Tuesday, April 8, 2008

Pretexting And Criminal Defense

The web page of the National Organization of Bar Counsel has a very interesting summary of a report in a Wisconsin bar discipline case involving subterfuge by a lawyer defending a criminal case. The lawyer represented a client charged with, among other things, sexual assault of a minor. He believed the alleged victim was lying and set up a plan to establish that he accessed pornography on home and school computers and was considered an untruthful person. He was charged with a Rule 8.4 dishonesty violation. The summary reports:

"The Hearing Referee agreed with all of Hurley’s arguments and concluded that ethics standards had not been violated and that Hurley had not violated the prohibition against engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Indeed, the Referee determined that Hurley had an obligation under the Sixth Amendment to organize and conduct his private sting operation. She ruled:

Mr. Hurley held a man’s life in his hands. His client faced life in prison. The trial was imminent. He had a reasonable, factually supported, and good faith belief that Scott’s home computer contained exculpatory evidence, making the computer the lynch pin of Mr. Sussman’s defense. He had a reasonable, factually supported, and good faith belief that Scott knew how to and would destroy the evidence on his home computer if he were given advance notice of Mr. Hurley’s suspicions. So, to provide Mr. Sussman with his constitutionally protected right to effective assistance of counsel… Mr. Hurley had to devise a plan to obtain the potentially exculpatory evidence in a way that would not give Scott advance notice… Mr. Hurley faced an extremely difficult calculus: risk violating a vague ethical Rule or risk breaching his duty zealously to represent his client and violating his client’s constitutionally protected right to effective assistance of counsel. The decision Mr. Hurley made was not an unfit one; it was a necessary one. His conclusion that he must pursue potentially exculpatory, lynch pin evidence by means of a deceptive private investigation does not bring into question his fitness for the practice of law. It affirms his fitness as a criminal defense attorney. He acted reasonably and with adequate safeguards. He acted as the Constitution compelled him to act.

The Referee further concluded the disciplinary standard prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation was 'vague as applied.' She made this determination based on the fact that Wisconsin disciplinary authorities have not prosecuted any criminal law prosecutors who 'frequently supervise a variety of undercover activities and sting operations carried out by non-lawyers [and] who use deception to collect evidence,' including misrepresentations as to identity and purpose.

The Office of Lawyer Regulation has appealed the Referee’s decision to the Wisconsin Supreme Court and the matter is on a briefing schedule."

Particularly in light of the recent decision in the Massachusetts law clerk sting case, the case will be worth watching. (Mike Frisch)

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