A Louisville lawyer named Keith Kamenish wants to defend Dion Neal, a drug dealer, against a murder-for-hire charge.  A police informant wearing a wire recorded a hit man as he said  that he was paid by Neal to kill a competitor for him. “I put 36 slugs in that nigger’s face and stood on his head,” the independent contractor boasted, according to a transcript of the conversation filed in court. “The whole head collapsed!”

Nice.

The government is trying to get Kamenish kicked off the case, and here is why: the guy whose head collapsed, LaJuante “B.B.” Jackson, was a Kamenish client at the time of his murder. Jackson was shot just four weeks after Kamenish got Jackson released on bond on a state drug charge; the lawyer’s blood- stained business card was found in Jackson’s wallet.

In the motion by Assistant U.S. Attorneys James Lesousky and Rob Bonar objecting to Kamenish’s representation, the idea of a lawyer defending one client accused of killing another client is called “unseemly.” That is something of an understatement. There are several ethical problems with such a representation, including:

• A threat to client confidences. Even though Jackson is dead, Kamenish is bound to protect his confidences forever.  A dead client can’t waive the lawyer’s duty to do this. (One ethics expert quoted in the newspaper article about the case suggests that Kamenish could ask Jackson’s family to waive that duty. Maybe the law in Kentucky is different from almost everywhere else, but in most jurisdictions, a family member has no standing to waive a dead relative’s right to have his confidences kept after his death.) Since the defense in a murder case often requires the lawyer to argue that the victim was less than a saint, Kamenish’s obligations to the deceased might handicap his ability to defend Neal.

• A personal conflict of interest. Might Kamenish’s prior relationship with the victim undermine his zeal in defending his client’s accused murderer, out of loyalty or sympathy for the deceased? Neal can waive the conflict, as he apparently has, but the waiver is only effective if the lawyer reasonably believes that the conflict won’t hinder his representation.That belief may not be reasonable.

• Kamenish might be a necessary witness in the case, stemming from the hit man’s statement that he introduced Neal to the lawyer. The legal ethics rules (Rule 3.7) forbid a lawyer from taking a case in which he will be called as a witness. He could be required to reveal client confidences from either Neal or Jackson under oath.

These are all significant problems, but “unseemly” is also a problem. The Rules of Professional Conduct no longer contain a prohibition against a lawyer’s engaging in conduct that creates “the appearance of impropriety,” but courts often act as if it does. A reputation like this makes the legal profession appear venal, disloyal and soulless, and since the legal system requires that clients trust their lawyers, it does harm beyond the immediate case.

I think all of this should be more than enough to keep the lawyer out of this case, but there is yet another reason for the government to be queasy about the representation: it could form the basis for an appeal later. If Neal is convicted, he could hire another lawyer to argue that Kamenish “pulled his punches” because of his duties to the victim, requiring a new trial. It is true that the U.S. Supreme Court once rejected this exact argument, but the facts of that case could be distinguished from Neal’s. Who knows—maybe this is why Neal is so eager to have his alleged victim’s lawyer handle his defense.