Ethics Dunce: Mercedes Colwin

It's a mystery: why would Fox News choose her as a legal analyst?

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.

16 thoughts on “Ethics Dunce: Mercedes Colwin

  1. I always enjoyed the episodes of Law and Order where it was painfully obvious the defense attorneys knew their clients were guilty, and they employed some entertaining Billy Flynn type moves to get evidence thrown out of court.

    I just always figured that’s what defense attorneys did in real life; not so much arguing innocence, just poking enough holes in the prosecutor’s case to leave a reasonable doubt.

    And uh…am I a bad person for being distracted by that woman’s boobs?

    • No, you are supposed to be distracted by her boobs. (Something is also going on with her left eye…). Some day, I’ll get up the courage to write about how insulting it is to both women and men that Fox News staffs its news shows like Hooters. Not that I mind the view, but give me candy Crowley…who would probably be shot on site if she got into a Fox studio.

      • Ms. Colwin represented my former employer in a discrimination suit I brought against the employer. (My former employer and Ms. Colwin lost the case). In court Ms. Colwin and her co-counsel wore dresses so tight and short, that at one point I commented to my attorney that the movie version of this trial will be called: “Babes at the Bar”. Clearly it was more than the law she was showing off.

  2. You are the ethics dunce. I heard the show and the comment was clearly made in the context of putting a lying client on the stand before a judge. It is indisputable that a lawyer cannot do that. Ms. Colwin was absolutely correct in her comments and did not mislead anyone, unlike you.

    • Well, Mr. Smith, you are 100% misinformed, ignorant, and, as a bonus, insulting about it. Legal ethics is my field, and I have been a criminal defense attorney—what you say is ‘indisputable” is false, as every competent lawyer, which excludes Ms. Colwin, knows. I could just call you a jackass, which you deserve, and leave it at that. But your amazing certitude about something you are so wrong about inspired a new post, so I thank you for that. Now go do some reading, and if you want another comment to be posted here, it better begin with “I’m sorry.” You’re unbelievable..

  3. Read the first sentence of ABA Model Rule 3.3 (a)(3). The exception for criminal cases does not apply when the lawyer knows the testimony is false as opposed to simply having a reasonable belief of falsity.

    • Don’t tell me to “read it”…I TEACH it. 1) The ABA Rules are models and have no actual authority. 2) Here are the relevant comments to 3.3:

      [6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

      What this means is that if the client want to testify to anything truthful among his lies, the lawyer must let him, and cannot breach confidentiality to expose the lies. He cannot AID the client, which means that he can’t ask questions. But he can’t stop the testimony.

      [7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements.

      New York. California. DC. Many others also prescribe this narrative approach. This is not, as you mistakenly wrote, a prohibition on calling the witness.

      [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

      Very little is excluded by this definition of “knows”, and virtually never a statement that the defendant is innocent. More importantly to this discussion, “I am not guilty” or “I am innocent” is never perjury, because it means, or can mean, “You aren’t going to be able to prove me guilty.”

      3) You didn’t read the links I left for you. Read them, learn something…until you do, I don’t want to hear from you.

      • This is very interesting and more telling about you than Ms. Colwin. First, in your article you state that it is “technically a violation of the ethical requirement”, and then in the above reply you say that the “rules are models and have no actual authority”. This is what’s wrong with lawyers and politicians – moral relativism. A “technical” violation can be explained away, just like adultery by a president. Or, like “technically” not telling the truth about Benghazi and then shouting, “What difference at this point does it make?”. A violation is a violation. Moral relativism is a common practice today, which is why you so strenuously object to Mercedes Colwin acting with actual and absolute ethical behavior. Her behavior is uncommon and; therefore, weird to you. Also, there is nothing in her statement, which you quoted above, that says she is following a specific rule. This could just be her own ethical and moral compass driving her behavior, which is much better than many powerful people today. Some people do not need written rules to know right from wrong. Others do, but find their own technical loopholes to fit their own relative interests.

        • Both of my statements were not opinions, but correct; they do not contradict each other; and if you actually read the blog content rather than shoot your mouth off based on unwarranted projections, you would know that the presumption here is that conduct is unethical when it’s unethical, whether there are written rules or not. But the Model Rules, and the jurisdictional rules based on them, accurately cover the basic ethical principles of the legal profession, and Ms. Colwin, by any measure, ignored them.

  4. Nice try professor. Fortunately, highly theoretical minority view arguments when confined to the classroom and the internet do not let criminals go free nor get lawyers disbarred. Until the constitution is rewritten to provide for the right to lie under oath, prudent lawyers will not offer perjured testimony despite your arguments that it is ok.

    • You are a dolt. This is not a minority argument, as I have documented. It is the majority practice. Nobody but nobody gets disbarred for putting the defendant on the stand who often lies his head off. You don’t want to learn, you just want to believe fiction. Fine. Believe. You’re hopeless.

      • No Jack, you are the dolt. No decent attorney would represent a person who admitted their guilt. Sadly Im sure you would, but there is that pesky word ‘reputable’.
        You seem to be more concerned about Mercedes style of dress than the content of her experience vs. your teaching methods. As someone mentioned earlier, moral relativism, and that is a real sticking point for you obviously. She is a very sharp gal who actually practices law, which ‘trumps’ your classroom ‘expertise’.

        • This comment meets the requirement for banning under the Stupidity Rule, but just in case there are more like you, all accused of crimes are guaranteed a defense, and an all accused criminals must be found guilty beyond a reasonable doubt, whether they are factually guilty or not. You are not only ignorant about criminal law, you are ignorant about basic rights.

          Stop writing on web sites until you actually learn something.

  5. The casual reader might find you more persuasive and authoritative without the MSNBC-type condescension. You must live a small and unhappy life.

    • The casual reader might try reading less casually and more comprehensively. I’m a legal ethics trainer and teacher. Unethical lawyers and TV lawyers who misrepresent the law to the public are deeply offensive to me, as they would be to everyone. I live, in fact, a large, diverse, complex, high risk, unique and delightful life that you should be willing to give your left testicle for. But it is the comparison with MSNBC that is most delightful. In your sadly compressed world, anyone who dares critique Fox must therefore be an acolyte of the biased fools at MSNBC.

      Talk about the plankton calling the whale “small.”

      Take note, please—THAT was condescension.

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