 564 Chapter 14: Ethical Dilemmas Facing Attorneys
Model Rules of Professional Conduct A set of ethical rules developed by the American Bar Association in the 1980s.
2. It is often said that the function of the adversarial system is to find the truth. How is it then that courts frequently block access to information tha:: would assist in that search for truth? For example, courts routinely exclude evidence if the police officers used unconstitutional means to acquire it, and the:- do not require spouses to testify against each other.
B. REGUlATION OF ATTORNEYS
Historically, state supreme courts have claimed the power to determine who caL or cannot "practice law." Typically, they establish specialized boards or agen- cies to administer bar exams, investigate the character and fitness of applicants. review complaints against attorneys, and discipline those who violate t heir rules of professional conduct.
But while each state is responsible for establishing its own rules of profes- sional conduct, the content of these rules generally follows model rules promul- gated by the American Bar Association, known as the Model Rules of Professiona: Conduct. California is the one exception in that it has developed its own unique rules that differ from the ABA Model Rules in both structure and substance.
As is reflected in the their name-Rules of Professional Conduct-these rules are not so much ethical codes based on moral values but rather rules to gov- ern attorney behavior. That is, these rules are not meant to offer attorneys mora: guidance but rather to set forth a strict set of rules that attorneys must fo llow at peril of losing their license to practice law. Therefore, when law students study these rules in law school, arguably they are not really studying a code of ethics but rather a series of rules governing behavior, violation of which could result in disbarment. Hence, when confronted with what might be seen as an ethical dilemma, attorneys may not immediately ask "what is right?" but rather " wh a does the rule say I have to do?" 2 Perhaps it should not be surprising, therefore, that at least in the public's view, at times lawyers do engage in immoral behavior.
The drafters of the Model Rules had as one of their goals the creation of definitive answers so that, at least theoretically, lawyers would be able to find specific guidance in order to avoid disciplinary sanctions . However, as we will
You can locate the ABA Model Rules of Professional Conduct at www.abanet. org!cpr!mrpc!mrpc_toc.html.
2American Bar Association, Section on Tort Trial & Insurance Practice, Leonard Bucklin, Ethics in a Time of Historical Change, available at www.edicta.org/NeoethicsBucklin!Neoethics04 history.htm (last visited July 10, 2004).
C. The Attorney-Client Relationship
see later, the Model Rules are often ambiguous and offer less than complete tructions on how to behave in difficult situations. Even on their own terms,
:he Model Rules cannot be seen simply as a set of proscriptions. Rule 2.1 pro- " des that in "rendering advice, a lawyer may refer not only to law but to other
-onsiderations such as moral, economic, social and political factors, that may x relevant to the client's situation." Even more telling is this statement from Comment 7 of the Preamble: "Many of a lawyer's professional responsibilities are prescribed in the Rules .... However, a lawyer is also guided by personal -onscience and the approbation of professional peers."
For an attorney mired in an ethical dilemma, this acknowledgment-that at times attorneys may have to look to their own consciences rather than at the exact rules -does not provide much assistance. Also, it appears that the very ~ urpose of a set of rules-to make it easy for attorneys to know the right thing ~o do-is completely undercut if there is a general acknowledgment that the ;ules will not provide for an efficacious result in many situations. We will see this :ension between following the rules versus doing "the right thing" throughout our discussions in this chapter.
In sum, probably it should not surprise us that following any set of rules will not always provide attorneys with the best answer in any individual sit- uation. After all, rules are simply society's best guess as to what is the most appropriate behavior most of the time. Because by its nature a set of rules is designed to apply to the usual situation, the rules cannot provide answers for the unusual. For the unusual, attorneys are thrown back onto their individual senses of morality, having to make individual choices in situations where the rule no a nger "works." In the next section, we will explore some of these difficult situ-
ations in the context of the rules regarding attorney-client confidentiality and onflict of interest. Later in the chapter, we will discuss the impact these regula-
nons have on the availability of legal services.
ISCUSSION QUESTIONS
3. On a basic level, do you think attorneys have to face ethical dilemmas that are fundamentally different from those faced by other professionals, such as physicians or accountants?
4. In the popular media, attorneys are often referred to as "hired guns." We have also all heard the lawyer jokes: "How do you know when a lawyer is lying? His lips are moving." Why do you think there is this negative perception of lawyers and what they do? Do you think it is a fair characterization?
5. What do you think of the statement "At times following the rules may not lead to the best moral response and indeed may produce an amoral or even immoral response"?
C. THE ATTORNEY-CLIENT RELATIONSHIP
The attorney-client relationship is critical to the successful operation of the adversary system of justice. To fulfill this critical role, the lawyer must be able to
565 .
• 566 Chapter 14: Ethical Dilemmas Facing Attorneys
Confidentiality The ethical rule prohibiting attorneys and paralegals from disclosing information regarding a client or a client's case.
Attorney-client privilege A rule of evidence that prevents an attorney or a paralegal from being compelled to testify about confidential client information.
obtain confidential information about the client's situation and must not have any interests that might conflict with those of the client.
1. Confidentiality
A basic tenet of the attorney-client relationship is that attorneys must keep con- fidential any information their clients tell them. While there is little empirical data to support the claim, it is generally assumed that without the assurance of confidentiality, many clients would be reluctant to reveal potentially embarrass- ing or incriminating information to their attorneys. There is also the assumption that only if an attorney knows of a client's planned bad acts can the attorney have the opportunity to try to talk the client out of proceeding with those acts.
Because of these concerns, Model Rule 1.6 begins with a general state- ment prohibiting attorneys from revealing client confidences. Except in very rare situations, an attorney can never mention any aspect of a client's case to thos e outside the law firm. In fact, the very presence of the client in the firm must be kept confidential. This confidentiality covers any information that clients teG their attorneys as well as any information that attorneys learn from a third party, such as witnesses or an investigator. The prohibition against revealing client con- fidences applies to potential clients, clients, and prior clients. It even remains in effect after the client's death. 3
a. Attorney-Client Privilege
Confidentiality is also protected by the doctrine of "attorney-client privi- lege." The attorney-client privilege is a rule of evidence that prevents an attor- ney from being compelled by a court to reveal confidential information unless certain conditions are satisfied. Therefore, the rule on attorney-client privilege governs when a court can order an attorney to testify, despite the fact that oth- erwise the attorney would be required to keep the information confidential. It is similar to the concept of spousal privilege, which prohibits the use of a spouse's statement against the other spouse. The attorney-client privilege also protects the attorney's work product from being subpoenaed. This protected work prod- uct includes private memoranda, written statements of witnesses, and mental impressions, conclusions, or legal strategies related to litigation.
For the attorney-client privilege to apply, the client, while seeking legal advice, must speak directly to an attorney or his or her employee, with no unnec- essary third parties present. This is more restrictive than the ethical rule pro- tecting client confidences. The ethical rule applies no matter how the attorney acquired the confidential information, so long as it was during the course of the representation.
The rules regarding client confidentiality have always been very broad, requiring that the attorney keep secret almost all information learned from any source during the course of representation. The evidentiary rule of attorney-client
3Swidler v. U.S., 524 U.S. 399 (1998), discussing whether communications made by White House counsel Vincent Foster, Jr., and his lawyer, James Hamilton, made nine days before Foster's suicide, remained co n- fidential. The Court determined the communications were still protected by the attorney-client privilege.
C. The Attorney-Client Relationship 567 •
Ethical Rule Regarding Confidentiality
Under the Model Code applies to • confidences and secrets • learned from any source • regarding anything and • made anywhere
Under the Model Rules applies to • information • relating to representation of the
client
Result: If all the conditions are present, the attorney or paralegal may not voluntarily reveal the information (but may be compelled to testify unless statements also satisfy criteria for the attorney- client privilege).
Attorney-Client Privilege
Applies to • a client statement • to an attorney or a paralegal • made while seeking legal advice and • given in confidence (no unnecessary
persons present)
Result: If any of these four conditions is missing, the attorney or paralegal can be compelled to testify.
figure 14-1 A Comparison of the Ethical Rule Regarding Confidentiality and the Attorney- Client Privilege
• rivilege is much narrower because it keeps out testimony during trials-the _ urpose of which is to reveal as much information as possible to the court in its ·earch for the truth.
Figure 14-1 summarizes the differences between the attorney-client privi- ege and the ethical rules regarding confidentiality. As you can see from Figure 14-1, the attorney-client privilege does not cover as many situations as do the ethical rules regarding confidentiality. The ethical rules generally cover any con- iidence regarding the client, no matter the source. Therefore, an attorney can- not voluntarily repeat that information without the client's consent. However, a court could require the attorney to testify regarding that information unless it also meets the four-part test for satisfying the attorney-client privilege:
1. The client made a statement 2. to the attorney 3. while seeking legal advice and 4. no unnecessary persons were present.
Therefore, you can think of information covered by the attorney-client privilege as a subset of all confidential information . See Figure 14-2.
With this background information on client confidentiality and the attorney- lient privilege, think back to the situation mentioned at the beginning of this
Confidences
Figure 14-2 Attorney- Client Privilege: A Subset of Confidentiality
• 568 Chapter 14: Ethical Dilemmas Facing Attorneys
chapter. Attorneys Belge and Armani chose not to report their knowledge of the death of Alicia Hauck or the location of her body because they believed that the. would be violating the confidentiality of attorney-client communications. Die they do the right thing, or should the obligation to maintain client confidential- ity take a back seat to other, more important societal needs?
More than a hundred years ago, Lord Broughham, while representing Queen Caroline in a divorce trial that threatened to end the reign of King George IV, declared:
[A]n advocate ... knows but one person in all the world, and that person is the client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. 4
On the other hand, Rule 1.6 of the Model Rules of Professional Conduct specifically authorizes attorneys to reveal confidential information about their clients in specified situations. It is to these exceptions that will turn in the next section.
b. Exceptions to Confidentiality
The Model Rules provide for several exceptions to the general prohibition against revealing client confidences. The most fundamental of these exceptions is when an attorney has knowledge that the client plans a criminal act. Until recently, the rules provided that a lawyer may reveal confidential information to "prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." Note the use of the word "may." If the client reveals he or she is planning a criminal act, the attorney may, but is not required, to reveal the planned crime. In a very few states the verb "may" has been changed to "shall." In those states, attorneys are given no option but instead must report their client's planned criminal activities.
It is also important to note that this exemption from client confidentiality had three qualifiers. The first was that it applied only to future crimes. Therefore, if the client reveals past criminal conduct, the attorney may not reveal it. In only a few states, an attorney may reveal a confidence in those situations where the criminal activity is over, but there is the potential for ongoing harm. The most recent revision to the Model Rules also allows the attorney to reveal information of past bad acts, but only if needed to rectify "substantial injury to the financia l interests or property of another."
The second qualifier was that attorneys were only allowed to reveal confi- dences if it was the client who was planning the criminal activity. For example, if Mrs. Smith was to tell her attorney that her husband was so upset with the course of her litigation that he was planning to kill the opposing attorney, under the ethical rules in effect in most states, Mrs. Smith's attorney could not breach that confidence. The newest revision to the Model Rules as well as the rules
42 Trial of Queen Caroline 83 (1879) (emphasis added).
C. The Attorney-Client Relationship
:n effect in a few states allow the attorney to breach the client's confidence in -ituations such as that involving Mrs. Smith's husband-that is, when persons other than the client plan the criminal acts, and those plans are discovered by the attorney through a conversation with the client.
The third qualifier related to the type of crime. Until recently, the Model Rules required that the planned criminal activity be likely to result in "imminent :leath or substantial bodily harm." The most recent revision changed "imminent
eath" to "reasonably certain death." Then in addition to death or substantial i>Odily harm, the rules also allow attorneys to reveal information to prevent the dient from committing fraud or "substantial injury to the financial interests or _ roperty of another ... in furtherance of which the client has used the lawyer's -ervices."
