July 22, 2011

Defense lawyer quits because of "the horrific way this boy was killed."

Gerard Marrone was a lawyer for Levi Aron, who is accused of murdering Leiby Kletzky:
"I have three little boys," he said. "You can't look at your kids and then look at yourself in the mirror, knowing that a little boy, who's close in age to my eldest son, was murdered so brutally."
What is the argument that it is ethical for a lawyer to express himself publicly like this, to the detriment of his former client?

101 comments:

rhhardin said...

I don't know that it's ethics exactly. It's professionalism.

You can't have an actual trial unless the guy gets convicted in spite of the best possible defense.

Don't undermine that from the defense side.

pauldar said...

"What is the argument that is ethical for a lawyer to express himself publicly like this, to the detriment of his former client"

"Honest" comes to mind. Quit refreshing actually

AllenS said...

Fuck off, former client.

Robert said...

Maybe it's advertising.

I'd hire him in an instant.

Rob said...

It is not, Ms. A. He should have withdrawn and not commented.

The Crack Emcee said...

Former client?

No problem,...

madAsHell said...

Was he a public defender?

Why would he release a statement at all? Is he trying to throw the case?

Why did the newspaper publish such a comment?....yeah, yeah, dumb question!!

Joe said...

(The Uncredentialed, Crypto Jew)



Did he undermine the defense? He said, “I can’t do this because of the NATURE of the crime.” Not, “I can’t do this BECAUSE MY CLIENT COMMITTED THIS HEINOUS CRIME.” There are cases/jobs I couldn’t do because they involve cruelty to kittens, puppies, gold fish, or children…and that doesn’t speak to the guilt or innocence of anyone, simply that I can’t stand cruelty to gold fish…or children.

vet66 said...

I wonder at the timing. Casey Anthony brought the difference between reasonable doubt as compared to beyond a shadow of a doubt to the forefront of public debate. This isn't about ethics so much as it is about being in the presence of resident evil.

Apparently some lawyers find it difficult to be a party to throwing everything but the kitchen sink against the wall of justice just to see if anything sticks. In our culture some have decided that it is better a hundred guilty go free than one innocent go to jail. I would rather be home protecting my family than picking through the prosecution's forensic evidence, circumstantial or otherwise, to get my client off on a technicality.

There are still those 100 guilty roaming around out there. I would rather not sacrifice my loved one's to the tender mercies of someone who got off for just that reason. But then we live in an increasingly delusional society.

Tank said...

No matter how bad the crime, if you think your client is innocent, then there is no problem representing him.

Similarly, if you do criminal defense work, where most of your clients will be guilty [of something, if not the worst crime charged] based on the theory that all defendants deserve a vigorous defense, then also there is no problem.

What you can't do is withdraw, and in doing do do, inply that you think your client is guilty, which is what he did.

If he wanted out, he should have withdrawn and STFU.

Geoff Matthews said...

That he has a soul.
Seriously, the perp admitted to the murder. All that's left is determining culpability and punishment.

5ac81c9e-a3ec-11e0-ad71-000bcdcb8a73 said...

Wow! I thought that Althouse was more heavily populated with lawyer-commenters.

To see all of the excuse-making and expressions of sympatico with the ex-defense counsel; astonishing.

I'm a conservative law-and-order Republican. But I'm also a lawyer. And this was staggeringly, inexucusably, unprofessional behavior by the lawyer. Ann asks the correct question: Is there any excuse for this? It maybe have been inteded as sort of rhtorical on Ann's part. Because I can't think of any excuse.

If the lwayer felt that he couldn't represent the accused, that's okay. He just shouldn't say anything about it. Just withdraw, quietly, as counsel. (There are even problems with that, but I'll let those slide for our purposes here.)

This is an Ethics and Professional Responsibility 401 question. Any third-year law student who flunked this question (as the New York lawyer did) shouldn't be practicing.

GT said...

Once the attorney-client relationship has ended, the attorney no longer has an ethical duty to be loyal to the client. But the lawyer still has an ethical duty not to disclose confidential information learned from the client. It is likely that the client never told the lawyer "I did it," so making a public statement that, in effect, the client is guilty does not reveal a confidential communication. (The reason the client probably never told that to the lawyer is that defense lawyers do not want to to be told that their clients are factually guilty, because that would limit the arguments that could ethically be made in their client's defense.)

