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

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.

A Prosecutor Lies, But It’s For A Good Cause…

Yes, Jack McCoy would probably be disbarred in the real world...

Yes, Jack McCoy would probably be disbarred in the real world…

Aaron Brockler, an assistant Cuyahoga County (Ohio, including Cleveland) prosecutor, was fired last month for  using a false identity on Facebook  to try to influence the testimony of  defense witnesses in a homicide case.

He initiated Facebook discussions with two women listed by the defense as alibi witnesses in a murder prosecution. Brockler pretended to be a former girlfriend of the defendant who had a child fathered by him, and urged the witnesses not to “lie for him.”  County Prosecutor Timothy J. McGinty fired Brockler, who by my count violated at least Ohio legal ethics rules 3.4, 3.7, 3.8, 4.1, 4.2 and 8.4, (tampering with evidence, suborning perjury, becoming a necessary witness, prosecutorial misconduct, misrepresentation of facts, contact with a person represented by counsel and dishonesty) and perhaps some others. Prosecutors are not allowed to tamper with defense witnesses, or try to influence any witness testimony. They are not permitted to contact represented parties in connection with a prosecution, unless the lawyers are involved. They are not permitted to lie or pose as someone they are not over the internet. They are not permitted to make themselves witnesses in their own cases. Brockler wasn’t just fired for cause, he was fired for multiple causes, any one of which would have justified kicking him out the door. Continue reading