In sum, as a result of the ABA's most recent amendment to its rule on -onfidentiality, an attorney may now reveal information to "prevent reasonably -ertain death or substantial bodily harm." 5 There is no longer a requirement ~at the actor be the client, that the harm be imminent, or that there be planned iuture criminal behavior. According to the comments this means that the new rule recognizes
the overriding value of life and physical integrity .... Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims. 6
DISCUSSION QUESTION
6. Do you think that clients will seriously be dissuaded from revealing confidences if they know that their attorney may be allowed to reveal that information after the client's death?
'The full text of Rule 1.6(b) reads:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result
in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantia l injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client, to establish a defense to a criminal charge or civil claim against the la wyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
~ode! Rules of Professional Conduct, Rule 1.6, Comment 6.
569 •
• 570 Chapter 14: Ethical Dilemmas Facing Attorneys
Let us now return to the situation facing attorneys Belge and Armani. During their client's trial, the townspeople found out that the attorneys hac kept quiet for months about the location of the girl's body. Their outrage pu- pressure on the local district attorney to prosecute the men for their silence. The problem was in finding a law that the attorneys had violated. Remarkably, the district attorney did not charge Belge and Armani with obstruction of justice or being accessories after the fact . Instead, the indictment was based on two little- known statutes: one that requires a decent burial be accorded the dead and the other that anyone knowing that a person died without medical attendance must report that death to the proper authorities. The grand jury indicted one of the attorneys, Francis Belge. Prior to trial, his attorney brought a motion seeking dismissal of the indictment. The following is the trial court's decision regarding whether or not the charges against attorney Belge should be dropped.
GALE,]. In the summer of 1973 Robert F. Garrow,
Jr., stood charged in Hamilton County with the crime of murder. The defendant was assigned two attorneys, Frank H. Armani and Francis R. Belge. A defense of insanity had been interposed by counsel for Mr. Garrow. During the course of the discussions between Garrow and his two counsel, three other murders were admitted by Garrow, one being in Onondaga County. On or about September of 1973 Mr. Belge conducted his own investigation based upon what his client had told him and with the assistance of a friend the location of the body of Alicia Hauck was found in Oakwood Cemetery in Syracuse. Mr. Belge personally inspected the body and was satisfied, presumably, that this was the Alicia Hauck that his client had told him that he murdered.
This discovery was not disclosed to the authorities, but became public during the trial of Mr. Garrow in June of 1974, when to affirma- tively establish the defense of insanity, these three other murders were brought before the jury by the defense in the Hamilton County trial. Public indignation reached the fever pitch .... [T]he
District Attorney of Onondaga County ... caused the Grand Jury of Onondaga County, then sitting, to conduct a thorough investigation. As a result of this investigation ... Indictment No. 75-55 was returned as against Francis R. Belge, Esq., accusing him of having violated subdivision 1 of section 4200 of the Public Health Law, which, in essence, requires that a decent burial be accorded the dead, and section 4143 of the Public Health Law, which, in essence, requires anyone knowing of the death of a person without medical atten- dance, to report the same to the proper authori- ties. Defense counsel moves for a dismissal of the indictment on the grounds that a confidential, privileged communication existed between him and Mr. Garrow, which should excuse the attor- ney from making full disclosure to the authorities.
The National Association of Criminal Defense Lawyers, as amicus curiae (Times Pub. Co. v Williams, 222 So. 2d 470, 475 [Fla]), suc- cinctly state the issue in the following language: If this indictment stands, "The attorney-client privilege will be effectively destroyed. No defen- dant will be able to freely discuss the facts of his case with his attorney. No attorney will be able to
listen to those facts without being faced with the Hobson's choice of violating the law or violating his professional code of Ethics."
In the most recent issue of the New York State Bar Journal (June, 1975) there is an article by Jack B. Weinstein, entitled "Educating Ethical Lawyers." In a subcaption to this article is the fol - lowing language which is pertinent: "The most difficult ethical dikmmas result from the fre- quent conflicts between the obligation to one's client and those to the legal system and to soci- ety. It is in this area that legal education has its greatest responsibility, and can have its greatest effects." In the course of his article Mr. Weinstein states that there are three major types of pressure facing a practicing lawyer. He uses the follow- ing language to describe these: "First, there are those that originate in the attorney's search for his own well-being. Second, pressures arise from the attorney's obligation to his client. Third, the lawyer has certain obligations to the courts, the legal system, and society in general."
Our system of criminal justice is an adversary system and the interests of the State are not absolute, or even paramount. "The dignity of the individual is respected to the point that even when the citizen is known by the state to have committed a heinous offense, the individual is nevertheless accorded such rights as counsel, trial by jury, due process, and the privilege against self incrimination."
A trial is in part a search for truth, but it is only partly a search for truth. The mantle of innocence is flung over the defendant to such an extent that he is safeguarded by rules of evidence which frequently keep out absolute truth, much to the chagrin of juries. Nevertheless, this has been a part of our system since our laws were
CASE DISCUSSION QUESTIONS
C. The Attorney-Client Relationship 571 •
taken from the laws of England and over these many years has been found to best protect a bal- ance between the rights of the individual and the rights of society.
The concept of the right to counsel has again been with us for a long time, but ... [t]he effec- tiveness of counsel is only as great as the confi- dentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half of a defense. This, of necessity, involves the client telling his attorney everything remotely connected with the crime.
Apparently, in the instant case, after analyz- ing all the evidence, and after hearing of the bizarre episodes in the life of their client, they decided that the only possibility of salvation was in a defense of insanity. For the client to disclose not only everything about this particular crime but also everything about other crimes which might have a bearing upon his defense, requires the strictest confidence in, and on the part of, the attorney.
In the case at bar we must weigh the impor- tance of the general privilege of confidentiality in the performance of the defendant's duties as an attorney, against ... the heart tearing that went on in the victim's family by reason of their uncertainty as to the whereabouts of Alicia Hauck. In this type of situation the court must balance the rights of the individual against the rights of society as a whole.
It is the decision of this court that Francis R. Beige conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client. Both on the grounds of a privileged communication and in the interests of justice the indictment is dismissed.
1. What do you think the court meant when it said that a "trial is in part a search for truth, but it is only partly a search for truth"?
2. Ultimately, why did the court find that the indictment against attorney Beige should be dismissed?
3. Do you agree with the result? What do you think the lawyers should have done?
• 572 Chapter 14: Ethical Dilemmas Facing Attorneys
At the time when Beige had to make his decision about whether to revea_ the location of the dead girl's bodies, New York followed ethical rules that dic- tated the only time an attorney could reveal a client confidence was to preven- a crime. Therefore, the attorneys would have been violating their code of ethics if they had revealed the girl's location. However, this does not mean keep ing silent was an easy decision. One of the lawyers made the following statement: "I caused pain, I prolonged their pain. What can you say ... How do you . . . Nothing I could say would justify it in their minds. You couldn't justify it to me." 7 Even the lawyers in the case were troubled by having to follow what they considered to be binding ethical rules.
DISCUSSION QUESTIONS
7. The common justification for having such strict limits on when an attorney can reveal client confidences is because without such restrictions, clients would be afraid to give their attorneys the complete story. Do you think this is really true? Given the complexities of the legal system and hence the need for an attorney to help others through it, do you think a client would risk not getting adequate representation by not being forthcoming to the attorney?
8. What do you make of the fact that in every jurisdiction the confidentiality rules do not apply where the litigation is between a lawyer and the client and th e issue is the attorney's fees?
Some have argued that the Beige case does not really present a clear con- flict between the attorneys' duty of maintaining client confidences and prevent- ing harm to others because in Beige, the crime had already been committed and could not be undone. Nothing attorney Beige could have done would have prevented further harm except perhaps to shorten the time of the parents' not knowing of their daughter's death. But who is to say learning of her death sev- eral months later caused them any more harm than the time they spent with some hope she was still alive? A more striking conflict was presented by a case that arose in Minnesota.
You can find links to all of the states' ethical rules and opinions at www.law. cornell.edu!ethics.
7Zitrin & Langford, supra, at 19.
C. The Attorney-Client Relationship
In 1956, David Spaulding, a minor, was injured in a car accident. David's :ather sued on behalf of his son for the injuries David sustained. During the dis- :overy phase of the lawsuit, David was examined by his own physician as well as an orthopedic specialist. Both of the doctors found David had suffered severe,
ut not life-threatening, injuries. David was also examined by a doctor for the defense. That doctor discov-
ered David was also suffering from a life-threatening medical condition caused · y the car accident. In a report to the defendants' attorneys, the doctor wrote:
The one feature of the case which bothers me more than any other part of the case is the fact that this boy of 20 years of age has an aneurysm, which means a dilatation of the aorta and the arch of the aorta .... Of course an aneurysm or dilatation of the aorta in a boy of this age is a serious matter as far as his life. This aneurysm may dilate further and it might rupture with further dilatation and this would cause his death. 8
The defendants' attorneys did not share this information with David nor s attorneys even though the doctor's report contained critical information
:hat David and his physicians needed to have him properly treated. The parties agreed to settle the case for $6,500. One can only speculate that had the plain- riffs known about the aneurysm and the potential deathly danger it posed, the am ount would have been much greater.
Because David was a minor, the parties had to submit the settlement to the :ourt for its approval, which it gave. Two years later, before entering the army ·eserve, David underwent a physical examination. During that examination, his fam- y physician for the first time discovered the aorta aneurysm that had been caused y the automobile accident and that was threatening David's life. David underwent
immediate surgery that repaired the aneurysm but left David with permanent severe speech loss. Shortly thereafter David petitioned the court to set aside the settlement 50 that he could recover additional compensation. The trial court set aside the set- - ement, and the defendants appealed. In the following case, the supreme court of _ iinnesota discussed whether the settlement should have been set aside.
573 •
GALLAGHER, j. The case was called for trial on March 4,
1957 .... On the following day an agreement for settlement was reached wherein, in consideration of the payment of $6,500, David and his father agreed to settle in full for all claims arising out of the accident.
Richard S. Roberts, counsel for David, there- after presented to the court a petition for approval of the settlement .... At no time was there infor- mation disclosed to the court that David was then suffering from an aorta aneurysm which may have been the result of the accident. [T]he court on May 8, 1957, made its order approving the settlement.
-pa uld ing v. Zimmerman, 116 N.W.2d 704,707 (Minn. 1962).
• 574 Chapter 14: Ethical Dilemmas Facing Attorneys
[Authors' Note: The court recounted the events that led David two years later to discover for the first time that he had an aneurysm.]
Shortly thereafter, David ... instituted the present action for additional damages due to the more serious injuries including the aorta aneu- rysm which he alleges proximately resulted from the accident. As indicated above, the prior order for settlement was vacated. In a memorandum made a part of the order vacating the settlement, the court stated:
"The mistake concerning the existence of the aneu- rysm was not mutual. [P]laintiff's doctor failed to ascertain its existence. By reason of the failure of plaintiff's counsel to use available rules of discovery, plaintiff's doctor and all his representatives did not learn that defendants and their agents knew of its existence and possible serious consequences. Except for the character of the concealment in the light of plaintiff's minority, the Court would, I believe, be justified in denying plaintiff's motion to vacate, leaving him to whatever questionable remedy he may have against his doctor and against his lawyer.
That defendants' counsel concealed the knowledge they had is not disputed .... There is no doubt that during the course of the negotiations, when the parties were in an adversary relationship, no rule required or duty rested upon defendants or their representatives to disclose this knowledge. However, once the agreement to settle was reached, it is difficult to characterize the parties' relationship as adverse. At this point all parties were interested in securing Court approval.