So it is quite possible here that the lawyer's belief of guilt is based on what the prosecution has presented, and not based on confidential information from the client. If that is true, then there has been no breach of ethics.

cassandra lite said...

Being upset because you have boys that age yourself is like feeling outraged about Jim Crow only because you're black, or about the Holocaust only because you're Jewish. This is just another form of tribalism. The nature of the crimes was known to him when he took the case. How did he justify it then?

jono39 said...

Of course the lawyer should not have said anything. Yes, he should not have taken the case but remember, he took the case and interviewed the client. He spoke with him. THEN he expressed his opinion. There is our problem. The accused committed a most horrendous crime. We are going to be subjected to an avalanche of social science and psychiatry when in fact the trial should take about five minutes, the defendant should then be sentenced to death, taken from the courtroom and hanged immediately in PUBLIC. Instead we will feed him for decades while people seek employment counseling him. Listen up. Of course he is sick. He is also evil. He committed an evil act. He should be executed for it.

Jason said...

I guess he only wants to defend murders who kill people in nice, warm, affectionate ways.

Mark said...

I don't blame the lawyer for not wanting to defend Aron, but he should have withdrawn silently. The New York Bar should have a long talk with Marrone.

edutcher said...

A defense lawyer with scruples?

Or, better yet, a conscience?

Who'da thunk?

Imagine this becoming a trend in DC. Or Chicago.

Triangle Man said...

@cassandra

Caring about matters related to children because you have children is tribalism? I think the word you are looking for is empathy.

Freeman Hunt said...

There's no question that the guy did it. He says he did it and gave a full account of his time with the boy, including the murder. The only real question is whether or not the guy is insane.

He he, the lawyer version of ethics: "Don't say anything bad about the admitted child butcher if he's your former client!" Heaven forbid.

Freeman Hunt said...

Rhhardin is right. It's professionalism at issue, not ethics.

vet66 said...

5acb1;

Save your sanctimonious outrage for the real problem of no Tort reform, ambulance chasing lawyers, medicare fraud, and junk science verdicts from the likes of "Silky Pony" Edwards playing to victims of our education system and jury selection of so-called peers who can't think or write critically.

Typical that you hide behind a number stream that dwarfs any account number on a typical credit card. What are you hiding from?

Ann Althouse said...

"Rhhardin is right. It's professionalism at issue, not ethics."

It's professional ethics.

ndspinelli said...

It's probably unethical; but it's #386,422 on the list of unethical practices by barristers.

Bob Ellison said...

"This is an Ethics and Professional Responsibility 401 question."

This is why lawyers are so universally disliked. Ethics (lawyers' or others) do not trump morality in a morals-based philosophy.

Ann Althouse said...

"There's no question that the guy did it. He says he did it and gave a full account of his time with the boy, including the murder. The only real question is whether or not the guy is insane. He he, the lawyer version of ethics: "Don't say anything bad about the admitted child butcher if he's your former client!" Heaven forbid."

The state is required to deal with crime within the rule of law, and the state must prove guilt. Even if you hear that there was a confession, you don't know the details. You don't whether the confession is coerced, for example. It is the lawyer's role to make sure the state does it right, and that constant surveillance of how the state meets its responsibilities is a protection for all of us.

That is the defense lawyer's role, and his feelings of personal outrage about the crime need to be controlled. Emoting about that is not his job. If he can't do his job, then don't have that job. Not everyone can do it. Don't purport to be able to do a job that you can't do.

If people here don't see why the defense lawyer's job is an important one in a system of the rule of law, then I'm really disappointed in the level of understanding of what American citizenship means.

Freeman Hunt said...

I'd like to see a Venn diagram of lawyers' professional ethics and actual ethics. I think you'd end up with a good pattern for a mask.

Trooper York said...

Unlike most lawyers this guy retains a shred of humanity.

He should switch to a more honorable profession like grave robber or prostitute.

The only thing worse than a journalist is a lawyer.

Ann Althouse said...

"This is why lawyers are so universally disliked. Ethics (lawyers' or others) do not trump morality in a morals-based philosophy."

This is very short-sighted. It's not a word game about what ethics and morality mean. You need to contemplate the big picture that is called the rule of law. If you don't value it, you have an impoverished understanding of how government works.

