ethics blues - primerusharold arlen and ted koehler george and ira gershwin jean schwartz, sam m....

ProEthi

cs gratefully acknowledges the following composers and lyricists

whose classic compositions were the inspiration for this

legal ethics seminar:

Ethics Blues

Richard Rodgers and Lorenz Hart

Harold Arlen and Ted Koehler

George and Ira Gershwin Jean Schwartz, Sam M.

Lewis & Joe Young Joseph McCarthy and

Jimmy Monaco

A Musical Interactive Legal Ethics Seminar Developed by Jack Marshall And ProEthics, Ltd. For The International Society f Primerus Law Firms October 23, 2008 Colorado Springs, CO
Blues

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ProEthics, Ltd.

gratefully acknowledges the following composers and lyricists

who were the inspiration for this

legal ethics seminar:

Richard Rodgers & Lorenz Hart

Harold Arlen & Ted Koehler

George and Ira Gershwin

Jean Schwartz, Sam Lewis &

Joe Young

© 2008 Jack Marshall/ProEthics, Ltd.

Joseph McCarthy & Jimmy Monaco

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Ethics Blues

A Musical Interactive Legal Ethics Seminar

Developed by Jack Marshall and ProEthics, Ltd. For

The International Society of Primerus Law Firms October 23, 2008

Colorado Springs. CO

These materials are presented with the understanding that ProEthics, the facilitator, and the International Society of Primerus Law Firms (“Primerus)” render no legal or other professional services. Due to the rapidly changing nature of

the law, information contained in this publication may become outdated over time, and as a result, any individual using these materials and the information presented must always research original sources of authority when acting

on issues addressed herein. In no event will Primerus, the facilitator, or ProEthics be liable for any direct or consequential damages resulting from the use of these materials or the information contained in the seminar.

© 2008 Jack Marshall & ProEthics, Ltd. All Rights Reserved

For information about ProEthics and its various ethics seminars, materials and consulting services,

please contact: ProEthics, Ltd.

2707 Westminster Place Alexandria, VA 22305

703-548-5229 – 703-548-3754 www.proethics.com

www.ethicsscoreboard.com


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Jack Marshall is the President and founder of ProEthics, and the primary writer and editor of The Ethics Scoreboard 1 . He has taken the experience gleaned from a diverse career in law, public policy, academia and theater, and applied it to the field of legal, business and organizational ethics. He has developed more than 110 programs for bar associations, law firms, Fortune 500 companies, and non-profit organizations, and is an adjunct professor of legal ethics at the American University School of Law in Washington, DC. Recently, he co-edited The Essential Words and Writing of Clarence Darrow with historian and Pulitzer Prize winner Edward Larson, published in June by Random House.

A graduate of Harvard College and Georgetown University Law Center, he practiced criminal law in Massachusetts and organization law in the District of Columbia, and led non-profit organizations devoted to education, public policy research, and health. Marshall's commentary on topics ranging from leadership to ethics to popular culture have appeared in both specialty and national periodicals, and his ethics analysis has been featured on a wide variety of talk shows, from the Montel Williams Show to the Neil Cavuto News Hour to PBS's “Religion and Ethics Weekly” and NPR.

He is also an award-winning stage director, and is the artistic director for The American Century Theater, a professional non-profit theater company dedicated to producing classic American plays. He lives in Alexandria, Virginia with his wife and business partner, Grace Marshall, their son Grant, and their Jack Russell Terrier, Rugby. Like many who are interested in the nature of good, evil, justice, and chaos, Marshall is a lifetime fan of the Boston Red Sox.

1 www.ethicsscoreboard.com


Your Facilitator Jack Marshall, Esq.

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ProEthics is fortunate to have access to the talents of 22 professional actors, singers and musicians who frequently add drama, comedy and song to its ethics seminars. Today’s featured performers are… Jacqueline Manger: Vocal Artist Jacqueline trained as an actress and director at the Playwright’s Horizons Professional Program in New York City and is a professional actress with film, commercial and New York, regional and national touring theater credits. In 1998, she began a long affiliation with The American Century Theater, an award winning professional theater serving greater Metro D.C. audiences, where for four years she was the Associate Artistic Director. She won critical praise as Moll in the Helen Hayes nominated musical The Cradle Will Rock and as Constance in Dear World, and played Sylvia in Danny & Sylvia, the inaugural mainstage theater production at the BlackRock Center for the Arts in Montgomery County, MD. Alvin Smithson: Pianist Alvin Smithson is an accomplished pianist and composer who works in Northern Virginia and Washington, D.C. Most recently he was the pianist for the professional revival of the 1938 Broadway hit, Hellzapoppin. He also provided the musical accompaniment for the Helen Hayes nominated musical The Cradle Will Rock, and accompanied Ms. Manger’s solos in both that production and Danny and Sylvia in Germantown, Maryland. Currently he is composing the score of a new musical based on the relationship between Sally Hemmings and Thomas Jefferson. Alvin was also the pianist for two previous ProEthics musical CLE programs for VACLE: the Broadway musical parodies, The Sound of E h cs and The Ethics Man. t i


