Ethics,
Zealous Advocacy,
and the Criminal Defense Attorney
Robert S. Bennett
Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Apart from being flattered, I am grateful to have been invited to address
this distinguished gathering because it has caused me to focus on issues
of ethics and morality that are daily companions of a practicing lawyer.
We are instructed by our codes of professional responsibility and told
by professors, legal scholars, and mentors that we lawyers, as guardians
of the law, play a vital role in the preservation of society, that we have
an obligation to adhere to the highest standards of ethical and moral conduct,
and that in our words and deeds we must promote respect for the law and
our profession. We must deal candidly with others, and we should use our
education, skills, and training to do public good. Finally, we are instructed
to be zealous advocates on behalf of our clients.
I agree with all of this, and I have tried in 30-plus years of practice
to honor these goals. But I would be less than candid if I said it was
easy. At times, there is some moral conflict because these roles do not
always work in harmony. The zealous advocate often speaks and acts in ways
that to many are morally questionable, less than candid, and do not promote
respect for the law in the eyes of the public.
I believe the legal profession has done a poor job of giving guidance
to its members on how to resolve the tension among these sometimes conflicting
roles. And we have done a miserable job in explaining our role to the public.
We have avoided dealing with difficult ethical issues by using generic
words in our disciplinary rules and codes of responsibility and not dealing
with the underlying problems. We act as if litigation is simply a "no holds
barred" game and all you need to do is follow the rules to be morally and
ethically pure. This was most dramatically and forcefully stated by Lord
Brougham in the 19th century when defending Britain's Queen Caroline, who
faced an attempt by her husband, King George IV, to obtain a divorce by
charging her with adultery, thus ruining her name and putting at risk her
fortune and position in society. Lord Brougham let it be known that in
the queen's defense he would prove that the king himself was guilty of
adultery and had secretly married a Catholic, thus putting at risk his
title to the throne. His tactics outraged many who felt he went beyond
the bounds of ethical advocacy. He justified his conduct as follows:"[A]n
advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means
and expedients, and at all hazards and costs to other personsÉ.
And in performing this duty he must not regard the alarm, the torments,
the destruction which he may bring upon others. Separating the duty of
a patriot from that of an advocate, he must go on reckless of consequences,
though it should be his unhappy fate to involve his country in confusion."A
very strong case can be made that while Lord Brougham's rhetoric was excessive,
his actions on behalf of his client were appropriate. I am told that some
years after the case was concluded, Lord Brougham attended a dinner at
which the most respected Chief Justice Cockburn was speaker. Looking disapprovingly
at Brougham, Cockburn stated that while it was appropriate to be a zealous
advocate, a lawyer should not be an "assassin."
How do we, in our adversary system, reconcile our roles as officer of
the court, role model, and public citizen with that of the zealous advocate?
I think we can all agree that the defense attorney's obligation is to repre
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sent
a client even if it means that the truth is undermined in a particular
case. Defense attorneys are entitled to put the prosecution case to the
test, and a defendant has a constitutional right to have his lawyer do
so.
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Sometimes, in our legal
system, the truth must be sacrificed
for more important principles.
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Our society has decided that a defendant must be free to be fully candid
with his or her lawyer without suffering any consequences and that guilt
is to be decided in the courtroom and not in the lawyer's office. Sometimes
the public unfairly criticizes us for seeking the acquittal of one we believe
to be guilty or vigorously representing one whose innocence is not clear.
This is particularly true when the crime is heinous.
Unfortunately, the public, by and large, believes that as officers of
the court our only goal should be the truth. The Bill of Rights and in
particular the Fourth Amendment prohibition against unreasonable searches
and seizures often are obstacles to reaching the truth. Sometimes, in our
legal system, the truth must be sacrificed for more important principles.
Also, let us not forget that we allow, and the courts condone, the police
to engage in deception and ruse by lying to suspects about the evidence
against them in the hope that they will confess their guilt. Is it appropriate
for one who is an officer of the court to present a false defense or to
present evidence which supports such falsity? Is it appropriate for us
to use every stratagem or device in an effort to lead the jury to reach
a conclusion that the attorney knows is not the truth? How much maneuvering
or, to put it more harshly, chicanery can we engage in without crossing
ethical and moral boundaries? Can we be ethical lawyers and still engage
in morally repugnant behavior?
One reason lawyers are criticized as much as we are is that rather than
deal with the issues head-on, we often duck the hard questions by engaging
in glib distinctions and faulty logic. Some lawyers offer the questionable
notion that the only "truth" in a criminal trial is what a jury tells us
it is. Sometimes lawyers hide behind the assertion that it is the job of
the jury and not the lawyer to decide the case, thereby evading the tough
moral questions.
