Category Archives: legal ethics

Laurel Lance’s Drug Problem

This guest post was written by Tracy Douglas, who is an attorney in the Illinois Governor’s Office. The opinions expressed in this article are solely those of the author and not those of the Governor’s Office.

Arrow season 2 includes a plot about Laurel Lance’s drug and alcohol addiction. This raises several legal issues about public employees and legal ethics.

 

1. Can Laurel be fired?

In “Blind Spot,” Laurel investigates Sebastian Blood. After finding drugs in her apartment, the cops arrest Laurel for drug possession (she’s been using her dad’s prescription drugs). When she’s released from police custody, she’s kidnapped, and it appears a cop was behind everything, not Blood. Assistant District Attorney Adam Donner tells her the drug charges were dropped, but she’s being fired because she has a drug problem. He tells her it’s not coming from District Attorney Spencer but from him because he hired her.   Whether her firing is proper depends on if Laurel had a right to notice and a hearing.

In certain situations, public employees have a right to notice of termination and a hearing before they are terminated. This is guaranteed by the 14th amendment’s due process clause, which protects government employees from being fired without notice and a hearing if they have a protected property interest and can only be dismissed for cause. Bd of Regents v. Roth, 408 U.S. 564, 577, 578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603 (1972). In this analysis, it must be determined if the public employment at issue is a protected property interest. Roth at 571. A property interest can be created by “existing rules or understandings that stem from an independent source such as state law.” Roth at 577. Further, where a person’s reputation is at stake, notice and an opportunity to be heard are important. Roth at 573. A public employee who can only be dismissed for cause is entitled to a limited pre-termination hearing to be followed by a more extensive post-termination hearing. Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545-546 (1985). Therefore, to be a proper firing, Laurel needs notice and a hearing if she has a property interest in her job. To have a property interest, reputation can be looked at, but state law must be examined.

Arrow is not clear where Starling City is located. The DC comics have shown it as a stand-in for San Francisco or Seattle. For this discussion, California, Washington and Illinois law will be used to see how public employment and legal ethics are treated by different states. In Washington and California, Laurel would have more job protections as a county employee than in Illinois.

In California and Washington, Laurel has a protected property interest established by county rules and possibly the collective bargaining agreements. This means she has a right to notice and an opportunity to be heard. County attorneys in San Francisco county and King County, Washington (Seattle) are represented by unions. The collective bargaining agreements might include more protections than the county rules. In the absence of the labor agreement, her employment is protected by county civil service rules. She would have notice of her termination and a right to a hearing before she is officially terminated. San Francisco County Civil Service Rule 122.1.3; 122.1.4; King County Code 3.12.270.   This satisfies the 14th amendment’s due process requirement. So, if Starling City is in a state with laws like California and Washington, then Donner could not fire Laurel without a written notice and a hearing.   His informing her may be an informal hearing under Loudermill, but she has a right to a fuller hearing. This is important because under Roth her reputation is at stake and she needs the chance to tell her side.

On the other hand, if Starling City is in a state like Illinois, Laurel may not have those protections. The state’s attorney has complete control over the office, including the ability to hire and fire employees. 55 Ill. Comp Stat. Ann. § 5/3-9006 (West 2014). Laurel may have an argument based on Roth and Sindermann that she has a protected property interest in her job. However, both Roth and Sindermann talk about public employees who are protected from being fired without cause. Without a union or contract, Illinois assistant state’s attorneys are at-will employees, and that means Laurel likely won’t have a right to notice and a hearing because firing is not limited to for cause. She could claim a right because her reputation is at stake, but the firing seems proper under Illinois law.