When the adversary nature of the negotia- tions concluded in a settlement, the procedure took on the posture of a joint application to the Court, at least so far as the facts upon which the Court could and must approve settlement is [sic] concerned.
It is here that the true nature of the concealment appears, and defendants' failure to act affirmatively, after having been given a copy of the application for approval, can only be defendants' decision to take a calculated risk that the settlement would be final.
To hold that the concealment was not of such character as to result in an unconscionable advantage over plaintiff's ignorance or mistake, would be to penalize innocence and incompetence and reward less than full performance of an officer of the Court's duty to make full disclosure to the Court when applying for approval in minor settle- ment proceedings."
From the foregoing it is clear that in the instant case the court did not abuse its discre- tion in setting aside the settlement which it had approved on plaintiff's behalf while he was still a minor. It is undisputed that neither he nor his counsel nor his medical attendants were aware that at the time settlement was made he was suf- fering from an aorta aneurysm which may have resulted from the accident. The seriousness of this disability is indicated by Dr. Hannah's report indi- cating the imminent danger of death therefrom. This was known by counsel for both defendants but was not disclosed to the court at the time it was petitioned to approve the settlement. While no canon of ethics or legal obligation may have required them to inform plaintiff or his counsel with respect thereto, or to advise the court therein, it did become obvious to them at the time that the settlement then made did not contemplate or take into consideration the disability described. This fact opened the way for the court to later exercise its discretion in vacating the settlement.
Affirmed.
CASE DISCUSSION QUESTIONS
1. Why did the Minnesota Supreme Court agree that the trial court could set aside the settlement? Do you think the result would have been the same if the settlement had involved an adult plaintiff rather than a child? Should it matter?
2. Did the court view the attorneys' decision not to reveal the extent of David's injury as a violation of an ethical obligation or rather as a strategic move that in this case simply did not work out?
C. The Attorney-Client Relationship
3. Do you think the court should have tackled head on the ethical and moral issues involved in choosing to keep a client's confidence over saving a -hild's life?
4. David Spaulding was represented by a young, inexperienced attorney. Perhaps the attorney was not aware that he was entitled to ask for a copy of the defendant doctor's examination. Or perhaps he just thought it would duplicate the information his own doctors had found . Or perhaps in the rush to settle the case, he simply forgot to ask for a copy. No matter the answer, should the system develop better protections for clients against the inexperience or incompetence of their attorneys?
5. It appears in this case that the defendants' attorneys never even consulted with the defendants about what they wanted to do but rather just assumed they would not want the information revealed. Should the attorneys have made such an assumption?
6. Assuming the attorneys had discussed with their clients the decision regarding whether to reveal this information, and the clients had said they did not wish to have the information revealed, what options would the attorneys have had?
7. Consider whether you think your answer to number 6 would change under the newly revised Model Rules that a "lawyer may reveal information ... to prevent reasonably certain death or substantial bodily harm." Do you think the defense attorneys would have an ethical obligation to reveal the injury? Would you change your answer if David had been suffering from an inoperable rumor rather than a correctable, but life-threatening condition?
After the court's decision in this case, David entered into a new settlement with the defendants for a larger but undisclosed amount.
c. The Effect of Breaching a Confidence on the Attorney-Client Privilege
The Beige and Spaulding cases highlight the dilemma of balancing client confidentiality against the desire to prevent harm to others. Recall that even when danger to others is reasonably certain, under the Model Rules and in most states, there is no requirement that attorneys disclose the confidential informa- tion. Even when a client directly tells his or her attorney that he is planning on killing someone or causing substantial bodily harm, the Model Rules would allow but not mandate that the attorney reveal this information. This presents an other problem, however. Assume for the moment that a client tells an attorney of his plans to kill someone and that attorney tells the police of the client's plans, thereby saving a life. Can that information then be used in court against the cli- ent? If the answer is yes, would knowledge of such potential use of the informa- tion discourage attorneys from revealing such information?
Specifically, in situations where attorneys may reveal a confidence without breaking the code of ethics, what impact does that have on the attorney-cli- ent privilege? In a case from Massachusetts, the Supreme Judicial Court dis- cussed this intersection between the ethical rules of client confidentiality and the
575 •
• 576 Chapter 14: Ethical Dilemmas Facing Attorneys
SWEENEY, SR., J.
evidentiary rule of attorney-client privilege. In that case,9 Joseph Tyree met with attorney Purcell, a legal services attorney. Mr. Tyree was seeking advice about being evicted. He was about to lose his apartment because he had been fired as the maintenance man for his apartment complex. In the course of the conversa- tion, the client told the attorney he planned to burn down the building. After thinking long and hard, the attorney reported this information to the police . When they investigated, they found gas cans and fuses in Tyree's apartment. Also all of the fire detectors had been disabled. At Tyree's trial for arson, the prosecution called attorney Purcell to testify. Purcell invoked the attorney-client privilege, and the judge agreed he did not have to testify. The jury was unable to reach a verdict, and the judge was forced to call a mistrial. At the second trial, a different judge ordered Purcell to testify, and when he refused, the judge deter- mined Purcell was not protected by the attorney-client privilege and held him in contempt for refusing to testify. Purcell appealed to the Massachusetts Supreme Judicial Court, the highest appellate court in Massachusetts. That court deter- mined that he did not have to testify, concluding "lawyers will be reluctant to come forward if they know that the information that they disclose may lead to adverse consequences to their clients." 10
Three years later, the Ohio Supreme Court was confronted with a similar case. Attorney Helmick was representing a defendant in a capital murder tria l. While he was preparing for trial, one of his investigators gave him a letter writ- ten by his client. The investigator had gotten the letter from the client's mother. The letter contained death threats. After consulting with the state ethics commit- tee, attorney Helmick revealed the contents of the letter to the police and then filed a motion to withdraw as defense counsel. The district attorney served attor- ney Helmick with a subpoena ordering him to produce the letter in his former client's murder trial. Helmick refused, and he was found in contempt of court. In the following case, the supreme court of Ohio discusses whether attorney Helmick can be required to turn over the letter to the prosecution.
In re Original Grand Jury Investigation
89 Ohio St. 3d 544, 733 N.E.2d 1135 (2000)
The issue presented in this case is whether an attorney can be compelled to disclose to the grand jury a letter written by a client and discov- ered by an investigator that contains evidence of a possible crime or whether the Ohio Code
of Professional Responsibility prohibits such disclosure.
DR 4-lOl(B) states, "Except when permit- ted under DR 4-lOl(C), a lawyer shall not know- ingly ... reveal a confidence or secret of a client."
9Purcell v. District Attorney for the Suffolk District, 676 N.E.2d 436 (Mass. 1997). 10Id. at 440.
We must first determine whether the let- ter sought falls within the definition of a client " secret." Unlike "confidence," which is limited to information an attorney obtains directly from his or her client, the term "secret" is defined in broad terms. Therefore, a client secret includes informa- tion obtained from third-party sources, including "information obtained by a lawyer from wit- nesses, by personal investigation, or by an inves- tigation of an agent of the lawyer, disclosure of which would be embarrassing or harmful to the client."
[W]e find that the letter falls within the defi- nition of a client "secret," since it was obtained in the professional attorney-client relationship, by appellant's agent (the investigator), and since it contains detrimental information detailing a possible crime committed by appellant's former client.
Although the letter is a client secret, this does not necessarily mean that disclosure of the letter is absolutely prohibited. An attorney may disclose a client secret if one of the four listed exceptions in DR 4-101(C) applies.
Appellant concedes that DR 4-101(C)(3) permits him to "reveal ... the intention of his cli- ent to commit a crime and the information neces- sary to prevent the crime." ...
We agree with appellant that he was autho- rized by DR 4-101 (C) ( 3) when he chose to reveal the intent of his client to commit a crime. . . . However, the fact that he revealed this informa- tion does not answer the question whether he is obligated to produce the letter itself. Thus, the question that remains is whether appellant is required to relinquish the letter itself and present it to the grand jury. We find that the exception found in DR 4-102(C)(2) governs disposition of this issue.
DR 4- 101(C)(2) provides that an attorney may reveal "confidences or secrets when permit- ted under Disciplinary Rules or required by law or court order." ...
The exception of DR 4-101(C)(2) for dis- closures required by law has been applied in the context of mandating that attorneys relinquish
C. The Attorney-Client Relationship 577 .
evidence and instrumentalities of crime to law- enforcement agencies. Thus, the rule has emerged that, despite any confidentiality concerns, a crim- inal defense attorney must produce real evidence obtained from his or her client or from a third- party source .... State v. Green (La.1986}, 493 So. 2d 1178 (holding that the attorney had an obligation to relinquish client's gun, an instru- mentality of a crime, to authorities). In essence, the confidentiality rules do not give an attorney the right to withhold evidence.
Appellant contends, however, that there are strong policy reasons against mandating disclosure. Appellant believes that mandatory disclosure will discourage attorneys from report- ing possible threats made by their clients and will therefore run contrary to the intent of the code, which is to prevent crimes from occurring. Appellant cites the Massachusetts decision of Purcell v. Dist. Atty. for Suffolk Dist. (1997), 424 Mass. 109, 676 N.E.2d 436, which highlights these concerns.
In Purcell, an attorney informed police about his client's intention to commit arson. The trial court ordered the attorney to testify about the conversation he had with his client concern- ing his client's intention to commit this crime, and the state defended the order on the basis of the crime-fraud exception to the attorney-client priv- ilege. The Massachusetts Supreme Court vacated the trial court's order and held that the attorney did not have to testify against his client. In so holding, the court noted:
"We must be cautious in permitting the use of client communications that a lawyer has revealed only because of a threat to others. Lawyers will be reluctant to come forward if they know that the information that they disclose may lead to adverse consequences to their clients. A practice of the use of such disclosures might prompt a lawyer to warn a client in advance that the disclosure of certain information may not be held in confidence, thereby chilling free discourse between lawyer and client and reducing the pros- pect that the lawyer will learn of a serious threat to the well-being of others."
• 578 Chapter 14: Ethical Dilemmas Facing Attorneys
Although these may be valid concerns, we find that the Purcell decision is distinguishable from the instant case, and that the policy reasons cited in Purcell have less validity here. Purcell involved direct communications between an attor- ney and client. The issue in that case was whether the attorney was required to testify against his client. In this case, the attorney-client privilege is not at issue. Nor is appellant being asked to tes- tify against his former client. Instead, the instant case revolves around whether a physical piece of evidence must be relinquished to the grand jury. While we recognize the importance of maintaining a client's confidences and secrets and understand that an attorney may have concerns in turning over
incriminating evidence against his or her client, we do not believe that these concerns should override the public interest in maintaining public safety and promoting the administration of justice by prose- cuting individuals for their alleged criminal activity.
Since the letter sought in this case contains evidence of a possible crime, we find that the letter must be turned over to the grand jury. Accordingly, we hold that where an attorney receives physical evidence from a third party relating to a possible crime committed by his or her client, the attorney is obligated to relinquish that evidence to law- enforcement authorities and must comply with a subpoena issued to that effect.
Judgment affirmed.
CASE DISCUSSION QUESTIONS
1. On what basis did the court decide that the attorney should turn over the client's letter?
2. The dissent argued that the reasoning in Purcell should have been followed and that the court's failure to do so will mean "attorneys and their clients will be less likely to discuss potential crimes, which will decrease the likelihood that the crimes can be prevented." 11 Do you agree? Why or why not ?
d. Responding to Suspected Client Perjury
What should an attorney do if he or she suspects a client is planning on committing perjury? This creates one of the most difficult ethical challenges attorneys face as it involves balancing a client's confidentiality interests against the attorney's responsibility to be truthful to the court. While attorneys must act as the zealous advocates of their clients, they also owe a duty of candor toward the court. Before we tackle this problem of how to handle perjury, we should acknowledge that what is or is not truthful testimony is not always clear. Was President Clinton testifying falsely when he said he and Monica Lewinsky were never alone? There were always other persons present somewhere in the White House even if no one else was present in the same room as they were. The prob- lem is that people may give different definitions to the same word. By giving uncommon definitions to common words, the statements may be technically true but misleading.
