Private investigator Dominic Casey submitted a court affidavit in Casey Anthony’s bankruptcy case (he wants to get paid), that stated that Casey’s attorney Jose Baez (above, left) “ told me that Casey (above, right) had murdered Caylee and dumped the body somewhere. He also alleges that Baez had sexual relations with Anthony.
Here’s what you need to know about the ethics issues involved:
1. Most important of all: USA Today’s website headlined the story, P.I. says Casey Anthony lawyer acted unethically. I’d guess 95% or more of readers assume that what was unethical was Baez defending Anthony when she was guilty. Maybe USA Today even thinks that. That is pure, inexcusable ignorance. All criminal defendants have a Constitutional right to a zealous defense, and the defense lawyer’s duty is the same whether his client is guilty or not, Jack the Ripper or a jay-walker. The duty is to make the State prove its case with admissible evidence beyond a reasonable doubt. Almost everyone who has followed the case believes that Anthony is guilty of facilitating the murder of her daughter Kaylee, but the evidence was ambiguous and circumstantial, and the prosecution didn’t prove its case.
Having sex with a client is unethical, specifically under the rules of most states, and arguably under the rules of all states under general ethics and professionalism principles.
2. Anthony can’t be tried again. That’s in the Constitution too: double jeopardy. Nevertheless, the statement by the investigator is harmful to her.
3. If what the investigator says about Baez is true, the investigator has breached his profession’s ethics, and outrageously and unforgivably so. From the Florida Association of Private Investigators Professional Ethics Code:
Article Ten: I will safeguard confidential information and exercise due care to prevent its unauthorized disclosure.
4. Also, if it is true, Baez violated the legal ethics rules by allowing this to happen. A lawyer is duty bound to protect privileged and confidential information (Rule 1.6), and the best way to protect it is not to tell anyone about it. There is no conceivable reason a lawyer would ever have to tell an investigator that his client is guilty. If there was a reason, Rule 5.3 requires an attorney to make as certain as possible that his or her “non lawyer assistants” understand and are capable of meeting the lawyer’s ethical obligations, including the duty of confidentiality. The Casey Anthony information ( again if really communicated by her lawyer) would have to be accompanied by signed non-disclosure agreements with dire penalties attached.
5. Baez denies all of the allegations, which tells us nothing at all. This is a perfect example of a denial that would naturally be made by any lawyer unethical enough to act this way, and also by any lawyer being dishonestly slandered by his former employee.
6. Baez also denies that Dominic Casey was his investigator; Casey (the investigator, not the client) claims he worked for Baez from July-October, 2008. If Baez is right, it seems highly unlikely that any lawyer would tell an non-employee that a client in a high-profile murder trial was guilty. If he did, that alone would be a major ethics breach. Dominic Casey, meanwhile, is a major sleazeball whether he was hired by Baez or not, inherently untrustworthy, and anyone, lawyer or otherwise, who would hire someone like him after this is both irresponsible and has a professional death wish.
Ethics Alarms 
I saw that story yesterday, and I had the same thoughts. I wondered, though, why the P.I. was suing Anthony in her bankruptcy case for unpaid fees. Unless there is some agreement to the contrary, wouldn’t the contract to the P.I.’s fees be between the P.I. and Baez, and not Anthony (aside from some quantum meruit theory)?
jvb
It can be either.
I learn so much on this site. When I read this story online, the first thing I thought of was, “He can’t do that. Legal ethics should forbid him from disclosing anything harmful to his client’s interests”.
But, if the issue was that the investigator was hired to help find and dispose of the child’s body (pause for tears…), would he still be obliged to keep that confidential? Then again, why wait until the bill is overdue to report this… Extortion?
This seems like an ethics crapshoot…
Where did you get THAT? He could be arrested for that, and so could the lawyer. That’s being an accessory after the fact to murder. Not even hinted at as what happened.
In #4, The PI claimed that Anthony and/or Baez needed help finding the body before anyone else did; I am not trying to figure out what that means, and its ethical implications…
*am trying to figure out…
What about the ethics of the lawyer who wrote and filed this affidavit? He is the person ultimately responsible for inserting into the affidavit scandalous material of a confidential nature that was completely irrelevant to Casey’s claim for fees. That sounds like a violation of Rule 4-4.4, which says that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass … a third person.”
Also, he assisted Casey’s violation of Section 493.6119 of the Florida Statutes, which prohibits a private investigator from “divulg[ing] or releas[ing] to anyone other than his or her client or employer the contents of an investigative file acquired in the course of licensed investigative activity.” If I’m reading correctly, Casey’s violation is a misdemeanor of the first degree under Section 493.6120. Did the lawyer thereby violate Rule 4-1.2(d), which says that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal”? That depends on whether the term “criminal” includes misdemeanors, which doesn’t seem to be clearly defined in the Rules.
Finally, if Casey’s allegations against Baez are true, then he also assisted Baez’s violation of the Code of Ethics, which would in turn by a violation by Casey’s lawyer of Rule 4-8.4(a).
And putting all of that aside, Casey’s lawyer’s conduct was certainly unethical in the ordinary sense of that word, regardless of whether it violated any legally binding written code.
1. 4.4’s “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass … a third person” substantial purpose requirement has been met. The affidavit is intended to assist the investigator in his efforts to get paid. It’s not embarrassing Anthony only to harm her for no reason other than vengeance. Whether that’s a reasonable way to try to get paid is a different issue.
2. Yes, the investigator also breached Florida law. The ethical breach was enough without it.
3. “Criminal” includes misdemeanors. Elsewhere there are references to “illegal.”
4. The lawyer can undoubtedly present a colorable argument in support of the contention that the investigator’s efforts to collect a legitimate debt is an exception to the Florida law. There may be some freak scenarios where a lawyer has been disciplined for helping a client present a sworn affidavit, but I’ve never seen one. It’s not the kind of rule violation that bars want to deal with.
5. We can’t judge the lawyers conduct under the rules without knowing what he advised his client to do.