License to Lawyer
Washington Post Outlook, June 18, 1995
By Victoria Toensing
Attorneys Who Put Ego Before Ethics
May End Up With Their Clients in the Dock
Criminal charges brought recently in Miami against three former federal prosecutors who represent a Colombian drug cartel startled the criminal defense bar. A fast-track lawyer can learn to shrug off criticism for stepping over the ethical line; but facing life imprisonment for the same crime as your client has a way of concentrating one's attention.
The Florida case only adds to the widespread public view that most defense lawyers will do just about anything to get their clients off the hook. This misperception has been fueled by the O.J. Simpson defense team and fanned by many of the legal talking heads featured in the trial coverage. In a CNN-USA Today poll, 61 percent said they have less confidence in defense lawyers after watching that Dream Team.
No, it is not a lawyer's duty to do everything she can to defend her client. A lawyer is first an officer: of the court and must not violate legal or ethical rules. And for those whose moral compasses still vacillate, there is a pragmatic imperative as well: As I learned early in my career, breaching this professional standard usually harms the client.
It was my first trial. I was a federal prosecutor in Detroit and ready to cross examine the defendant, Charlie. I had photographs to support my inquiry. "Isn't it true you met with undercover Agent X on May 15 of last year in the K mart parking lot where you sold him five ounces of heroin?" I pointed to Agent X, sitting at the prosecution table.
Charlie moved just a tad in the witness seat and glanced at the agent; his bought-for-trial shiny suit coat stretched over his belly as he took a deep breath and replied, "I never saw that man before in my life." I introduced the photos of Charlie and Agent X standing in front of K mart and ended the government's case.
Unless Charlie was a runaway client, his lawyer knew he was going to lie. If so, Charlie's counsel violated the ethical rule that prohibits a lawyer from knowingly permitting perjury. The case provides a very practical reason to uphold ethical standards: Breaking the rules rarely works. Charlie was convicted after one hour of deliberation.
Many ethical questions for criminal defense counsel do not have the same crystal clarity as Charlie's perjury. Sometimes the rules can be vague or leave a gap. But once a lawyer discerns her duty, the decision to follow it is easy. The consequences of not doing so can range from loss of credibility to indictment for both client and lawyer.
Imagine you are Richard Nixon's lawyer in 1973 and he whispers in your ear, "No one knows, but I have been taping all my White House conversations. Should I toss them in the Potomac?" No trial is pending, no one has been indicted, there has not even been a subpoena directed at the White House. You listen to the tapes and learn the now-famous admissions. What would you advise the president?
Leonard Garment, Nixon's lawyer at the time, counseled him not to destroy the tapes. There was "reason to believe" a subpoena would be issued, and Garment, who says he never listened to the tapes, felt that deep-sixing them would constitute obstruction of justice. The late Edward Bennett Williams later opined that Nixon had "no obligation" to keep the tapes and could have utilized a foreign policy rationale - preventing heads of government from being compromised - for destroying them.
But it was Alexander Haig, Nixon's chief of staff, to whom the late journalist Henry Brandon attributed a more practical reason for Nixon hanging onto the tapes. They were "the only true safeguard he had, since he did not know what he would be accused of." Besides, as Stephen Gillers, an expert on legal ethics, has noted, destroying the evidence gives the prosecutor a marvelous opportunity to argue that the missing material was even more damaging than it was in reality.
What are the professional standards about destroying evidence that one has "reason to believe" could be subpoenaed? Garment based his advice on specific New York case law. The American Bar Association Model Code of Professional Responsibility states that a lawyer should not "Conceal or knowingly fail to disclose that which he is required by law to reveal."
What is a lawyer required to reveal? One answer will surprise anyone who has followed the Simpson defense, still playing cat and mouse with documents it was supposed to have turned over to the prosecution months ago. The ABA Criminal Justice Standards say that counsel who receives contraband "under circumstances implicating a client" when there is a case pending must either deliver it to law-enforcement officials or tell them its location. The lawyer is not required to implicate the client directly, but may turn over the evidence "in the way best designed to protect the client's interests," perhaps anonymously. What is important is that the system of justice receive the evidence. The rule may be honored more in the breach, but it is a reminder that, as an officer of the court, the lawyer has a duty to the system as well as to the client.