Consider the following exchange that occurred during a bankruptcy hear- ing. The questioner was trying to determine if Mr. Bronston in the past or cur- rently had any personal accounts in Swiss banks.
11 733 N.E.2d at 1141 (Pfeifer,]. , concurring in part and dissenting in part).
C. The Attorney-Client Relationship
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston? A. No, sir. Q. Have you ever? A. The company had an account there for about six months, in Zurich .
..r. Bronston's last answer, while truthful, was incomplete. For five years he - :od a Swiss bank account. He was charged with perjury based on the "theory -- r in order to mislead his questioner, [he] answered the second question with :eral truthfulness but unresponsively addressed his answer to the company's --ets and not to his own-thereby implying that he had no personal Swiss
-.mk account at the relevant time." 12 The court reversed his conviction, finding t he could not be found guilty of perjury for giving a nonresponsive answer.
- e court distinguished this from the situation where a witness has visited a :ore 50 times in a given day and when asked how many times she entered the ore, replied "five." While technically true (she did enter five times, and ten
=nes, etc.), such a responsive answer would do nothing to alert the questioner - probe further.
Returning to the problem of suspected perjury, Rule 3.3(a)(4) of the Model _ ules states, "A lawyer shall not knowingly offer evidence that the lawyer knows _ be false. If a lawyer has offered material evidence and comes to know of
fa lsity, the lawyer shall take reasonable remedial measures." However, Rule .3(c) states, "A lawyer may refuse to offer evidence, other than the testimony i a defendant in a criminal matter, that the lawyer reasonably believes is false ."
Note that the rule makes a distinction between testimony the attorney -knows" will be false and testimony the attorney "reasonably believes" will be :alse. If the attorney knows the testimony will be false, he cannot present it, and _:it has already been given, he must take reasonable remedial measures. If, how- ever, the attorney simply believes it is or will be false, it is at the discretion of the .1norney whether to present the evidence.
The rule also makes a distinction between civil and criminal matters. When r.hat witness is a criminal defendant, the defense attorney is faced with what _ 1onroe Freedman termed "the defense lawyer's trilema." 13 A lawyer in this situ- cion must balance three separate and sometimes conflicting responsibilities:
• To best represent the client's interests, the lawyer must discover all rel- evant facts about the case.
• The lawyer must keep in strictest confidence all disclosures made by the client in the course of their professional relationship.
• As an "officer of the court," the lawyer must not knowingly present false ~vidence.
The ideal ethical solution is for the lawyer to talk the client out of presenting erj ured testimony. The attorney can point out the dangers of lying: the fact that
most people are actually terrible liars, the potential of being charged with the
"Bronston v. U.S., 409 U.S. 352,355 (1973). nsee Monroe Freedman, Lawyers' Ethics in an Adversary System (1975).
579 •
• 580 Chapter 14: Ethical Dilemmas Facing Attorneys
additional crime of perjury, and the consequences if the prosecution can prove that the defendant's statement is false. But what if the client insists on going ahead with the perjured testimony? Can the attorney threaten to withdraw fro m the case without violating the client's Sixth Amendment right to assistance of counsel? The U.S. Supreme Court addressed this issue in Nix v. Whiteside.
BuRGER,]. We granted certiorari to decide whether the
Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attor- ney refuses to cooperate with the defendant in presenting perjured testimony at his trial.
Whiteside and two others went to one Calvin Love's apartment late [at] night, seeking marihuana. Love was in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his "piece," and at another point got up, then returned to his bed. According to Whiteside's testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound.
Whiteside was charged with murder, and when counsel was appointed he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed and immediately began an investiga- tion. Whiteside gave him a statement that he had stabbed Love as the latter "was pulling a pistol from underneath the pillow on the bed." Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim's family had removed all of the victim's posses- sions from the apartment. Robinson interviewed Whiteside's companions who were present during
the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a rea- sonable belief that the victim had a gun nearby was necessary even though no gun was actually present.
Until shortly before trial, Whiteside consis- tently stated to Robinson that he had not actu- ally seen a gun, but that he was convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something "metallic" in Love's hand. When asked about this, Whiteside responded: If I don't say I saw a gun, I'm dead.
Robinson told Whiteside that such testi- mony would be perjury and repeated that it was not necessary to prove that a gun was available but only that Whiteside reasonably believed that he was in danger. On Whiteside's insisting that he would testify that he saw "something metal- lic" Robinson told him, according to Robinson's testimony:
[We] could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; ... I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury ....
Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury.
Whiteside testified in his own defense at rrial and stated that he "knew" that Love had a gun and that he believed Love was reaching for a gun and he had acted swiftly in self-defense. On cross-examination, he admitted that he had not actually seen a gun in Love's hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim's family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis for Whiteside's asserted fear that Love had a gun.
The jury returned a verdict of second-degree murder.
[W]e [have] recognized counsel's duty of loyalty and his "overarching duty to advocate the defendant's cause." Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, coun- sel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.
The suggestion sometimes made that "a law- yer must believe his client, not judge him" in no sense means a lawyer can honorably be a party to or in any way give aid to presenting known perjury.
Considering Robinson's representation of respondent, ... we discern no failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the Sixth Amendment right to counsel. Whether Robinson's conduct is seen as a successful attempt to dis- suade his client from committing the crime of perjury, or whether seen as a "threat" to with- draw from representation and disclose the illegal scheme, Robinson's representation of Whiteside falls well within accepted standards of profes- sional conduct.
C. The Attorney-Client Relationship 581 •
Nothing counsel did in any way undermined Whiteside's claim that he believed the victim was reaching for a gun .... We see this as a case in which the attorney successfully dissuaded the cli- ent from committing the crime of perjury.
Robinson's admonitions to his client can in no sense be said to have forced respondent into an impermissible choice between his right to counsel and his right to testify as he proposed for there was no permissible choice to testify falsely. For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to with- draw, deprives the defendant of neither his right to counsel nor the right to testify truthfully. In United States v. Havens, we made clear that "when defen- dants testify, they must testify truthfully or suffer the consequences." When an accused proposes to resort to perjury or to produce false evidence, one consequence is the risk of withdrawal of counsel.
. . . An attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not extend to a client's announced plans to engage in future criminal conduct. In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essen- tially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.
{Authors' Note: The Court found that the defendant had no valid grounds for contesting his conviction.]
STEVENS, J., concurring in the judgment. Justice Holmes taught us that a word is but
the skin of a living thought. A "fact" may also have a life of its own. From the perspective of an appel- late judge, after a case has been tried and the evi- dence has been sifted by another judge, a particular fact may be as clear and certain as a piece of crystal or a small diamond. A trial lawyer, however, must often deal with mixtures of sand and clay. Even a pebble that seems clear enough at first glance may take on a different hue in a handful of gravel.
• 582 Chapter 14: Ethical Dilemmas Facing Attorneys
As we view this case, it appears perfectly clear that respondent intended to commit perjury, that his lawyer knew it, and that the lawyer had a duty-both to the court and to his client, for perjured testimony can ruin an otherwise merito- rious case-to take extreme measures to prevent the perjury from occurring. The lawyer was suc- cessful and, from our unanimous and remote per- spective, it is now pellucidly clear that the client suffered no "legally cognizable prejudice."
resolved today. A lawyer's certainty that a change in his client's recollection is a harbinger of intended perjury ... should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls) details that he previously overlooked .... Thus, one can be convinced-as I am-that this lawyer's actions were a proper way to provide his client with effec- tive representation without confronting the much more difficult questions of what a lawyer must, should, or may do after his client has given testi- mony that the lawyer does not believe.
Nevertheless, beneath the surface of this case there are areas of uncertainty that cannot be
CASE DISCUSSION QUESTIONS
1. The court assumes, without really discussing, that Robinson "knew " Whiteside was going to commit perjury. Given the nature of memory and how a person's recollections can change over time, is it fair to say that Robinso n "knew" that Whiteside was lying when he said he had seen something metallic?
2. What guidance does this case provide for other attorneys confronted with a client who recalls events one way shortly after first meeting with the attorney and then differently right before trial?
3. Why did Justice Stevens concur?
Because the absolute prohibition against offering testimony only applies when the attorney knows the client is lying, several commentators have sug- gested that attorneys often work very hard to "not know." The classic literary presentation of this approach occurred in Robert Traver's Anatomy of a Murder in the famous scene where the defense attorney meets with a client who has been arrested for murder. The attorney first describes the elements of an insanity defense and then asks for the client's version of the events.
While some lawyers may indeed coach their clients or tell them that they do not want to know "if they did it," these lawyers are not fulfilling their duty to know all the facts and as a result they may fail to provide the most effec- tive defense. For example, while a client charged with murder may indeed have "done it" by stabbing the victim to death, telling all of the facts may reveal infor- mation that could lead to a valid self-defense argument.
In situations in which a lawyer is concerned about a client's committing perjury, some state courts allow the attorney to call the client to testify in a nar- rative fashion. Rather than having the client respond to specific questions posed by the attorney, the attorney simply asks the client to give an account of what happened. While the attorney cannot ask any follow-up questions, the pros- ecuting attorney conducts a regular cross-examination. Additionally, the defense attorney may not refer to the client's false testimony during closing argument.
C. The Attorney-Client Relationship
The obvious problem with this procedure is that it signals the judge and the opposing attorney, and possibly the jury, that the client is lying.
Another option is for the lawyer to withdraw from the case when the cli- ent insists on going ahead with perjured testimony. While the Court in Nix v. W hiteside decided that there is no Sixth Amendment claim of ineffective assis- :ance of counsel when an attorney threatens to withdraw from the case and expose the perjury if the client lies on the stand, the Court did not decide whether -uch a withdrawal violates the lawyer's ethical duty not to reveal confidential rnformation or whether a refusal to call the defendant to the stand violates the -lient's due process right to testify in his or her own behalf. Furthermore, law- . ers are usually not allowed to withdraw from a case without giving the judge a good reason for doing so. But the lawyer cannot tell the judge the reasons for withdrawing without revealing confidential information about the client.
In summary, the issue of client perjury presents many difficult issues for the advocate. As one court has stated:
The problem of representing a defendant who insists on testifying falsely has been called, correctly, one of the hardest questions a criminal defense lawyer faces. The attor- ney is faced simultaneously with a duty to represent [the] client effectively, a duty to protect [the] client's right to testify, a duty not to disclose the confidential communica- tions of [the] client, a duty to reveal fraud on the court, and a duty not to knowingly use perjured testimony .... Experienced and conscientious people can come to different conclusions about the best way to deal with the conflict. 14
DISCUSSION QUESTIONS
9. Under the Model Rules an attorney has an obligation not to present fa lse evidence, but there is no affirmative obligation to reveal truthful material fa cts unless asked to do so by the other side. However, attorneys are under an obligation to disclose to the court legal authority in the controlling jurisdiction hat is directly adverse to their clients' position if it has not already been disclosed
by the opposing counsel. While there can be arguments as to why the obligation only runs to law from the "controlling jurisdiction" (the state or federal district in which the case is being tried) and what it means for the law to be "directly" adverse, this raises an even more fundamental question: If the goal of a trial is the search for truth, why is there an affirmative obligation to reveal harmful law but not harmful facts?
10. Former Supreme Court Justice Byron White said that if a defense attorney "can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course." But is it ethical for an attorney to impeach the credibility of a witness when the attorney kn ows that the testimony given was in fact truthful? In essence, how is that different from putting on the stand a client the attorney knows is going to lie?
