You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.

—Clarence Darrow, Closing argument in "Communist Trial," People v. Arthur Person (1920), in Attorney for the Damned, Clarence Darrow in the Courtroom 122 (ed. by Arthur Weinberg, 1957, renewed 1989).

Robert Traver, Anatomy of a Murder Ch 5, 37–38 (1958):

[To the client]“… [T]here are only about three basic defenses: one, that it didn’t happen but was instead a suicide or accident or what not; two, that whether it happened or not you didn’t do it, such as alibi, mistaken identity and so forth; and three, that even if it happened and you did it, your action was legally justified or excusable.” I paused to see how my student was doing.

The Lieutenant grew thoughtful. “Where do I fit in that rosy picture?” he responded nicely.

“I can tell you better where you don’t fit,” I went on. “Since a whole barroom full of people saw you shoot down Barney Quill in apparent cold blood, you scarcely fit in the first two classes of defenses. I’m afraid we needn’t waste time on those.” I paused. “If you fit anywhere it’s got to be in the third. So we’d better bear down on that.”

“You mean,” Lieutenant Manion said, “that my only possible defense in this case is to find some justification or excuse?”

My lecture was proceeding nicely according to schedule. “You’re learning rapidly,” I said, nodding approvingly. “Merely add legal justification or excuse and I’ll mark you an A.”

“And you said that a man is not justified in killing a man who has just raped and beat up his wife?”

“Morally, perhaps, but not legally. Not after it’s all over, as it was here.” … “You see, Lieutenant,” I went on, “it’s not the act of killing a man that makes it murder; it is the circumstances, the time, and a state of mind or purpose which induced the act.” …

The Lieutenant’s eyes narrowed and flickered ever so little. “Maybe,” he began, and cleared his throat. “On second thought, maybe I did catch Quill in the act. I’ve not precisely told the police one way or the other.” His eyes regarded me quietly, steadily. This man, I saw, was not only an apt student of the Lecture; like most people (including lawyers) he indubitably possessed a heart full of larceny. He was also, perhaps instinctively, trying to turn the Lecture on his lawyer. “I’ve never really told them,” he concluded.

A lawyer in the midst of his Lecture is apt to cling to the slenderest reed to bolster his wavering virtue. “But you’ve told me,” I said, pausing complacently, swollen with rectitude, grateful for the swift surge of virtue he’d afforded me… .

Id. Ch. 6, at 45–47 (1958) (after explaining defenses):

“Then finally there’s the defense of insanity.” I paused and spoke abruptly, airily: “Well, that just about winds it up.” I arose as though making ready to leave.

“Tell me more.”

“There is no more.” I slowly paced up and down the room.

“I mean about this insanity.”

“Oh, insanity,” I said, elaborately surprised. It was like luring a trained seal with a herring.

“Well, insanity, where proven, is a complete defense to murder. It does not legally justify the killing, like say self-defense, say, but rather excuses it.” The lecturer was hitting his stride. He was also on the home stretch. “Our law requires that a punishable killing—in fact, any crime—must be committed by a sapient human being, one capable, as the law insists, of distinguishing between right and wrong. If a man is insane, legally insane, the act of homicide may still be murder but the law excuses the perpetrator.”

Lieutenant Manion was sitting erect now, very still and erect. “I see—and this—this perpetrator, what happens to him if he should—should be excused?”

“… [I]f he is acquitted of murder on the grounds of insanity it is provided that he must be sent to a hospital for the criminally insane until he is pronounced sane.” …
My man was baying along the scent now. “How long does it take to get him out of there?”

“Out of where?” I asked innocently.

“Out of this insane hospital!”

“Oh, you mean where a man claims he was insane at the time of the offense but is sane at the time of the trial and his possible acquittal?”

“Exactly.”

“I don’t know,” I said, stroking my chin. “Months, maybe a year. It really takes a bit of doing. Being D.A. so long I’ve never really had to study that phase of it. I got them in there; it was somebody else’s problem to spring them. And I didn’t dawn this defense might come up in your case.”

My naïvete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.

…

I paused and knocked out my pipe. The Lecture was about over. The rest was up to the student. The Lieutenant looked out the window… . I sat very still. Then he looked at me. “Maybe,” he said “maybe I was insane.”

…

Thoughtfully: “Hm… . Why do you say that?”

“Well, I can’t really say,” he went on slowly. “I—I guess I blacked out. I can’t remember a thing after I saw him standing behind the bar that night until I got back to my trailer.” [I don’t remember driving home or threatening him in front of the bartender.]

“My, my,” I said, blinking my eyes, contemplating the wonder of it all. “Maybe you’ve got something there.”

The Lecture was over; I had told my man the law; and now he had told me things that might possibly invoke the defense of insanity. It had all been done with mirrors. Or rather with padded hammers.

Actually, the movie version is more memorable, but only the book explains the lawyer's thought processes. In the movie, you'll remember, the lawyer explaining to another what he had to do to demonstrate the thought process.

These passages are quoted in Professional Responsibility of the Criminal Defense Lawyer § 25:2 n. 6 (3d ed. 2005).

