Ethics Dunce: Republican Governors Association…And An Integrity Test For Chris Christie

This ugly beast keeps raising its head out of the muck, and it is the duty of every citizen, Republican or Democrat, who believes in justice and due process under law to beat it back with heavy clubs.

The Republican Governors Association is defending one of its own, South Carolina Gov. Nikki Haley, with a series of ads attacking state Sen. Vincent Sheheen, an attorney who is her Democratic opposition in the gubernatorial race. The message of the ad, as summarized by  a voice-over, is that “Sheheen defended violent criminals who abused women and went to work setting them free.”

False.

Like all criminal defense attorneys,  Sheheen defended citizens charged with serious crimes, and used his skills to make sure they weren’t falsely convicted despite inadequate evidence, prosecutorial misconduct or wrongful application of the laws. This smear, an ugly appeal to widespread public ignorance of the legal system by an organization that can’t possibly be this ignorant, is, as the South Carolina Bar pointed out in a press release condemning the ad, an attack on the legal profession itself, not merely Haley, and the attack promotes misunderstanding of one of the legal profession’s most crucial duties. “Lawyers have a professional duty to ensure that justice is not rationed but is available to everyone,” the release notes. “It is the job of a criminal defense lawyer to ensure his or her client has a fair trial, not to defend the crime.” South Carolina Bar President Alice Paylor told the AP, “What they’re attacking is the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”

Well, yes, that would seem to be what they are saying…or that certain crimes don’t deserve a legal defense, and that based on a n allegation under oath by any citizen of sound mind, those  accused should just be locked up, tarred and feathered, or shot. “This is not about due process or the right to have counsel,” argued state GOP chairman Matt Moore to the press, defending the ads. “It’s about someone who wants to represent South Carolina not standing up for our citizens. He could have stood with abuse victims and exploited children and instead took a paycheck. Vincent Sheheen made a choice that was wrong.” Republican Governors Association spokesman Jon Thompson chimed in, “Vincent Sheheen made a deliberate choice to defend violent criminals who abused women and children. He is unfit and unprepared to serve as governor of South Carolina.”

And, of course, if every lawyer regarded that as the proper way to ‘stand up for South Carolina citizens,’ it would mean that citizens accused of crimes in the state could not get the defense guaranteed to them by the Constitution. Matt Moore and Jon Thompson are idiots, and based on their words, if either is accused of a crime, every lawyer in the country should make what Moore thinks is the “right” choice and let them fend for themselves while fighting for their freedom. Of course, lawyers won’t do that, and because their ethics rules explicitly remind them that

“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities,”

So Thompson or Moore will  be defended in their trials against charges of alleged child-raping, terrorism, woman-skinning, water-supply poisoning or whatever other horrible crime they may have been accused of, and the State will have to prove, using admissible and persuasive evidence, that they are guilty of those crimes beyond a reasonable doubt. Then, if the State is successful, they can contribute money from prison for attack adds against their former lawyer for protecting their rights.

ABA President James Silkenat wrote a letter of protest to RGA Chairman Chris Christie, who, I’m sure, knew no more about this disgraceful conduct by the organization he heads than he knew about his underlings intentionally causing a traffic jam on the George Washington Bridge. The letter says in part…

“The Republican Governors Association ad sends a disturbing message to lawyers — that their clients’ past actions or beliefs will stain their own careers, especially if they want to serve their country in public office. Voters who subsequently pass judgment on the candidate for the singular reason that he was a competent lawyer are disqualifying him from public service. On the contrary, lawyers who represent unpopular or guilty clients demonstrate the kind of courage and confidence in our legal system that characterizes the finest public servants.”

All true. It is unfortunate that in recent decades the American Bar Association has positioned itself as a permanent and reliable ally for the Democratic Party and left-favored causes that have nothing to do with the practice of law (like climate change), so it cannot now exercise the kind of influence that it should in this kind of controversy, where a non-partisan voice for the nation’s lawyers would be helpful.

Law professor Jonathan Adler, writing at the Volokh Conspiracy, makes the point as clearly as it can be made in two posts he has written on the cynical GOP ads:

“Representing unpopular causes or clients is never easy, but it is necessary.  Organized efforts to blunt the careers of those who take on such efforts are shameful.  It would be one thing if Sheheen were accused of unethical conduct in his representation of his clients.  It is quite another to attack him for defending those who, however horrific their crimes, needed a legal defense.  A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client…Our adversarial legal system depends upon the willingness of lawyers to represent clients of all stripes, including those who are unpalatable or politically unpopular. If attorneys are vilified for representing such clients — if the message to the politically ambitious is don’t ever represent a client that voters might not like — fewer will be willing to take up the task.  Conservatives recognize this when GOP nominees are attacked. They should also recognize it when the shoe is on the other foot.”

Let’s see if Governor Christie has the integrity to stop a dishonest, misleading and frankly un-American ad campaign launched by an organization he leads. He’s a lawyer himself. He knows it’s a crock. It will tell us a lot about the kinds of choices he makes, his judgment, and where he stands.