1' Maddox v. State, 613 S.W.2d 275, 280 (Tex. Crim. App . 1980).
583 •
• 584 Chapter 14: Ethical Dilemmas Facing Attorneys
e. Inadvertent Disclosure of Confidential Information
Under our adversarial system, attorneys are expected to serve as zealous advocates for their clients. However, there may be times when zealous advoc acy should give way to other interests, such as professionalism, respect for the courts. and respect for innocent bystanders. We have already discussed the requiremen: that lawyers not use false evidence to help win their cases. An additional limita- tion on zealous representation involves the decision regarding what to do with confidential information that the other side has inadvertently disclosed.
Consider the following fact scenario. You are an attorney working on a major case. Things are not going so well. Imagine your surprise and delighr when in opening the day's mail you find the proverbial smoking gun: the one piece of evidence that seals your opponent's fate and guarantees victory for yo ur side. Unfortunately, the piece of paper that contains this information is a letter from the opposing attorney to her client. Apparently, this letter was accidenta lly mixed in with a group of other documents that you had legitimately received through a document request. Should you try to forget what the letter said, noti fy the opposing attorney you have the letter, and then return or destroy it at the opposing attorney's direction? Or should you remind yourself that you are a zealous advocate, that your first duty is to your client, keep the fact that you have it secret, and then use the information to win your case?
The receipt of such misdirected confidential information raises this fund a- mental question: In an adversarial system, just how adversarial do the adversa r- ies have to be? Is there a place for cooperation and even assistance when one adversary makes a mistake?
When an adversary fails to make a crucial motion or ask the right ques- tions on cross-examination, it is not incumbent on the other attorney to point out or even correct the mistake. However, in the area of inadvertent disclosure of confidential information, ethics committees and courts seem to have more trouble balancing the requirements of zealous advocacy with those of profes- sional courtesy. As first fax and now e-mail have become major modes of com- munication, the danger of misdialing a fax number or hitting "reply all" rather than "reply" to an e-mail are obvious. But are these errors fundamentally differ- ent from other mistakes that attorneys make?
In 1992, the ABA issued an ethics opinion in which it stated that the cor- rect course was for the attorney to refrain from reading or using inadvertently received confidential documents. Instead, the attorney should notify the other lawyer and comply with any request, such as to return the unread documents.U However, many commentators and state bar associations disagreed with th at approach. For example, the Massachusetts Bar Association's Committee on Professional Ethics advised that a lawyer's primary ethical duty is to zealously advocate his client's interests, and therefore the documents do not have to be returned. In 2005, the ABA reversed its position. It withdrew its 1992 opinion and amended Rule 4.4 to require that the attorney who receives the materia ls must do no more than notify the lawyer who inadvertently sent them. Under the
15ABA, formal ethics opinion No. 92-368.
C. The Attorney-Client Relationship
-e>lsed Rule, attorneys are no longer under an obligation to comply with the :her attorney's request as to how to dispose of the materials. Not all agree with
- · new approach. For example, the Maine Board of Bar Overseers was presented with a simi-
- issue. The board was asked to decide whether an attorney (Counsel Z) who :-eceived from Counsel A a number of documents, one of which was clearly privi-
.ooged, could use that information and whether Counsel Z had to notify Counsel _ of the error. While the majority of the board members agreed with the current _...BA approach, that is, that Counsel Z could use the document and the infor-
ation contained in it, the dissent called attention to the conflict between what : me of the commissioners said they would do as individuals, that is return the .,.apers, and what they felt the ethical rules required.
In an article entitled "uncivil Law," . .. former B.C. Law School Dean Dan Coquillette states that the "legal culture" must change before the public's perception of lawyers will improve. He suggests that attorneys cannot separate their private views of justice and morality from the standards which they practice as professionals:
One lawyer I talked to who was very embarrassed about the profession said to me, "You know, one thing I keep telling myself is that being a lawyer is what I do. It's not what I am." I said, "You've got it wrong. Aristotle said you are what you do every day. You are the product of what you do day in, day out, hour in, hour out. You can't say that being a lawyer is what you do and not what you are . . .. There's no way you can split these roles. If you act like a jerk in court, you're not an aggres- sive advocate pursuing an assertive strategy-you're just a jerk."
The foregoing considerations suggest that conduct which attorneys would find repugnant in their private lives, e.g., refusing to return something which clearly belongs to another, should not be tolerated on a professionallevel. 16
ISCUSSION QUESTIONS
11. When an attorney receives information that the opposing side has sent a cidentally, that attorney has four options:
• to refrain from reading the information, and then to contact the oppos- ing attorney and return the document unread;
• to read the information, contact the opposing attorney, and return the document;
• to read the information, contact the opposing attorney, and refuse to return the document; or
• to read the information and use it.
Given our adversarial system and your own sense of justice, which approach do -ou think is best?
~1a ine Bar of Overseers of the Bar Opinion No. 146 (1994); withdrawn by Opinion No. 172 (2000); :tp:l/www.mebaroverseers.org/attorney_serviceslopinion.html?id=89776.
585 .
• 586 Chapter 14: Ethical Dilemmas Facing Attorneys
12. Attorney White represents the plaintiff, who was injured in a:::. automobile accident. She and her client have decided to settle the case if they can obtain at least $200,000. The settlement talks are set to begin tomorrow, anC. her strategy is to start by asking for $300,000, hoping to end up at $200,000. As attorney White is reviewing the files in preparation for the settlement talks. she discovers a one-page fa x that she had not noticed before. It is from t he defendant's insurer and was obviously intended to reach the defendant's attorney. It contains just one line: "Offer $100,000, but you have authority to settle for up to $500,000."
a. What should attorney White do? b. Do you think that it should matter whether the fax was intermixed
with other documents? c. What if attorney White was wandering by the fax machine as it came
in? As she pulled it out, she saw the cover sheet that contained the following language: Privileged and Confidential- All information transmitted hereby is intended only for the use of the addressee( s) named above. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient(s ) please note that any distribution or copying of this communication is strictly prohibited. Anyone who receives this communication in error should notify us immediately by telephone and return the original to us at the above address via the U.S. mail.
The cover sheet showed that the fax was to be sent to the opposing attor- ney, but the fax number was for Ms . White's office. What should she do?
13. How do you think the situation should be handled when the inadvertently sent e-mail is from the client and not the attorney? Recently, a defendant's attorney sent an e-mail to the opposing attorney. He blind copied his own client. The client responded to the e-mail by hitting the Reply All button, thinking he was replying to his attorney only. Of course, instead the e-mail was sent to the opposing attorney as well. Do you think the opposing attorney should be able to use the contents of the e-mail at trial or should it be excluded as protected by the attorney-client privilege? Why? What should attorneys do to prevent this type of situation from arising in the future?
2. Conflict of Interest
In an adversarial system, an attorney may not represent both sides. By represent- ing both the plaintiff and the defendant in a negligence action, or acting as both prosecutor and defense attorney in a criminal case, an attorney would have a clear conflict of interest. Any action that would help the plaintiff or the govern- ment would at the same time hurt the defendant.
However, many conflicts are not this obvious. Take, for example, a situa- tion in which the chief executive officer (CEO) of a corporation comes to the corporation's attorney for advice. Is the corporation's attorney supposed to be representing the interests of the CEO, the interests of the board of directors, the interests of the employees, or the interests of the shareholders?
C. The Attorney-Client Relationship 587 •
Conflicts of interest can generally be divided into two categories. The first olves situations in which lawyers have a personal or business interest that
_ggests they cannot give their undivided loyalty to a client. The second involves er present or past client representation that presents a conflict with the rep- utation of a new client.
Conflicts of the first type can occur when a lawyer is related to another --wyer who represents the opposite side of a case. Other examples include enter- -o into certain types of business relationships with clients, preparing instru-
n ts for a client that give some benefit to the lawyer or a family member of the wyer (such as a bequest in a will), providing financial assistance to a client in
_ nnection with pending litigation, and accepting compensation from third par- . Each of these situations poses either a real or a potential conflict of interest.
As an example of the first type of conflict, assume Mrs. Abbot is an attor- _,y working for a defendants' firm. Her husband is an attorney who works - r a plaintiffs' firm. One of Mr. Abbot's clients is suing the local grocery store : r allegedly selling tainted meat. Mrs. Abbot represents the grocery store. See ~gure 14-3. Mr. and Mrs. Abbot had been hoping for some time to get away -om the pressures of work for a week or so, but their lack of finances was stand-
gin their way. If Mr. Abbot wins his case against the grocery store (through ~- rher a settlement or a court judgment), he will earn 33 percent of the amount .:warded to his client. Defendants' attorneys, however, usually receive a fee that .::oes not vary based on whether their clients win. Can you see any potential .::onflict of interest? Would anyone knowing all the facts think that perhaps Mrs. _-\b bot might not be quite as diligent in her representation of the grocery store as she would be if another attorney were representing the plaintiff? In addition, .io you think anyone might be concerned that in a careless moment either Mr. or _ Irs. Abbot might let some confidential information slip?
ISCUSSION QUESTION
14. In Chapters 12 and 13, we mentioned the Ferguson case. A white police officer shot and killed a young black man. The local prosecutor convened a grand jury to decide whether the officer should be charged with a crime. (As ;ou may recall, the grand jury determined that there was insufficient evidence -o believe a crime had been committed.) Many people felt that the governor should have brought in a special prosecutor because it was a conflict of interest
Example: Husband and wife represent opposing sides at litigation. 'lT Store customer ~ Grocery store
(Attorney, Mr. Abbot) (Attorney, Mrs. Abbot) Receives 33 percent Receives fee no matter the outcome. if he wins Might the store question Mrs. Abbot's
zealous representation?
Fi gure 14-3 Personal Conflict
Conflict of interest The ethical rule prohibiting attorneys and paralegals from working for opposite sides in a case.
• 588 Chapter 14: Ethical Dilemmas Facing Attorneys
for the local county prosecutor to consider potential charges against local law enforcement officers.
a. Five members of McCulloch's immediate family were, or had been, police officers, and his father had been killed by a young black man. Do you think an independent prosecutor should have been appointed: Why or why not?
b. Do you think there is an inherent conflict of interest for any local prosecutor to handle a case involving alleged police misconduct? Why or why not?
Because of the ever-increasing number of women entering the legal profes- sion and because of the variety of lifestyle choices other than traditional mar- riage that are becoming commonplace, one type of personal conflict that we may expect to see more frequently is the one created when the opposing attorneys share a close personal relationship. One such case was Commonwealth v. Croken.
Commonwealth v. Croken
432 Mass. 266, 733 N.E.2d 1005 (2000)
SPINA,}. The defendant, Richard H. Croken, was con-
victed on two indictments charging forcible rape of a child under sixteen years, and one indictment charging indecent assault and battery on a child under fourteen years. Represented by new coun- sel on appeal the defendant filed a motion for a new trial raising claims .. . that trial counsel was impaired by a conflict of interest due to an undis- closed intimate relationship he had at the time of representation with an assistant district attorney (to whom he is now married) employed by the office which prosecuted the defendant. The motion was denied by the trial judge without an eviden- tiary hearing. [We] remand the case to the Superior Court for an evidentiary hearing on that motion.
We summarize the evidence .... The defen- dant frequently babysat for the victims, whom we shall call Steve and Chris. Steve and Chris are cousins, and they are related to the defendant by marriage. One night when Chris was eight years old he slept at the defendant's home dur- ing a February vacation. The defendant fondled the boy's penis during the night and performed fellatio on him. Chris struck the defendant, then ran into the bathroom. The next morning the
defendant told Chris not to tell anyone what hap- pened or he would get hurt and disappear, and his mother would never find him. On several other occasions the defendant put his fingers or his penis into Chris's anus. When Chris was ten or eleven years old the defendant again fondled his penis and performed fellatio on him during the night. He also put his penis into the boy's anus . Chris first disclosed these events after Steve made a similar disclosure in 1993 .
