The Truth, the Whole Truth and Nothing but the Truth Well Not Exactly. Trial Attorney Ethical Problems
| Citation | Vol. 27 No. 2 Pg. 0024 |
| Pages | 0024 |
| Publication year | 2021 |
The Truth, the Whole Truth and Nothing But the Truth—Well . . . Not Exactly. Trial Attorney Ethical Problems
We posed 10 dilemmas that confront criminal defense attorneys to a blue-ribbon panel of the smartest prosecutors, judges, criminal defense attorneys, and law professors. We asked them to tell us the correct way to resolve 10 problems, hoping our panel would give us the answers once and for all. Instead, none of them agreed on anything.
BY DON SAMUEL AND AMANDA R. CLARK PALMER
We learned in law school that legal ethics questions often have no right answers, but often some very bad answers. The rules that govern our behavior are silent on some of the more difficult (and recurring) problems that confront criminal defense attorneys; different rules also point in opposite directions to solve some problems; and the rules often are inconsistent with intuitive notions of morality.
We are implored to zealously represent our client by Georgia Rules of Professional Conduct (hereinafter "Rule") 1.3 [1], but be fair to the opposing party, Rule 3.4. We are required to always exhibit candor with the court, see Rule 3.3 (a) (2) and (4); however, omitting to tell the court information that is unfavorable to the client is not only permissible but mandatory (Rule 1.6). Calculating how to balance these different principles is like trying to gauge whether a rock is heavier than a tree is tall.
We are often confronted with situations that require us to make decisions—sometimes quickly—but there is no Mercks Manual to consult, or a checklist like astronauts have in case of a sudden unexpected event. We can look at the Rules, yet one rule commands that we "go east" while another directs us to "go west." We are itinerant, if not fickle, in our commitment to one goal or another.
Most of us have learned that there are lawyers in our midst who will provide (with a learned tone of voice) a suggested course of conduct, perhaps a senior member of the firm, or a favorite former professor; but if you have more than one mentor, the odds are that you will get two different suggestions. (One of our favorite "go to" mentors once reported to us that when he delivers an ethics lecture at CLE seminars, the State Bar directs that audience members actually lose an hour of ethics credit). If you read Monroe Freedman and Abbe Smith, you reach one conclusion; consult Geoffrey Hazard's writings, you receive contrary advice; yet a third recommendation comes from The Restatement (Third) of the Law Governing Lawyers; and a fourth from the ABA Criminal Justice Standards.
Many problems require us to decide—according to the Rules—what it means to "know" something. Whether we "know" some fact governs many of our ethical obligations. Do we know the truth about some event, thus limiting our right to introduce evidence or answer a judge's question in a way that is contrary to that version of the event? Is the truth that we know determined only by what we can see, smell, touch, taste or hear? If we are told something by a reliable source, is that sufficient to know it? What if our unreliable client tells us something—can we ever know what he tells us is true? If a client says she did not rob the bank, is it safe to assume that all evidence pointing to her innocence is truthful? What if she tells us that she did rob the bank? Is that "admission against interest" so reliable that we then know that any information inconsistent with that fact is a lie? Even if we leave these epistemological questions aside, at what point is our tentative belief regarding certain facts sufficiently uncertain that it does not forbid a course of conduct that is inconsistent with that belief? See Rule 1.0 (a) and (m). To what extent can we gerrymander the information we have gathered and decide, "I really do not know."
Uneasy about the right answers to these questions, we decided to ask our colleagues for their reaction to certain recurring ethical problems. Surely, they would unriddle the problems uniformly and point us to the north star. Almost all of the following questions have been posed to us by a younger lawyer at one time or another and many of these problems—a majority—have arisen in our practice. We wanted to find the answer. Thus, we surveyed law professors, prosecutors, defense lawyers and judges, all of whom are experienced in the criminal justice system and all of whom have been practicing more than a decade. Surely they would know the answers to these vexatious problems.
Alas, we were better off before we launched this investigation. The defense lawyers did not agree with one another. The prosecutors did not agree with one another; same with the law professors. They all disagreed with each other on many of the issues. Some prosecutors agreed with some defense lawyers on some questions, but not others.
One law professor agreed with many of the answers by some of the prosecutors. Another law professor agreed with the opposite opinion voiced by defense lawyers on the same questions. The law professors disagreed with each other (one law professor threw up his hands on one question and wailed, "I just don't know"— regrettably that answer is not an option for a lawyer confronting the problem).
Federal judges disagreed with each other and with their colleagues on the state court bench. One surprising fact, in light of the disparate survey results, was that all five judges seemed relatively nonchalant about receiving inaccurate information from a criminal defense lawyer, while many of the lawyers believed that the inaccuracy had to be corrected (see questions #9 and #10. The three law professors could not agree on even half of the questions and in one instance provided three diametrically opposed answers (#4).
So if you were hoping to get the answers for how to handle these tricky ethical situations you can just stop reading right now. There are not only no right answers, there are also no gurus and no reliable mentors from whom we can seek guidance. We remain bedeviled. But we want to share our bedevilment. For the trial lawyers, one way to be thankful for this result is to know that, no matter what you decide to do, you can find somebody who will say, "that's perfectly OK."
There are 10 questions included in our survey with the results from our 21 respondents for each question. We guaranteed the respondents that they would remain anonymous, though we would reveal the occupation of each respondent. Every lawyer and judge who responded is experienced in his or her respective role. There are two judges on the federal bench, and three from the Superior Court. The same is true with the prosecutors: federal and state, and all occupy supervisory positions in their respective offices. The defense lawyers are among the best known criminal defense lawyers in the state, all of whom have been practicing more than 15 years (and, as far as we could determine, they have escaped any Bar sanctions during their careers). The law professors are from Georgia State University School of Law, the University of Georgia College of Law and Atlanta's John Marshall Law School.
Question 1
A witness expresses certainty to you that the defendant was not at the scene of the crime at noon on June 1. This alibi witness is very important to your defense of the defendant. You suspect that the witness is mistaken, but she is not knowingly mistaken. Can you put the witness on the stand to provide the...
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