Lawyer Nicolle T. Phair of Sanford, North Carolina was representing a client in an alleged hit-and-run accident in Lee County, North Carolina, and thought she had an idea for a strategem worthy of Perry Mason. At a hearing, the victim of the accident was going to be asked to identify the defendant, Phair’s client. Shortly before the hearing began, the attorney asked her client to step outside the courtroom. She then went to another courtroom and asked a party in a civil case to “do her a favor.” The favor was to stand beside her in court in the hit-and-run hearing so the victim might identify the wrong man as the driver. Instant reasonable doubt! Brilliant!
But it all fell apart when the judge asked Phair and her “client” to approach the bench to discuss a possible plea agreement. Phair left the fake client at the defense table and told the judge that she didn’t want to discuss a plea because she did not think that the witnesses could identify her client. Something about the whole sequence tipped off the judge and the prosecutor that there was a dirty trick afoot.
When the judge asked point blank what was going on, Phair admitted that she had recruited a fake client to deceive the victim and the court.
Now, lawyers in the audience out there, you be still: I want to know how many non-lawyers, without reading or being responsible for knowing any jurisdiction’s rules of professional conduct laying out the ethics requirements for lawyers, feel they could figure out without thinking about it very hard that doing what Phair did is not just unethical, but wildly unethical. It is dishonest, it is unfair to the opposing party and opposing party’s lawyer, it presented false and fabricated evidence in court, and it was a deliberate attempt to deceive the judge. Moreover, this is exactly the kind of rules violation that raises serious doubts about a lawyer’s fitness to practice law.
Yet Phair, now facing the loss of her license, told the disciplinary commission that she really and truly thought that secretly substituting someone else for her criminal client was “an acceptable strategy,” because she was only representing her client zealously.
That tells me that she’s either too stupid to be a lawyer, too unethical to be trusted in the profession, or lying. Quite possibly it’s all three.
I’d disbar her. Permanently
Ethics Alarms 
If I recall correctly, Perry Mason did something similar in “Perry Mason Returns” to cast doubt on a witness’ ability to identify a defendant. Only he used an actor to have an emotional outburst and run out of the courtroom.
The title character in “Better Call Saul” pulls this off in the 5th season (I think) and the judge declares a mistrial. Is that likely to be the only result?
On the OTHER hand, wouldn’t it be far too easy for the plaintiff to aasyme whoever is in in the defendant’s chair is the culprit? That doesn’t excuse this attorney’s behavior at all, but I always thought the question “can you identify the person sitting there” was kind of stupid.
It’s also in an episode of Better Call Saul: Season 5 Episode 4.
Here is a highlied clip: https://www.youtube.com/watch?v=YCcq2BkxiaE
This isn’t the first item it was tried: A lawyer did something similar in 1994. The defendant was given a not guilty verdict but the lawyer was hit with a $500 fine. An appellate court reduced the fine to $100 but a 4-3 vote in the state’s supreme court upheld the criminal contempt. However, the lawyer was allowed to keep his license.
https://nowiknow.com/the-crime-witness-who-missed-the-point/
My question is doesn’t the fact that the defendant sits in the defendant’s chair already make the witness prone to bias? Would it have been more ethical to have him randomly sit in the audience and then ask the witness to identify the defendant?
Yes, and some judges won’t allow it. A few states have also given the lawyer a pass when the defendant is in the courtroom and someone is sitting next to the defense lawyer who is a legitimate member of the defense team, like Della Street in one Perry Mason episode.
Not a lawyer.
I would say that something like this would be considered good on TV. Similar activities seem fair game in many TV shows. To be fair, that’s probably why you should NOT do it. Many things that make good TV violate ethics, morals, US law, rules, common sense, and scientific law in reality.
She is “of color”. My bet: nothing happens.
It appears the attorney is no stranger to disciplinary action:
https://nclawyersweekly.com/2018/06/21/sanford-attorney-reprimanded/
ivb
I found that a judge hit her with criminal contempt in 2008, which was overturned on appeal. Apparently this one was for letting her cell phone ring during the State’s direct examination, and asking an improper question of her own witness.
Then in 2019, she was formally admonished for letting her office staff fill out and file certain paperwork for her without her review. The paperwork stated she had not been disciplined for anything, despite the reprimand in 2018.
She was also cited for contempt for a 2020 incident where she failed to show up to court. This one was upheld on appeal.
https://www.nccourts.gov/documents/appellate-court-opinions/state-v-phair-1
I wouldn’t expect any sanctions. It’s not as if she did something really vile, like trying to represent Donald Trump.
Oddly, this actually happened to me on one of my cases. I was representing a client on traffic ticket – he was a commercial driver and couldn’t afford another ticket.
He and I were sitting at the counsel table when the case was called. For some reason another fellow was sitting beside me, to my left – not my client who was sitting to my right. The Perry Mason Wannabe Prosecutor asked the police officer to identify the defendant. He identified the man sitting to my left, not my client, who was sitting to my right at the table.
I asked if I could confirm what the officer said. The judge agreed after Perry Mason guffawed at my naivete and silliness, whereupon the police officer, once again, id’d the friendly fellow sitting to my left. I asked the police officer, “Are you sure?” He said he was. I asked again. Same answer. Then, I passed the witness.
The prosecutor snickered, thinking he had won the case, then wept bitterly and openly when I asked the court to dismiss the charges because the police officer id’d the wrong guy, when my client was sitting next to me the whole time and looked nothing like the fellow to my left. Crestfallen, the prosecutor ranted that I had engaged in unethical activity and asserted that what’s left of my law license should be shredded. The judge, though, shook her head, chuckled, and dismissed the charges. She admonished the prosecutor for his lapse in awareness and lack of attention to details, even during trial on something as simple as a traffic ticket.
jvb