You will change your thinking in an instant if one day you are accused. You will call a lawyer, and he will help you, regardless of all the times you've expressed your hatred of lawyers over the years.

Trooper York said...

One thing lawyers don't care about.

Right and wrong.

Trooper York said...

This guy is as wrong as wrong can be.

There is no excuse.

There is no explaination.

There is no plea bargin.

Their is no mitigating circumstances.

He took a child to use for his sexual pleasure, killed him and cut him up.

Every breath he takes is a shanda.

Joe said...
This comment has been removed by the author.
edutcher said...

Technically, all defendants are owed a good defense under the Constitution, but the rise of mob lawyers, shysters, and party apparatchiks have thrown a good principle into practical and popular disrepute.

Thus, what Troop says about professions rings true with a lot of people.

As they said in the California Gold Rush, "We never needed law until the lawyers came".

Trooper York said...

From the link......

Brooklyn U.S. Attorney Loretta Lynch declined comment, but a source said her office "has no interest" in taking on Aron's prosecution. A key reason is that the suspect may be mentally incompetent to stand trial. His lawyers, who have hinted at an insanity defense, have asked for a psychological evaluation, claiming Aron has been hearing voices."

He is eligible for the Federal Death penalty but they won't touch it.

Because lawyers do not care about right and wrong. They only care about winning and losing.

Dose of Sanity said...

@ York:

Probably - but it's not that lawyers don't care about Right and Wrong. We (note: one year before I can really say we) just look at from a systemic point of view.

For example - everyone says (probably rightly so) that this man is a scumbag, not human, worthless piece of...etc etc.

Big picture, we want our system to give literally the BEST possible effort to defend everyone. If done properly this means that the guilty are convicted and the innocent are not.

Heading down a path where we stop doing this based on the offense could lead to innocent people being convicted and further doubt in the system. Lawyers might get hated for defending the most heinous of criminals, but I'm guessing they sleep soundly at night knowing those that were convicted were guilty and those that weren't help protect the system.*

*That's not to say there aren't problems with overcrowding, overgenerous plea deals, sentencing, corruption - but if we work on a good SYSTEM we can help correct the problems.

Make sense?

Bob Ellison said...

Professor, how can I respond to your arrogant reply? I can only say what I try. I try to be far-sighted (and am, literally), and I think I've succeeded in contemplating "the big picture that is called the rule of law". My understanding of that and how government works is, I think, not impoverished.

Our legal process is a system, as you say. A system, not a philosophy. It works rather well in some cases and rather badly in others.

You say I'll change my thinking in an instant if/when I'm accused of something. Really? I'll throw away my philosophies, my morals, my understanding of ethics, and everything? My thinking is not a construct. I've been challenged before, and bowed to better ideas and morals, and I hope I'll be strong enough, if and when I'm accused, to uphold my ideals.

Freeman Hunt said...

He will help me because I will pay him many thousands of dollars, and he will be happy to lie for me most likely and to appeal to irrational emotionalism in jury members to obfuscate facts, even if I'm a butcher of children. He's often a get the killer off for hire wearing a thin veneer of "rule of law."

I can respect the many defense lawyers who offer the best possible rational defenses for their clients. I can't respect those who take the strategy of appealing to irrationality. The same goes for prosecutors. Justice isn't a game, but it's often treated like one.

If lawyers don't like that people think they're dishonorable, they should act more honorably. It's just like politicians. The sacred duty bestowed upon then is great. The way that duty often is performed is shameful.

As for this guy, was he unprofessional? Yes. Unethical? The guy isn't his client anymore, and he doesn't seem to have divulged any privileged information. Debatable.

Dose of Sanity said...

@ Freeman

Former clients have almost the same level of ethical requirements as current clients. (Even prospective clients have specific rules)

He walked a very fine line in saying what he did. There is no reason he couldn't have waited to say this - unless the judge asked him why he was withdrawing. He was careful not to implicate the client at all.

Ann Althouse said...

@Bob Could you try to say something that fits with the specific situation: the role of lawyers in a system of the rule of law? Other than that, what you say sounds like self-righteous preening. You call me "arrogant," but look at you, Mr. Morality! I am asking if you value the rule of law, which is fundamental in the United States. Do you value living in America or are you saying because you are a good person, you'd be able to make a go of it in any country, with any system?

Heart_Collector said...