From Jan. 5th is this post: Attorney wears a wire on client in jail.

The media and some other blogs just discovered the story. See WSJ Blog, Legal Ethics Forum, Legal Profession Blog, and the ABAJ post in the following post.

ABAJournal.com: After News Lawyer Wore Wire to Jail, Inmates Ask, What About My Counsel?

Also, Judge Can’t Figure Out Why Lawyers Thought DWI Scheme Was a Good Idea: "Two North Carolina lawyers are headed to prison after pleading guilty in a scheme to get drunken driving cases dismissed."

Jack Litman (1943-2010), a great criminal defense lawyer, former founding member and President of NYSACDL, and a friend of mine, died after a several year battle with cancer this morning in New York City. His NYT obituary is here.

He tried the Preppy Murder case in NYC in the 1980s.

Ellen Podgor's post is here.

On ABAJournal.com: Depression Is Rising as Lawyers Lose Jobs and Sense of Entitlement, linking to NYT's No Longer Their Golden Ticket.

On Law.com today: Judge Allows Lawyer to Testify Against Former Client on Tampering:

A Queens, N.Y., judge has allowed a defense attorney to testify against his former client regarding the client's alleged intent to pressure his wife against testifying that he attempted to kill her with a meat cleaver.

The decision turned in part on whether the attorney-client discussions involved a completed crime, and were therefore privileged, or rather an ongoing or future crime, and thus not protected.

Supreme Court Justice William M. Erlbaum ruled the alleged witness tampering was not yet "fully complete" as the attempted-murder case had not yet gone to trial, and therefore the discussions were not subject to attorney-client privilege.

Erlbaum declined to throw out the attorney's testimony, which took place last summer in a Sirois hearing, which is used to determine whether a witness's unavailability is due to a defendant's misconduct and, if so, whether the prosecution may use the witness' out-of-court statements at trial.

Posted on FourthAmendment.com is a case where the Judge rebukes defense counsel for language about the police in a motion to suppress, and then proceeds to credit the officers' testimony to sustain a consent search.

See another similar post here from November.

In today's paper from Idaho: T.F. lawyer's office wired in perjury, extortion probes. A criminal defense lawyer told the police potential witnesses were seeking bribe money to change testimony:

Twin Falls police wired a criminal defense lawyer’s office at least twice last year in perjury and extortion probes connected to two of his clients, court records reveal.

Local attorney Lynn Dunlap’s office at 415 Addison Ave. E. in Twin Falls was outfitted with the audio and video surveillance equipment in August and then again in December while authorities listened on.

Two people were arrested after the August probe and were charged with perjury after allegedly attempting to change their testimony against one of Dunlap’s clients in exchange for money from the client.

. . .

“I believe we have an ethical obligation to stop felonious conduct,” said Dunlap. “We have an absolute ethical obligation to not permit our clients to commit criminal offenses.”

Dunlap went to the authorities before his office was wired by police in both cases, according to court records.

In the case from August, Dunlap told police that Kimberly Pena-Souza and Robert Barton each approached him in and around the courthouse about changing their testimony. After that happened, Dunlap called the Idaho Attorney General’s Office and was advised to call Twin Falls County Prosecutor Grant Loebs’ office, according to court records.

Loebs praised Dunlap in August after charging Pena-Souza and Barton with perjury. They allegedly tried to get paid $20,000 to change their testimony against Dunlap’s client Christopher Mark Taylor, who was accused of grand theft, aiding robbery and aiding battery.

“Mr. Dunlap acted properly and I applaud him for his assistance in this case,” Loebs said last year. “I think he behaved in accordance with his ethical and legal obligations as an attorney and an officer of the court.”

Loebs on Friday agreed that cases like these are extremely unusual and again commended Dunlap his actions. “I think it speaks highly of him,” Loebs said.

Those of us in the second oldest profession cannot also make a living off those in the first oldest profession, says NY, disbarring a lawyer. [LegalProfessionBlog]

Bergrin is also indicted for murder.

A Twin Cities lawyer pled guilty to embezzlement from his law firm and was summarily disbarred. See Twin Cities lawyer disbarred after pleading guilty to theft:

The lawyer had been charged with 10 counts of felony theft by swindle allegedly for stealing $124,258 from the firm to spend on iTunes, jewelry, flowers and personal trainers. He will be sentenced at 1:30 p.m. on Jan. 27 by Hennepin County Judge Warren Sagstuen.

In New Jersey, an "unhappy secretary" ratted out her boss for pocketing a $50k check for the firm. ABAJournal.com: Unhappy Secretary’s Report Spurs Ethics Trouble for NJ Litigator.

Here is The Question: Why do you defend people who you know to be factually guilty? The Seven Answers on Defending People.

“Waiving the Integrity of the Criminal Justice System," Criminal Justice” magazine Winter 2010, by Vince Aprile.