Guest Artists: The Ethical Arts Players

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1. Introduction 2. Song: “I’ll Keep Your Secrets” (Discussion) 3. Song: “Isn’t It Disloyal?” (Discussion) 4 Song: “Metadata” (Discussion) 5. Song: “How Long Has This Been Going On?” (Ethics Blues Parody) (Discussion) 6. Song: “The Lawyer Is a Creep” (Discussion) 7. Song: “ You Let Me Squash You…” (Discussion) 8. Finale: “Sing Your Legal Practice to an Ethics Melody” (Discussion) 9. The End Supplementary Materials


Today’s Schedule

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© 2008 Jack Marshall/ProEth

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1. Introductio

p your secrets: well, most of your secrets rain or come shine!

me you call me, or dead for a decade rain or come shine!

when I met you eld some of these things… ions that can get you t

you spill the wrong beans, if I let you!

gonna tell me, like nobody’s told me rain or come shine! ing in court or defrauding investors ay cross the line!

ics, Ltd.

2. “I’ll Keep our Secrets”

A ProEthics parody to the melody of “Come Rain or Come Shine”

by Harold Arlen and Johnny Mercer

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The Rules let my loyalty quiver Sometimes I can sell you up river But I’ll keep your secrets I’ll keep them rain or shine! Maybe I should ask you If you might shoot your ex-wife! But then it would task you If your answer is yes, I’ll unmask you! You’ve gotta tell me all things you can tell me Come rain or come shine; But if you defrauded the court and succeeded Then that won’t be fine… The Rules say that’s time for revealing But what if there’s no appealing? Still, I’ll keep your secrets


I’ll keep them rain or shine!

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1. He says that he wishes he was dead, but don’t do

anything about it until he kills his wife first. 2. Worried about your client’s state of mind, you

read his journal. Today’s entry says, “After tomorrow, Irma’s not going to be bothering me or anybody any more!”

3. You go to his home to meet with him. He is

loading a gun, and “Goodbye Irma!” is written on the wall calendar under that day. He refuses to explain the entry, and asks to cancel the meeting.

4. Any of the above. 5. None of the above.


Question 1: Your client is seeking custody of his children, and

distraught over his prospects. What conduct would trigger mandatory disclosure of his intentions?

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1. There is no absolute obligation. 2. The obligation ends when the trial ends. 3. The obligation ends when there are no more

appeals. 4. The obligation ends six months from the final

determination. 4. The obligation never ends. 5. They aren’t a Rules violation, but it is not ethical

ABA Model Rules: 1.2, 1.3, 1.4, 1.6, 1.7, 2.1, 3.3, 3.4, 3.5, 8.4


Question 2: After a hard fought trial which you win for your

clien , she informs you that her case was fraudulen . When does your obligation to inform the court end?

t t

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You are my client, and you should know, dear

That I’m compliant with Rules, although, dear Some situations do confound analysis: No hypothesis – Just paralysis. My legal ethics seem contradicted, When instincts tell me that I’m conflicted Deep in my gut, a feeling starts to grow Something says “No… “Ask him!” And so… Isn’t it disloyal? If I help your Dad to strike you from his will? And I never tell you; Though you still assume you’re getting twenty mil? Or I become an expert in another case I testify again you: is that out of place?


3. Isn’t It Disloyal?

A ProEthics Parody To the Melody of “Isn’t it Romantic?” By Richard Rodgers and Lorenz Hart

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Isn’t it disloyal… On my famous blog, to advocate a law That will really screw you? Shouldn’t you consent, or should I just withdraw? The more I read the Rule book The more I feel that I should be contrite… What is really right? Some day a richer client wants me to sue you! So I drop you as a client; what a thing to do! Isn’t it disloyal? If opposing counsel asks me over to lunch, “How’d you like to join us Once this case is over… we’ll pay you a bunch!” When I take on a client I’ve thought loyalty’s my duty all along.


Isn’t it just wrong?

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A. Revision of a will for one client to disinherit another. 1. Ethical. 2. Unethical. 3. Permitted, but unethical. B. Testifying against a former client as a paid expert. 1. Ethical. 2. Unethical. 3. Permitted, but unethical. C. In one’s private capacity, using one’s resources, time and advocacy to support a law antithetical to your client’s general interests. 1. Ethical. 2. Unethical. 3. Permitted but unethical. D. Dropping a minor client to take on one who wants to sue the former client on another matter. 1. Ethical. 2. Unethical. 3. Permitted, but unethical.

E. Negotiating for employment with an opposing firm while a matter is in litigation. 1. Ethical. 2. Unethical. 3. Permitted, but unethical.

ABA Model Rules: 1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.9, 1.10, 1.16, 2.1


Questions: Which of the following are unethical?