 

II. Would a state bar investigation make her unemployable?

In “Tremors,” Laurel refuses to seek help through counseling, and she finds out from her colleague, Joanna, that she’s under investigation by the state bar. It is looking in to her fitness to practice based on her arrest. It’s not clear how much time has passed from her firing, so it’s not clear if this is an initial investigation or if charges have been filed. Joanna’s partner sits on the disciplinary committee of the state bar, and he found out Laurel was under investigation when they thought about hiring her.   This is probably its own violation because if it is not public information yet, then he is revealing confidential information. Joanna says that while the investigation is out there, they can’t hire her. Usually, only the most egregious violations of legal ethics result in disbarment. For other cases, there are suspension and censure punishments. Laurel’s actions may have violated professional rules, but punishment depends on the severity of the violation. If the investigation is beyond the beginning stages, then Laurel will know about it. If she knows about it, then she should tell potential employers. While there is an ongoing investigation, she would likely be unemployable unless the person is a friend doing her a favor or doesn’t care about the bad optics of hiring someone under investigation.   State legal ethics are overseen by the courts, but the process varies.

In California, the state bar court oversees the rules of professional conduct and disciplinary matters. Cal Bus. & Prof. §§ 6076, 6077 (West 2014).   Under the California rules, lawyers face discipline if they “intentionally, recklessly, or repeatedly fail to perform legal services with competence” or commit an “act involving moral turpitude, dishonesty or corruption.” Cal. Rules of Professional Conduct, Rule 3-110; Cal. Bus. & Prof. § 6106. When a lawyer is charged with a crime, the bar must be notified, and it could start its own investigation even when the charges are dropped. Cal. Bus. & Prof. § 6101; California Rules of the State Bar, Title 5, Rule 2402. Any of these might cover what Laurel does in the show. What’s problematic about this situation is that Laurel seems to not know about the investigation. It’s possible that Laurel would not know about it if it’s at the preliminary stage, before she’s been notified. However, the lawyer who is being investigated would eventually be notified when charges are filed, and that would be public information. California Rules of the State Bar, Title 5, Rule 2403; Rule 2604. So, being investigated by the bar and being rendered unemployable rings true, but she would probably know about the investigation.

Washington and Illinois have similar Rules of Professional Conduct. Washington’s misconduct rule says that misconduct includes “commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Washington Rules of Professional Conduct Rule 8.4(b); Illinois Rules of Professional Conduct Rule 8.4(b) (2010). Washington statute provides grounds for disbarment, including “any act involving moral turpitude, dishonesty, or corruption” and “gross incompetency in the practice of the profession.” Wash. Rev. Code Ann. 2.48.220 (West 2014). A criminal conviction is not required to begin disciplinary action. Washington Rules of Professional Conduct Rule 8.4(i). Washington’s rules also have a catchall “engage in conduct demonstrating unfitness to practice law.” Washington Rules of Professional Conduct 8.4 (n). In Illinois, however, the rules drafters clarified that lawyers are “professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” Illinois Rules of Professional Conduct Comment 2 (2010). Laurel could face an investigation for any of these, especially if her arrest was reported to the bar and an investigation began. It’s possible that her arrest, even though the charges were dropped, would reflect adversely on her fitness as an attorney. If she was reported, an investigation would begin.

Washington and Illinois have similar investigation practices. The Washington Disciplinary Counsel investigates complaints against lawyers, and Laurel would have an opportunity to respond during the investigation. Washington Rules for Enforcement of Lawyer Conduct (ELC) 5.3 (a)(b) (2014). In Illinois, it is the Attorney Registration and Disciplinary Commission, which investigates when it receives a complaint and may give the accused an opportunity to respond. IARDC Rule 53. If sent to a hearing, then the attorney would receive notice of the filing of charges. ELC 10.3 (a) (1)(2) (2014); IARDC Rule 55. Complaints are also published on the ARDC’s website, so a potential employer who searched the attorney’s name would be able to find the complaint Like California, the point about being unemployable seems correct, but not knowing seems wrong unless it’s in the very beginning.

Substance abuse is a real problem among lawyers. Most states have Lawyer Assistance Programs to help deal with these problems. The Washington State Bar Association has one, and Illinois law provides one ran by the Supreme Court. 705 Ill. Comp. Stat. Ann. § 235/1. California seems to have a unique program, the Attorney Diversion and Assistance Program. Cal. Bus. & Prof. §§ 6230, 6231. The State Bar can refer the attorney under investigation to this program, but the attorney will be on either inactive status or have practice restrictions, which will be lifted when his time in the program is over. Cal. Bus. & Prof. § 6232.

