June 13, 2008
Zealous, Not Unethical
An Arizona hearing officer dismissed charges of ethical misconduct against a criminal defense lawyer who had subpoened the alleged victim's counselling records in a case involving charges of sexual misconduct with a minor. After the court had denied the attorney's motion for disclosure of the records, the attorney ascertained the true name of the counsellor (the previous subpoena had the wrong name), reissued the subpoena in the correct name and moved for reconsideration. The State sought a contempt citation and to preclude the evidence; the trial court denied the motions. The criminal charges were dropped in light of concerns about the victim's credibility.
The hearing officer concluded that: "[the lawyer's] purpose in obtaining the counselling records included legitimate reasons in accordance with his duties as the client's criminal defense advocate, such as building a defense in the case, impeaching the victim or others on her behalf, possibly challenging the expert's conclusions in the case and similar legitimate reasons." Notably, the trial judge "implicitly rejected each and every assertion levied therein - including the assertion that Respondent's conduct presented a substantial likelihood that ethical rules were violated." (Mike Frisch)
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