Attorney Robert LaLiberte was appointed to represent the defendant from his arraignment in the District Court through sentencing in the Superior Court and until August 13, 1996, when appellate counsel was appointed. For much if not all of that time, LaLiberte was involved in a close relationship with an assistant district attorney whom we ... shall call Jane Doe.
Doe was employed as an assistant district attorney for the Plymouth district . . .. At the start of LaLiberte's representation, one of Doe's col- leagues was James M. Sullivan, the assistant district attorney in Plymouth County who was responsible for prosecuting the defendant throughout the pro- ceedings in the trial court .. .. Doe and LaLiberte
lived together during a portion of the time that LaLiberte represented the defendant.
Much more than this we do not know. Nor, apparently, does the defendant, whose affidavit states that he knew during the representation that LaLiberte had a girl friend with whom he was liv- ing, but that he did not know her name or her occu- pation. The defendant avers that he would never have consented to LaLiberte's representing him had he known that she worked for the district attorney's office for the Plymouth district. He became aware of this fact only by chance. His appellate counsel was speaking casually one day at a courthouse with an assistant district attorney, who informed her that Doe and LaLiberte were now married .... Appellate counsel investigated and brought to light some of the few details that are known.
At the time LaLiberte represented the defen- dant, the Canons of Ethics and Disciplinary Rules were still in effect. Disciplinary Rule 5-101(A), as appearing in 382 Mass. 779 (1981), provided: " Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." A lawyer's personal interests surely include his interest in maintaining amicable relations with his relatives, his spouse, and any- one with whom he is comparably intimate. This interest is, of course, often significantly pecuniary in character, but it also has irreducible emotional and moral dimensions, and it heavily bears on how any ordinary human being goes about mak- ing important decisions. It follows that in a case where a lawyer's representation of a client may be significantly limited by his ties to his relatives and intimate companions, professional ethics are impli- cated just as they would in a case where the lawyer represents a second client with litigation interests potentially adverse to those of the first client.
Before agreeing to represent the defendant, LaLiberte should have determined whether he reasonably believed his representation would be adversely affected by his relationship with Doe. If
C. The Attorney-Client Relationship 589 •
he concluded that it would, then he should have withdrawn from the case. If, on the other hand, he determined that he could represent the defendant vigorously, LaLiberte should then have asked the defendant whether he consented to being repre- sented by him in light of his relationship with Doe. Informed consent would of course include disclo- sure of the fact that Doe was an assistant district attorney who worked in the same office as the pros- ecutor who was trying to convict the defendant.
... Although factually underdeveloped, the papers demonstrate sufficient basis for a reason- able belief that the core of the attorney-client relationship might have been impaired, and that some probing of the matter by way of an eviden- tiary hearing was required ....
Marital and similar intimate relationships between lawyers have potential for creating unique problems. "The marriage relationship may be conducive to inadvertent breaches of confidential- ity. A spouse may have knowledge of out-of-town investigative trips at or around the time of prepa- ration for a particular case; clients and witnesses may contact the lawyer at home or leave messages on the home answering machine that may reveal a tactic or a confidence. Working papers left at home or work performed at home may reveal confidences of a client. The needs of a lawyer to work early or late or on weekends may give rise to the need for explanation in a marriage relation- ship that could inadvertently reveal client confi- dences or secrets." ABA Criminal Justice Section, Ethical Problems Facing the Criminal Defense Lawyer at 248 (1995). In addition, a "potential conflict of interest that may arise can be financial or personal. A district attorney or public defender may have a special interest in the outcome of a case based on a concern for a promotion or politi- cal benefit for one's spouse. A lawyer's loyalty to a client may be impaired by a personal interest in the success of a spouse .... " Id. at 249. We see no appreciable difference between marriage and other intimate relationships in this regard.
The ... matter is remanded to the Superior Court for an evidentiary hearing consistent with this opinion.
So ordered.
• 590 Chapter 14: Ethical Dilemmas Facing Attorneys
CASE DISCUSSION QUESTIONS
1. What is the danger to a client when his or her attorney is having ;:. personal relationship with another attorney who works for the same organizatio~ that is prosecuting the client?
2. Do you think this case would have been decided differently if Jane Doe had been the prosecuting attorney instead of simply being an attorney workin in the office?
3. The defendant stated that he would never have retained attorney LaLiberte as his attorney had he known of LaLiberte's and Ms. Doe's relationship. Why is this statement and the attorney's total failure to reveal the potentia: conflict not enough to form the basis for a new trial?
4. How is a client ever truly to know whether confidences and secrets were shared if the majority of the evidentiary hearing is based on the testimony of the two individuals who have the alleged conflict?
The second type of conflict of interest occurs when the attorney has infor- mation about the client on the opposite side of the case and therefore may know something that will be detrimental to that person. For example, assume attorney Smith worked for Mr. Brown when he was getting a divorce. During the divorce proceedings, attorney Smith naturally learned about Mr. Brown's financial state, including his partnership interest in a local gymnasium. It is now two years later, and one of Mr. Brown's partners has approached the firm seeking representa- tion in a case he wants to bring against Mr. Brown. If attorney Smith is allowed to take the case, his knowledge of Mr. Brown's finances that he gained while he represented him in his divorce might put Mr. Brown at an unfair disadvantage .
As you can see, client confidentiality and conflicts of interest are very closely related. In the situation involving Mr. and Mrs. Abbot and the Croken case, there is the fear that confidentiality might be breached because of the close relation- ship between the attorneys representing the two sides. In the situation involving information gained from a client, the fear is more real, as attorney Smith actu- ally knows confidential information and the only issue is whether he might use it against his former client. Because of this possibility, the ethics codes require that attorney Smith either obtain Mr. Brown's consent to proceed as the attorney representing the partner or resign from the case. In addition, all other attorneys at attorney Smith's firm would be barred from representing Mr. Brown's partner.
To summarize, in cases of actual conflict, an attorney can never represent both sides. In those situations involving potential conflict, a court might allow the representation so long as the client consented after being fully informed of the potential problems. However, the court could still disallow the representa- tion if the court thought that there was in fact an actual conflict or that the client had not been fully informed.
DISCUSSION QUESTIONS
15. Why should Mr. Brown's partner be penalized in his choice of attorney just because attorney Smith happened to represent Mr. Brown years ago in an unrelated matter?
D. Access to Justice
16. Model Rule 1.7 states that "notwithstanding the existence of a :oncurrent conflict of interest ... a lawyer may represent a client if the lawyer :easonably believes that the lawyer will be able to provide competent and diligent -epresentation." Is that a bit like asking the fox to guard the hen house?
. ACCESS TO JUSTICE
this chapter we have discussed the key role lawyers play in the adversary _::-stem. But what if no lawyer wants to take the person's case? Can a lawyer be :orced to represent a guilty client or to advocate for a cause that is contrary to -" e lawyer's personal beliefs? What if a person cannot afford to hire a lawyer? 'Thile the Constitution guarantees the right to an attorney in criminal matters, - at is not true in civil cases. In this section we will explore these access to justice - ues .
. Providing Services to Unpopular Clients and Causes
Generally, lawyers are free to accept or reject clients. However, lawyers who "Tork for others, whether it is in a law firm, public agency, corporation, or advo- ;:acy group, generally lose the ability to pick and choose the individuals they
-ish to represent. Perhaps the most obvious example of this is the lawyer who -orks for the public defenders' office representing individuals who have been
.:harged with a crime. That lawyer is not free to represent only those whom the wyer believes are innocent.
One of the most common questions asked of lawyers is, "How can you efend a guilty client?" There are several possible responses to this questionY
The first response is to point out that guilt is a legal concept that is determined y a judge or a jury and not by the lawyer. A person is not considered guilty ~til after the trial has been completed. Second, in representing a guilty client, dle attorney is just playing a role, similar to the actor who plays the part of the cillain in a movie. Third, many believe that the very legitimacy of our adver- sary system depends upon having lawyers willing to represent the "guilty" as well as the innocent. If criminal defendants cannot find attorneys willing to rep- :esent them, "the foundation of the judicial system is eroded and the lawyers xcome the judges of guilt or innocence by their very decision to accept or reject :hose criminal clients." 18 The importance of attorneys being willing to accept -ourt appointments is stated in Model Rule 6.2: "A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause."
tor an interesting discussion of this topic found in the world of fiction, you might enjoy reading A Cinderella Affidavit by Michael Fredrickson. In that novel, when discussing the difficulties that con- ::ront attorneys, the main character concludes that attorneys must proceed on " the curious faith that the .ocalized permissible evil we do on beha lf of our clients w ill disso lve in the higher justice served by the
.h-ersary system." Id. at 446 . 5 ep he n Jones, A Lawyer's Ethical Duty to Represent the Unpopular Client, 1 Chap. L. Rev. 105, 107 998) .
591 •
• 592 Chapter 14: Ethical Dilemmas Facing Attorneys
Examples of good cause include where the lawyer is not competent to handle t he particular type of case or the representation would result in a conflict of interest.
One exception to Rule 6.2 provides that an attorney may decline represen- tation if "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relations or the lawyer's ability to represent the client." 19
Because of this provision, no doubt there are limits as to the types of situations in which a court would order an attorney to represent a client. For example, it is not likely that a court would force an African-American attorney to repre- sent a member of the Ku Klux Klan accused of placing a burning cross on the front lawn of an integrated church. Similarly, a court would not order a Jewish attorney to defend a Nazi organization that wished to march in a town parade. Nonetheless, some attorneys who have found themselves in such situations have voluntarily chosen to represent such unpopular clients in order to defend consti- tutional principles, such as freedom of speech and assembly. 20
DISCUSSION QUESTION
17. Attorney Judith Nathanson is an attorney who earned her law degree with the purpose of helping to advance the status of women in the legal system. In her divorce practice, she only represents wives. As she only has a certain amount of time and energy to devote to her clients, she feels it essential to use her resources to redress social and legal wrongs done to women. Therefore, when Mr. Stropnicky asked her to represent him in his divorce, she refused. Should she be required to represent him? Should it matter that in his marriage he had assumed the role of homemaker and childcare giver? Is this analogous to an attorney with white supremacist views arguing that she should be able to decline to represent nonwhite clients?
2. Making Legal Services Available to low-Income Clients
Over the past 20 years there has been an increasingly large unmet need for legal services, particularly among the poor and middle class. Studies have consistently
An excellent site for up-to-date information on legal ethics is www.legalethics. com.
19Model Rule 6.2(c) . 20See, for example, the case of Anthony Griffin, an attorney for the NAACP who represented the Grand Dragon of the Texas Knights of the Ku Klux Klan, and David Goldberger, an ACLU lawyer who defended the Nazis' right to march in Skokie, Illinois .
D. Access to justice
imated that more than four-fifths of the poor and a majority of the middle =-ass who require legal assistance are unable to obtain it. 21
Legal services agencies were created in the 1970s by the federal government - serve the poor, but they have not been able to keep up with this demand for ,egal assistance. They lack sufficient funding and typically can represent only the ery poor. Attorney pro bono work is also not filling this need for legal services . ule 6.1 of the Model Rules of Professional Conduct states that every lawyer
· ould "aspire to render at least (50) hours of pro bono publico legal services per ear," but this provision has not been adopted in all states, and even in the ones here it has, the rule is aspirational only. It does not require attorneys to provide
_ o bono representation. The traditional method that attorneys have used in order to provide rep-
:esentation to those who have been injured and who could not otherwise afford attorney is the contingency fee. Clients can hire an attorney and only owe a Contingency fee
593 .
