Slager’s Lawyer Unethically Throws Him Under The Bus (Not That He Doesn’t Belong There)

Professional Tip: Lawyers, it's unethical to do this to your clients!

Professional Tip: Lawyers, it’s unethical to do this to your clients!

When a lawyer believes that representing a client is something that he or she cannot do effectively, either because of a deep personal bias against the client, another conflict of interest, a reasonable belief that the client is untrustworthy or unmanageable, or some other good reason, his duty is to withdraw from the representation. Believing or even knowing that the client is guilty is not a good reason. Guilty clients have rights, the system demands a competent defense, and sometimes—rarely, but it happens—a lawyer can be surprised to find out that his “guilty” client isn’t guilty after all.

Withdrawal from a representation is appropriate and allowed in the circumstances defined by ABA Rule 1.16:

 Rule 1.16 Declining Or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

There is an important caveat, however, embodied in b(1): withdrawal must  be accomplished “without material adverse effect on the interests of the client.” In a criminal case, that means that the withdrawal can’t make the client look guilty, or expose any privileged of confidential information that the lawyer is obligated to protect, even after he or she has withdrawn.

This ethical obligation seems to have escaped Charleston, S.C. attorney David Aylor, who originally agreed to represent Michael Slager, the North Charleston police officer charged with murdering Walter Scott.  Aylor withdrew from representing Slager when the infamous video was released, showing Slager shooting Scott eight times as he tried to flee.

The ethical approach, protecting Slager’s rights, would have been to withdraw and shut up. Aylor, however, could not resist his 15 minutes of fame, and gave an interview to the Daily Beast. While repeatedly saying that he couldn’t reveal details, he said enough to make his client look bad. Even though Slager looks horrible already thanks to the video, a lawyer cannot and must not do anything to make him look worse.

Here are some of his comments:

 “I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately.”

That’s too much already. Why did the video make his lawyer withdraw? There are only two possible reasons: It was so damning that he didn’t want to represent such a guilty client, or it proved that his client lied to him. ( “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”) Neither reflects well on Slager; either suggests that he is guilty.

The lawyer should not have mentioned or suggested that the video prompted his withdrawal.

In answer to the question, “When you were representing Slager, you said, “I believe once the community hears all the facts of this shooting, they’ll have a better understanding of the circumstances surrounding this investigation,” Aylor says,

“That was my belief at the time, that’s why I made that statement.”

Implication: “Now that the video is out, the community already understands what happened. It was a cold blooded killing.”

Then he is asked, “Now that the video is out, it seems the community has a much better understanding about what actually happened, and not necessarily in the officer’s favor. What’s your take on that new information?” The lawyer’s answer:

I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.

We get it: the video proves Slager is guilty, and his lawyer wants nothing to do with him. Then the lawyer ends with this:

“Not so much as his former attorney, just as someone in the community, I feel that it’s a tragic situation that occurred. I feel for all of those who are affected by the incident and of course the loss of life. At no point, not specific to this case, just generally speaking, is anybody above the law. And I think that’s why we have process and court systems and everybody deserves their day in court, but I won’t be participating in anything related to this case moving forward in that regard.”

Reprehensible. He is the former attorney, and everything he says has to be consistent with his ethical obligations in that professional role. “At no point, not specific to this case, just generally speaking, is anybody above the law,” he says. Gee, I wonder who he’s referring to? This isn’t something one would say about any defendant: it’s something you would say about a law enforcement official, specifically a police officer. ” Not specific to this case, just generally speaking” is cover, a lie. Not only is he saying things that undermine his former client, he knows that’s what he’s doing, and does it anyway, saying that he isn’t doing it, and fooling no one.

______________________

Pointer: Legal Ethics Forum

Facts: The Daily Beast

13 thoughts on “Slager’s Lawyer Unethically Throws Him Under The Bus (Not That He Doesn’t Belong There)

  1. The good, virtuous and exemplary S.C. attorney David Aylor, stated, ” . . . I won’t be participating in anything related to this case moving forward in that regard.” I fear Mr. Aylor was a bit premature. Methinks the attorney will be in something related to the case moving forward: the grievance filed against him by his former client. I hope Ol’ David has a good malpractice lawyer on retainer. He will need the services.

    Aylor’s comments are monumentally unwise, at the very least. He just hung his former client out to dry in the most public of ways. Not only is the police office charged with murder harmed, the entire legal profession took a hit. Clients are supposed to trust their lawyers to represent them and guard client confidences. Aylor just told the world that he, Aylor – a just a regular member of the community where ‘nobody is above the law’ – doesn’t represent police officers charged with murder. Anyone paying attention just heard a lawyer condemn his former client. That is shameful. There are times where I have withdrawn my representation of clients but I have always done so by protecting the clients’ interests, privacy and confidences.

    jvb

    • Wow.

      So the Police profession is smeared.

      The Lawyer industry is smeared, now.

      Just one more and we can call it a train wreck.

      Come on Obama, say something stupid…

      I mean on this topic…I know you will say something stupid, it’s only been 10 minutes since the last thing.

  2. Wow! He just stated, in no uncertain terms: “In this lawyer’s opinion, the cop is guilty of murder”. I wonder if this will gum up the works, getting this man settled in behind bars for 30 to life where he belongs?

  3. Believing or even knowing that the client is guilty is not a good reason??? Well, if you think that then I think you and the rest of this corrupt world should literally burn in Hell, because that’s just evil and unconscionable.

    • Hun?

      Individuals who are factually guilty of committing a crime are still CONSTITUTIONALLY guaranteed representation by an attorney at law. To drop a client practically mid trial due to factual guilt is repugnant and “unconscionable”.

      The lawyer was literally HIRED TO DEFEND his client before the court. The lawyer knows that factual guilt is possible, perhaps even likely, when accepting any criminal case, ever. To suggest it is “evil” to hold an attorney to his professional duty, a duty he freely accepted, shows considerable ignorance of how the law, of how free society, functions.

  4. Apologies if this is a duplicate, I suck at smartphones.

    A small dissent on 1.16 (b)(1). That is an “or”, he may withdraw for any (b) and must for any (a). The issue is 1.16 (d) which requires mitigation of harm to the client and rule 1.9 (c) which requires both confidentiality and not using information gained related to representation to disadvantage the former client. Two issues, prejudicing the client and breaking confidence. Interview definitely did the first, and probably the second.

  5. For over 20 years, I’ve practiced law in South Carolina. During that time, I’ve dealt with many cases that are “newsworthy.” If you’re a lawyer dealing with a high-profile client or issue, I believe you can do no wrong by the client by staying low-profile. Aside from the lawyer getting local or national exposure, keeping your criminal defense client in the news isn’t beneficial to the client. Although I imagine he had a legitimate reason for withdrawing, I believe he should have kept that low-profile too. Regardless of whether the client lied to him, clients come first.

      • But will the bar do anything? Does the Bar actually punish people for violations? I admit, I have pretty much given up on the concept of ‘self-regulation’. I had pretty much given up on the concept even before my wife sat through a day of nurses admitting that they stole their patient’s pain meds to feed their own addiction or to sell and the Nursing Board didn’t revoke the license of a single one. Now, I really don’t find it realistic.

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