God forbid (No pun intended) this lawyer puts his soul before his ego.

wv: dedin. murderer's defense is dedin the water.

Heart_Collector said...
This comment has been removed by the author.
Blair said...

This is appalling. If I were the judge in this case I would declare a mistrial and move to have him disbarred. There is no way there can be a fair trial now. This idiot has given rise to the real danger that a murderer could walk free.

knox said...

Ever since the Duke Lacrosse case, I've had a renewed appreciation for defense lawyers. There but for the grace of god, and all that.

Defense lawyers are the only thing standing between us and an obviously imperfect system. One that aims to lock you up as expediently as possible, one that will sometimes manufacture or suppress evidence, if necessary, to do it.

With that said, cynicism toward our justice system is at an all-time high. It is irresistibly heartening to see a lawyer reject this client... and that it might actually *disqualify* him for being a defense lawyer is sad.

Ralph Kalal said...

Kinda scary that there is any view but one on this. The lawyer committed an unethical, unprofessional act that cuts to the core of the presumption of innocence and the right to counsel.

It is also critically important for the guilty to be defended, just as fully and vigorously as the "innocent." While innocense is black and white, guilt admits of shades.

A real lawyer defends the guilty because it is the only way to assure a semblence of justice in which all too many - those posting to this blog particulary included - are willing to prejudge a specific person's conduct, based on the one-sided charges of the prosecution.

In this instance, though, it's worse. Not only did the attorney withdraw for an unacceptable reason, he then announced that reason.

It is misconduct of the most fundamental sort.

Scott M said...

It is also critically important for the guilty to be defended, just as fully and vigorously as the "innocent

Once the accused has admitted to the crime, though, couldn't it be the defense lawyers job at that point just to make sure his client is getting all due process and not receiving a "cruel and unusual" punishment? Why continue to fight for acquittal (or mistrial, or whatever) if the defendant has admitted to the crime?

Heart_Collector said...

If you cant live with yourself, you have ceased to live. Maybe this is a moment in this lawyers life where he realizes that there are advantages to working at the home depot.

Bob Ellison said...

Could you try to say something that fits with the specific situation: the role of lawyers in a system of the rule of law?

I can try. Lawyers who know their suspects to be guilty should say so. Lawyers who strongly suspect guilt and indicate such belief should not be pilloried for it, especially on such flimsy ground as lawyerly "ethics".

Other than that, what you say sounds like self-righteous preening. You call me "arrogant," but look at you, Mr. Morality!

You're right; you don't sound a bit arrogant.

I am asking if you value the rule of law, which is fundamental in the United States. Do you value living in America or are you saying because you are a good person, you'd be able to make a go of it in any country, with any system?

Right; I'm saying I'm a saint who could go and live anywhere, in any legal/moral system whatsoever, and because I am such a Godlike presence, it'll all work out in the end. You've got it exactly!

The rule of law is indeed important. The practice of it often stinks, and the notion that the system is more important than the justice it attempts to achieve is odious.

cassandra lite said...

Triangle Man: Yeah, it's a form of tribalism not to feel empathetic or sympathetic or outraged by the horrors that happen to others unless you happen to share a defining characteristic with the others. I don't need to be black or Jewish or a parent (though I'm two of the three) to be incensed by, as noted earlier, Jim Crow, the Holocaust, or child/abuse murder.

Ralph Kalal said...

@Scott M

You misunderstand the meaning of "defended." That term does not equate to attempting to secure acquittal in a case in which acquittal is impossible and guilt has been confessed.

But it does include mitigating the punishment.

Perhaps the most evident example is the Darrow defense of the rich Chicago kids who killed a child - the Leopold and Loeb case. They were guilty and Darrow plead them guilty, and then created the insanity defense as a mitigation of sentence, securing life imprisonmetead of execution. From that, insanity became a defense to the charge.

The obligation of a lawyer is to provide the most complete defense possible under the law. That doesn't mean denying reality.

But it does mean you defend people accused of crimes, regardless of the nature of that crime.

If you don't do that, then you're not a defense lawyer and the system of "justice" becomes nothing but an accusatorial system, in which the prosecution is all there is.

We're already way too close to that. We don't need unethical attorneys pretending to be "defense counsel" violating the most sacrosanct obligation of their profession.

