ABA Model Rule 1.4

Ethics Observations On The Michael Avenatti Arrest

/ Jack Marshall / 47 Comments

Welcome to karma, Michael Avenetti!

News item:

“Attorney Michael Avenatti has been placed under arrest on suspicion of felony domestic violence and was booked early Wednesday evening.

Los Angeles Police Department officer Jeff Lee said the domestic violence report was taken on Tuesday in West Los Angeles and the arrest was made Wednesday.
“We can confirm that today LAPD Detectives arrested Michael Avenatti on suspicion of domestic violence. This is an ongoing investigation and we will provide more details as they become available,” the LAPD Twitter account posted Wednesday. In a statement, Avenatti called the allegations “completely bogus.”

…Avenatti posted $50,000 bail and left police custody Wednesday evening. He told reporters waiting outside the station, “I have never struck a woman. I never will strike a woman.”

“I am confident I will be fully exonerated,” he added.

…Avenatti emerged this year as a regular antagonist of President Donald Trump, beginning with his legal representation of Stormy Daniels and his frequent media appearances..he has publicly flirted with a potential bid for the Democratic presidential nomination to challenge Trump in 2020. The alleged domestic violence incident could dash Avenatti’s prospects as a potential insurgent Democratic candidate and clash with the image he has presented of himself as an advocate for women, including Daniels in her clash with Trump and an accuser against recently confirmed Justice Brett Kavanaugh.

The Vermont Democratic Party canceled Avenatti’s appearances for Friday and Saturday following his arrest, and it will refund all ticket sales, said Christopher Di Mezzo, the party’s communications director.

This story is like a great, big, ethics piñata that got hit squarely by a stick and spilled ethics candy all over the floor!

Observations:

1. Is it unethical to take pleasure in the misfortune of another, even a grandstanding, publicity-obsessed gasbag who makes me want to burn my bar card? Nah, not when the inspiration for mirth is condign justice. Like Michael Cohen, the shenanigans of Avenatti were signature significance for a phony and a charlatan, and his fall was just a matter of time.

We should always take pleasure in the exposure of such public figures, however it occurs. Continue reading →

From “The Ethics Incompleteness Theorem” and “The Ends Justify The Means” Files, The Pautler Case: My Favorite Legal Ethics Dilemma Ever!

/ Jack Marshall / 18 Comments

"Irena's Vow" Pictured L to R: Maja Wampuszyc, Tracee Chimo, Tovah Feldshuh (kneeling), Gene Silvers

The Sundance Channel was doing a “Law and Order” marathon this week, and I happened to see an episode from 2002 that I had missed. It was based on the Pautler case in Colorado from the same year.

In “DR 1-102,”  Assistant DA Serena Southerlyn (Elisabeth Rohm) deals with a hostage crisis in which a man suspected of bludgeoning two women to death claims he will release his captive, held at knifepoint (above), if he can consult with an attorney. Southerlyn volunteers to enter the scene, and obtains both the hostage’s release and the killer’s  surrender, but only by deceiving him into believing that she is his lawyer, and not a prosecutor working for the police and the State. Although Southerlyn is hailed as a hero, the bar seeks to disbar her, charging her with violating Disciplinary Rule 1-102 (now New York RPC 8.4 d., which prohibits lawyers from lying.  .

Actually, Serena did a lot more than that, as did her model, Mark Pautler, the Jefferson County (Colorado) assistant D.A. whose real life conduct created a legal ethics dilemma that is debated to this day.

On June 8th, 1998, Chief Deputy District Attorney Mark Pautler  arrived at a gruesome crime scene where three women lay not just murdered, but chopped in the skull.  All had died from hit in the head with a wood splitting maul. The killer was William Neal, who had apparently abducted the three murder victims, one at a time, and killed them over a three-day period. Now, police said, he was at another locale, having released three hostages he had held in terror for about 30 hours. Neal left in the apartment a tape recording that detailed all of his crimes, including a fourth murder and rape at gun point.

Neal contacted police at the apartment using his cell phone and personally described his crimes in a three-and-a-half hour conversation. The officer speaking with Neal took notes of the conversation and occasionally passed messages to Pautler and other officers at the scene. A skilled negotiator, she urged the maniac to surrender peacefully. Efforts to ascertain the location of Neal’s cell phone were unsuccessful, and it was feared that if Neal did not surrender, others would die.

Neal made it clear he would not surrender without legal representation. The police did not trust the public defenders office to handle the situation, fearing that a defense counsel’s advice might lead Neal not to place himself in police custody. Pautler also believed that a public defender would advise Neal not to talk with law enforcement. Neal was savvy enough, he felt, that a police officer could not effectively pretend to be his lawyer, so Pautler agreed to impersonate a defense attorney over the phone He told Neal that his name was was “Mark Palmer.”

Though in the ensuing phone conversation Pautler tried to avoid giving direct legal advice, it was clear that Neal believed “Mark Palmer” worked for the public defender’s office and represented him. And the deception worked: Neal eventually surrendered without further incident.