Because we give special meaning to terms in our codes of conduct, our
narrow definitions often do not comport with their general and common-sense
meanings or notions of fairness. This leaves us vulnerable to public attack.
A few years ago I participated on a panel with some of the country's
best-known defense lawyers. To my astonishment, all of them said that they
never tried to mislead or deceive jurors. Rightfully, there were snickers
in the auditorium, including my own. These distinguished lawyers were not
lying but giving very narrow and, I believe, insupportable definitions
of the terms "misleading" and "deception."
If we are to be honest, we must acknowledge that first-rate trial lawyers
work very hard at inserting their own credibility into a trial for the
benefit of their clients and, when necessary, use that credibility to argue
to the jury propositions that they know beyond any reasonable doubt are
false. At times we use our training and skills to discredit truth-telling
witnesses hoping to make them appear to be fools or liars.
Yet the prestigious American College of Trial Lawyers, whose membership
consists of the elite of the trial bar, tells us in their Code of Trial
Conduct that in our representation of our clients we should not engage
in chicanery. Does such an admonition bear scrutiny? Doesn't a good lawyer
regularly try to induce beliefs in juries that the lawyer believes to be
false, and in doing so deceive the jurors? And in picking jurors, don't
we often, where there is a strong case of guilt, seek out jurors who we
believe, o
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r at least hope, will disregard the evidence and return a verdict
based on prejudice or passion? When we do these things, are we promoting
respect for the law?
In his book Ethics for Adversaries - The Morality of Roles in Public
and Professional Life, Arthur Isak Applbaum, associate professor of public
policy at Harvard University's Kennedy School of Government, asks, in a
critical way, if lawyers can, simply because they are playing the role
of a zealous advocate, describe a lie or a deception as something else
and then claim the moral high ground for their actions. He compares us
to Henri Sanson, the executioner of Paris during the French Revolution,
who killed without moral concern because it was his professional job to
do so. He tortured, beheaded, and mutilated people and argued that since
his actions were performed in the fulfillment of his professional role,
he was morally justified even if the same actions would be condemned if
committed outside his profession. Defense lawyers don't execute people,
of course, but have we, like the executioner of Paris, defined our role
in such a way that we avoid confronting the difficult moral issues raised
by our actions?
Let us assume that your client confesses to you that he mugged an elderly
victim and before she got a good look at him he knocked off her glasses.
Your client wants to testify and deny he was the mugger. It is clear that
you cannot ethically allow your client to take the stand and commit perjury.
Section 7-102 A.4 of the Code of Professional Responsibility in New York
states that in the representation of a client, a lawyer shall not "knowingly
use perjured testimony or false evidence."
How much maneuvering
or, to put it more harshly,
chicanery
can we engage in without crossing ethical and moral boundaries? |
On the other hand, as zealous advocate, am I not permitted to rip the
elderly victim to shreds on cross-examination, and try to distort what
I know to be the truth by suggesting that she didn't get a good look at
the mugger, or that her sight was bad, or her recollection faulty because
of age? Most would agree that such advocacy is considered ethically appropriate.
While the general public has great trouble with such actions by a defense
attorney, there is solid support for such activity. One of the very best
articulations of that role is found in a dissenting opinion by former Associate
Justice Byron White - no liberal jurist to be sure - on rights of defendants
in United States v. Wade (right to counsel in line-up) 388 U.S. 218 at
256-258. After pointing out that law enforcement has an obligation not
to convict the innocent and must always be dedicated to reaching the truth,
he says:"But defense counsel has no comparable obligation to ascertain
or present the truth. If he can confuse a witness, even a truthful one,
or make him appear at a disadvantage, unsure or indecisive, that will be
his normal course. More often than not, defense counsel will cross-examine
a prosecution witness, and impeach him if he can, even if he thinks the
witness is telling the truth, just as he will attempt to destroy a witness
who he thinks is lying. As part of the duty imposed on the most honorable
defense counsel, we countenance or require conduct which in many instances
has little, if any, relation to the search for truth."I agree with Justice
White's comments, and I believe it would be appropriate to cross-examine
the elderly victim in the way described, because the government has the
burden of proving its case. But should we not acknowledge that we are engaging
in conduct that raises moral issues because we are trying to discredit
a truth-telling witness and that seems to conflict with the high-sounding
principles in our Codes of Professional Responsibility, such as promoting
respect for the law, acting with candor, and not engaging in chic
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anery?