 

III. Can she get her job back?

In “Birds of Prey,” Donner invites Laurel to prosecute Frank Bertinelli. Laurel mentions the bar investigation is ongoing, but Donner says he has a friend on the committee who can fix it. By saying this, he commits his own ethics violation in Washington and Illinois by “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” Rule 8.4 (e) Given that he was willing to put one criminal on trial in the hopes of getting another criminal to appear, it’s not surprising that he would commit an ethics violation. This is questionable because there is usually more than one person on the committees that hear lawyer complaints. He would need to convince others to vote with him. However, it turns out to be a plot by Donner to catch the Huntress, Frank’s daughter. The Huntress comes, takes hostages in the courthouse, and is eventually captured. In the aftermath, DA Spencer tells Laurel that Donner wasn’t authorized to rehire her, but Laurel manages to keep her job by pointing out that Spencer wouldn’t want the fact that Donner was behind the hostage crisis to get out. Whether this is realistic depends on the rules governing rehiring.

If Starling City is in a state with laws like California and Washington, then this part of the plot would not be realistic unless Laurel had gone through a due process hearing to get her job back after her termination. In San Francisco county, a termination could affect the ability to be rehired. San Francisco County Civil Service Rule 122.1.4. If she were to reapply, she would have to go through the examination process after completing a year of service outside the county, and her appointment would have to be approved by the Human Resources Director. San Francisco County Civil Service Rule 122.3.   Donner would not have the ability to rehire her. If she was properly fired and didn’t challenge it, then she would not be able to be rehired quickly given these rules.

Similarly, in King County, Washington, prosecuting attorneys are subject to a competitive process because they are not career employees. KCC 3.12.090. Laurel would not be able to be rehired unless she either challenged her dismissal or went through the competitive process again. Since the episode shows Donner offering her the job without a competitive process and without a challenge of the dismissal, then getting the job back quickly is not realistic. Depending on who is the appointing authority within the King County prosecuting attorney’s office, Donner may have had the ability to rehire her. But the process wouldn’t be as easy as shown on the show.

On the other hand, if Starling City is in a state like Illinois, then she would be able to get her job back without going through a competitive process because state’s attorneys control their offices. The state’s attorney is in charge of the office and can hire and fire assistants. 55 Ill. Comp. Stat. Ann. § 5/3-9006. However, a bar investigation would be a hindrance because it would reflect poorly on the state’s attorney. Donner said he hired her in the first place, so Laurel might have an argument that he had apparent authority through agency principles to re-hire her. In a state like Illinois, getting rehired quickly is more believable even if unlikely given the investigation.

 

IV. Conclusion

Arrow season 2 looks at Laurel’s professional descent and drug addiction. It skips some steps that would be required if it took place in some states (notice and a hearing before being fired, notice of an investigation, rehiring steps). These could have been mentioned, but not shown, if they were required, depending on state law. The writers may have had to ignore some things and not show them because it is not the main plot. The beauty of not defining which state Arrow takes place in is that the law might not be wrong because state law differs on this topic. In the real world, though, she would probably not be able to get her job back that easily, assuming her firing was proper. If the state bar investigation is beyond the initial phase, Laurel would know about it and would not find out from a colleague. Unless the person hiring her is okay with hiring someone under investigation, then the investigation would render her unemployable. And Donner should not imply that he can fix it with a friend on the committee. As a device to show character growth and continuing corruption in Starling City, it works.

She-Hulk #4

She-Hulk #4 brings up one legal issue and a host of ethical issues.  Minor spoilers ahead, but nothing earth-shattering.