Not surprisingly, the Colorado Bar had problems with Pautler’s conduct. He was charged with violating two ethics rules, the equivalent of the one used in the “Law and Order” episode and also Colorado Rule 4.3, which requires a lawyer to inform an unrepresented party so it is clear that he isn’t representing him, and to give no legal advice other than to get an attorney. They could easily have charged him with violating others. like Rule 1.3, requiring diligent representation (Call me a stickler, but trying to trick your client into surrendering to police isn’t what the rule has in mind), Rule 1.4, which requires a lawyer to keep a client informed (“Oh: I’m really a prosecutor!“), Rule 1.6, Confidentiality (Pautler shared what Neal told him with police; a lawyer can’t do that! ) Rule 1.7, Conflicts of Interest (Ya think?) and Rule 4.1, which prohibits lawyers making false statements of fact, like “I’m here to help you.” Continue reading →

“CSI” Ethics: Now THAT Was An Unethical Fictional Lawyer…

/ Jack Marshall / 3 Comments

CSIWow. That was one unethical lawyer on CBS’s “CSI” last night, and I mean even before we found out that he had stolen a vile of an Ebola-like virus and used it to murder a doctor, almost setting off a viral epidemic in Las Vegas. (Gee, I wonder where the writers got the idea for that story? See, we don’t have to argue about politicians causing panic over Ebola: the entertainment media is way, way ahead of them.) Among the lawyer’s ethical transgressions:

1. He set out to use his law degree to gain access, through employment, to a company he blamed for allowing a deadly virus to wipe out his family in South America. Needless to say, this is a blatant conflict of interest, indeed, the worst one for a lawyer I have ever heard of in fact or fiction. He wanted to represent a corporate client so he could destroy it.  This is a clear breach of Model Rule 1.7:

(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is a significant risk that the representation of one or more clients will be materially limited by… a personal interest of the lawyer.

Now, that conflict could be waived if the client were fully informed of the fact that its lawyer wanted to destroy it, and the client didn’t mind. That seems unlikely to me.

2. When it looked like his murder was going to set off a deadly epidemic, the lawyer decided to let CSI know that his client the biotech firm had lied about none of its supply of the virus being missing. He knew it was missing, because he had stolen it. The failure of a lawyer to remedy a client’s lie to police about a crime isn’t unethical in a criminal defense setting, but it is unethical if the lawyer would be aiding in another crime by doing so, which was the case here. Moreover, he is involved in the crime, unknown to his client. This would be a disqualifying conflict even if the one described above didn’t exist.

3, He also has an obligation under the ethics rules (Model Rule 1.4) to inform his client about matters relevant to the representation that the client needs to know, like “By the way, about that missing vial of deadly hemorrhagic virus you don’t want to tell the police about? I took it.”

4. THEN, he surreptitiously taped an employee and representative of the company who thought he was also representing her (if he wasn’t, he has an ethical obligation to make that clear—it’s called a “corporate Miranda warning.”) While it is legal in Nevada to secretly tape a conversation you are participating in, it is virtually never ethical for  a lawyer to do this with a client (That’s misrepresentation, violating Rule 8.4 in Nevada) , who is assured that her communications with her lawyer will be privileged, and held in strictest confidence under the attorney-client relationship.

5. Now, if the reason for the lawyer making the recording and handing it over to Ted Danson had been what CSI first assumed it was—that he was trying to save lives in imminent danger and deemed the revelation of a client confidence the only way to prevent it—he would have some support in the ethics rules, for there is an exception to the duty of confidentiality that can justify that.*  That wasn’t his motive, however, at least not all of it. He was also trying to make sure that the company—his client, which he was trying to destroy in revenge for his family’s deaths—was blamed for the virus that he had released. He had no justification for violating Rule 1.6, which says that a lawyer must keep client confidences.

6. Also, since he was representing both the employee he secretly taped and the company itself, he would have been obligated to report what she told him—evidence of a crime implicating the company–to his corporate client before reporting it to authorities, so the corporate client could report the lost vial itself, or at least have that option. If the attorney was going to exercise the “death or serious bodily injury” exception, he needed to tell the client that, too.

Yes, this was a very unethical lawyer.

Then there was that killing part…

* There was no reason to make the recording at all. This was a lame plot manipulation by “CSI.” Danson and his team used the biological residue on the recorder to prove that the same person who made the recording also stole the vial. But the lawyer could have just told the police about what his client admitted regarding the missing vial. No recording was necessary.

Encore: “The Ethics of Letting a Lying Defendant Testify”

/ Jack Marshall / 11 Comments
"Objection! The defendant's pants are clearly on fire!"

“Objection! The defendant’s pants are clearly on fire!”

I’m in Ohio today, talking about legal ethics with a large law firm, and the discussion there turned to the difficult problem of the lying criminal client. Here is a post on the topic from the early days of Ethics Alarms, slightly updated, and the disturbing thing is that we are no closer to finding a satisfactory and ethical solution to the problem.

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

The IRS Scandal Choice: Contrived Ignorance By The President Or Incompetentence By White House Counsel

/ Jack Marshall / 9 Comments
Unethical lawyer, or ethical pawn in an unethical plan.

Unethical lawyer, or ethical pawn in an unethical plan.

Media reports tell us that White House Counsel Kathy Ruemmler was told on April 24 that the IRS had improperly targeted tea party and other conservative groups, according to an Inspector General audit. She did not tell her client, President Obama, about the fact. [ UPDATE: Law professor and esteemed legal ethics authority Richard Zitrin correctly points out that Ruemmler’s client is the office of the President, not the President himself. So far, I have yet to be convinced that this changes the analysis below.]

There is no way to spin this that doesn’t look bad for either Ruemmler, Obama, or both. The news media has been typically inept in explaining this ethical point. If Ruemmler, on her own, decided to withhold the information to “protect” the President, she was violating her ethical duties, as well  as her duties to the President, his office, and the country. If she was following his directive in keeping him in the dark, then President Obama is guilty of the ethical misconduct of contrived ignorance, a device that is almost always accompanied by knowledge of wrongdoing and irresponsible leadership. Which was it? 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 →

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 →