duty of confidentiality

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 →

Next To Board The Trayvon Martin Ethics Train Wreck? Why, The Lawyers, Of Course!

/ Jack Marshall / 5 Comments

George Zimmerman attorneys Craig Sonner and Hal Uhrig explaining that their client is innocent, and how they are dropping him like a hot potato because of all the suspicious things he's been doing.

Over at the Legal Ethics Forum, the superb blog on the many and fast-moving ethical issues in the legal field, the usually reserved and impeccably professional blog founder, attorney John Steele, had this message for George Zimmerman’s ex-lawyers:

“[S] hut up, guys. Shut the h*** up. It’s not about you. It’s supposed to be about the client.  And that’s even before we get to the ethics rules on confidentiality.”*

Really, that’s about all that needs to be said.

During Ken Starr’s investigation of the Monica Lewinsky affair, his ethics counsel, former Watergate prosecutor Sam Dash, resigned with a public statement that he believed Starr had crossed ethical lines. Sam was my ethics professor in law school, and a finer man and more ethical lawyer never walked the earth, but on that day his ethics alarms broke down. A lawyer may not harm his or her client during the representation, and that includes leaving it. Why lawyers think that the fact that a case is getting a lot of publicity should alter their ethical obligations is a mystery, but they often do. If you have a dispute with a client, if you’ve decided that a client is dishonest, manipulative or can’t be trusted, or if, as in Zimmerman’s case, he takes actions that make your job more difficult or doesn’t communicate with you enough to do a competent job, fine: Rule 1.16 of the Rules of Professional Conduct says you can quit. The rule also says, however, that “…a lawyer must take all reasonable steps to mitigate the consequences to the client.” One of those reasonable steps is not to make your withdrawal a major news story. Continue reading →

The Case of the Excessively Flexible Lawyer

/ Jack Marshall / 3 Comments

A Louisville lawyer named Keith Kamenish wants to defend Dion Neal, a drug dealer, against a murder-for-hire charge.  A police informant wearing a wire recorded a hit man as he said  that he was paid by Neal to kill a competitor for him. “I put 36 slugs in that nigger’s face and stood on his head,” the independent contractor boasted, according to a transcript of the conversation filed in court. “The whole head collapsed!”

Nice.

The government is trying to get Kamenish kicked off the case, and here is why: the guy whose head collapsed, LaJuante “B.B.” Jackson, was a Kamenish client at the time of his murder. Jackson was shot just four weeks after Kamenish got Jackson released on bond on a state drug charge; the lawyer’s blood- stained business card was found in Jackson’s wallet. Continue reading →

Legal Ethics Train Wreck on “The Good Wife”

/ Jack Marshall / 2 Comments

Oh, Alicia, Alicia...what have they done to you?

The CBS legal drama “The Good Wife” continues to show the seamy side of big firm legal practice, with heroine Alicia Florrick’s firm, Lockhart, Gardner and Bond, its adversaries, and even Good Alicia herself violating legal ethics rules with abandon, and at an accelerating rate, based on recent episodes. There is nothing wrong with this as entertainment, as long as the Rules themselves are not being misrepresented (they aren’t), the misconduct isn’t being presented as ethical (it isn’t, though it is sometimes hard to tell), and viewers don’t get the idea that this is how most law firms behave. Unfortunately, like most legal shows, “The Good Wife” fails in this important realm. I work with many large law firms, and they are all very aware on the ethical lines, bold or fuzzy, that they must not cross, and take their obligations seriously.

The most recent episode of “The Good Wife,” entitled “Getting Off” included a full-fledged ethics train wreck sparked by the firm’s habitually unethical adversary, the fecund Patti Nyholm. In the middle of representing the defendant hospital in a lawsuit brought by a Lockhart, Gardner and Bond, Nyholm is fired by her firm and removed from the case. With a twinkle in her eye, she approaches none other than the Lockhart firm to represent her in a multi-million dollar lawsuit against her former firm for discrimination and wrongful termination, on the theory that it fired her because she was pregnant. Continue reading →

BREAKING NEWS! Blago’s An Unethical Lawyer, Too!

/ Jack Marshall / 3 Comments

A librarian at Northwestern University found confidential attorney-client files in eighteen boxes of files belonging to Rod Blagojevich. The librarian purchased them at in an auction held by a moving and storage company that sold Blagojevich’s stored possessions after he stiffed the company on his storage bills. The files date from the ex-Illinois governor and current criminal defendant’s days as a prosecutor. Even though Blago no longer practices law (his bar status is inactive), his duty to protect prior client confidences is sacred and perpetual. The relevant Illinois Rule, 1.6, says:

(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.