________________________________

Pointer: Volokh Conspiracy (Jonathan Adler)

Sources: ABA, Washington Post, Volokh

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts, and seek written permission when appropriate. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, credit or permission, please contact me, Jack Marshall, at jamproethics@verizon.net.

 

19 thoughts on “Ethics Dunce: Republican Governors Association…And An Integrity Test For Chris Christie

  1. In the age of cynical ends justifies the means politics, relying on low-information voters (in this case, something that DOES have to do with the Constitution and therefore something voters ought to know), making a claim such as this is inevitable.

    I doubt Republicans actually believe defendants don’t deserve a zealous defense, merely they are relying on what sounds like a terrible decision to defend assumed to be guilty “monsters” to smear a candidate.

    • Sadly, if the electorate condones such acts- or worse, condones them selectively– worse and more is on their way.

  2. This mindset, that there are some crimes so low that speaking in any sort of defense is taboo, absolutely infuriates me. It’s what gives us ideas like this, that defending an ACCUSED rapist or murderer makes you a bad person. It also leads to crap like the Duke Lacrosse case, where the crime alleged was so horrible that even suggesting any course of action other than summary castration made you a mansplaining rape apologist. It adds up to a culture of hysterical finger-pointing, knowing that you’ll never be questioned too hard (that would be “victim-blaming” after all) along with increasing attitudes of statism- if Daddy Prosecutor says the bad man did it, then he must be a bad man who did it.

  3. I am reminded of the old saw: “Everyone hates lawyers until they need one.”

    The general misconception that criminal defense attorneys are somehow lower than lawyers practicing other kinds of law is sheer ignorance. Our legal system is based on the adversarial system, to ensure that everyone, everyone, accused of a crime gets a fair defense against real or spurious charges against them. It wouldn’t work any other way.

    This attack on criminal lawyers brings to mind the oft-misquoted and misused quote from Shakespeare: “First thing… let’s kill all the lawyers.” This statement, from the Shakespeare history play “King Henry VI, Part II,” was spoken by a conspirator in Cade’s Rebellion, who planned to overthrow the English government, destroy the right of English men and women, and establish a dictatorship. The lawyers, they implicitly knew, existed to PROTECT the rights of their fellow Englishmen, and thus were first in line for destruction.

    Seems like we have some like-minded pro-totalitarians in the US these hundreds of years later.

  4. There’s one key point here, that you’re all missing: Is it TRUE? Did Sheenan take money to defend those, instead of being assigned as a PD, or pro banc, or taking the cases pro bono? If the answer is yes, knowing what a man will do for money, is of utmost importance. Period. Is it SLIMLY? Oh, yes. Is it ethical? Mabye not. Is it UNETHICAL? … no. Now, if it’s INACCURATE? THAT is unethical. No question. But, considering the historical norms, as well as other cycles? You’re all surprised?

    • Ensuring one’s Constitutional right to, in short, not be railroaded but receive due process is slimy?

      Also, clarify your last two sentences as they sound like a big set up for an “Everybody Does It” rationalization.

    • Is what true? Did he defend criminals? Sure. So have I. Were they guilty? Irrelevant. They aren’t proven guilty or not until after the trial. Was he paid? He was providing a service, professionally, and a vital one…life and death in some cases. Of course he was paid.

      You didn’t read the post, couldn’t understand it, or are hopelessly ignorant of what justice means and basic individual rights. What is it about “It is the job of a criminal defense lawyer to ensure his or her client has a fair trial, not to defend the crime” and “What they’re attacking is the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty” that is so difficult? Both are obvious and correct. There’s nothing slimy about what Sheheen did. It’s a hard, courageous profession.

      And your comment reads like it was written by a thousand monkeys on typewriters.

      • Jack – and you may not just take the fifth, but quart on this…

        Have you ever defended someone who you were utterly certain was guilty, and would re-offend if not convicted?

        If so, I’m sure you did it to the best of your ability, requiring the state to prove its case.

        It can be reasonably argued that the duty of an attorney is to the system, that requiring the state to prove its case in every case is more important than any individual case’s outcome, and that an attorney who did not do this is like a boxer who throws a fight.

        I don’t agree, but it offends my conscience not to agree too. There are no good solutions, just least worst, and to hand such power to the state is usually far more dangerous than any crime wave could be.

        Now… have you ever advised any defendant to take a plea deal, where you know they were factually innocent, but circumstances were such that a fair trial was impossible?

        Is the duty of a defending attorney to get the best possible (in his professional opinion) outcome for his client, regardless of all other circumstances, or are there limits?

        In Australia for example a defending barrister who has been confessed to by his client cannot enter a plea of Not Guilty. What they do is refuse to continue with the case.

        • Note rationalisations:
          “I can’t be certain of guilt even with the video evidence, and confessions under client/attorney privilege, that requires a court to decide”.

        • It can be reasonably argued that the duty of an attorney is to the system, that requiring the state to prove its case in every case is more important than any individual case’s outcome, and that an attorney who did not do this is like a boxer who throws a fight.