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Don’t know why, adversaries can mine my Metadata. In that file I sent To Nevada, I’m nauseous all the time! It sits there, like a thumb-tack on a chair Metadata! Client confidences will shatter Without care all the time, the time Keep checking all of the time! When he asked for Word I thought it would matta. I had never heard About that metadata… Then that little turd Exploited my errata… How could he act that way? Client’s sore; he found secrets by the score, Metadata! Gave it to him right on a platta; I keep explaining all the time Explaining all of the time.


4. “Metadata” A ProEthics Parody to the Melody of

“Stormy Weather” By Harold Arlen and Ted Kohler

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I sent a fax, put the wrong number in Counsel calls up, and he says with a grin “I’ll send it back, and I won’t even peek!” But when he gets e-mail files He can use all his wiles The lousy sneak! Damn, damn, damn, damn! Technology will be the end of me! Can’t go on! Every confidence is gone… Metadata! Now I sing this desperate cantata… Keep checking every time! Keep checking every time!


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1. Not if he was in ABA Model. Who cares about Nevada? 2. Yes, the burden is on each lawyer to protect client confidences. 3. No. It’s dishonest conduct. 4. Yes; it’s zealous representation. 5. I have another answer. 1. No. 2. If metadata mining is okay in Massachusetts, sure! 3. Only if the case will be tried in Massachusetts. 4. Nobody knows.

ABA Model Rules: 1.1, 1.3, 1.6, 4.1, 4.4, 5.3, 8.3, 8.4


Question 1: If counsel who requested a Word file did so intentionally to trick the Singer into revealing confidences, was it ethical?

Question 2: If receiving counsel sends the Word document to a firm office in Massachusetts to be “mined,” is THAT ethical?

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Oh, the law I once practiced with an innocent abandon I’d do work for a jerk if he’d only toss a grand in. Never thought that I ought to avoid the mess I’d land in. If the jerk would say I led him astray In those years, I’d no fears when I met potential clients But today I must say I’m afraid of their reliance… I won’t pick up my phone. I can’t read e-mail alone… A client call Can cost me all! How long has this been going on? Mr. Brown gave me facts Would I help? I’d call back. Suddenly, I get an E… How long has this been going on?


5. “How Long Has This Been Going On?

A ProEthics Parody To The Tune of “How Long Has This Been Going On?”

By George and Ira Gershwin

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Like a fool, I read the screen This guy might hire me, too His confidences now I’ve seen And Brown’s who he wants to sue! I go home, check the phone… A strange voice begins to drone “Take my case…” I throw a vase! How long has this been going on? The Rules left out 1.18 But does that matter when Potential clients bloviate? Is it conflict again? If they waive confidence I’ll be brave, and not so tense! So I try, but they say “Bye!” How long has this been going on? How long has this… been going… on?


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1. I have no duty to divulge anything, and can take on the first client. 2. I can’t represent either client. 3. I can represent either client, but can’t divulge any confidences.

4. As long as I didn’t give the second client reason to believe I would keep his confidences, I can represent potential Client A. 5. I have another answer.

ABA Model Rules: 1.1, 1.3, 1.4, 1.6, 1.7, 1.9, 1.10, 1.16, 1.18, 2.1, 5.3, 8.4, 8.5


Question 1: If a potential client reveals confidences, before making it clear that he wants to

sue a potential client you’re already considering, which is true?

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He goes on plane trips, flies all round the globe Though he’s infected with one mean microbe, He keeps it secret, until there’s a probe. That’s why the lawyer is a creep.

He’s on the jury, which couldn’t agree His firm says, “Get back here A-S-A-P!” So he just changes his vote to guilty!

That’s why the lawyer is a creep. Oh 8.3, see, says we should bust Those we can’t trust In court or sport! He cheats at cards and is dating a sheep That’s why the lawyer is a creep! When she was young, she pulled off a theft Wasn’t too deft Served time, for crime Then paid for law school with swag she had left. That’s why the lawyer is a creep!


6. “The Lawyer Is a Creep”

A ProEthics Parody To The Tune Of “The Lady is a Tramp” By Rodgers and Hart

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1. Andrew Speaker’s airplane trips. 2. Mike Rains’ message. 3. Francis Fahey’s jury verdict. 4. James Frey’s phony memoir. 5. The card cheat who is dating a sheep.

ABA Model Rules: 8.3, 8.4


Question: Which conduct by a lawyer colleague would prompt you to report to the Bar?

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Young Mr. Prosecutor: I am writing this to you And I hope that you will read it so you’ll know, I needed to defeat you But about the way I beat you To keep my client off of your Death Row; I thought you might be curious So here’s a little lesson from your foe… You let me squash you I didn’t wanna do it, I didn’t wanna do it. You let me squash you And boy, you really blew it I’m sorry, but you blew it. I had my expert witness, while on direct Describe pure hearsay, but did you object?


