Over at the Legal Ethics Forum, the superb blog on the many and fast-moving ethical issues in the legal field, the usually reserved and impeccably professional blog founder, attorney John Steele, had this message for George Zimmerman’s ex-lawyers:
“[S] hut up, guys. Shut the h*** up. It’s not about you. It’s supposed to be about the client. And that’s even before we get to the ethics rules on confidentiality.”*
Really, that’s about all that needs to be said.
During Ken Starr’s investigation of the Monica Lewinsky affair, his ethics counsel, former Watergate prosecutor Sam Dash, resigned with a public statement that he believed Starr had crossed ethical lines. Sam was my ethics professor in law school, and a finer man and more ethical lawyer never walked the earth, but on that day his ethics alarms broke down. A lawyer may not harm his or her client during the representation, and that includes leaving it. Why lawyers think that the fact that a case is getting a lot of publicity should alter their ethical obligations is a mystery, but they often do. If you have a dispute with a client, if you’ve decided that a client is dishonest, manipulative or can’t be trusted, or if, as in Zimmerman’s case, he takes actions that make your job more difficult or doesn’t communicate with you enough to do a competent job, fine: Rule 1.16 of the Rules of Professional Conduct says you can quit. The rule also says, however, that “…a lawyer must take all reasonable steps to mitigate the consequences to the client.” One of those reasonable steps is not to make your withdrawal a major news story.
Zimmerman’s lawyers not only chose to lavish in their 15 minutes of fame by holding a press conference, they made statements that were based on confidential information, which is any information they learn while representing their client. They must not do this. They particularly must not do this when it might result in harm to their soon-to-be former client. Among their statements that appeared to violate Rule 1.6, which requires lawyers to guard their clients’ secrets:
- They had lost touch with their client. That’s nobody’s business but theirs and Zimmerman’s. Now they are creating suspicion that Zimmerman is on the run, which makes him seem guilty to potential jurors, as well as others.
- Zimmerman is not answering the phone. Again: provocative, and a fact that the lawyers are obligated to keep to themselves, not broadcast to the world.
- They thought Zimmerman was still in the United States, but probably not in Florida. How does revealing this, which is pure speculation (but speculation based on confidential information) do anything but harm to Zimmerman? The lawyers, Craig Sonner and Hal Uhrig, are not supposed to be doing a play-by-play broadcast of the client’s activities. They are obligated to be helping him, not getting their faces on the evening news.
- Zimmerman had contacted the special prosecutor against their advice. Their advice to Zimmerman is not for public consumption.
- Zimmerman had contacted Fox host and conservative radio commentator Sean Hannity. Does disclosing this information help Zimmerman in any way? No. By this time, the lawyers were just spilling their guts, and their client be damned.
- They expressed concern about Zimmerman’s “emotional and physical safety” and said he may be suffering from post-traumatic stress disorder. Their concerns, based on their contact (or lack of it) with their client are, again, not appropriate information to be made public.
- They wished Zimmerman had told them that he was setting up a website. The only wishes a lawyer should communicate to the public are for world peace, super powers and better public understanding of the legal process. Broadcasting wishes involving what clients should or should not have done are unethical.
At this most ill-advised of press conferences, lawyer Uhrig said, “Our thought process is, we’re professionals. We do this for a living. We try to do a good job of it, but we are not going to put ourselves out to the public … unless he makes it clear to us that he wants us as his lawyers.”
Really? If you are not going to put yourselves out to the public without consultation with your client, why are you giving a press conference? If you are professionals, why aren’t you abiding by the ethical standards of your profession? Or, to put it more succinctly, in the eloquent words of John Steele:
* Andrew Perlman, who writes the indispensable Legal Profession Blog, wrote a more extensive post on the Zimmerman attorneys’ withdrawal, and it was extremely helpful in his listing of the main ethical violations in the press conference.