"Criminal lawyers" or "lawyer criminals"? Ethics of criminal defense bar under attack.

• Author: McSorley, Joseph F.

If conduct will not pass srutiny by those judges and/or colleagues whose rectitude and integrity we value the most, then it should be seriously re-examined.

A stranger approached a farmer and the following conversation ensued:

Stranger: Do you have any criminal lawyers around here?

Farmer: We think so, but we just haven't been able to prove it yet.

This apocryphal encounter epitomizes that for those to whom "legal ethics" is an oxymoron, there is no difference between "criminal lawyers" and "lawyer criminals." As exemplified by the stranger-farmer parable, the all-too-familiar denigration of lawyers by the public has unfortunately spilled over into certain segments of the bar itself, pitting private practitioners, and especially criminal defense lawyers, against prosecutors.

There is a great deal of consternation in the ranks of the criminal defense bar that its members are being singled out unfairly for investigation and prosecution.(1) This concern is understandable when viewed from the perspective of the large number of attorneys who have been indicted, prosecuted, and convicted (either by plea or trial) in the recent past.(2) These convictions have included murder-for-hire, political corruption, obstruction of justice, judicial corruption, tax evasion, and drug offenses.

It is alarming that so many members of the bench and bar have ended up on the wrong side of courtrooms throughout the United States. But interspersed with convictions (which validate the public perception that far too many lawyers are crooks) have been noteworthy acquittals (which validate the defense bar's suspicion that prosecutors sometimes are too quick to jump to conclusions). See, e.g., United States v. Brown, 79 F.3d 1550 (11th Cir. 1996) (lawyer-president of real estate development company's conviction for conspiring to defraud home buyers overturned because of insufficient evidence that conduct was criminal); U.S. v. Kelly, 888 F.2d 732 (11th Cir. 1989) (reversed conviction of criminal defense attorney for conspiracy to possess with intent to distribute cocaine and aiding and abetting cocaine distribution where allegation was that lawyer knew about cocaine one client was holding for another client and by refusing to help in transferring drug out of client's possession, lawyer criminally aided and abetted client's continued possession).

The skirmishing and jousting between prosecutors and criminal defense counsel, which usually is a healthy outgrowth of competitive rivalry, has taken a nasty turn in recent years. The enmity that seems to exist between some members of the defense bar and prosecutors is manifested in the following reported comments:

* "You're a two-faced hypocritical bastard just like the rest [of the defense bar]."(3)

* "The U.S. attorneys who prosecute your clients are young scumheads."

* "Most of the judges who hear our cases are disgusting pieces of s--."(4)

Venomous, ad hominem attacks conducted publicly evidence the rancor permeating the relationship between defense counsel and prosecutors and ignore the fact that gratuitous insults demean the profession as well as the speaker/author. The Bar condemns such verbal excess. The Guidelines for Professional Conduct of The Florida Bar Trial Lawyers Section (1995) notes, "[A] lawyer should avoid disparaging personal remarks or acrimony toward opposing counsel." The Standards of Professional Courtesy of the Palm Beach County Bar Association (1990) reads, "Attorneys should refrain from criticizing or denigrating the courts, [and] opposing counsel.... before the public or the media, as it brings dishonor to our profession."

It is against this backdrop that two courtroom dramas involving lawyer defendants were simultaneously played out recently. Each trial involved criminal charges against lawyers alleging that they crossed the line separating legitimate lawyerly conduct from prosecutable misconduct.

Standing trial in a Miami courtroom were a former federal prosecutor once in charge of the Department of Justice's Office of International Affairs and a prominent Miami criminal defense attorney.(5)

The allegations included soliciting phony affidavits from apprehended drug smugglers to exonerate suspected cartel leaders, paying bribes, and conveying threats to jailed conspirators to discourage their cooperation with federal authorities. These lawyers were indicted with approximately 75 others in 1995 as part of Operation Cornerstone, an investigation into the suspected money laundering of drug proceeds involving alleged members of the Cali cartel. Four other attorneys entered guilty pleas and some testified as government witnesses. Two of the four were former federal prosecutors.

After a multi-month trial, a jury returned its verdict in October 1997 acquitting the two lawyer defendants on a racketeering charge and hanging on remaining conspiracy and money laundering charges. A major battleground in the trial was whether the attorneys were merely fulfilling their legitimate lawyerly duties for clients or intentionally and knowingly perverting their status as lawyers by providing legal assistance to cartel members to further the objectives of an international drug conspiracy. The government is weighing plans to retry the pair.

In the second case, a federal jury in West Palm Beach convicted an attorney who was accused of embezzling millions of dollars from his wealthy Irish client by creating false bank documents and filing false tax returns.(6) In an interesting twist, the conviction occurred despite the...