We must acknowledge that at times there are differences between what is
ethical and what is moral.
I have been faced with several ethical conflicts in my professional
life; one happened a very long time ago. At my first meeting with a client
who was nervous and concerned about how much he should tell me, I explained
the criminal process and my role as defense attorney. I told him he could
be fully candid with me because even if he had accepted the payoff he was
charged with taking, it would make "no difference in my representing him."
Apparently feeling comfortable with me, he promptly admitted his guilt.
As the trial approached, he told me he wanted to testify and deny his
guilt. When I told him I could not ethically allow him to give perjured
testimony, he reminded me that I said "it would make no difference." He
was right. I unintentionally misled him. What I should have said is that
it will make no difference as to "whether I represent you, but it could
make a difference as to how I will do it." Fortunately, the matter was
resolved before this issue had to be resolved.
. . . have we, like the executioner
of Paris, defined our role
in such a way that we avoid
confronting
the difficult moral issues raised by our actions?
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In the preamble to the Code of Trial Conduct, the American College of
Trial Lawyers tells us that we have a specific responsibility to strive
for prompt, efficient, and just disposition of litigation. In light of
this, how do you feel about the zealous advocate who wants his client to
avoid judgment and plays the system by continuing his client's case by
playing fast and loose with the court's docket, making one excuse after
another for a delay? As a result, the complaining witness is worn down
and the case is not prosecuted. In such a situation, are we to totally
disregard the rights of the victim and society by taking advantage of the
deficiencies of the system and by using trickery to delay and defeat a
prompt and just disposition on the merits? While a defendant is entitled
to a vigorous defense, is he entitled to game-playing with the court's
docket?
Suppose a lawyer in a civil product-liability case were to follow Lord
Brougham's rationale and effectively keep a defective and dangerous drug
or product on the market by creating confusion and delay with aggressive
litigating tactics. What if the advocate introduced into evidence a scientific
report that said the product was safe but the attorney knew the report
was based on faulty data? Could you use this as evidence?
In the 1990 case of Lincoln Savings v. Danny Wall, which dealt with
the savings and loan crisis, U.S. District Court Judge Stanley Sporkin
found that the Federal Bank Board acted properly in placing Charles Keating's
bank in receivership because it was engaging in unsound business practices
and skullduggery. The judge pointedly asked about the lawyers and accountants
who reviewed or approved the bank's transactions: "Where were these professionalsÉwhen
these clearly improper transactions were being consummated? Why didn't
any of them speak up or disassociate themselves from the transactions?
WhereÉwere theÉattorneys when these transactions were effectuated?"
These remarks and the lawsuits that followed against law firms raised
serious questions about the duty of lawyers to their clients and the appropriate
parameters of zealous representation. The fact that a criminal defendant
is presumed under the law to be innocent and to have certain constitutional
rights gives the criminal defense lawyer greater justification for many
of the above-mentioned activities than a civil advocate or legal counselor
might have. However, it does not wholly relieve us of moral responsibility
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or our actions. Although I have some concerns - as I have been sharing
with you - I have never regretted my decision to be a lawyer. There is
no greater professional satisfaction than to guide a client from peril
to safety and preserve his or her freedom, future, reputation, and, at
times, life. While client relationships can be a great source of satisfaction,
they do present pitfalls which you can and should safely avoid. To clients
in trouble, the law is not about legal theory, morality, or ethics: It
is about freedom, reputation, financial survival, and keeping what is theirs.
Many clients don't care how their lawyer gets the results they want.
You will not be a good or responsible lawyer if you blindly follow a
client's instructions. Sometimes, at the risk of losing a client, you must
say you cannot do what the client wants you to do. As a lawyer you must
constantly be attuned to the legal theory, ethics, or morality of a situation.
They are your daily companions as a practicing lawyer.
And you must never become so close to your clients that you lose your
independence, objectivity, or ability to do what is right. When you become
a "player" with a personal interest, your objectivity will be clouded,
your advice will be slanted.
The great Justice Oliver Wendell Holmes observed that the law is the
witness and external deposit of our moral life and that the practice of
it tends to make good citizens. But he goes on to observe that if you want
to know the law and nothing else, you should look at it from the perspective
of a "bad man." The bad man asks at what point, if I do something, does
the public force come down upon my head? The bad man asks, where is the
line I cannot cross without risk of punishment?
In your professional life you will run across those clients who view
the law as a "bad man" does. Be careful. Your job is to get your client
out of trouble, not get yourself into it.
And always remember that the most valuable asset you have is your reputation
for honesty and integrity. Once lost, it can never be regained.