That means that leaving boxes of former client secrets statements, records and confidences in boxes stored in a facility where you’re not paying your bills is recklessly risking the privacy of those documents, and making it possible for them to fall into untrustworthy hands—not that Rod Blagojevich meets the minimal level of trustworthiness either.

Blago told the AP that he had no idea what was in the boxes. Wrong answer: he has a duty to know where his client files are and that they are secure. He also said that he didn’t know he was in arrears at the storage facility. Also wrong: staying current with the bills was his responsibility as part of his duty to protect his clients’ confidences.

That a man who ignored his duty to the public, and tried to use his power to appoint a U.S. Senator for personal gain, was also cavalier with his ethical duties to former clients should come as no surprise.  People who are unethical in one job are likely to be unethical in others.  And Rod…well, I think it’s fair to say that Rod Blagojevich is likely to be unethical no matter what he does, including eating and sleeping.

The Human Ethics Train Wreck, Levi Johnston

/ Jack Marshall / 2 Comments

Some people think that Sen. John McCain will go down in infamy for turning a little-known Alaska governor, Sarah Palin, into a wild-card political power. His surprise choice of Palin to join him on the 2008 GOP ticket also set into motion a chaotic series of events that have turned an ordinary, not too bright young man into a celebrity monster, allowing him to display his own serious character deficits while simultaneously enticing others into further degrading their own.

To paraphrase the great Basil Faulty: Thank you, ohhh thank you, so bloody much, Sen. McCain, for giving us Levi Johnston! Continue reading →

E-mails Aren’t Private? Oh-oh…

/ Jack Marshall / 2 Comments

The Eleventh Circuit Court of Appeals has ruled in the case of Rehberg v. Paulk that one who sends an e-mail has no “expectation of privacy” in its content, once it is sent to a third party—-and that third party can even be the internet service provider. Which means, in essence, that e-mails aren’t private any more, if this ruling stands.

Here you have a good example of how courts can re-define formal ethical standards on multiple planes with a few words. This means that one of the most influential Federal Courts has given the green light to any government agency or employer who chooses to read your e-mails. It may well be that lawyers who send documents containing confidential client information have breached their duty to protect confidences. It means that if your room-mate reads confidential messages on your laptop without your permission, the law says its your fault, not his.

This is the point where ethics, manners and the Golden Rule becomes more important than ever. The court case may change the law, and it may be legal to read other people’s e-mails without permission, but it’s still not right.

For an excellent scholarly dissent from the Eleventh Circuit’s ruling by Prof. Orrin Kerr, see his argument on the Volokh Conspiracy.

[Many thanks to Prof. Monroe Freedman whose post at the Legal Ethics Forum alerted me to both the case and Prof. Kerr’s critique.]

Ethics and Valleywag’s Apple Tablet Scavenger Hunt

/ Jack Marshall / 1 Comment

Today is the day Apple will unveil its long-awaited tablet device, destined to be the most culture-altering advancement since, well, the Segway or something. Apple’s excited about it, anyway, and as is usual for that company, it has fiercely guarded against premature leaks regarding its newest innovation. In the process, it threatened to sue the proudly sleazy website “Gawker,” which had one of its misbegotten offspring, the Silicon Valley gossip site “Valleywag,” announce the “Apple Tablet Scavenger Hunt,” which dangled cash prizes for anyone who would uncover and leak tablet information to the website before January 27. Saying said it had “had enough of trying to follow all the speculation,” Valleywag published a bounty list describing what it would pay for and how much, ranging from $10,000 for photos to $100,000 for anyone who could put the tablet in its editors hands.

Apple’s lawyers responded with a cease and desist letter, saying that the scavenger hunt scheme violated trade-secret law and induced others to breach their confidentiality agreements with the company. Naturally, Gawker cried “First Amendment!”

It appears that the lawsuit won’t go forward, since the tablet announcement date is here; a pity, because a lawsuit couldn’t happen to a more deserving operation, and because a court decision would have clarified an interesting issue. We all know the media happily acts as information-launderers, accepting documents and secrets from lawyers, government officials and corporate whistleblowers who could be fired, disciplined, sued or prosecuted for leaking them, and publishing the illicitly acquired information with self-righteous pride, not to mention confidence, since the Constitution says the press can print anything. The issue is this: if the media can publish such leaks, can it also induce them directly with cash? 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 →