:ee "contingent upon" the attorney's winning the case. If the plaintiff loses, the Attorney compensation -: aintiff is responsible for the costs of litigation but owes the attorney nothing. as a percentage of the :i the plaintiff wins, however, then the attorney's fee is a percentage of what the amount recovered : aintiff has won. Typically that amount is 33 percent of the plaintiff's recovery. rather than a flat
ause typically lower-income clients do not have enough money to pay an amount of money or an ·:rorney on an hourly basis, many argue that contingency fees make it possible hourly fee. : r those clients to pursue claims that they would otherwise have to abandon.
However, some have questioned if it is ethical for an attorney to take one- ::hird of the money that would otherwise be going to compensate the client for
· or her injuries. If the goal in awarding a plaintiff money, either through 1 jury award or settlement, is to compensate the plaintiff 100 percent for the -; aintiff's loss, that will not happen if the attorney takes one-third of the pay-
ent. Consider the following case and accompanying contingency fee agree- ::::::tent, shown in Exhibit 14-1 found on page 596.
Attorney Goodman represented Donald Gagnon, who was severely injured a highway accident. At the time of the accident, Gagnon was trying to help
- other motorist. The driver of a tractor-trailer had pulled completely off the ::ravel lane of the highway and was parked in the breakdown lane. The driver
d stopped because she had noticed that the mud flaps on her truck were rub- ~ing against her rear trailer wheels. To help the woman, Gagnon pulled off the - ·ghway behind the truck in the breakdown lane. He then went underneath the :-ear of the trailer to attempt to correct the problem. While he was in that posi-
on, Donald Shoblom, driving a loaded garbage truck, veered off the highway to the breakdown lane and crashed into the tractor-trailer. The woman was · ed as the result of the collision, and Gagnon sustained massive injuries, leav- g him a paraplegic.
:lebora h L. Rhode, Access to Justice : An Agenda for Legal Education and Research, 62 J. Legal Educ. · .:1 May 2013).
• 594 Chapter 14: Ethical Dilemmas Facing Attorneys
On June 9, 1988, at 1 pm, a truck operated by Donald Shoblom crashed into a parked trailer, killing Susan J. Thompson and severely injur- ing Donald Gagnon. Gagnon retained Attorney Alan R. Goodman in pursuit of his claim against Shoblom and Shoblom's employer, and for his workers' compensation claim. Gagnon and Mr. Goodman signed a contingent fee agreement in which Gagnon agreed that Mr. Goodman's com- pensation would amount to 33lf
3 percent of the
recovery in his personal injury claim. The entire contingent fee agreement is set forth as an appen- dix to this opinion.
Mr. Goodman commenced an action and, after extensive discovery and investigation, a structured settlement of $2,925,000 (present cash value) was reached.·
A Superior Court judge conducted a hear- ing and indicated his approval of the terms of the settlement agreement except the provision for recovery of 33 1/
3 percent of the settlement which
amounted to $975,000. The judge called this fee unconscionable. There was an evidentiary hear- ing on the reasonableness of the settlement agree- ment. Gagnon testified that he voluntarily signed the contingent fee agreement and that he was sat- isfied that Mr. Goodman had earned his agreed fee. Additionally, a leading member of the bar who specializes in prosecuting personal injury claims for plaintiffs testified as to the reasonable- ness of the fee. The attorney who defended the action in the case testified as to the impressive work performed by Mr. Goodman. There was no evidence tending to prove that the fee was any- thing but reasonable.
However, the judge filed a carefully crafted memorandum and order in which he ordered payment of legal fees to Mr. Goodman as follows:
"Mr. Goodman handled the case expeditiously and well. He obtained what I consider to be a very fine result. As stated above, he is entitled to handsome compensation.
"Taking those factors into account, as well as Mr. Goodman's ability and reputation (both of which are good) the demand for his services by others, the time reasonably spent, the expenses reasonably incurred by him and the charges usually made for similar services by others in Western Massachusetts, I am satisfied that the 33 1/
3 percent maximum rate provided for in his
contingent fee agreement should only be applied to the first $300,000.00 of the recovery. A rate of 25 percent of the next $1,200,000.00, plus a rate of 20 percent of all amounts in excess of $1,500,000 would be reasonable. At those rates Mr. Goodman is entitled to an attorney's fee of $695,000.00, which I consider to be 'handsome' compensation. Anything in excess of that amount would be unreasonable and excessive."
We allowed Mr. Goodman's request for direct appellate review of the correctness of the judge's order regarding the fee. We hold that it was error for the judge to disapprove the agreed fee.
The courts are not powerless to act in dis- approving a fee which exceeds the percentage in the agreement, a fee to which the client never agreed, or a fee which is plainly unreasonable .... However, we need not discuss the court's inherent power in this case because no one is challenging the fee.
Accordingly, an order shall enter approv- ing the entire settlement, including the amount of compensation due to Mr. Goodman under the contingent fee agreement.
So ordered.
'The settlement called for immediate cash payment of $800,000 to Gagnon and ... for substantial annual payments to Gagnon for life and deferred payments to Gagnon and his daughter.
GREANEY, J. (concurring) .... I agree with the court that the attorney's fee in this case should not have been reduced. The evidence before the judge sufficiently indicated that the contingent fee agreement was reasonable "in light of the cir- cumstances prevailing at the time of [the] making [of the agreement]." This conclusion is reinforced by the fact that the client, Gagnon, has made no objection to the contingent fee agreement and has affirmatively stated his satisfaction both with the work done and the percentage charged by Goodman. It is also a consideration that the one- third percentage has become institutionalized in the practice of the litigation bar as the minimum rate to be charged in the typical tort case. Change, if it is to come, should not come suddenly and to the disappointment of long-standing expectations.
The judge, however, has touched upon a larger issue. His memorandum frames that issue in this manner:
"Contingent fee agreements ... serve a very benefi- cial public purpose. They have been said to be the 'poor man's key to the courthouse' because they do provide a method whereby civil claims can be filed and litigated by persons who would otherwise be unable to afford the assistance of counsel. ...
"I am satisfied (both on the basis of my own experience as a practicing attorney and as a trial judge as well as by the evidence presented at the hearings) that in the case of a civil tort action in which damages are sought for personal injuries a contingent fee of 331/
3 % of the amount recovered
is reasonable to a point; depending (among other factors of course) upon the size of the recovery ulti- mately obtained. I am also satisfied, however, that
ASE DISCUSSION QUESTIONS
D. Access to justice 595 •
as the size of the recovery (and hence the size of the fee) increases, the spread between the attorney's fee and the fair value of the time, effort and skill that he devoted to earning that fee widens - and at some point the fee becomes unreasonable and even (if the spread becomes wide enough) outrageous or unconscionable.
"One should not lose sight of the fact that under our law a recovery for a personal injury is limited, at least in theory, to the fair and reasonable value of the pain and suffering, mental anguish, reasonable medical expenses, disfigurement, dis- ability and lost earning capacity, both past and future, sustained by the client. However, attorney's fees incurred by the client are not recoverable in such a case, either as part of or in addition to his damages. Any fee that the attorney exacts from the client under a contingent fee agreement must therefore reduce the client's compensation for his injury below what is fair and reasonable. When, as in this case, the injury sustained by the client is catastrophic, the amount of the reduction can become enormous unless some rule of reason is applied to the application of the contingent fee. It is, after all, Mr. Gagnon and not Mr. Goodman who must spend the remainder of his life confined to a wheelchair with no bowel or bladder control and with constant dependence upon others to assist him in the normal tasks of day-to-day living ... " (Emphasis in original; citation omitted).
At a time when the gap between the service and the fee in tort cases appears to be becoming more and more pronounced, there may be a need to establish a better sense of proportion. This case is illustrative of the problem. The question raised by the judge deserves honest debate.
1. Why did the Massachusetts Supreme Judicial Court think the trial court .:.ad erred in disapproving the agreed-upon fee?
2. Mr. Gagnon received a structured settlement in this case. How do you u:llnk that might have affected his ability to pay his attorney's fees?
3. Do you agree with the trial court judge that the percentage an attorney earns should decrease as the size of the client's award increases? Why or why - ot ?
• 596 Chapter 14: Ethical Dilemmas Facing Attorneys
~PPENDIX TO THE OPINION OF THE COURT ~-...m'Ot .
=-=======;;:;:::;;===ALAN R. GOODMAN ==========::=ca::;;;;;:;;; CONTINGENT FEE A.G~MENT
na,e ... ~-:n:-~~ .......... . bgnald A. va1ngn 38 Fali~i1 St., Spri~Bfitl~, MA
Thl! Clte~r • • .... p •• ' • I ' I I I I 0 I 6 I I I & I I I I I I ' ~ ~ ~ 1 .,. f I p I I I I I I I 0 I I I I ' .. I f ~ f f t • • 1 I I I I I I I I I I I I I I ... I I I • 1 1 1 I I I. t' 1 1 (N...,..l· (Stren $1. N11111m) (c:.try t1r fDWil)
l'CIIllna the Law F"~m~. of At.AN R. OOODMAN ll50 Main Street Sprinlfield, MA 0110~ tu per(Qnn 1he lepl aervi.:-.:s mmtiomd in par.,rapl\ ( 1) below. Thl! attQrney IJI'~ to perform them fatdlfullyand wlch. due dlll,ence. ·
(1) The e}JI"'• «m~JV, and other ma~n wlrh refertrKI: to which 17M ~rY~Q arc to ix performed are: an accident which oc:t~.~rted on or about 6 I !I !88
~::~~~N••~•- (.3) Tlle dltnf If flO!: Jlfjp!!>lc to pay c:ompe~~~&rlon otherwitc than &om am.oU!Iu collec'Ced tor him by
the anomcy, cxu · { IJ I'I!JpoNible for (ollowinll cDR~: Out of ~ker expenset, J\ICh. a& C05t4 of medial repent lnQ Opinion., fllillK f•, fhetlff't feet, ll!f'Yice of wbpoeni, witnCN fru, photOIII'Jph., e.lltetsivc poatqc and phomcepyll\., lon1 dlstan~; telephone calls, ~~h m•tertals, ellflert wjmesa opinio~~t Pld feet, flit lnirialiation, traval cotu, mvarip~or't fei>OtU. ~\costs an:~~ nomey 'J fees. . ~ 1-0 (.,• lilt.l,.4;:.CI '"'
( i) Reasonable mmpmaar:iQft on the fottaolnl.:-ot'ltinllmCV Ia to be paid bv rhe client to the attorney, but auclt compemarlcon ( !ncl\ldin& that of any uaoc:lated ~CI\I"'el} It I'IOt to C'll'ecd th•IIIJilllmum percmtap of me rJrOU amoum c:oUem!d u J~fied In (2) •hove.
(S} Thr c:limt ill in 11-nV even~ to be liable to thl! attomrv for hff I'I!MOfl&ble e;~~pm•et and dialNr.mmta (3) above i!VI'I' If no tetdrtnmt i* made.
(6) If the artor~ IJ dlt.:hirg~ by thr client prior to thl! rQIIC:)UJion of this r~escnmtion, the artorn,Y II endclcd to be then rornpenaaf.ecl for hit teo.JOtiable ll:xpmMt and diiburJ~entJ. Funher, th~ attol'llf:Y 11 to be c:ompens.t.:d lot the fair who~• of the aervlcs r~d.ered to the .:-llettt>~P to the ttrne of dlachu;e, but the amount of thE fC!Iaball !lOt be due to the an:omey until thc 111hj•ct matter lidptlon b conci!Kled p\m\llllt ro ParappN 2 and 3 1bow.
This IJI'~mt and il:f Pf!rfe»'JNI'I~ are •ubjea to .Rule 3:0-' of thlf Supreme J"61elal Col.lrt of M .... cll~
WE EACH HAVE READ THE. ABOVE AOREEMENT BEFORE SlONJNO IT. CUENT ACKNOWL.EOO.ES RECEIPT OF CARBON COPY.