New book by Dr. Sherrie Bourg Carter: Justice for All: Challenges of the Mentally Ill in the Legal System published by NITA. The abstract:

Representing clients with mental illness is a challenging task that requires specialized skills and knowledge that few attorneys receive in law school. Yet, with jails and prisons becoming repositories for hundreds of thousands of mentally ill people each year, the unprecedented growth of the world’s elderly population (and its often accompanying cognitive decline), and the higher incidence of domestic violence, substance abuse, and child abuse allegations in family law matters, such skills and knowledge are critical to competent and effective representation in all areas of legal practice. In Justice for All, Dr. Sherrie Bourg Carter uses her eighteen years of experience working with mentally ill clients in the legal system to provide attorneys and law students with:

● Step-by-step guidelines for identifying diminished capacity in clients;

● Easy-to-understand descriptions of diagnostic jargon;

● Explanations of mental diagnoses most common to criminal, civil, and family law cases and their legal relevance;

● Practical strategies for dealing with difficult, agitated, and paranoid clients; and

● Effective strategies for managing personality disordered clients

Appendices include an attorney checklist for possible mental health issues, a glossary of common mental health terms, and a list of commonly prescribed medications for mental illnesses.

An "interesting" bar discipline case in Arizona is reported on Legal Professional Blog where a criminal defense lawyer in a capital case was tired of the two superannoying defendants passing notes to each other and to the lawyers and tore one up. That led to a court security officer getting interested and then the lawyer getting a beef for destroying evidence. The hearing officer's recommendation was that no discipline should issue. The LPB report is easier to digest than the opinion. The facts are convoluted, and the outcome correct.

A Florida PD's investigator was arrested for having sex with a pseudo client in the jail. He was actually represented by retained counsel, and it was her boyfriend. Cops: Public defender worker used job to have sex with boyfriend in Pinellas jail. She was charged with "official misconduct."

In the Chicago Trib, Michael Jackson's doctor hires criminal defense lawyer because of a possible manslaughter charge.

A criminal defense lawyer has accused by the NC bar of "sexting" a client, including oral comments.

Hat tip to Legal Profession Blog.

A criminal defense lawyer pled guilty in Columbus to money laundering. "He was charged with receiving $100,000 in cash as a payment from [convicted drug dealer] Leonard Barnhouse in 2007 and not reporting it to the federal government as required by law." The article reports that another lawyer is considering a similar plea deal for a lesser amount of cash fees. Lawyer pleads guilty to laundering drug money, by Kathy Lynn Gray in the Columbus Dispatch.

See South Carolina Criminal Defense Blog.

A lawyer defendant did not receive ineffective assistance of counsel from his criminal defense lawyer letting him proffer to the government where the defendant lied. Reich v. United States, 07-cv-2406 (Dec. 31, 2009). Direct appeal: United States v. Reich, 479 F.3d 179 (2d Cir. 2007). Defendant was convicted of forging a USMJ's signature to an order.

The issue for the court is whether Mahler rendered deficient performance by advising Reich to tell the Government his side of the story. The parties have not cited, and the court has not found, any Second Circuit authority on point. But other Courts of Appeals have established the following principles. Advising a defendant to convey exculpatory information to the police, which later turns out to be false, does not constitute deficient performance. See Still v. Lockhart, 915 F.2d 342, 344 (8th Cir. 1990). “Although blind acceptance of the defendant’s story may be improper, counsel has a right to assume his client is telling the truth.” Id. Similarly, counsel does not render deficient performance by allowing his client to speak to government agents to lay a foundation for potential plea negotiations. See United States v. Lewis, 117 F.3d 980, 984 (7th Cir. 1997). This is because “it seems reasonable for the attorney to ... allow[] [his client] to speak to the [government] agent in order to lay the groundwork for a sentencing reduction for acceptance of responsibility or a departure for substantial assistance.” Id.

From Law.com.

There is a blog on Situation Ethics with a post on the situation of legal ethics. There is a link to the law review article “Why Good Intentions are Often Not Enough: The Potential for Ethical Blindness in Legal Decision-Making” on SSRN.

In Omaha, an attorney worked as a wired informant for the government against his own client recording conversations in jail. Suspected drug lord duped by Todd Cooper:

More than 30 times this year, investigators say, Shannon Williams orchestrated a multimillion-dollar marijuana ring from inside the Douglas County Jail.

In one-on-one sessions with a jail visitor, Williams would use the visitor's cell phone to call associates and instruct them on how to divvy up the gobs of marijuana and money his operation was taking in.

He would confide in the visitor about his past exploits, claiming he had earned $15 million to $20 million while operating the marijuana ring in Omaha. He would ask the visitor to launder the money he was making. And he would use the visitor's cell phone to try to arrange hits: one to beat up his longtime defense attorney and another to “put a few into the back” of an Omaha man who had been messing with Williams' girlfriend.

All the while, the visitor would take it in, nodding and promising to follow Williams' orders.

Turns out that jailhouse visitor was no friend, no ally, no dutiful worker. He was a government informant.

And here's the jaw dropper: He was a lawyer — an Omaha attorney who Williams says was representing him.

His name: Terry L. Haddock.

The revelation of whom the government was using as its informant not only rocked Williams, it shocked some legal observers. Several veteran attorneys say they have never heard of the federal government using a private lawyer to glean information from an inmate.

See also ABAJournal.com.