ABA Model Rule 1.2

The Ethics of Stopping the Condemned From Accepting Death

/ Jack Marshall / 11 Comments

In Oregon, a judge has granted death row inmate Gary Haugen’s motion to dismiss his lawyers after they persisted in taking measures to block his execution. They had declared he was not mentally competent to waive his appeals and allow his own state-decreed death to proceed.

Leave it to lawyers to be convinced that they know what’s best, even when it involves someone else’s wishes about his own life and death.

Is the condemend prisoner who approves of his own excecution insane, or courageous?

In an attorney-client relationship, the lawyer is ethically bound to do what the client wants as long as it is legal and within the bounds of the ethical constraints on the lawyer. A lawyer can render advice and should; a lawyer can explain the legal consequences of a course of action. But substituting the attorney’s judgment for that of the client is taboo…except, all too often, in cases like this one, in which a death row inmate decides that letting justice take its course and accepting the state’s death decree is preferable to rotting in prison.  Continue reading →

I’m Worried About “The Good Wife”

/ Jack Marshall / 10 Comments

Shape up, Alicia.

CBS’s “The Good Wife” seems to be getting more cavalier with its ethics breaches, a disappointing trend. Showing the ethical fudging that undoubtedly goes on behind the scenes at major law firms (on occasion) is appropriate; treating major violations with a shrug is not. I know it is tempting for the show to assume it has the intelligent legal TV show championship sewed up, since “the Defenders” is a joke and “Harry’s Law” is a disgrace, but it’s standards have been high, and it is dispiriting to see them flag with such missteps such as…

  • Prosecutorial misconduct casually brushed off as nothing. When Alicia asks why a videotape  is so much clearer than the one the prosecutor’s office turned over as evidence, she is told that what she received before was a copy of a copy of a copy–“just to mess with you.” Continue reading →

Nice Guy, Unethical Lawyer

/ Jack Marshall / 6 Comments

A Massachusetts lawyer, Daniel Szostkiewicz, tried to help out a former client by hiring her as his receptionist in August 2007. She asked him to pay her “under the table,” so she could keep state health benefits for her husband, who was ill. Szostkiewicz agreed. Six months later, he fired her, and his ex-receptionist applied for unemployment. This led to the state discovering the undisclosed payment arrangement.

Szostkiewicz has received a three-month suspension, with all but one month stayed as long as he allows his law firm to be audited.

I think he got off too easy. Continue reading →

Florida Lawyer Quits For The Right Reason, But Will Get Credit For The Wrong One

/ Jack Marshall / 1 Comment

Florida lawyer Dan Gelber quit his law firm, Akerman Senterfitt, after BP hired the firm to represent it in the oil claims process. This will undoubtedly help him in his campaign for Florida Attorney General (Gelber is currently a state senator). His decision to resign is a very prudent and ethical one, but not for the reason most Floridians will think. Continue reading →

“The Good Wife” Ethics Follies

/ Jack Marshall / 12 Comments

“The Good Wife,” CBS’s legal drama starring Julianna Margulies, began as an unusually nuanced show of its type that presented intriguing ethical dilemmas without crossing into David Kelley’s over-the-top Legal Theater of the Absurd. Little by little, however, the show’s willingness to ignore core legal ethics principles is becoming more pronounced. “Boom,” which aired last week, continues a trend that is ominous, considering “The Good Wife” is still in its first season. After all, the lawyers in Kelley’s “The Practice” didn’t start finding severed heads and getting charged with murder until a couple of seasons in.

If you missed “Boom,” or if you didn’t but had misplaced your A.B.A. Model Rules of Professional Conduct, here are the legal ethics howlers committed by the “Good Wife’s” attorneys: Continue reading →

Exemplary Ethics: Opportunity for the Gambling Grannies’ Lawyers

/ Jack Marshall / 2 Comments

My discussion of that sad case of the two elderly Connecticut sisters who are embroiled in a lawsuit over lottery winnings did not focus on their lawyers, and that was intentional. Though I spend most of my time teaching legal ethics, I only venture there on Ethics Alarms rarely, because 1) to do it right usually requires being technical, and technical is not conducive to 700-1000 word essays, and 2) most lawyers are bored by legal ethics, so non-lawyers figure to be bored even more.  A new reason became crystal clear this week, when I foolishly steered an issue involving blog ethics into legal ethics because the blogger happened to be a lawyer, was reckless with my terms, and ended up unfairly implying something I did not mean to imply. My apology for that fiasco is here.

Nevertheless, I should have discussed the role of lawyers in the Connecticut case. I am not privy to their advice to their respective clients, and for all I know, they may well have attempted what I suggest here. Whether they did or not, this case is an excellent one to reflect on what lawyers do, and ought to do. Continue reading →

More “The Good Wife” Ethics

/ Jack Marshall / 7 Comments

The CBS legal drama “The Good Wife” has a good cast, well-scripted stories, and apparently a preference for misleading the American public on attorney ethics. Here’s the setting for its most recent set of gaffes: attorney Alicia Florrick (Julianna Margulies) and her supervising partner are battling an evil insurance company (you didn’t really think Hollywood would stay on the health care reform sidelines, did you? With a big vote coming up? ) that refuses to pay for in utero fetal surgery necessary to save an unborn baby from certain death. The insurance company’s attorney has a strong case, but offers a deal: it will pay for the surgery if Florrick’s firm will drop a class action lawsuit against the company. The partner, Will Gardner, refuses the offer: many other desperate members of the class need to make the insurance company pay for treatment, and besides, the law firm, which is in dire financial straits, needs the income that the class action might generate.

There are three things ethically wrong here: Continue reading →

The Unethical and Illogical Smearing of Justice Dept. Lawyers

/ Jack Marshall / 3 Comments

The Senate Republicans, bolstered by the political Right, are angrily criticizing Attorney General Eric Holder for having former Gitmo defense lawyers on the Justice Department anti-terror team.  This demonstrates many things, none of them good, some of them sad.

At least seven Justice Department lawyers previously worked on the legal defenses of Guantanamo Bay prisoners. Apparently this makes them terrorist sympathizers in the eyes of the Angry Right. This is the sad part. A flat learning curve is always sad. Continue reading →

The Ethics of Letting a Lying Defendant Testify

/ Jack Marshall / 4 Comments

It’s snowing like crazy outside, and I’m stuck putting the lights on a nine-foot tree.  My only escape from the pine needles assaulting my tender skin is ethics reverie, and I find myself thinking, once again, about the classic criminal defense attorney’s ethical challenge:

What do you do when your guilty client wants to claim he’s innocent in the witness chair, under oath? Continue reading →