7. “You Let Me Squash You

(Young Mister Prosecutor)” A ProEthics Parody To The Tune Of

“You Let Me Love You (Dear Mr. Gable)” By Joseph McCarthy and Jimmy Monaco; Intro By Roger Edens

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I stopped your witness With my hearsay objection, though there was an excep ion tI didn’t think you knew; And it’s true, oh boo-hoo, you bozo, you! Then I put on Dr. Fury; His science was all wrong, but he impressed the jury! You know you let me squash you! [SPOKEN] You really made it easy for me, though, by getting the time of the crime wrong. That poor guy my client beat and robbed was so confused he thought he was mugged at 9:15… because my client stole his watch! He still had it, actually… and it’s stopped at 8:15, when it got broken in the attack! Well, when Floyd, my client’s gang leader, came to me and said that he’d testify to anything to get Biff off, I told him about Biff’s alibi… that he was shooting pool with his fellow thugs from 8:40 until after midnight on the night of the crime. “Hey!” Floyd said. “I really can testify to that, because it’s true!” And it was, because you were an hour off in your facts. Floyd may be a liar, but he sure is convincing when he’s telling the truth! Thanks to you, my career’s ascendant I hope I draw someone like you for each defendant.


‘Cause you know you let me squash you!

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1. Sure. 2. No; it’s a violation of Rule 3.4. 3. It depends.


Question 1: Is it ethical to introduce inadmissible hearsay if

you think you can get it past your adversary?

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1. Introducing a sincere and qualified expert when you are certain his opinion is 100% wrong. 2. Calling the witness to corroborate your client’s alibi for his whereabouts during the alleged crime, when you know that your client is guilty. 3. Both. 4. Neither. 5. Even if the Rules permit these tactics, I wouldn’t use them.

ABA Model Rules: 1.1, 1.2, 1.3, 3.4, 4.1, 4.4


Question 2: Which conduct, if any, is unethical?

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legal practice ics melodyur rules are moral jewels t whistlin’ Dixie!

ions, lend an ear; he S.E.C. that here

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ents turn out badder t“report out,” once we’re “up the ladder!”

, adversaries! t use your errant fax! -Point-Four

at your ight get sent back!

h exception is a whole new science, ’t be sad that we banned sex with clients! se Rules your law practice, ics melody

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, Ltd.

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Get those waivers while they’re hot! But just make sure Its no manure To say your conflict’s not!! Just serve your clien s like they’ve never seen it; t

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And when you say to trust you, really mean it! Read those Rules And sing your law practice, To an E hics melody OH!! Don’t mind those exceptions! We know privilege is God… But now we say, Mr. Lay We can’t protect your fraud! We’ll serve our clients like they’ve never seen it; And when we say to trust us, we still mean it! Read those Rules And sing your law practice, To an E hics melody

ABA Model Rules: 1.2, 1.3, 1.6, 1.7, 1.8, 1.13, 5.1, 8.4, 8.5



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9. Closing Discussion And

Curtain Call

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Supplementary Materials

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SEEKING THE TRUTH VS. TELLING THE TRUTH

AT THE BOUNDARIES OF THE LAW: MISDIRECTION, LYING, AND “LYING WITH AN EXPLANATION”

W. William Hodes

Copyright © 2002 South Texas Law Review, Inc.; W. William Hodes

[EXCERPTS, with Footnotes omitted]

I. Introduction: Setting Boundaries and Making Judgments The hardest questions in legal ethics involve drawing discretionary lines at the boundaries between competing (and important) principles. It is crucial, for example, for lawyers to be creative and aggressive in presenting a client's claim in the best light, but the court system is a costly public resource that must not be squandered. Hence, every jurisdiction has rules against making frivolous moves in litigation, and every jurisdiction has agonized over exactly how such rules should be worded, and then over the vigor with which they should be enforced. Maintaining client confidentiality is critical, to take another example, but so is saving innocent human life. Hence, rules of professional conduct allow for only limited exceptions to the confidentiality rule, and the profession has agonized for years over the precise scope of each exception. Thus, it took almost twenty years for the American Bar Association to move from recommending permissive disclosure of client confidences in situations involving "client crimes likely to result in imminent death," to allowing an exception where "reasonably certain death" is involved, without all of the qualifiers stated in the earlier version.


More important, after the collective rulemaking effort is completed, each individual lawyer will still have to struggle at the boundaries: exactly how certain must a death be in order to count as "reasonably" certain under the new ABA standard? How far can an argument be stretched and still count as "a good faith argument for modification or reversal," which is the language used in most rules regulating frivolousness?