Continue reading

She-Hulk #3

She-Hulk #3 picks right up where issue #2 left off, introducing Jennifer Walters’s second client: Kristoff Vernard, son of Victor von Doom.  Kristoff is seeking political asylum in the United States, and while Walters was his fifteenth choice to represent him, she agrees to take him on as a client.  This issue mentions a lot of details relating to the law of asylum, so I’m going to take a stab at explaining those.  And once again it wouldn’t be She-Hulk without an ethically questionable decision or two!

I. Political Asylum

Walters explains that obtaining asylum requires proving that the asylum seeker has a “well-founded fear of persecution” in their country of origin and that living in the United States is the only way to get away from it.  This is basically accurate.

The well-founded fear of persecution standard is derived from the standard for refugees, 8 U.S.C. § 1101(a)(42):

The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

The “unable or unwilling to return” part is presumably what Walters meant by “living in the United States is the only way to get away from it.”

Of course, that’s merely the standard for refugee status.  Claiming asylum is a little more detailed, requiring four elements described by the Board of Immigration Appeals:

(1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien.

Matter of Mogharrabi, 19 I. & N. Dec. 439, 446 (1987).  Vernard would seem to meet these four factors, and presumably his unwillingness to serve the Latverian government would count as a political opinion.

The next major thing Walters asks about is how long Vernard has been in the US.  It turns out he has been in the US for exactly one year, which sends Walters racing to get to the courthouse.  Again this is correct.  There is a hard one year limit on asylum claims. 8 U.S.C. § 1158(a)(2)(B).

Walters exaggerates a little when she says there isn’t a judge in the world that will stay past five.  There are often judges or at least magistrates on call for late-night search warrants and other time-sensitive court business, but this doesn’t fall under any of those circumstances.

When Walters and Vernard finally make it to the court, the judge asks whether there is an I-589 on file or an EOIR-28.  The first is an application for asylum.  The second is a notice of entry of appearance as an attorney, which would need to be filed before Walters could represent Vernard before the New York City Immigration Court, which is indeed located at 26 Federal Plaza as described in the first page of the comic.

Curiously (to me), Walters argues that Vernard is eligible for asylum because he is being persecuted because of membership in a particular social class, namely the Latverian royal family.  It is true that a family can qualify as a particular social class.  Gebremichael v. I.N.S., 10 F.3d 28 (1st Cir. 1993).  But Vernard isn’t being persecuted simply because he’s a member of the Latverian royal family; indeed his membership in the royal family affords him numerous privileges and protections.  Rather, it is his refusal to follow the government’s policy of succession that is the source of the fear of persecution.  If, for example, Vernard were a member of the royal family but not heir to the throne he wouldn’t have a well-founded fear of persecution.  But I won’t quibble about that too much: Vernard still had a good claim based on political opinions, and membership in the royal family is a little easier to explain.

II. The Duty of Confidentiality and the Attorney-Client Privilege

Once again it wouldn’t be She-Hulk without a casual ethical lapse.  Rather than conduct Vernard’s intake interview at her office, Walters takes him to a coffee shop, where they discuss the case in the crowded shop and outside with several people nearby.  Nothing they discuss is an important secret (it’s not as if they’re discussing where he hid the body or something), but it is nonetheless a potential violation of the duty of confidentiality.

Attorneys owe a duty of confidentiality to their clients.  In New York this duty is described by Rule 1.6:

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule …

“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege

But information cannot be protected by the privilege if the lawyer discusses confidential information with the client in a non-confidential setting.  This can include communicating in the presence of third parties.  See, e.g., People v. Harris, 57 N.Y.2d 335 (1982) (speaking to a lawyer in the presence of a police officer and another person); Bower v. Weisman, 669 F.Supp. 602 (S.D.N.Y. 1987) (talking in an elevator).  If the communication is never really confidential then the privilege doesn’t exist.

Now, there’s no ethical problem if the client voluntarily disregards confidentiality, but in this case Walters was the one to (firmly) request conducting the interview in public.  Vernard may have reasonably believed that the conversation would be protected, since his (prospective) attorney was the one to suggest the idea.

Again, we don’t see Walters or Vernard discuss anything terribly secret or damaging in public, but it’s a bad practice to discuss a case with a client in public.

