A man needs a code to live by. I believe in living according to principles — for example, the principle that humans should be free. Sometimes there are competing principles, and a person who lives according to principle must either rectify them or choose between them. Because humans should be free, humans should fight for freedom.
A principle that competes with humans should fight for freedom is that the guilty should be punished. Some people live by that principle. Both principles have much to recommend them, and some people live by the latter principle, but I choose to live by the former because I know who’s human, but I don’t know who’s guilty.
Government is the enemy of human freedom. So a corollary of the principle that humans should fight for freedom is that humans should fight the government. When one human helps the government, he makes the government more powerful and therefore makes another human less free.
The federal criminal system of trading information for freedom is repugnant to my principles. When a person helps the government make a case against someone else, I see him climbing out of a hole that he dug for himself by stepping on the heads of others who are no more guilty than him.
Yet, despite my principles, I have helped many people in federal court trade information for freedom. Why? Because I have viewed this as a game that needed to be played for my clients’ sakes — a necessary evil.
But a necessary evil is still evil, and by playing the game I perpetuate it.
I am a trial lawyer by training and by nature. I was born to stand up in court and fight the government. A lot of people have put a lot of energy into making me into a better trial lawyer. I have spent countless hours honing my craft so that I can make it more difficult for the government to take away human freedom, not easier.
There are lawyers who hold themselves out as being able to get the lowest sentences through cooperation. I have never been one of those. I’ve had clients get good results through cooperation, but I’ve always viewed it as more a function of their ability to please their governmental masters than of my own skill.
If there is talent involved in acquiring a 5K1, I don’t see it, and I certainly don’t have it. Hard as it is for me to believe, I have to leave room for the possibility that there are art and science to representing cooperators; if so, I haven’t studied them, and I don’t intend to start.
So I’m seriously considering a new personal policy against cooperation with the government in federal cases.
I would write into my contract a provision that my fee did not include cooperation, and that the client would have to seek other counsel to assist them with cooperation.
I would help those clients I have now cooperate with the government if we decided that it was in their best interest.
I would also remove myself from the CJA list, because appointed counsel can’t have scruples against doing anything within the rules to help their clients.
I’ve been trying to work out the downside of this plan. I won’t get as many federal clients (because fighting the feds is not for everyone); that’s okay with me — I don’t have to represent everyone. I can’t think of any harm that it would cause anyone, and it sure would be in better keeping with my principles.