          It’s no argument, and you can’t disagree. That’s the system here, and it’s a good, indeed essential one. The lawyers don’t decide guilt. It’s not their job.

          The lawyer’s duty is to give the client the benefit of his or her best advice, which means tactics and strategy as well as trial skills. He must advise the client if he believes conviction is likely and a plea is the right course.If it was me, I would also let my client know that if I was in such a position, I would not take the deal, and not plead guilty if I were not.

          The worse dilemma for me is advising a client in a parole hearing to admit to remorse over the crime he was wrongly convicted of in order to gain release. I’ve never been faced with that one. I’d do it, but it’s an ethical bind.

          • The worse dilemma for me is advising a client in a parole hearing to admit to remorse over the crime he was wrongly convicted of in order to gain release.

            I guess the best thing to do under those circumstances is to give your client all the information, and let them decide.
            I would not condemn anyone who lies like that. I don’t think I’d do it myself, but that’s a personal, not an ethical, issue.

            Two Hypotheticals – your client asks you as part of the discovery process to find out the names and addresses of prosecution witnesses – as your client has the right to know who his accusers are.

            Scenario #1 – he then tells you that they won’t be a problem, he’s sorted the matter out. Their bodies are found later.
            He’s freed- not enough evidence. But is later arrested again, and you’re in the same situation. No other attorney is available.

            Scenario #2 – your client instructs you to obtain the services of a private detective to find out where their kids go to school – and suggests you ask no questions, but that if you want to do what’s best for your client, you’ll do this.

            Scenario #3 – nothing so melodramatic. The case is going well – then the prosecutor, perhaps stung by this, heaps on more charges that will take far more time to fight. The client only had enough money to fight the original case. Do you act Pro Bono from then on – a “blank cheque” as the prosecutor can repeat the process? You know the Public Defender’s office is so overwhelmed they’ll just insist on a plea.if you don’t.

            Of course in reality, 99% of your work might be for alleged minor drug-related offenses, often by a criminal underclass client,many of which were actually committed – but were likely over-charged.

            I’m awfully glad there are attorneys like you. I hope you never get put in a situation that causes you to lose sleep agonizing about what’s right.

            • I teach, or have taught, all of these:

              Two Hypotheticals – Your client asks you as part of the discovery process to find out the names and addresses of prosecution witnesses – as your client has the right to know who his accusers are.

              But he doesn’t have a right to have the addresses, though he can find those himself. If I think there is any chance that he will misuse the information, the ethics rules allow me to withhold it—even the names. This occurs occasionally in Federal organizated crime prosecutions.

              Scenario #1 – He then tells you that they won’t be a problem, he’s sorted the matter out. Their bodies are found later.

              The tougher issue is when he learns who the witnesses are and says, “Well, don’t worry. They’ll never testify, I guarantee it! Bwahahahahahahahah!” A lawyer can either put 2 and 2 together and blow the whistle on her client as likely to harm someone, as the rules permit (or in some states mandate), or maintain the stance, compliant but despicable, that she doesn’t know what the client meant, and do nothing. I’d report it.

              So you should never get to your scenario. The lawyer’s suspicion alone isn’t enough.

              He’s freed- not enough evidence. But is later arrested again, and you’re in the same situation. No other attorney is available.

              You can’t take the case this time, if you suspect he was involved with the deaths of the witnesses. You should have a personal conflict: your client scares the hell out of you. Let a public defender handle it. A lawyer is always available. Or hold your nose, hire a bodyguard, and defend him , telling him that at the firsts sign that he intends violence to anyone, you are blowing the whistle.

              Scenario #2 – your client instructs you to obtain the services of a private detective to find out where their kids go to school – and suggests you ask no questions, but that if you want to do what’s best for your client, you’ll do this.

              Easy: No way. A lawyer could regard this as a crime-fraud exception to the duty of confidentiality, and report the client as trying to recruit her participation in a crime. I would.

              Scenario #3 – nothing so melodramatic. The case is going well – then the prosecutor, perhaps stung by this, heaps on more charges that will take far more time to fight. The client only had enough money to fight the original case. Do you act Pro Bono from then on – a “blank cheque” as the prosecutor can repeat the process? You know the Public Defender’s office is so overwhelmed they’ll just insist on a plea if you don’t.

              The ethics rules prohibit a lawyer from doing less than a zealous job because the case becomes unprofitable. This typically arises when a client stops paying his bills and the judge says, “Sorry, you’re stuck with the case.” In practice, double jeopardy pretty much stops this tactic by the prosecution, and it’s not going to be allowed.

  5. All true. It is unfortunate that in recent decades the American Bar Association has positioned itself as a permanent and reliable ally for the Democratic Party and left-favored causes that have nothing to do with the practice of law (like climate change), so it cannot now exercise the kind of influence that it should in this kind of controversy, where a non-partisan voice for the nation’s lawyers would be helpful.

    Is there any evidence for this? An ABA position on climate change makes as much sense as an ABA position on cardiology or nuclear physics.

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