She-Hulk #2

Today’s post is a short one based on the second issue of Charles Soule’s run of She-Hulk.  Soule continues to do great work, though this issue doesn’t have quite as many legal issues to discuss.  A big one is revealed at the end of the issue, but I don’t want to spoil it.  Instead I’m going to talk about attorneys and non-compete agreements.

When Jennifer Walters left her job with the firm of Paine & Luckberg, she was told that all of her outstanding cases would be assigned to other associates, except for “the blue file.”  As a partner explains, “we took that case as a courtesy to you.  If you go, it goes too.”  We learn a little more about the mysterious blue file in issue #2, but not enough to discuss yet.  What we do see in issue #2 is Walters trying (and failing) to drum up business from clients for whom she did work while she was at Paine & Luckberg.  But wait: is it legal for an attorney to attempt to poach clients from her former employer?  Perhaps surprisingly, the answer is yes.

Non-competition and non-solicitation agreements are a common feature of many employment contracts, especially in industries that are dependent on sales relationships with specific customers or which involve employees learning a lot of not-quite-trade-secrets-but-still-important information.  The specifics vary from industry to industry, employer to employer, employee to employee, and (most importantly) state to state, but basically they seek to prohibit the employee from competing with the employer for a certain amount of time after the employment relationship is terminated.  This can include working for a competitor, working in the same industry, or trying to solicit the employer’s clients.  A few states basically ban the practice outright, and those that allow it do so with significant restrictions.  This usually takes the form of limitations on the geographic, temporal, and industry scope of such agreements.

For example, an employee might be forbidden from working in the same (relatively narrowly defined) industry, for a year or two, within the same city.  This means the employee could find similar work in another part of the country, or work in a related but distinct field, or just wait it out.

New York, where She-Hulk works, is a state that allows such restrictive covenants, but only to the extent that they are reasonable and necessary to protect valid business interests.  The general rule is that they are allowed if they are “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.”  BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89 (1999).  But there is a special rule for attorneys.

In every state that I am aware of (including New York) there is an ethical rule similar to ABA Model Rule 5.6, which states:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement;

The justification for the rule is found in the comments, which state that

An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.

One might observe that this is equally true of every other profession and its clients, but there is not necessarily any hypocrisy here.  Remember that this is an ethical rule created by the legal profession, not an exception to the law.  Without this rule it is entirely possible that law firms could impose non-compete agreements on their employees and partners, although one could imagine a court carving out an exception for criminal defendants on the basis of the Sixth Amendment right to counsel.

The bottom line is that, although the firm intended to keep its clients, Walters was almost certainly free to try to poach them.

She-Hulk #1

Marvel has started a new run of She-Hulk, written by practicing attorney Charles Soule.  In contrast to the somewhat further ranging series written by Dan Slott, this volume promises to focus somewhat more closely on Jennifer Walters’s day job.  So has Soule’s considerable legal experience allowed him to blend interesting stories and accurate legal detail?  Let’s take a look.

(Spoilers ahead: if you haven’t checked out the first issue (which is pretty good), go buy it.)

Continue reading

Law and the Multiverse Online CLE Programs

For many attorneys it will soon be annual CLE reporting season.  If you need CLE credits, we may be able to help.  We have partnered with Thomson West in the past to produce four online, on-demand programs with CLE credit available in most states:

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.

ABA Litigation Section Roundtable

On Tuesday, March 19th I will be speaking at an ABA Section of Litigation Roundtable, presented by the Business Torts Committee and co-sponsored by the Young Advocates Committee.  The Roundtable will be available via teleconference from 12pm-12:50pm Central / 1pm-1:50pm Eastern and also live here in St. Louis at the St. Louis University Law School, room 303.  Click here to register for the teleconference.  If you would like to attend in person, please RSVP to laura.mclaughlin@logan.edu.

The roundtable topic will be superhero attorney ethics, but since this is not a CLE presentation, the conversation will not necessarily be limited to that subject.  I hope you can attend!