I happen to think Garment was right in his cautious counsel to Nixon. There could well have been criminal charges for destruction of the tapes. Who knew whether Alexander Butterfield, keeper of the tapes, had made his own copy? President Ford could not have pardoned a president who destroyed evidence. The lawyer's ethical decision was also the practically correct one for the client.
The Nixon scenario took place before any legal proceedings. What about during trial, where there is a judge to rule on misconduct?
For example, the ABA's standards say that a witness should not be questioned about a matter if there is no good faith belief that factual basis exists for the inquiry. This rule is to prevent the witness from being subjected to a barrage of accusatory questions the lawyer has no reason to believe are true but which are utilized to make the witness appear sleazy before the jury: Have you beaten your wife? Have you cheated on your taxes? Have you used cocaine? For a lawyer to ask these questions, without specific factual evidence that the witness committed the transgressions, is improper.
Unfortunately, there are judges who are lax in enforcing this rule. What, for example, is the factual basis for the O.J. defense to ask Los Angeles police officers whether they framed Simpson by planting a bloody glove on his property? Have any of the officers framed a defendant before? If not, those questions should not be permitted.
Does the defense have a witness or other basis for alleging the glove was moved, or that the officers surreptitiously smeared O.J.'s blood on the Bronco? If not, that line of questioning should have been overruled by Judge Lance Ito. By failing to do so, he permitted Simpson's lawyers to break the rules.
True, defense lawyer Johnnie Cochran may be rewarded by getting one or more jurors to believe the police conspiracy theory. But what does that get him or Simpson? In an ordinary trial, given_ the strength of the DNA evidence, the best he could achieve would be a mistrial, which results in a second trial. (Of course, this La-La-Land jury could acquit.) Meanwhile, would you buy a used car from Cochran? Will his words have credibility for future judges and juries, most specifically on a Simpson retrial?
Let's look at another Simpson defense trick that violated the rules and has already backfired. In his opening statement, Cochran told the jury that a woman named Mary Ann Gerchas was a key defense witness who saw four men near the murder scene near the time of the crime. Two were carrying "something" and they all sped off in a car. Small problem: Cochran had violated the California discovery rules by not telling the prosecution about Gerchas. Marcia Clark, in an unprecedented ruling, was allowed to rebut Cochran's statement; moreover, Judge Ito instructed the jury that Cochran had violated the rules. And Cochran now faces an even bigger problem for not having vetted his witness; not only is Gerchas's story suspect, but she just pleaded guilty to defrauding a hotel of more than $20,000. After having promised Gerchas as a big deal, Cochran may not be able to deliver her to the jury.
Another area fraught with potential abuse is third-party payment of legal fees-that is, where one party pays the attorney to represent someone else. The rule is that there shall be no third-party payment without the client's permission, and only if there is no conflict in the representation. The rationale is simple: A lawyer should not be representing Client A when she has Payor B's interest at heart. The situation often is permitted when a corporation under investigation pays a lawyer to represent an employee also being questioned in the inquiry. Prosecutors know, however, that most drug kingpins pay a lawyer immediately to visit a lower-ranking member of the ring who is arrested. The lawyer, who is really in the pay of the kingpin, represents the benefactor's interest by either offering to payoff the suspect for his silence, or threatening him with violence if he talks. These are the acts of which indictments are made, including the indictment in the Florida drug case.
In the long run, despite the braggadocio of some high-profile defense lawyers, flouting the rules usually does not help the client.
We need not go as far as Will Rogers, who said there should "be a law" that in every case that goes to trial, "the lawyer defending should be tried first" and only if he is cleared should he be eligible to defend. Most lawyers understand that if they don't follow the rules, even a flawed system generally will hold them accountable.