And, as an incidental on this - check out what John Adams did when asked to defend the soldiers accused of the Boston Massacre.

Mike & Adrienne said...

"Lawyers who know their suspects to be guilty should say so."

Why? And when? And for all crimes, or just some of them? And if only some, which ones?

We want a system that encourages truth-telling, and if defense lawyers are required to "say so" if their clients are guilty, then you encourage defendants to always lie.

I am a defense lawyer, and this is the most common question I get: "how do you defend people you know are guilty?". Defending them in a court of law does not mean defending their behavior. It just means making sure the State follows the rules in depriving the defendant of their liberty. If you trust the State completely, then there's really no need for defense lawyers. But, alas, who among us trusts the State this much?

SunnyJ said...

Hmmm ethics? Would this be a question of appearance of wrong doing vs actual wrong doing?

His comment does not say anything about the accused/former client..not one word. It speaks only to the known facts of the crime...and the fact that he doesn't feel he can deal with that because he has a possible "conflict of interest".

By my way of thinking, he has done the ethical thing, by declaring his conflict (I have bias as a father of young boys)and recognizing it might impact his ability to defend the accused.

He's not required by law or his license to be superhuman...he is required to declaire conflict of interest or appearance there of and recuse himself as needed.

The HDR Blogger said...

Althouse is right as far as it goes, but it's still lawyerly sohpistry. Look, this guy probably should face some sort of professional censure or suspensions. It is unethical. He probably shouldn't be a lawyer.

But the idea that this guy's lapse will undermine the rule of law is ludricous. Some new lawyer will come along and, rest assured, get a better deal for his monster-client as a result of what the first lawyer said. Mistakes like this enhance protections for criminal defendants.

Ask any work-a-day criminal defense lawyer what the best weapon in his/her arsenal is: intentionally botching the trial to set up an ineffective assistance of counsel appeal. So spare me the ethics argument.

Richard Dolan said...

Ann asks whether the defense lawyer breached an obligation by giving a public statement implying but not saying that his (now former) client was the killer. The answer is very likely yes. A lawyer owes his client a duty of undivided loyalty, which becomes the operative standard once the lawyer agrees to represent the client.

The only question is whether the lawyer's statement here was material. That turns on whether the defendant will dispute the fact that he was the killer. (If the defense turns out to be insanity, the lawyer's statement may not be adverse to the client's interest at all -- only a crazy person could have done something so heinous and stomach-turning.) So there are some unknown unknowns here. And any trial in this case is months if not years away. If a trial ever happens, the likelihood that the venire will be impacted by the lawyer's statement (that's the only source of possible prejudice to the client) is quite low.

But, regardless, it was certainly poor judgment (at best) for the lawyer to make that statement.

As for the many comments by Freeman H, Bob Ellison and others, to the effect that "lawyers always lie" and that they are lying if they defend a client who did the deed (but may not be criminally responsible), you don't know what you are talking about.

TWM said...

Years ago I worked for a military investigative agency. Our charge was to investigate crimes - such as murder - and provide an objective result for both the prosecution and the defense to use. We took that charge seriously and for years it was not an issue with defense attorneys. However, an issue was raised right before I left the service that, in certain cases, the defense attorneys wanted to have their own investigators - most notably in capital crimes - because while they realized they could ask our agency to run down leads for them, they felt they weren't doing their clients justice by not using investigators that were not working just for their client.

Anyway, our commanding officer held a meeting during a conference with field commanders where he asked what our feelings were toward assigning investigators to the defense on such cases.

I answered fairly quickly saying that while I didn't have an objection to it in theory, in reality if I, as an investigator, discovered information that made me believe the person was guilty of a capital crime, I could not in good conscience work the case from that moment forward. And if fact, I felt that it was my duty to report that information to the prosecution.

This was the consensus of all those in the room by the way.

My point is, I don't fricken know how attorneys do it. It was one thing for me to do an objective investigation and just let the cards fall where they may, but another thing altogether to work to get someone off knowing - or at least believing - that they were guilty.

And yeah I know everyone deserves the best defense possible, etc., etc.

traditionalguy said...

A competent defense attorney is a necessary piece of equipment that must be put into place and be fully functioning before the State can ever execute a defendant over the anti-death penalty crowd's multiple attacks.

So this dude did everyone a favor that hastens the execution day by withdrawing now when he found that he could not do the job.

