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Best Advocacy Fix: The Ethics of Timing in the Preparation of a Witness

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Moss_FrederickWritten by guest blogger Fredrick Moss

A recent case came to me via my computer (f.k.a. “the wire”). Two lawyers were told by a prospective client that she had fallen on a badly cracked sidewalk while exiting a church. After signing her up as a client, the lawyers visited the alleged scene of the alleged fall. The sidewalk outside the church was not cracked or uneven. However, they noticed that the sidewalk across the street abutting a house was badly cracked. They met with the client and told her that if she fell on the walk in front of the church, she had no case. However, if she had fallen on the walk across the street, she had a good case against the homeowner. The client thought about it and changed her story: she was mistaken; she fell in front of the house, not the church. The lawyers then sued the homeowner and later concealed the client’s first described location of her fall from the lawyer they retained to try the case.

At their disciplinary hearing, one of the lawyers admitted that “the way [the client] came to allege that she fell where she fell was influenced by the way I explained the law to her.” To ensure that they would never engage in this kind of misconduct in the future, the lawyers promised to alter their intake process to ensure they gather all the facts from clients prior to explaining the law to them. Ultimately, the lawyers were found guilty of failing to ascertain the location of their client’s accident in a non-suggestive manner and of perpetrating a fraud on the court. They were suspended from practice for nine months. Matter of Rios, 2013 NY Slip Op. 03439 (May 14, 2013).

The lawyers’ conduct in Matter of Rios exemplifies a particular ethical issue in the preparation of witnesses that is hotly debated when I raise it at my NITA “Taking and Defending Depositions” program every June: Can or should a lawyer explain the relevant law and the legal significance of certain factual scenarios to a client before asking, “What happened?” The context of the discussion is the showing of an excerpt from the movie, Anatomy of a Murder, where Jimmy Stewart’s character, lawyer Paul Biegler, gives his client “the lecture.” Stewart’s client, in front of a dozen witnesses, shot a man whom he believed had raped his wife. Before asking his client to describe the incident, Stewart explains that he has no justification defense to murder. He then asks, “What’s your excuse?” After struggling to understand the concept of a legal excuse, the client finally suggests that he may have been crazy, and asks Biegler, “Am I getting warm?” Ultimately, the client pleads temporary insanity and (spoiler alert!) is acquitted.

When I suggest to the program’s participants and faculty that Jimmy Stewart’s character acted unethically, I am met with a host of protests: Biegler was duty-bound to explain the relevant law to the client; Biegler did not KNOW that his client was lying when he said he blacked out and could not remember the shooting, and as long as he does not KNOW this, Biegler was duty-bound to put on the client’s (only possible) defense.

But, as the Rios case demonstrates, these protests miss the point. The timing of Biegler’s explanation of the law to his client betrays its culpability. By consciously deciding (as shown in an earlier portion of the movie) NOT to ask, “What happened?” before explaining the law to the client, Biegler intentionally attempted to manipulate the answer with no regard for its truthfulness.

Rule 2.1(d) of the ABA’s Model Rules of Professional Conduct, which has been adopted by every state, prohibits a lawyer from “assist[ing] a client, in conduct that the lawyer knows is criminal or fraudulent.” Perjury is both. True, the rule also states that a lawyer “may discuss the legal consequences of any proposed course of conduct,” but this deals with future conduct, not “what happened.” Also, the rule allows a lawyer to counsel or assist a client “to make a good faith effort to determine the . . . application of the law.” But Stewart was not acting in “good faith” when he purposefully gave his client the opportunity and incentive to lie. As I put it to my NITA audience, if the quiz show emcee tells a contestant, “If you choose Door One or Three, you get no prize, but if you choose Door Two, you can win. Now which door do you choose?” can anyone argue with a straight face that the contestant was not manipulated? This is what Jimmy Stewart did; this is what the lawyers in Rios did. By not getting the facts before explaining the law, they influenced – improperly – their client’s testimony.

Rios, I think, proves that I am correct in condemning Paul Biegler’s conduct. Lawyers are not licensed to help clients distort the truth in order to win. As the Rios court viewed it, manipulating a client to tell falsehoods can inflict damage upon innocent opponents and perpetrate fraud upon the courts. As independent professionals and officers of the court, lawyers must be held to a higher standard of conduct than that of the unprincipled client. Otherwise, the lawyer is nothing but a tool – a tool of unscrupulous clients.

One thought on “Best Advocacy Fix: The Ethics of Timing in the Preparation of a Witness
  • Please keep spreading the word that the form of “legal guidance” which perverts facts and case assessment hurts everyone, including people’s faith in the justice system. This not only happens in tort cases and criminal defense cases, this happens in District Attorney’s offices where they justify this approach as a short-cut interview process to get to the “truth” because of their heavy case load, when in actuality they are influencing and bolstering cases. I have heard many A.D.A.s tell police officers and witnesses, that if the facts are so and so, we don’t have a case, but if they are this and that we do, and voila, the witnesses have an epiphany, change their stories, or tell them exactly what they want to hear. This provides the attorney with a neat and tidy case they can win, which is often more important than fulfilling any duty to seek justice. Unfortunately, the need to win and/or obtain a financial gain influences many attorneys over and above any ethical duty they use to justify this approach. I have ALWAYS had problems with this approach to the law practice. An attorney should do their best to seek truthful facts, which in turn should guide and direct their assessment and approach to a case. This can and should be done without violating any duty to a client to provide representation.

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