The Money Pit

The Money Pit is a 1986 film directed by Richard Benjamin and starring Tom Hanks and Shelley Long. Hanks plays Walter Fielding, a young New York entertainment lawyer, who with his girlfriend Anna (Long) are forced to find a new place to live on short notice when Anna’s ex-husband returns from Europe, tossing them out of his apartment, where they had been living. They discover what appears to be a lucky break in the form of a stately old mansion which is being forcibly sold to pay for legal fees.

Walter is himself in fairly hot water when the movie begins. Sometime prior to the events of the film, his father, a former partner in what seems to have been a father-and-son law practice, absconded with $2.9 million in client funds. It’s not clear precisely how this was done, but the substance of it seems to be that he made off with the firm’s trust account. Walter is left paying the bill.

To secure the sale of the house, Walter borrows $200,000 from a client. The client happens to be a minor and a stupidly successful pop star, so he can afford it.

So the questions here are (1) whether Walter really would be left to pay his father’s debts, and (2) whether it’s legal and ethical to borrow money from a client under those circumstances. Continue reading

Castle: “Probable Cause”

There are a lot of spoilers in this one, so we’ll cover the setup inside. But the issue we’re looking at here is the nature of the criminal offense of escape and its potential sentence under New York Penal Law Continue reading

Daredevil: Redemption

Over on our Facebook page we got a request from Obidike to take a look at Daredevil: Redemption, a six issue series from 2005, also available in trade paperback:

Have you guys read David Hines’ Daredevil: Redemption? I met the author and he claims that a lawyer in the US claims he was spot on with the legal stuff in the story? Do you agree?

There are several legal issues in the story, but we’re going to focus on just a couple of the more overt ones.  There are a few minor spoilers ahead, but nothing too serious.  For those who haven’t read it, the basic setup of the story is that Murdock is hired to represent a teenager accused of murder in the (fictional) town of Redemption, Alabama.  Almost all of the action occurs in that small town,  Daredevil makes only a few appearances, and there are no other superheroes or supervillains.  The story gives up the broad strokes of capes and superpowers in favor of a well-told human drama.  It’s a pretty good read, and we recommend picking up a copy.

I. Pro Hac Vice

You may already be asking yourself “waitaminute: how can Murdock practice law in Alabama.  Isn’t he from New York?”  It’s true that the legal profession is regulated by the states, and ordinarily one must be licensed in a state in order to practice there.  However, in some cases, an attorney may be given special permission by a court to practice out of state.  This is called appearing pro hac vice and is typically done for one-off cases or in cases where the attorney has a history of representing the client in their home state and now needs to represent them in a different state.

The way this is described in the comic is quite accurate.  The local attorney says:

Here’s the situation. The judge has allowed for you to work in the state of Alabama under pro hac vice.  He wasn’t too happy, but you have a good rep and, with the press watching this one, he didn’t want anyone calling bias.  Under state regulation, I sign all the paperwork, I sit beside you in court, but otherwise it’s your case.

That’s pretty much how it works in the real world.  Local counsel can do more than just sign papers and sit in court, though.  Sometimes they are active parts of the legal team, and often they are valuable sources of information on local rules, unstated court customs, and the personalities of judges and court staff.  But fundamentally they are there to make sure that the out-of-state attorneys don’t screw up.

As a side note: what matters is where the attorney is physically located when he or she does the work, not where the client is.  If Murdock had stayed in New York and simply consulted over the phone or by email, he wouldn’t have needed to be admitted pro hac vice.  It wouldn’t matter that he would be advising a client about Alabama law, either.  Alabama doesn’t care what lawyers in New York do, and New York doesn’t care where the client is, only that the attorney in New York is licensed in New York.

II. The Guilty Client and the Not Guilty Plea

As Murdock often does, he asks his (prospective) client whether he committed the crime.  The client says, “Let’s say I am.  You have to defend me even if I say I killed the kid, right?”  Murdock responds:

Wrong.  My professional code of ethics would not allow me to enter a plea of not guilty on your behalf if you tell me you are guilty.  That information would be protected by the rules of client confidentiality, but I would be obliged to withdraw from representing you.