Honestly, there is usually some emotional way to defend murderers, because murderers can be such screwed up and helpless people who made one terrible mistake.


But every now and then there is a murder of a child by a mentally competent and cold blooded monster. That is too much to handle.

Pure evil people do exist and they astonish us. The possibility of getting them off seems so wrong that the lawyer becomes mentally disabled being shell shocked in his own feelings.

This lawyer did the right thing, and we owe it to him to appreciate the effort made and not lash out in our harshest "We Are More Ethical Than You " judgement.

And he also deserved the chance to talk about why why he withdrew from this case.

Rob said...

Well, I say this as a long-time prosecutor and also as someone who has represented criminal defendants:
When you represent someone in a criminal case you are acting in their place. You are not obligated to represent anyone, and if this fellow could not stomach the task he should have withdrawn. It was wrong and selfish of him to comment on his reasons as it may generate adverse publicity for his former client. Under our system, he is forbidden to do so when he has represented a defendant.

I can imagine other systems, and perhaps better systems. However, under the U.S. system of criminal justice this lawyer was wrong to comment.

Some of you here, good folks and clear thinkers (I am looking at you, Freeman Hunt) are not thinking about how our system works.

I want to add that defense attorneys often make public statements SUPPORTING their clients which I also find clearly unethical.

ndspinelli said...

I have the professors back on this one. And..I worked as an investigator for the prosecutors office in KC. I worked cases where we KNEW the bastard was guilty but couldn't prove it. I had to get out of the biz.

What finally got me was a robbery/murder case. Two shitbirds held up a husband, wife, and their retarded son. One of the bastards laughed as he shot the dad right in the face. The cops fucked up and we couldn't make it. I knew the defense attorney..a very good man who felt horrible, but he had a job to do. Having that mother and son sobbing is something I still remember vividly..that was 1980. The professor is right, when you can't stomach it then you get out of criminal law. That's exactly what I did.

Chip S. said...

IANAL by any means, but I'll take a stab at playing one at Althouse: I don't think that a close reading of the lawyer's statement supports the charge that he violated professional ethics.

His statement can easily be read as saying that the mere act of thinking closely and frequently about the crime that was committed and for which his client was charged causes him unbearable psychological stress, to the point that he could not act as an effective advocate for anyone accused of this crime.

It is a statement about his incapacitation through revulsion at the nature of the crime. He didn't say anything that I could see about the guilt or innocence of his former client.

Did I miss something sitting in plain view? Is the problem that he used the term "murder" to describe what happened? (I'm assuming that he said nothing more than the lone quote that appears in the story.)

Dust Bunny Queen said...

That is the defense lawyer's role, and his feelings of personal outrage about the crime need to be controlled. Emoting about that is not his job. If he can't do his job, then don't have that job. Not everyone can do it. Don't purport to be able to do a job that you can't do.

I think that was his point. Declining to be the defense attorney in a case that would for personal emotional reasons cause you not to be able to adequately defend your client.

Resigning when you know you will not be able to do the job for what ever reason is professional. (Dare I say like Palin, who resigned her position when it became apparent that she would be spending all her time and the taxpayer's time defending herself against baseless lawsuits, was acting in a professional manner?)

Some jobs are just too distasteful to continue.

I do agree that he should have just quit and said nothing. That was unprofessional of him.

Chip S. said...

I do agree that he should have just quit and said nothing.

Maybe. OTOH, if the defense lawyer resigns from a high-profile case like this, won't there be speculation in the press over his reason? And is it not possible--and maybe even probable--that the speculation would be more prejudicial to his ex-client than this statement about his own personal situation?

caplight said...

My daughter, a public defender, and my good friend, a prosecutor, will both tell you that the day the State does not have to work hard for every conviction and justify its actions within the rule of law is the day you never want see come, for then you will never be free of fear of the state.

5ac81c9e-a3ec-11e0-ad71-000bcdcb8a73 said...

Wow! More disjointed responses!

I'd like to ask; is there anyone who has posted to this message thread, who is a lawyer AND who thinks that the behavior of the lawyer at issue in this case was acceptable?

I get the feeling, that non-lawyers mostly think that what he said was no big deal and perhaps even laudable. And that the lawyers virtually all think it to have been a clear-cut violation of the basice standards of professional ethics.

