An Old Defense Lawyer Unburdens His Conscience In A Book, And It’s Unethical

Pointing-Finger

A shocking story in the New York Times has the legal ethics world buzzing. I just added the issues to an ethics seminar I’m preparing for this month; I wrote a song parody about it, in fact. For some reason, a Times reporter finally found out about a self-published memoir by criminal defense lawyer Peter De Blasio that came out about a year ago. The book, “Let Justice Be Done,” reveals among its other tales of his legal career the truth of his most famous case, and one of his most successful. DeBlasio had convinced a jury to acquit his client, Dominic Byrne, of kidnapping in the sensational Samuel Bronfman Jr. abduction case in 1975, though the evidence pointing to his guilt was overwhelming.

What made DeBlasio’s defense strategy work was the testimony of the mastermind of the kidnapping plot, a spectacularly talented liar named Mel Patrick Lynch. He took the stand and claimed that the 21 year-old Seagrams heir had planned his own kidnapping, and that he, Lynch, was the young man’s gay lover. Lynch was unshakable under cross examination even though his elaborate story made no sense. Realizing that the jury was buying the tale, and that the prosecution was unprepared to discredit it, DeBlasio exploited the story to persuade the jurors that the dimwitted Byrne was innocent of kidnapping, though he would be convicted of extortion. In the end, both Byrne and Lynch served less than four years in prison.

But the lawyer told his two daughters not long after the trial that his winning argument was based on a lie, the false story told so convincingly by Lynch. DeBlasio tailored his defense to the kidnapping hoax story. “There was no kidnapping,” he said before the jury. The F.B.I., he said, “should have been checking Sam Bronfman,” who, he told the jury, resented his father and the family. It worked. The lawyer’s defense was called brilliant by the media, as his client received a far lighter sentence than what he would have received if found guilty of kidnapping. The victim, meanwhile, Sam Bronfman, was cut out of the family business as a result of the trial’s supposed revelations. At a time when being gay was a serious professional and personal handicap, he was shadowed by Lynch’s fantasy for years.

Apparently DeBlasio had a guilty conscience. He came clean in his book, writing 45 years after the trial that despite what he told the jury, he never doubted that Lynch was perjuring himself.

Since Lynch and Byrne were both dead, the lawyer wrote that he wanted to set the record straight before his own death. “I want it to be clear to all who may ever read these pages that Samuel Bronfman was not a part of the kidnapping. Neither he nor Lynch were gay as far as anyone ever knew and certainly they were not lovers.” Five months later, DeBlasio, then 91, died.

Two major ethics issues are raised by this strange incident.

The first, and grayest, is the question of whether it was ethical for the defense lawyer to rely on the perjured testimony of Lynch to create his defense argument for Byrne, while personally believing, or even knowing from his client, that Bronfman was an innocent victim only. DeBlasio didn’t put Lynch on the stand, so he didn’t present false evidence to the jury. Nor could he know whether Lynch’s own lawyer was certain Lynch was lying. Under these circumstances, DeBlasio’s duty to zealously represent his client relieves him of guilt for any legal ethics breaches. As for his argument to the jury, arguing a position to jurors that a lawyer personally doesn’t believe is a standard part of the practice of law. The ethics rules in most jurisdictions allow a lawyer to refrain from permissible tactics that the lawyer finds repugnant, but a lawyer who finds arguing that his guilty client isn’t guilty should find another field of law. This is a particularly ugly set of facts, but no lawyer would be disciplined for making DeBlasio’s argument to the jury in the Bronfman case.

Revealing that one’s client was guilty, however, is always an ethics violation for any lawyer. The duty to protect privileged information a lawyer receives from a client can only be waived with a client’s explicit consent, and if that consent isn’t given, the death of the client changes nothing. The duty of confidentiality is forever: in a famous Massachusetts case, the law firm that represented Lizzy Borden fought her heirs over a century after her death to refuse to reveal whether she did indeed chop her father and mother into pieces. The firm won: Lizzie had relied on their duty to keep her secret. The same was true of DeBlasio’s client, Byrne.

Now if, as was not the situation for DeBlasio, a lawyer’s revealing his dead (or even imprisoned) client’s guilt would save a life or release an innocent person from prison, there are arguments, interesting ones, that doing so is the ethical course even though it violates the ethics rules.

That, however is another post for another day.

One other ethics issue worth mentioning is this: DeBlasio was no longer a practicing attorney or a member of any bar when he wrote the book. He could not be punished for his ethical breach, even if he were not dead. However revealing a client’s confidences is just as unethical whether it can be punished or not.

9 thoughts on “An Old Defense Lawyer Unburdens His Conscience In A Book, And It’s Unethical

  1. Ignore the contribution I just made to the Open Forum then! I was saving that article for the Open Forum and excitedly posted it when I saw the Forum was up. Clearly I should read entries in order of posting and not just look at the top one first.

    Yes, this was fascinating.

    • That’s a problem when I do two part posts at the same time. Once I worked it so the posts were in order on the blog page, meaning that I posted Part 2 first. And a bunch of readers complained.

      You can’t win. You can’t break even.

  2. So let me get this straight… According to legal ethics, knowingly lying to a jury, which DeBlasio himself did in declaring that there was no kidnapping, and (according to the standards of the time) slandering an innocent victim: these are acceptable tactics.
    Telling the truth about it decades later, however, is a breach of ethics.
    And people wonder why there are lawyer jokes.

  3. I would guess DeBlasio’s motivations for revealing this story, regardless of his stated reasons, were more along the lines of “look how clever I was” than with any nagging doubts about the ethics of it.

  4. This is the kind of ethics nonsense you get when you divorce ethics from the law of God revealed in Scripture. Serving (learning and revealing) the truth — “You shall not bear false witness against your neighbor” — is of far greater value than attorney-client privilege, or even seeing that an accused is defended.

    I am not a lawyer or a law professor, but it seems to me that if a defense attorney KNOWS that his client is guilty of the charges he is facing, he has an obligation to quit the case. If you deny this, then ANYTHING is fair game.

    Including what DeBlasio did for his client.

    • No no no no no. A common misconception, but a bad and dangerous one. Defense attorneys’ job is to make the state prove its case beyond a reasonable doubt. They defend the system, and the crucial requirement that the government cannot just take a citizen’s freedom because “everybody” knows he or she “did it.” One thing you learn immediately as a defense a attorney is that almost all of your clients are guilty, but it is still important to make the government prove it to a jury’s satisfaction, or our rights mean nothing. A lawyer cannot manufacture evidence or use a witness he or she KNOWS will lie. However, that wasn’t the case here. (“Anything” is not fair game.) The testimony, perjured or not, was in evidence, and a lawyer can’t take action that will hurt his client’s case. DeBlasio could have quit the defense, but the judge probably wouldn’t let him.

      Your approach would result in no justice system at all, just punishment by fiat. Please think again.

      But thanks: I posted an essay on this in 2005, and I now see it’s time to republish it.

    • frank in spokane said “but it seems to me that if a defense attorney KNOWS that his client is guilty of the charges he is facing, he has an obligation to quit the case.”
      And how many lawyers have KNOWN that their client was guilty when their client was actually innocent? If the number was more than zero how can any lawyer have an obligation to quit the case?

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