Article detailing pressures on the legal establishment to loosen client confidentiality ethics codes. The focus seems to be on corporate fraud, and on forward-looking client information, rather than constructing a defense: "...Besides, it is rarely a black and white question whether a client's plan is illegal, and it is not the lawyer's job to make that determination, he said." But constructing a defense, and more in relation to ordinary felonies, is what interests me.
For a long time I have wondered about the fanciful, exculpatory stories lawyers present on behalf of their clients. How long does it take them to come up with them? How many questions do they have to ask to determine a given story will be their best line of defense? I have to believe that in many, many cases, the acccused out-and-out tells their lawyer "Yeah, I shot hin and dumped his body in the lake". And the lawyer proceeds to construct a defense that claims the accused did not commit the crime, looks for alibis for same, speculates about others who might have committed the crime.
Okay, I can accept the idea that it is the lawyer's duty to pursue the best interests of the client. But there are boundaries. And the bright line between truth and fiction is one of the boundaries. So there is a substantial, qualitative difference between saying, okay, you killed this guy and dumped him in the lake. But why did you do it, what mitigating factors can we adduce? You had a rotten childhood. This guy threatened you. Very different from saying, okay, now that I know what really happened, let's brainstorm some other story that claims you are entirely innocent of the crime you just admitted to me.
Toward the end of the article, there are some quotes that point in this direction, although their authors are still discussing corporations: "If lawyers are duty-bound to report to the government when their clients have or will commit some kind of crime, Mr. Terrell, the Emory professor, said, lawyers will have to tell clients not to share confidences with them in effect, to lie a perverse result of efforts to improve the justice system, he said. "The lawyer will have to say, `I cannot hear you say, "I did this crime" that's something I can never know.' " I don't think that is so perverse. It merely moves the lying to the client-lawyer interaction, from the lawyer-courtroom interaction. Seems like an improvement.
Perhaps the refinement would be that the lawyer can't help the client construct a defense of denial for a crime they have admitted to. So, back to our previous example, if you say you killed the guy, the lawyer can help you think of mitigating factors, but they can't help you make up a story that denies the basic fact you just admitted. In corporate cases, I think there would be another whole layer of refinements, like the lawyer has x number of days before they have to report the admission to an agency.
The bottom line is, we should deprive lawyers of the right to lie on behalf of their clients.
Roger C. Cramton, a law professor at Cornell University, who supports these changes, has the clincher: "They will never affect an honest client who is going to an honest lawyer."
10:43:16 PM 
|
|