Am I right? Are there any lawyers who think this was an acceptable statement to have made?

Sir Absurd said...

I like what Joe said about the "nature of the crime" thing. But still, he did say, "You can't look at ... yourself in the mirror," which implies that he'd feel like he were doing something wrong for which he'd feel guilty if he were to continue on the case -- not simply that he dislikes the subject matter.

5ac81c9e-a3ec-11e0-ad71-000bcdcb8a73 said...

Someone above in this thead commented that the nature of the information disclosed by the lawyer was probably not privileged information that was supplied by the accused.

THAT DOES NOT MATTER UNDER THE MODEL RULES OF PROFESSIONAL CONDUCT, NOR UNDER MOST STATES' RULES OF PROFESSIONAL CONDUCT. ANY INFORMATION DERIVED DURING THE REPRESENTATION IS SUBJECT TO A PRIVILEGE THAT ONLY THE CLIENT CAN WAIVE.

Also, it does not matter if the representation has ended. The attorney-client privilege survives the termination of any formal court-appearance in a case.

There really is only one right answer in this case, as far as I am aware. Maybe there are additional facts. As to the legal principles and rules; they are pretty clear.

Scott M said...

So...would you say that the lawyer in question is a vile, unprofessional, and despicable person?

Chip S. said...

ANY INFORMATION DERIVED DURING THE REPRESENTATION IS SUBJECT TO A PRIVILEGE THAT ONLY THE CLIENT CAN WAIVE.

As persuasive as I find CAPS to be, I don't see how this responds to my argument at all. The "information" revealed by the lawyer was solely about his personal feelings about the nature of the crime, not about his client's culpability. And the nature of the crime is a matter of public record.

All you lawyers keep discussing a situation that did not occur, in which the lawyer said, "I can't stomach defending a guy who's so obviously guilty."

Blue@9 said...

Yeah, totally unprofessional and worthy of discipline. Even though he was commenting on the nature of the crime, the fact that he's saying that at the same time he's resigning would lead to the inference that he thinks his client is guilty. Bad stuff; he should have kept his mouth shut.

Chip S. said...

He said it at the same time he resigned b/c it's an explanation of why he resigned. He has no more control over the inferences people would draw from this comment than what they'd make of a "no comment."

But I'll say that I can see how the "look myself in the mirror" comment goes against my position here. I read that as an image of being haunted by the images of the dead child, but I can see how it could be interpreted as implying feelings of guilt over defending the killer.

Chip S. said...

So...would you say that the lawyer in question is a vile, unprofessional, and despicable person?

Certainly not! He's being accused of conduct unbecoming a lawyer.

5ac81c9e-a3ec-11e0-ad71-000bcdcb8a73 said...

You'll see all of the principles I described in the actual New York Lawyer's Code of Professional Conduct: http://www.law.cornell.edu/ethics/ny/code/NY_CODE.HTM

And further, from Canon 2 of the Code:

"EC 2-29
When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, the lawyer should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case."

Chip S. said...

Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding

OK, that's pretty clear. Thx.

Trooper York said...

Apparently unaware that a search was already in progress for the boy(Leiby Kletzky, 8), Aron left his home Tuesday to find photos of the missing boy on fliers distributed in the neighborhood.

"When I saw the flyers I panicked and was afraid," he told police. "I was still in panic ... and afraid to bring him home. That is when I went for a towel to smother him in the side room. He fought back a little bit."
CBS News

Trooper York said...

Imagine the terror this child felt.

Trooper York said...

Imagine this worm living his life for the next fifty years with appeal after appeal as lawyers get rich from defending him. Building their reputations and careers defending him.

Trooper York said...

A just and merciful God would smite this man and all who would aid him in any way shape or form.

Trooper York said...

Every breath he takes for the rest of his life is a shanda.

Trooper York said...
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Trooper York said...

You might have forgotten Holly Ann Hughes.

Trooper York said...

Her murderer Andre Rand is writing love notes to women to this very day.

Trooper York said...

I bet his lawyers are very proud of the good work they did.

Trooper York said...

I remember Holly Ann Hughes.

Trooper York said...

This will end the same way.

Endless appeals.

Endless lies by lying lawyers.

Levi Aron will be writing love notes to his many admirers.

Trooper York said...

Every breath he takes for the rest of his life is a shanda.