~~:~.~~~~!?~'7.t"~ettL-:........ . .. ·.J.~·qr.l£~ ........... .. - ·~oiCUoiol)
(To An_.,y) . • ... • .. •...... .. ............... . ...... ..
6~r-1,r ::::ttk~:::::::::.::: '"/A (.......,.all•••""") PrCKICe .__to,..,_ norvltlw
350MA~ STREE'T, BANK OF BOSTON BUilOIN(.; 12111 FL~. SPRtNGFIELO. MA onoJ .413·736·16l6 f\'P' ...,. '""'"" ... ,.,.. .. ,
Exhibit 14-1 Contingent Fee Agreement
D. Access to Justice
4. Specifically, how do you answer the trial judge's assertion that "(a]ny fee - - the attorney exacts from the client under a contingent fee agreement must
efore reduce the client's compensation for his injury below what is fair and .... ,-onable"?
5. What do you think of the contingency fee agreement in this particular :=se ? (See Exhibit 14-1 on page 596.) Given the facts outlined before the case, - seems apparent that when Goodman had his client sign the contingent fee
.:.._::-eement, he knew that the liability aspect of Gagnon's case would not be - ·-cult to prove, that his client's injuries were catastrophic, and as Shoblom was
played as a driver for a large corporate employer, that it was likely Gagnon uld receive a very substantial judgment or settlement from that corporate player.
6. In addition to representing Donald Gagnon, attorney Goodman had -o been retained to represent the administrator of the dead woman's estate
-her claim for wrongful death and the dead woman's mother for her claim of ::egligent infliction of emotional distress. Clearly, Goodman could make use of ~uch of the work he had already done on the Gagnon case in preparing those
'clitional cases, for which he was also charging a fee. Do you think those clients - a uld receive some sort of a discount for work that had already been done and :-aid for?
CHAPTER SUMMARY
this chapter we have focused on some of the most important ethical and moral - ues related to the role of attorneys in our adversarial system of justice. We ave seen how the need to protect the interests of their clients may come into
direct conflict with the needs and even safety of others. Specifically, we examined iliese conflicts in the context of client confidentiality, conflict of interest, and access to justice.
In dealing with these issues, attorneys often have to choose between com- peting values and interests. While the ABA and state bar associations have addressed many of these issues in their ethical guidelines, we saw that the provi- -ions of these codes do not always provide individual attorneys with the answers :hey need.
Clearly, knowing and following a code of ethics does not ensure moral ehavior. In fact, at times it could even be argued that it leads to immoral or at
east amoral behavior. However, if attorneys follow general rules, the belief is -hat over the long run more morally right than wrong choices will be made. The only other alternative is the anarchy that would result if each individual attor- ney were allowed to decide on a course of action based on his or her individual onscience. A compromise position acknowledges that the rules are meant to
govern the "normal," while attorneys must exercise discretion in cases of the extraordinary.
II
597 •
• 598 Chapter 14: Ethical Dilemmas Facing Attorneys
II
We ended the chapter with a look at the issue of access to justice. In this context we considered an attorney's responsibility for taking on unpopular cli- ents and the contingency fee as a way to increase access to justice for those who otherwise could not afford legal services.
CRITICAL THINKING EXERCISES
1. As you can see, there is substantial disagreement as to when an attorney should be required or even allowed to report a client's future crime. Do you think there are any instances when such reporting should be required instead of merely permitted?22 Classify each of the following according to whether you think an attorney should be required to report the future crime, allowed to do so at his or her discretion, or prohibited from disclosing it at all. You should also consider whether the test should be a subjective one, based on what the attorney actually thought was likely to happen, or an objective test, based on what a reasonable person would think would happen.
a. A deliberately wrongful act b. Harm to a financial or property interest c. Substantial harm to a financial or property interest d. Any crime e. A serious violent crime f. Bodily harm g. Substantial bodily harm h. Death i. Imminent death
2. In Beige (page 570), the principal harm had already been done. The client had committed the crime of murder, and the girl was dead. Nothing the attorney could do would change that. In Spaulding (page 573 ), the harm had also been done, but revealing it would serve to save a life and would not lead to the client's trial for murder. Suppose, however, that a case arose in which the attorney had a chance to still "save the girl" but that his actions would lead to the criminal conviction of his client. Consider the following. 23 On December 17, Gary Krist went to the motel room of Barbara Mackie. He told her he was a detective and that there had been an accident involving a young man driving
22 See, e.g., the argument presented in Harry L. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091 (July 1985), to the effect that in the case of threat- ened criminal activity the rules should provide for mandatory disclosure because the present rules give attorneys no guidance as to how and when to exercise their discretion. Contrast this with the position of others who view the duty of confidentiality as a sacred trust between attorney and client. Therefore, almost always the balance should be tipped toward silence. This may cause individualized harm, but it will prevent harm to the system as a whole. Allegiance to that system is viewed as necessary. Without the maintenance of client confidences, the attorney-client relationship, the very foundation of the adversary system, would be destroyed. 23These facts are based on the case of Krist v. State, 179 S.E.2d 56 (Ga. 1970).
D. Access to justice
white Ford. The young man was in the hospital and asking for her. As her yfriend owned a white Ford, she believed Krist and opened the door. Krist tered brandishing a knife and forced her into the backseat of his car where
-e t hen tied her up. After driving her out into the country, he ordered her into a : offin-like box, equipped with a method for getting air, and buried her alive. He - en called her father, told him he had kidnapped his daughter, and demanded
-oo,OOO in ransom. Arrangements were made for Krist to receive the money. n December 19 following Krist's instructions, the father left the money in a
:.lltcase. Krist retrieved the money and left without revealing the whereabouts : Barbara. Two days later on December 21 Krist was arrested when he tried to
:pend part of the money in order to rent a boat and motor at a local marina. Assume that Krist meets with his court-appointed attorney and reveals
-here Barbara is located. He thinks she is still alive but does not know. He said - at he left her with a limited amount of food and water but does not know how ong it will last. The attorney encourages Krist to tell the police where Barbara is uried. Krist refuses to do so, feeling that so long as they do not find Barbara, the
:;x>lice have no direct proof that he was the kidnapper. What should the attorney o ?
3. Consider the case of Leo Frank. Although innocent, he had been .:onvicted of the rape and murder of a 14-year-old girl. While he was waiting to De executed, an attorney, who was not involved in the Frank case, found out from a prospective client the name of the true murderer. The attorney never revealed :he information, and Frank was killed when a mob kidnapped him from prison and lynched him. Later in his memoirs, the attorney wrote, "I am one of the few people who know that Leo Frank was innocent of the crime for which he was -onvicted and lynched .... [B]ut the information came to me in such a way that, iliough I wish I could do so, I can never reveal it so .... We lawyers .. . take an oath never to reveal the communications made to us by our clients; and this includes facts revealed in an attempt to employ the lawyer, though he refuses the employment." 24 If you had been the attorney who found out that Leo Frank was not guilty, what would you have done?
4. William Macumber was on trial for first-degree murder. His attorney wanted to call attorney Brown to the stand. Attorney Brown had been the attorney for James Smith in a different murder trial. During his representation of Smith, Smith had confessed to attorney Brown that he was the murderer and had acted alone in the case for which Macumber was on trial. Sometime prior o the Macumber trial, Smith died. After his death, attorney Brown approached
Yiacumber's attorney and volunteered to testify as to what Brown had told him. Should the court allow this testimony?25
5. John Brown was charged with being an accessory to an armed rob bery. When he met with his attorney, he asked him to hold his cell phone for safekeeping. The attorney took the phone and locked it in one of his desk drawers. Two weeks later, Brown's ex-girlfriend told the police where the cell phone was located. When they arrived at the attorney's office and asked for
' ' Arthur G. Powell, I Can Go Home Again 291 (1943). :srhese facts are based on State v. Macumber, 544 P.2d 1084 (Ariz. 1976) .
599 •
Chapter 14: Ethical Dilemmas Facing Attorneys
Ill
II
the phone, he handed it over. They did not have a search warrant. The police searched the contents of the cell phone and found evidence harmful to Brown. The prosecuting attorney would like to use this information at Brown's tria l. Brown's new attorney has filed a motion asking that the contents of the eel: phone be suppressed. If you were the trial judge, how would you rule? Why?
WEB EXERCISES
1. Go to www.legalethics.com and select a current ethical issue that interests yo u. For example, if you choose confidentiality, you will find that many problems are being created by the ever-increasing use of devices such as smartphones and the staggering amount of communication carried on through e-mails, blogs, text messaging, and Twitter. What area did you research? Be prepared to dis- cuss what you found with your classmates.
2. The American Bar Association provides links to the rules of professional con- duct for all states. Go to http://www.americanbar.org/groupslprofessional_ responsibilitylresources/links_of_interest.html and find your state. What do your state's rules say about the obligation of the attorney to maintain client confidences? When may an attorney reveal a confidence? Are there any situa- tions when an attorney must reveal a confidence?
REVIEW QUESTIONS
Pages 561 through 565 1. Describe the adversarial system. How does it vary from a system based on the
inquisitorial model? 2. Explain the relationship between the rights contained in the Fourth, Fifth, and
Sixth Amendments and our adversarial system. 3. Some have described litigation as a battleground. Why is that?
Pages 565 through 586 4. Why does our legal system place such a high value on attorneys maintaining
their clients' confidences? 5. How does the attorney-client privilege differ from the ethical rules regarding
confidentiality? 6. Mrs. Smith, who is seeking a divorce, entered attorney Black's office for her
first interview. Because she was very disturbed over the prospect of a divorce, Mrs. Smith brought her best friend along with her to the interview. Should attorney Black let Mrs. Smith's best friend sit in on the interview? Why?
7. At a cocktail party attorney Sims sees one of his firm's clients kissing someone not the client's wife. At the client's divorce hearing could attorney Sims be required to testify about what he saw at the party? Could attorney Sims ethi- cally tell his own wife about what he saw at the party? Why?
D. Access to justice
8. For each of the following discuss whether you think the attorney should reveal the information: a. A client tells her attorney that she murdered her husband. b. A client tells her attorney that she is planning to murder her husband. c. A client tells her attorney that at the end of the week she is planning to steal
all of her employer's cash receipts as she has access to his safe. d. A client tells her attorney that her husband is so upset with how the litiga-
tion is going that he is planning to kill the opposing attorney. e. A client tells her attorney that it was she, and not the woman who is on trial
for murder, who killed the victim. 9. If a client tells an attorney she is going to commit perjury, what are the attor-
ney's options? 10. If an attorney suspects but does not know that a client is going to commit per-
jury, what should the attorney do? Does it matter if the client is the defendant in a criminal case?
11. What should attorneys do when they inadvertently receive confidential infor- mation from the other side?
12. Give some examples of when an attorney might feel a conflict between her duty of loyalty to her client and other values she holds.
Pages 586 through 592 13. What are the two major causes of a conflict of interest? 14. In each of the following situations determine whether you see any potential
conflict of interest problem. a. Sam was injured in an automobile accident when the car he was riding in
was struck in an intersection by a pickup truck. Both Sam and the driver of the car want attorney Black to represent them against the driver of the pickup truck.
b. Sara and Emily were arrested for the attempted robbery of United Bank. They would like attorney Jones to represent both of them.
c. Attorney Lacy is the prosecuting attorney for the murder trial of Tom Black. Jim White represents the defendant. Halfway through the murder trial, attorney Lacy and attorney White start dating.
Pages 592 through 597 15. What reasons do attorneys usually give for why they are willing to represent
guilty or unpopular clients? 16. What is a contingency fee and how does it arguably increase access to justice?
601 •