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In cases arising close to the boundary lines, the rules themselves--including both formal rules of professional conduct and rules of civil and criminal liability --cannot be determinative; in close cases, there will be, by hypothesis, plausible arguments either way. Accordingly, individual lawyers must fall back upon their own moral values in reaching a final decision. But in many such situations, there is a further tiebreaker that will often preempt the lawyer's choice after all. Client preferences or directions-- given after full disclosure and explanation of the available choices -- have this kind of trumping effect, because client service and client loyalty are themselves among the highest order professional values. Yet, to complicate matters even more, and to come full circle back to the lawyer's moral judgment, it is permissible and even expected for lawyers to do more than merely advise their clients about he available choices in the cold and detached manner of a computer. Instead, the best lawyers often assert their own moral autonomy by engaging their clients in a "moral dialogue," not only about what goals can be reached within the law, and what tactics might be employed to get there, but whether such tactics ought to be employed, and whether the client ought to press ahead towards that particular goal. [FN9] In the end, however, if both the objectives and the means are within the boundaries set by the law, and the moral dialogue has been a genuine one, not a paternalistic attempt by the lawyer to impose a personal moral judgment, then the client's decision will control--if for no other reason than that it is easier for a client to dismiss a lawyer than for a lawyer to "fire a client" by withdrawing. Once the lawyer has exercised moral and professional judgment to accept the client's cause in the first place, which the lawyer was free to decline except in the case of court appointment, the lawyer's freedom of moral choice has indeed been constricted. Thus, if the lawyer remains in the case, by choice, or because not dismissed or not permitted to withdraw, the client continues to be entitled to diligent and loyal service. It would hardly be ethical for a lawyer to accept a client's money and continued trust, while working to undercut the client's interests because of personal distaste or disapproval.


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*57 That is the excruciating moral and practical difficulty of modern law practice in a nutshell. Where the boundary lines are clear, as judged by the lawyer--who is required to be expert in such matters--the lawyer must not go astray, regardless of the client's desires or directions. But where the way is unclear, the lawyer must help the client chart a conscientious path, but then follow the client's moral compass, not his or her own.

…

IV. Misdirection, Lying, and "Lying with an Explanation" in the Real World: Tracing the Boundary Lines in the Westerfield, Pautler, and

Gatti Cases I will conclude by trying to trace out the current boundary lines regulating truth-obscuring tactics, and how the boundary lines might be moved to either sanction or prohibit some of them, in the context of a few familiar situations and in three well-known recent cases. The fall 2002 trial in San Diego of David Westerfield for the abduction- murder of seven-year-old Danielle van Dam was extensively covered in the media because of the victim's age and because of two defense tactics. First, although there was considerable forensic evidence pointing to Westerfield's guilt, the defense suggested that because the van Dam parents had smoked marijuana and swapped sex partners with several people, they might have unwittingly introduced their daughter's killer into their home. Second, the defense introduced forensic evidence of its own, suggesting that the victim's body could only have been disposed of at a time when Westerfield was already under intense and constant police scrutiny. If that was so, he could not have disposed of the body, and therefore could not have been the killer.


The case exploded into controversy about legal ethics not long after the defendant was convicted and sentenced to death. It was reliably reported that well before the trial commenced, defense counsel had been only minutes away from concluding a plea bargain in which Westerfield would reveal the location of the body in exchange for a guarantee that the State would not seek the death penalty. The girl's body was at that point discovered by volunteer searchers, and of course the proposed deal was scuttled immediately. For purposes of the present discussion, therefore, it should be

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assumed that the lawyers knew their client was factually guilty, and knew that he had disposed of the body in the manner and at the time the State was claiming. *68 Somewhat surprisingly, there was little public outcry about the fact that the defense lawyers knew (at least indirectly) the location of the body, and kept that information to themselves. Perhaps, so many years after the celebrated "Buried Bodies" case from New York, people have a better appreciation than they did then of the professional obligation of lawyers to maintain client confidentiality, at least where no further harm will come from nondisclosure. Instead, led by radio and TV talk show host Bill O'Reilly, the public complained most of all that the lawyers actively "lied" to the jurors by mounting a full defense, aimed at acquittal on the facts, of a client who *69 was known to be factually guilty. Indeed, Mr. O'Reilly was the moving force behind a disciplinary complaint filed against the lawyers, the essential gravamen of which was that they had repeatedly "lied" by communicating to the jurors the message "do not convict this man, because he did not commit this crime," when they knew that he had committed the crime. But is conveying a false message always the same thing as "lying," or is there a difference between "real lies" and various forms of misdirection? That is the central inquiry of this essay, and the Westerfield case provides an excellent testing ground. Because everyone agrees that "real lying" in the course of representation, even on behalf of a criminal defendant in a capital case, is outside the bounds of law, the case provides a perfect occasion to consider more carefully what ought to count as "lying" after all. With respect to the tactic of suggesting a possible other guilty party, knowing that such a party did not exist, Mr. O'Reilly gained little traction in legal circles, and not as much as might have been anticipated even among lay people. Civil and criminal lawyers, legal academics, retired judges, and even prosecutors, filled the airwaves and the editorial pages with citations to Justice White's famous dictum in United States v. Wade, that defense counsel has been assigned "a different mission" in our system, one that does not include an "obligation to ascertain or present the truth."