Methadras said...

Good for him. He's the kind of lawyer this country needs.

Chip S. said...

He's the kind of lawyer this country punishes.

FIFY.

I was really looking forward to having a strikethrough capability on Althou.se.

traditionalguy said...

The world has a few specially evil people that blow out the circuits of the lawyer's standing obligations to defend guilty people.

We actually enjoy the challenge of getting the guilty ones off. We take pride in that.

So when attorneys are emotionally thrown off by a Charles Manson type, then we do not owe it to the State to hang in there just to facilitate a conviction. That would be unethical.

You haven't got enough money to buy that from a good attorney, and if money wont do the job, then charging guilt of ethics violations is never going to work on him. Sorry.

Trooper York said...

Don't worry there are plenty of lawyers who will do it for the money.

That's what they do.

Trooper York said...

Tell lies for money.

Chip S. said...

We actually enjoy the challenge of getting the guilty ones off. We take pride in that.

Wait--when did we start discussing hookers?

Freeman Hunt said...
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Freeman Hunt said...

With that said, cynicism toward our justice system is at an all-time high. It is irresistibly heartening to see a lawyer reject this client.

This. Lawyers can rage all they'd like at this, and the guy shouldn't have done it, but most people can't help but enjoy the idea of a little genuine humanity seeping through what often seems to be a byzantine and arbitrary system.

Freeman Hunt said...

that they are lying if they defend a client who did the deed (but may not be criminally responsible), you don't know what you are talking about.

No one has argued that.

Cedarford said...

I think there is a clash between "cop code" "union code" "lawyers code" - and the interests of larger society from time to time.
People in positions of power, that as Althouse has voiced, have what they think are reasonable codes within their club of peers.

1. Union bosses who will destroy an industry to prove their negotiating and arbitration clout and advance the "cause" of unions...even if it comes at the price of dsestruction.

2. Cops have the blue v. civilian mentality, you never ticket a fellow cop, gratis things are fine in return for a little extra attention, and the code you hunt down and kill a cop-killer.

3. Lawyers believe rules and due process trumps justice. That unlike doctors required to break the doctor patient relationship for the good of society - the lawyer client relationship is sacrosanct..even if you are assigned to serve a monster against your will. It isn't ethics that Althouse is talking about - it is Lawyers code within their club of elites meant to have all members lined up under norms that are termed "profesionalism". Somehow, as long as those rules are obeyed, you can abuse serving society to score "wins" against people you really shouldn't be prosecuting, and pervert justice as a defense or tort lawyer.


I think you cannot continue to have lawyers largely in charge of society when the pols come from such an adversarial system. I think the US model is an embarassment and we would be better off under the Napoleonic system. I think we made a bad mistake going from swift and sure, to endless Tamudic-style debate and due process being everything that counts.

Largo said...

Professor,

The lawyer said more than that the boy was brutally killed. He said that the boy was brutally murdered. This is a legal opinion that undermines any defense his ex-client might wish to make which his conceeding having killed the boy.

To argue self defense, to argue insanity, or to argue for the lesser finding of manslaughter, would be to argue against the stated legal opinion of his former lawyer.

So this is a real violation, and not merely an issue in the penumbra of professional ethics.

Do I get an A? ( seriously :) )

Jason said...

This is silly.

All defendants MUST have competent counsel.

I wish I had gone to law school now. I would have no problem raising a vigorous defense for this cretin. Because when I lost the case, I could sleep well at night knowing no one could ever appeal the conviction based on incompetent counsel, or have it overturned because the prosecution overreached. He can rot in prison forever, and I will have ensured that he belongs there.

Trooper York said...

The only thing that we need for Levi Aron is a rope and a lamp post.

Trooper York said...

And if his lawyer hung next to him that wouldn't be so bad either.

Jason said...

Ah. So you would not give the Devil the benefit of law?

Trooper York said...

In George Washington's America he would have been drawn and quartered.

In Abe Lincoln's America he would have been hung by the neck until dead.

In FDR's America he would have rode "Old Sparky" to his proper destination.

In our America he will be a guest on Nancy Grace and Oprah.

Trooper York said...

Every breath he takes on this earth is a shanda.

jono39 said...

Trooper York has nicely described one version of America's trajectory but it is faulty. Without wasting my breath, I am confident we will witness a reversal in the next decade.