Attorney Mercedes Colwin, an attorney and Fox News commentator, just committed pundit malpractice while discussing the Casey Anthony verdict on Sean Hannity’s radio show. Her professional biography says that she has practiced criminal defense law. If so, she has done so laboring under some serious legal ethics misconceptions.
Said Colwin, in response to Hannity’s query about her past representation of guilty defendants:
“If my client says he did it, then I can’t defend him. I can’t then go into court and say he’s innocent; I’m an officer of the court, Sean!”
What??? Wrong, wrong, outrageously wrong, inexcusably wrong! And also: ARRRRRGHHHHH!
While some defense attorneys prefer not to be told by clients that they actually committed the crime, far from all take this position (I sure didn’t.) Nothing in the ethics rules prohibits an attorney from arguing that a guilty client is “not guilty;” if there were a prohibition on this, defendants couldn’t get their constitutionally guaranteed representation while simultaneously telling their attorneys all the facts, as they are permitted to do. Knowing that a defendant is guilty creates no obligation for an attorney as an officer of the court to tell the court that the client committed a crime; indeed, this would be a significant violation of professional standards. Where did Colwin get such a bizarre idea? “Harry’s Law”?
Yes: it is technically a violation of the ethical requirement of honesty for a lawyer to tell a judge or jury (or the press) that a criminal client is “innocent” ( as opposed to “not guilty”) when it is unequivocally false. However, it is seldom unequivocally false (a client is not qualified to know whether or not he or she is legally guilty), and in court, “innocent” and “not guilty” are typically treated as synonyms, though they are not. I have never heard of a lawyer being disciplined or even professionally criticized for saying a guilty client is innocent. A strict prohibition, after all, would mean that a lawyer at pains to use only “not guilty” rather than “innocent” would be giving a clue that he knew his client committed the crime.
Colwin just spectacularly and irresponsibly misinformed Hannity’s audience, and added to the widespread and incorrect belief that it is somehow unethical for an attorney to represent a client the attorney knows is guilty. (It is not.) Compounding her reckless mistake, she noted that she had been “a judge,” thus giving apparent credibility to her utterly erroneous characterization of how criminal defense works. This was also misleading: Colwin was an administrative law judge, which has nothing whatsoever to do with criminal justice.
I am still stunned that a practicing attorney, which Colwin is, could believe such nonsense, and would say it over the air. I am even more stunned that an attorney who is so completely confused regarding the basic ethical obligations of criminal defense attorneys would be used by a major network as a regular legal analyst. Surely it has absolutely nothing to do with the fact that she is female, attractive, and that Fox has long tended to pick its legal analysts, whenever possible, according to visual aesthetic considerations rather than actual expertise. Surely.
Whatever the reason, this was inexcusable.