Mitch

Free Legal Advice-- Lots of it, too.

NOTE--This is a really, really long post

For someone who claims to be running a show about moral dilemmas, here was a call about one of the most heartbreaking moral dilemmas a lawyer can face, and DL messed it up beyond measure. To recap, the caller was an attorney handling a political asylum immigration case pro bono, as in free of charge. According to the caller, the hearing in front of (what I presume was, I'm not an immigration lawyer) the INS was in three days and the attorney learned through a third party that her client had been working in the U.S. illegally since she came here. Accordingly (and again, I don't do immigration law, so I'm taking the caller's word on this) the client's case was very strong, and there was a high likelihood that the client, if she were to be deported back to her homeland, would be gang raped and killed. (She didn't say what country it was). The attorney was concerned that if the client answered the employment question truthfully, i.e. if she acknowledged she had been working illegally in the U.S., the INS would reject her claim for political asylum and she'd be deported. If the client lied (I presume that the client had told the attorney that she had not worked in the U.S.) the attorney was concerned that she would be allowing perjured testimony to be presented, and would be committing an ethics violation.

I was hoping to find a link to the American Bar Association's Standards on Professional Responsibility, but the only one I could find is a link to purchasing their annotated copy of the Rules, so I'm going to use Pennsylvania's Rules of Professional Conduct (the state I practice in) as a guide.

REALLY, REALLY, REALLY BIG DISCLAIMER---different states use different versions of the ABA Rules, and there is not total uniformity here. TJ, feel free to chime in if CA differs substantially. You too, Miranda.

PA's Rules of Professional Conduct, to the extent they are relevant, state as follows:

RULE 1.16 DECLINING OR TERMINATING REPRESENTATION

a) Except as stated in paragraph (c), a lawyer SHALL NOT [my emphasis] represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

1) the representation will result in violation of the rules of professional conduct or other law;

[other sections not relevant deleted]

(b) Except as stated in paragraph (c), a lawyer MAY [my emphasis] withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if;

1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

2) the client has used the lawyer's services to perpetrate a crime or a fraud;

[other sections not relevant deleted]

6) other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

RULE 1.6 CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b) A lawyer SHALL [my emphasis] reveal such information if necessary to comply with the duties stated in Rule 3.3.

1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;

2) to prevent or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used;

[other sections not relevant deleted]

(d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.

RULE 3.3 CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

1) Make a false statement of MATERIAL FACT [my emphasis] or law to the tribunal:

2) fail to disclose a MATERIAL FACT [my emphasis] to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

4) OFFER EVIDENCE THAT THE LAWYER KNOWS TO BE FALSE [my emphasis]. If a lawyer has offered material evidence and COMES TO KNOW OF ITS FALSITY [my emphasis], the lawyer shall take REASONABLE REMEDIAL MEASURES [my emphasis].

(b) The duties stated in paragraph (a) continue to the conclusion of the proceding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

RULE 1.2 SCOPE OF REPRESENTATION

[other non-relevant sections deleted]

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a GOOD FAITH EFFORT [my emphasis] to determine the validity, scope, meaning or application of the law.

This caller indicated, as stated, that she found out from another source (not the client) that the client was working illegally in this country.

DL stated that "If I were in you position, I would find some way to circumvent that" (meaning the rule that working in this country meant deportation). "File suit against that ruling, say it's unconstitutional, you just spent six months in court." At that point, DL terminated the call and went to a commercial.

DL did state, on several occasions in this call, that she wasn't a lawyer, and was at a disadvantage vis-a-vis the caller, but it did not take a legal ethics expert to figure out the very basic moral dilemma the caller posed, that being should the attorney allow the client to lie, and be party to that lie, if disclosing the truth to the INS would result in sending the client back to grave physical harm and possible death (I don't think that the lawyer was analyzing the situation correctly, and I think there was a way out per the rules I've quoted, and I'll get to that in a moment, but for now, I'm assuming DL's lay understanding of the situation would have been the same as the attorney-caller's perspective.

What DL basically advised the caller to do (a caller that stated "I think I could live with myself if I condoned this small lie, but not if she were sent back and gang raped and killed.") is neither make a choice to present the false evidence nor to make a choice to refuse to present the false evidence and notify the court of the untrue testimony, but to come up with a bogus challenge to the immigration law that requires an answer to this question. In other words, to a genuine moral dilemma, DL's response is--don't decide at all, and then cut to a commercial break as quickly as you can to dump the caller.

Bear in mind the caller (and again, I'm no immigration expert, so I'm taking the caller's word on this) was very clear that this is settled law. There was no ambiguity in the attorney's statements that this was a well-established standard. Essentially, what DL did was two things that I find extremely objectionable and revealing about her:

a) In urging the attorney to file some sort of challenge to the law governing working in this country, DL basically urged the attorney to file a frivolous claim to win the case. Leaving aside the fact that this probably wouldn't work, and would bring the lawyer periously close to acting in contravention of 1.2 (d), which allows good-faith challenges of existing law only, it betrays DL's whole attitude towards litigation in general, an attitude that the Beach Access case demonstrates pretty clearly, which is that frivolous claims are always OK to file when you believe you are morally right.

b) Despite her claims that she represents the voice of moral authority, when presented with a gravely serious moral dilemma, she has neither the guts nor the intellectual chops to come up with anything other than a gutless answer and a quick cutaway to a commercial. The whole issue of her credentials to do this show come into play here. I don't expect DL to have the ABA rules at her fingertips, but I expect her to recognize a moral dilemma when she sees on and have the courage to tackle it head on. Rather than tell this attorney either to allow the lie for the sake of the higher morality of protecting the client's life, or to refuse to shield the client to protect the higher morality of the integrity of the judicial system, she dodges the question entirely. It is a shockingly gutless response.

OK, so what should the lawyer have done? IMO, there are several questions that the lawyer needs to focus on:

a) Is this a material fact?

b) Does she "know" that her client is committing perjury?

Rule 3.3 is important in determining the answer to these questions, and by extension, whether the lawyer must disclose or withdraw from the case. Simply finding out that someone is contradicting your client does not mean that your know that your client is committing perjury. (Lots of evidence contradicts clients all the time). If a client leaves no doubt that they are going to perjure themselves on a material point, and the case does not involve representation of a criminal defendant, the answer is clear, that the attorney cannot be a party to the perjury. If the client simply disagrees with the contradictory evidence (saying to the attorney, in effect, that report that I worked illegally just isn't true), then the attorney may present the client's testimony even if he or she has doubts about its accuracy or veracity. The other point is whether this would be considered a material fact under immigration law. I can't answer that, but it sounds like the caller's comments would suggest that it is. Nonetheless, it's an area I'd research carefully, as if there is a good-faith argument to be made that it' s not, then the whole issue of whether perjury is happening or not need not even be addressed.

These areas are extremely tricky, and as I said, I don't hold DL responsible for not knowing them. But I do hold her responsible for not knowing a moral dilemma when she sees one, and not having the courage to deal with it head on. ~Mitch