A shocking story in the New York Times has the legal ethics world buzzing. I just added the issues to an ethics seminar I’m preparing for this month; I wrote a song parody about it, in fact. For some reason, a Times reporter finally found out about a self-published memoir by criminal defense lawyer Peter De Blasio that came out about a year ago. The book, “Let Justice Be Done,” reveals among its other tales of his legal career the truth of his most famous case, and one of his most successful. DeBlasio had convinced a jury to acquit his client, Dominic Byrne, of kidnapping in the sensational Samuel Bronfman Jr. abduction case in 1975, though the evidence pointing to his guilt was overwhelming.
What made DeBlasio’s defense strategy work was the testimony of the mastermind of the kidnapping plot, a spectacularly talented liar named Mel Patrick Lynch. He took the stand and claimed that the 21 year-old Seagrams heir had planned his own kidnapping, and that he, Lynch, was the young man’s gay lover. Lynch was unshakable under cross examination even though his elaborate story made no sense. Realizing that the jury was buying the tale, and that the prosecution was unprepared to discredit it, DeBlasio exploited the story to persuade the jurors that the dimwitted Byrne was innocent of kidnapping, though he would be convicted of extortion. In the end, both Byrne and Lynch served less than four years in prison.
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Lawyers are forbidden by the ethics rules of their profession in every state from divulging the secrets of their clients, their former clients, or even their dead former clients, except in the rare circumstances when doing so will save a life or prevent a crime, and often not even then. Client confidences include all information a lawyer learns about a client in the course of the representation whether or not it is germane to the representation or not, if the client would be embarrassed by the information or would want it to remain secret.
The duty to maintain client confidences goes to the core of the professional relationship between citizens and their lawyers, and any attorney who breaches it not only harms his or her client but undermines trust in the entire profession as well. So sacrosanct is the duty that a Massachusetts court agreed with the Fall River law firm that represented Lizzy Borden in her famous murder trial, when Lizzy’s heirs tried to force it to reveal whether she did, in fact, “give her mother forty whacks” (and her father forty-one) with an ax, that it could not reveal Borden’s secrets even in the interests of history. The firm, said the court, was quite correct: Miss Borden hired it based on its lawyers’ assurances that her secrets were safe with the firm forever, and to allow otherwise now, even a century after the crime, would betray her trust and undermine the profession’s integrity. The Massachusetts Bar agrees.
So how can it be that Henry Bushkin, for decades the late Johnny Carson’s personal lawyer and thus charged with keeping the secrets of the famously reticent comic’s personal life, is now publishing a tell-all book filled with juicy stories about his conveniently dead client? Continue reading →