There are a couple of issues here.  First the good news: Murdock is correct that the confession would be confidential.  Now the bad news: there is nothing in the New York or Alabama Rules of Professional Conduct that would prevent an attorney—knowing his or her client is factually guilty of a crime—from entering a plea of not guilty on behalf of the client (although actually it’s the client who states the plea in most cases).

As you probably know, in the United States criminal defendants are presumed innocent until proven guilty.  The plea of “not guilty” is necessary in order to force the state to prove its case.  It’s not a claim of innocence made under oath.  Someone who pleads not guilty and is proven guilty is not also guilty of perjury, for example.  As Robert F. Cochran, Jr. explained:

But, of course, courts do not treat the plea inquiry seriously. Courts expect criminal defendants to plead “not guilty,” irrespective of their guilt. They have avoided what would likely be a constitutional problem by giving defendants what might be called a “right to lie” at the plea inquiry.

“How Do You Plead, Guilty or Not Guilty?”: Does the Plea Inquiry Violate the Defendant’s Right to Silence?, 26 Cardozo L. Rev. 1409, 1433 (2005).  Cochran describes several rationales for this right to lie, including one by Jack Sammons:

[In a criminal trial] there is only one truth which concerns us, and that is the truth of the government’s case. No other truth matters. We permit the defendant the dishonesty of the not guilty plea, and of the questioning of what he knows to be the truth, and, in doing so, we destroy the dishonesty of the plea and of the questioning. . . . It is not dishonest to lie to others when society removes the expectation of the truth for its own moral purposes . . . . [W]hen [the defendant] lies or [defense counsel lies] for him, to put the government to the test by a plea of not guilty or a questioning of what he knows to be the truth, that is not lying at all because only one truth matters—the truth of the government’s case.

In any case, there are many reasons why a client “admitting guilt” to his or her attorney is not the same as the client being legally guilty.  Legal guilt requires that the state prove its case, which doesn’t always happen even when the client is factually guilty.  And the client could be confused, insane, have a faulty memory, or be lying to his or her attorney in order to protect someone else.  So there is no reason for the attorney to feel ethically compelled not to allow the client to enter a plea of not guilty even if the client confesses to the attorney.

III. Perjury

Now, what a lawyer can’t do is knowingly assist a client in committing perjury.  This usually isn’t a problem in a criminal case, since most criminal defendants don’t take the stand.  But if they do (and that’s ultimately the client’s choice, not the attorney’s), the attorney can’t ask questions knowing that the client is going to lie.  There are a few approaches here:

1. The attorney can withdraw.  This is difficult to do in the middle of a trial, but it’s usually not necessary because of option 2.

2. The attorney can simply invite the client to give an open-ended narrative.  For example: “Tell us what you remember from that night.”  Usually this story will get destroyed on cross-examination, but that’s why criminal defense attorneys usually advise their clients not to take the stand.  This approach is approved by Model Rule 3.3 and its New York and Alabama equivalents.

3. In some states the attorney can let the client perjure themselves and then inform the court of the perjury.  Obviously this is not a very satisfying approach for the attorney or the client.

4. Some commentators, such as Monroe Freedman, have argued that the attorney should simply question the client in the usual way, perjury or no.   Freedman would say that the attorney can’t coach the client on how to lie most persuasively or rehearse the false testimony, but there’s no need to dance around the issue with open-ended narrative questions, either.  This is a controversial position, to say the least.  See, e.g, Stephen Gillers, Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law, 34 Hofstra L. Rev. 821 (2006).  It is also universally rejected by ethical codes in the US, but I include it for completeness.

IV. Conclusion

The rest of the book is pretty accurate, and it actually hits a lot of key points regarding withdrawing a confession and cross-examining witnesses.  The one major error is irrelevant to the plot anyway.  It’s always nice to see a book that gets the legal details right and also tells a good story.