These critics of O'Reilly's position asserted that knowledge of the defendant's factual guilt cannot be allowed to detract from the vigor of the

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representation. After all, if jurors are exposed to two different levels of defense rhetoric, depending on whether or not defense counsel has been convinced of the defendant's guilt, it would not be long before our system of trial by jury had been replaced by a system *70 of trial by lawyer! Moreover, if defense counsel had an affirmative obligation to assure that the truth emerged, then lawyers knowing of their clients' factual guilt not only would be barred from mounting a defense aimed at acquittal--as advocated by Mr. O'Reilly--but would actually be required to disclose what they knew to the jurors. This would have the effect of abolishing both the attorney-client privilege and the ethical rule of client confidentiality in one fell swoop. Furthermore, it does no good to mouth the platitude that even the guilty are entitled to a defense, and to the benefit of the rule requiring proof beyond a reasonable doubt, if at the key moment the defense is not allowed to suggest to the jurors where such doubts might lie --and to do so with maximum plausibility. And, because the evidence introduced by the defense in the Westerfield case about the parents and their lifestyle was itself true, the defense did not engage in any falsehood, and should not be subject to criticism, let alone discipline. The second defense tactic used in the Westerfield case--presentation of counter-factual forensic evidence--was more problematic, and in my view crossed over into territory that is outside the bounds of law. Although it is not unheard of for testifying expert witnesses to be either incompetent charlatans or corrupt, this essay is about lawyers, not scientists. Thus, I will assume that the witnesses *71 honestly believed that Westerfield could not have disposed of the body at the relevant time--which means that they also honestly believed that he did not do so. But they were wrong.


Thus, although the forensic testimony was not perjurious (because of the lack of any intent by the witness to deceive), it was nonetheless "false," and it was known to be false by the lawyers presenting it to the jury. (The following thought experiment will serve to confirm that the defense lawyers "knew" they were presenting testimony that was factually wrong: imagine you are one of Westerfield's lawyers, it is two months before trial, and you are trying to find an expert witness who is both reputable, and mistaken--an expert who gets it right will hurt the defense and cannot be used! Then imagine that it is three days before trial, and you are preparing the witness to testify. The witness must be tutored to testify effectively about scientific propositions that cannot be true, even though the witness thinks they are

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true.) Turned around and stated directly, this means that the lawyers knowingly presented "false" evidence to the jury, which is "real lying" in most people's lexicon, not just Bill O'Reilly's. More important, it violated applicable rules of professional conduct and was therefore beyond the bounds of law. *72 My next two examples involve "lying with an explanation," which is a term I coined, having in mind the plea one often hears made by pro se defendants in police court: "guilty with an explanation, your Honor." In these examples, real lies are involved, and the question is whether or not the law should allow an exception to the rule against lying, because of exigent or other unusual circumstances in which other public policy concerns may trump the normal rule. In the Pautler case from Colorado, a maniac had murdered three women with a wood-splitting maul, raped another after making her watch the third killing, and then let her free with specific instructions to contact the police. The suspect then used a cell phone to call the police, who were at the woman's apartment, in order to arrange his own surrender. One of his demands was that he first be allowed to speak (over the cell phone) with a particular criminal defense attorney. Mark Pautler, who was the prosecuting attorney assigned to the case as it was unfolding, tried to contact that attorney, but reached only a recorded message. When the suspect was told that the lawyer was unavailable, he demanded to speak to a public defender instead. Although a public defender might have been called to the scene without a great deal of delay, Pautler and the police decided that the emergency was sufficiently grave to justify deception. Because the suspect appeared to be relatively sophisticated, the police were not confident of their ability to trick him, and so Mr. Pautler posed as a public defender, and not long thereafter secured the suspect's peaceful surrender.


A disciplinary complaint was filed against Mark Pautler, charging him with "conduct involving dishonesty, fraud, deceit, or misrepresentation." Although the Colorado Supreme Court accepted Pautler's claim that his ruse was designed only to obtain the suspect's surrender, not to gain an advantage in the later prosecution, it unanimously found him guilty of misconduct. The court also agreed *73 that the police themselves are permitted to use tricks and traps, but stated that Pautler's license to practice law prevented him from

