A duty to your client
I got volunteered to do a presentation on ethics at the meeting of the Cuyahoga Criminal Defense Lawyers Association in November, so I've been reading up on the new Ohio Rules of Professional Conduct, which replaced the old Code of Professional Responsibility in February. In doing that, I've been struck by the fact that while the new Rules detail what our various duties are and to whom they are owed, it doesn't do a very good job of prioritizing them.
It seems to me that there's some need for prioritization, given the increased tendency of prosecutors, bailiffs, and judges to believe that the defense lawyer's first duty is to get his client to agree to a deal which will expedite the whole criminal process.
I've actually had a prosecutor tell me, at a first pretrial -- before I've gotten any discovery or he's told me anything about the states's case -- that "the judge would like it if we could get a plea on this case today." Well, I would've liked to bump uglies with Denise Richards, so there's two things that didn't happen that day. Just this week, I had a pretrial for a defendant who'd pled to one case, then while awaiting sentencing had picked up three new ones. When we couldn't work out a deal on the whole package, the judge decided to sentence him on the first case. I went out and told him that. He said he wanted to talk to his mother, and when I came out a few minutes later to bring him into the courtroom, he'd skedaddled. The bailiff angrily asked if I told him that he was going to be sentenced. Gosh, how stupid of me; why in the world would I ever think it would be incumbent on me to inform my client of what was going to happen in the courtroom?
This is hardly confined to this county or this state. In Montana, several courts have adopted rules that require, as a condition of a defendant's bond, that he check in with his defense attorney from time to time, often once a week. Prior to trial, the court will call the attorney and see how well the defendant has complied with that requirement; if he hasn't, bond can be revoked.
The Montana Bar Association wrote a lengthy and anguished opinion on this, balancing the lawyer's duties of confidentiality versus the duty to be honest in his dealings with the court, but frankly, I think this is just nuts. Not only has the state decided to hire me -- without pay -- to be a bond supervision officer, but it expects me to rat out my clients?
The problem is that too often we get caught up in the rush to justice, too. After the case is over, we're very likely never going to see the defendant again, but we're going to have many more dealings with that judge and that bailiff. I've seen lawyers do a number of things to stay on everybody's good side even if it didn't help the client's case. I'm not talking about big things, like pressuring a client to take a plea deal. That happens, but it's rare. Much more common are things like denigrating the client in front of the judge or prosecutor for not having taken a deal. I've done it myself. I've even seen lawyers insist that the court go on the record so that the lawyer can recite what the deal would've been, that he'd recommended it to the client, and that the client had refused it. That may protect the lawyer, but there are ways of doing that which don't essentially communicate to the court, "Hey, this guy's an idiot, and if you're looking for someone to blame for dragging this out, it's him, not me."
Like every other lawyer, I know a lot of lawyers. When a few of us get together, it's not unusual for the discussion to turn to what kind of lawyer so-and-so is. Bright? Connected? Tries a lot of cases? Frankly, at this point, I think the highest praise you can give another lawyer is, "He fights for his clients." Because sometimes, I get the feeling that we're not doing enough of that.
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