Yesterday’s post about the lawyer facing disciplinary charges for secretly having someone else pretend to be her client in a hearing that would involve an alleged victim of a hit-and run identifying the defendant in court sparked references to Perry Mason and “Better Call Saul’s” central unethical lawyer using the same trick. I’ve also included a discussion of this tactic in my ethics orientation presentation for new bar members for many years. As some commenters pointed out, in court IDs where the alleged perpetrator of a crime is sitting next to the defense attorney at defense counsel’s table are inherently unfair. Courts have pointed this out too. The “fake defendant” ploy has been justified as avoiding that problem.

However, it isn’t nice to fool the judge. If a lawyer suspects that an alleged victim can’t identify his or her client and will point at anyone in the chair next to defense counsel, having someone who might resemble the defendant (or not) sit where the defendant would be expected to sit while the real defendant sits elsewhere in court might be permitted, but the judge has to be told about the plan and asked to approve it in advance. Not doing so almost guarantees a criminal contempt citation for the lawyer, maybe a mistrial, and eventual bar discipline. In addition, the lawyer cannot and must not refer to the fake defendant as his or her client by word or body language other than having the individual sitting at the lawyer’s table. Most jurisdictions have rules limiting who sits at counsel tables; that’s why Perry Mason’s ploy of using Della, his loyal legal secretary, to confuse the witness might have been at least legal in Los Angeles when he tried it.

Disguising the defendant, using a look-alike or twin (yes, this has been done) or, most outrageously, not even having him sit in the courtroom knowing that a witness would be asked to identify him are, as I wrote in the post, dishonest, an effort to mislead the court, the equivalent of presenting false evidence. I wouldn’t expect a lawyer to know all of the various legal ethics scholarship and court opinions on this trick, but a lawyer literally not having her client in court so he couldn’t possibly be identified and recruiting a stand-in that she treats as the defendant is obviously unethical, and a lawyer who can’t figure out that it is unethical shouldn’t be a lawyer.

Two cases that have involved some version of the Fake Defendant Trick are People v. Simac and United States v. Thoreen, from Illinois and Montana respectively. A related strategy that was not unethical (but that required a bar investigation and ruling to keep the attorney from being sanctioned) was used by the wily defense attorney whose client, an orthodox Jew, was accused of battering a man. The lawyer told his client to make sure he had plenty of friends in court to support him, so when the victim as asked if he saw his attacker in the court room, he was faced with dozens of bearded, forelocked men in identical black garb and headgear. There is nothing deceptive about that scenarion; it’s just effective defense work.