Wednesday, May 28, 2008

Beer Ruse Leads To Sanction

In an effort to find interesting or informative bar discipline matters, we often stumble on bar web pages that provide easy access to disciplinary reports. The web page of Arizona bar matters has a case decided in January in which the Disciplinary Commission had approved a consent disposition in a matter arising out of the lawyer's representation of a defendant charged with first degree murder.

The attorney wished to serve two Native American witnesses and learned that they were attending a Halloween dance on the Fort McDowell Indian Reservation. After several unsucessful attempts at service and as the trial "rapidly approached," the lawyer and her law clerk concocted a "ruse" to serve the witnesses by creating a ficticious coupon for a ficticious beer: "Zepher Lager." One witness was served while filling out contact information for a free Zepher Lager at a later date. To make matters worse, the event was part of Alcohol Awareness Night on the reservation, although the attorney was unaware of that fact. The hearing officer noted that "Members of...the tribe who learned of Respondent's ruse were embarrassed and offended."

The Arizona Supreme Court placed the attorney on probation until she completes the Ethics Enhancement Program, "which shall be completed in one year." (Mike Frisch)

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On its face this seems wrong and unethical, so I understand the sanction. It's the kind of pretexting that H-P allowed and got senior management fired. But Mike, you also reported a couple months ago on a case in which, supporting a criminal defendant's rights in an accusation of child abuse (I think I recall), an attorney was allowed to pretext to out the truth and save the day. The court even seemed to treat it as sort of required constitutionally to effectively represent that defendant. In this case, the attorney is trying all she can do to make witnesses show up. The government has lots of powers to make a witness show up that are not so easy for a defense attorney, and there are many instances of the prosecutor or his/her police using pretext to get witnesses to show, to serve witnesses and suspects, and to catch fugitives (recall those famous you-won-lottery scams?). No one said all that was unethical. Fair housing attorneys send testers into apartment units all the time. We need to develop a more consistent rule and theory about pretexting. This case on it face seems appalling but I am not so sure if it saved an innocent defendant.

Posted by: Alan Childress | May 28, 2008 12:05:02 PM

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