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either cooperating with, or engaging in, such tactics. In the Court's view, so long as options not involving lying and deceit are available, a lawyer is bound to choose one of them. In my view, however, the Colorado Supreme Court, safely removed in place and time from the horrific events, was too cold and antiseptic in its approach. Because there was little danger of starting down too slippery a slope, I would have let Pautler off for "lying with an explanation." Two further points about the Pautler case are especially noteworthy, suggesting that there is a substantial middle ground available between condemning Mark Pautler as a deceitful liar and exonerating him entirely because of the nightmarish situation into which he was thrust. First, the Pautler case was decided while the Colorado Professional Reform Initiative Task Force was developing an interim report for presentation to the Board of Governors of the Colorado Bar Association, based on the effort sponsored by the National Conference of Bar Presidents, described earlier in this essay. Thus, issues of lawyer honesty and truthfulness were being widely discussed in Colorado legal circles. It is not surprising, therefore, that the Colorado Supreme Court's opinion made explicit and approving reference to the national PRI, paraphrasing some material from the Resource Book that PRI had made available to bar leaders and other interested persons: The jokes, cynicism, and falling public confidence related to lawyers and the legal system may signal that we are not living up to our obligation; but, they certainly do not signal that the obligation itself has eroded. For example, the profession itself is engaging in a nation-wide project designed to emphasize that "truthfulness, honesty and candor are the core of the core values of the legal profession." Lawyers themselves are recognizing that the public perception that lawyers twist words to meet their own goals and pay little attention to the truth, strikes at the very heart of the profession--as well as at the heart of the system of justice. Lawyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest. Certainly, the reality of such behavior must be abjured so that the perception of it may diminish.


Second, although rejecting Mr. Pautler's claim that the exigent circumstances justified his deception, the court imposed relatively light punishment--a three-month stayed suspension and a year of probation--for

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what it had just characterized as a "serious breach of the public trust." This suggests that the Colorado Supreme Court's strong pronouncement about the supremacy of the core values of honesty and truthfulness was tempered by its understanding that Pautler had been thrust into a highly charged situation not of his own making, and that his misconduct was not prompted by any illicit motive. Thus, perhaps Mark Pautler was found guilty of "lying with an explanation" after all, which satisfies both the need to have a strong rule against real lies, but moderated with a degree of realism about human behavior under extreme duress. Finally, consider the twists and turns--including a 180 degree turn at the end--of the Daniel Gatti case and its aftermath. Although it began as a small-time and sordid deception during discovery in an ordinary civil case, it contributed to a long-running dispute within the legal profession over the ethical propriety of various forms of undercover work, including civil rights law "testing" efforts, in which persons not actually desiring services or accommodations nonetheless pretend to seek them, to see if they will be discriminated against. In this kind of case, there is no emergency as such, but the question *75 remains whether the difficulty of obtaining evidence without deception is sufficient to activate the "lying with an explanation" defense. Ironically, in light of what was to come, this case began when some of Mr. Gatti's chiropractor clients complained to him that the Oregon Department of Justice had targeted them with a sting operation designed to uncover possible fraudulent workers compensation claims. (Investigators, on the advice of Department lawyers, posed as injured workers, to see what advice and diagnoses they would receive in several lawyer and chiropractic offices.) In 1992 Gatti filed a grievance against the (unnamed) Department lawyers, alleging that they had violated the very disciplinary rules that he himself would soon be charged with violating--conduct involving dishonesty, fraud, deceit, or misrepresentation, and knowingly making false statements of law or fact. After investigation of the general issue (because there was no particular respondent lawyer to serve with the grievance), the State Professional Responsibility Board dismissed the complaint in 1994, largely on the ground that law enforcement personnel are permitted to use undercover operatives who employ deception, unless the methods used are illegal, which was not the case here.


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Within a month, a chiropractor contacted Mr. Gatti and expressed concern about a different kind of scam, this one allegedly perpetrated by a California company, Comprehensive Medical Review (CMR), that reviewed medical records and made recommendations to insurance carriers about whether to pay claims to medical providers. Not long after that, another chiropractor client complained to Gatti that a claim for his services had been wrongfully denied by State Farm Insurance Company, which utilized the services of CMR. Mr. Gatti then called personnel at CMR in order to find out more about its business practices and file review protocols, including whether non-medical personnel were involved in making recommendations according to pre-established schedules. While *76 making these calls, Gatti, repeatedly misrepresented himself as a doctor who saw patients himself, had experience performing independent medical examinations, and was interested in becoming a reviewer for CMR in Oregon. Daniel Gatti sued CMR and several insurance companies for fraud on behalf of his chiropractic clients, but CMR personnel who had been tricked into providing him with pre-suit information filed disciplinary complaints against him. When the matter eventually came before the disciplinary authorities, a trial panel dismissed the charges on the ground that the State Professional Responsibility Board was estopped to proceed against Gatti, because it had led him to believe (in the earlier government sting matter) that deceptive methods are generally permissible during the course of an investigation into wrongdoing, whether or not the sting is sponsored by government, as opposed to private, lawyers. The Oregon Supreme Court reversed this finding of the trial panel, on the ground that the earlier letters conveyed no such message, and that individual attorneys are not entitled to rely on informal advice from bar counsel in any event. Inasmuch as Mr. Gatti had already conceded that he had attempted to deceive CMR personnel in order to gather information for his proposed lawsuit against it, the Court quickly concluded that he was guilty of the charges against him. In a nutshell, Gatti was attempting to plead guilty to having "lied with an explanation," but the Court was rejecting his explanation as insufficient.


