About the Clients and Ethics


My Time to Take a Stand? post of yesterday has drawn some comment. In comments to my post, Shawn Matlock wrote:

It seems that you are limiting your potential clientele quite narrowly. I agree with you, that I would much rather be trying a case than pleading one out. It’s what I’ve been trained to do. (By some of the same people as you I imagine.)

I don’t mind limiting my potential clientele in this way. I do it in other ways as well (for example, by charging almost what I think I’m worth); I have plenty of clients, and don’t need to compromise my principles for the sake of getting more cases. There are more than enough lawyers whose knee-jerk reaction to a federal investigation is to roll the client over and hope for the best. I frankly don’t want the clients who would hire these lawyers. I figure my stand will bring me fewer clients, but a better class of clients.

But what happens when you take a client, and you and he/ she are preparing for trial, and then at the last minute “the call” comes? That notorious Friday afternoon call? Are you going to try to beg off the case if your client wants to take it? It seems that you are potentially painting yourself into a corner. At that point I would agree with Gideon that you are limiting your client’s options.

I have never had that particular call come at the last minute in a federal case, and I doubt that I ever will. By the time the Friday before trial rolls around, I am usually the last man standing. The decision to cooperate, in my experience, is made much earlier in the process, and begins with a proffer session. In the various districts where I’ve practiced, the feds don’t offer a particular benefit to a defendant for his cooperation.

If, however, some miracle happened and the Government, on the eve of trial, offered to let my client plead to misprision in exchange for his testimony against the codefendant kingpin (see how preposterous that idea is?), I would convey the offer to him and help him find someone to assist him in his cooperation.

Finally, Shawn writes,

Isn’t it Greenfield that is always talking about how it is isn’t about the lawyer, but rather all about the client? Where is he on this?

(Scott Greenfield responds in his own comment to that post.)

In a similar vein to Shawn’s inquiry, Gideon wrote against a policy of refusal to cooperate with the government:

Sometimes you have a client that overhears something in prison and if it will help him, why not? Our ultimate duty and obligation is to our client and as defense lawyers we must explore every avenue that will result in benefit for the client.

Gideon’s formulation of our ultimate duty is incorrect. We have a high duty to our clients, but there are higher duties. Two illustrations: First, the death of a witness might result in benefit for a client, but we don’t go around whacking witnesses. Second, lying to the court might result in benefit for a client, but we don’t do that either. Our duty to our clients is limited at least by the law and by ethics. (It’s also limited by feasibility — we don’t do things that we can’t do — and, beyond a certain point, by self-interest — we don’t sacrifice our lives or our families for our clients.)

So we must explore every avenue that will result in benefit for the client and that is legal, ethical, and feasible. We don’t even have to consider doing something illegal or unethical.

Cooperating with the government is clearly legal. In fact, the law encourages it. But that doesn’t make it ethical.

Cooperating with the government doesn’t violate any written disciplinary rules that I know of, but that doesn’t make it ethical either. The state bar’s rules are not the be-all and end-all of ethics; ethics are a highly personal matter. A lawyer is permitted to maintain stricter ethical standards than the rules require.

I don’t want to help people cooperate with the government because, in my personal moral judgment, it is wrong for me to do so. A policy of not helping cooperators will, to a certain extent, limit clients’ options — it will make it more difficult for clients to cooperate because they would have to hire another lawyer to help them do so. But if the client agrees to this stenosis, so what? I can (indeed I must) limit my clients’ options by following the state bar’s ethical rules and state and federal law. Why can’t I, with the clients’ consent, limit their options further by following my own stricter principles?


0 responses to “About the Clients and Ethics”

  1. I suppose I don’t have a problem with your stance. I know everyone has their limits and sometimes there are those that won’t represent those accused of certain types of crimes. I remember Greenfield made this point not that long ago. I have no problem with that. In theory.

    But it seems your stance hinders your client. Of course maybe our discussion is really talking about the rarity of the situation, rather than the norm. But I would have a hard time keeping a hard and fast rule that I will never represent someone willing to cooperate with the government. There are simply too many things that can happen in that short period of time between detention hearing and trial date. But again, this is philosophizing on the minutiae rather than the theory.

    My ultimate question comes to this: how is this philosophy consistent with your previous post about covering your ass? If the point of an attorney putting on the record the latest plea offer in an effort to preserve the record for a future grievance or habeas claim of IAC is attorney-centered, then how is denying a client midway through a federal case the opportunity to cooperate with the government because his attorney doesn’t like to do it, any different? It seems inconsistent to me.

    Of course as SHG likes to say, I am “Young.” And yet, humble.

  2. Shawn,

    That the client’s good is the only consideration is a fiction, or a shorthand for the much more complex reality, which is that there are often considerations that trump our clients’ best interests.

    I see two big differences between a lawyer covering his ass and a lawyer refusing to represent snitches.

    First, principle. Nobody has identified a principle behind a lawyer publicly covering his ass at his client’s expense.

    Second, consent. If the client gave informed consent to the lawyer shooting off his mouth in front of the judge, there would be nothing ethically wrong with it.

    I expect that a lawyer able to actually give a principled justification for making a record against his client would also be able to explain the principle to his client and seek consent. The client might consent to it in order to get that lawyer. And, in my opinion, that would be okay.

    Gideon,

    The written rules allow lots of unethical behavior. “The state bar’s rules are not the be-all and end-all of ethics; ethics are a highly personal matter. A lawyer is permitted to maintain stricter ethical standards than the rules require.”

    I suspect that cooperation in your jurisdiction may not be like cooperation in federal court.

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