This was far from the end of the matter, however. While Mr. Gatti was explicitly urging the Court to adopt an "investigatory exception" to the rules

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against deception and lying, so that private practitioners, as well as their government counterparts could have better success in "rooting out evil," the disciplinary authorities were warning that such an exception would no longer be extended to government lawyers either. Thus, as the Gatti case came before the Oregon Supreme Court, the United States Attorney for the District of Oregon appeared as amicus curiae, seeking to preserve the right of her deputies who were admitted to practice in Oregon to continue supervising deceptive undercover operations in the service of law enforcement activity. The Attorney General of Oregon weighed in as well, by joining the federal authorities' brief. At the same time, a variety of civil rights organizations also filed amicus briefs, seeking (along with Daniel *77 Gatti) to extend the traditional government lawyer exception to private lawyers, on the ground that public policy should favor rather than prohibit legitimate attempts to root out fraud and illegal discrimination. The Oregon Supreme Court was not unsympathetic to these pleas for a carefully tailored exception to the basic rule against lying and deception-- noting that several members of the court had themselves in the past served as either public or private sphere lawyers who needed to use deceptive investigatory techniques from time to time. Nonetheless, the Court ruled against Gatti and all of the amicus parties: Faithful adherence to the wording of [applicable Disciplinary Rules], and this court's case law does not permit recognition of any exception for any lawyer to engage in dishonesty, fraud, deceit, misrepresentation, or false statements. In our view, this court should not create an exception to the rules by judicial decree. Instead any exception must await the full debate that is contemplated by the process for adopting and amending the Code of Professional Responsibility.


Needless to say, this uncompromising decision created significant shockwaves, not only in the law enforcement community in Oregon, but nationally. Large segments of the bar had assumed that at a minimum government lawyers may participate in sting operations in order to gather evidence that would otherwise be impossible to gather, and many assumed that even private lawyers could do so, at least where the targeted party was suspected of having engaged in discriminatory or fraudulent conduct.

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But there was yet one more twist to the Gatti story. As the Oregon Supreme Court had intimated in the passage quoted above, and elsewhere in its opinion, it was open to a full reconsideration of the issue in a later rulemaking proceeding. In January 2002, less than eighteen months after refusing to acknowledge any exception to the rule against deception, the Oregon Supreme Court completely overhauled its disciplinary rules on the subject, and moved the boundary lines dramatically in the opposite direction. As of that date, the rule in Oregon is as follows: Notwithstanding DR 1-102(A)(1), (A)(3) and (A)(4) and DR 7- *78 102(A)(5), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these disciplinary rules. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. "Covert activity" may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future. After this new rule went into effect, Oregon became the most liberal jurisdiction, so far as allowing both public and private sphere lawyers to engage in authorized "lying" with an explanation.

V. Conclusion: Living an Ethical Life in the Law on Shifting Boundary Lines

The real life examples considered in Part IV of this essay demonstrate the difficulty of ethical law practice. An ethical and professional lawyer must live close to the bounds of law--yet the bounds of law are not only elusive, but can shift without a great deal of warning.


In my view, the boundary lines involved in the Westerfield case are relatively well defined, relatively stable, and drawn in about the right place. In criminal cases almost certainly, and probably in many civil cases as well, it ought to be open to lawyers to make misleading arguments during litigation, so long as the underlying evidence presented in court is factual.

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But actively contaminating the proceedings with evidence that is known to be false has always been forbidden, and should always remain forbidden. The two examples of "lying with an explanation," the Pautler and Gatti cases, are harder to judge. The principle involved in allowing an exception, whether formally or implicitly, is easy enough to understand, and not hard to justify. The difficulty lies in pitching any exception at the appropriate level of generality, and avoiding sliding down a slippery slope to lawlessness in the name of law. Arguably, the Oregon Supreme Court corrected course too dramatically in the aftermath of the Gatti case. Certainly, the slippery slope is steeper than in Pautler: ax-murderers negotiating over a cell *79 phone (or other emergencies even in the same order of magnitude) virtually never present themselves in real life; whereas it is not difficult for one party to suspect and then charge another with wrongdoing that cries out for redress. Moreover, although the exception will not be allowed to those who attempt to abuse it, the trigger of "good faith belief" is not overly demanding, and is itself often difficult to apply. But the ultimate lesson of all these cases is a more sobering one. At the end of the day, and with hindsight, it is possible to argue dispassionately about exactly where the bounds of law should be drawn, and whether their current location is sound. But living a life in the law requires decision-making in the heat of the moment, when the lines are blurry, and the arguments about their location are emotionally charged. Worse still, even if the boundary lines appear, fleetingly, to be clear, they are still subject to further shifts and modifications.


ethics blues - primerusharold arlen and ted koehler george and ira gershwin jean schwartz, sam m....

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