January 7, 2010
The Benefit Of Hindsight
A very interesting bar discipline matter from Arizona has resulted in a hearing officer recommendation for dismissal of all charges. The accused lawyer represented a criminal defendant in a trial with a co-defendant. The lawyer's client had completed his direct testimony on day 19 of the trial. The lawyer had advised the client not to testify and the client had done poorly. The relationship was strained. In the bar case, the lawyer:
characterized [the client] as a sociopath; a narcissist; a meglomaniac; very strong-willed; manipulative; controlling; and who argued with [counsel] endlessly throughout the approximately two years leading up to the trial.
The co-defendant had been passing notes to her client without any expression of concern throughout the trial. After the client's testimony, the co-defendant left a note on the table. A courtroom deputy saw the word "gun" in the note. The attorney, who was frustrated and upset with the client, made a "split second" decision to tear up the note.
The note was recovered by the deputies, taped up, shown to the judge, and admitted into evidence. The State Bar charged the attorney with destruction of evidence and lying to the court as to whether she had read the note. The hearing officer found that the attorney had not closely read the letter or appreciated its potential evidentiary value. It was not destroyed but rather torn into four pieces and was easily taped back together.
Was this unethical?
According to the report:
This Hearing Officer has seen other instances where an attorney had been in a protracted trial with a very difficult and threatening client, with very high stakes. It is not fair to in hindsight, after [the judge's] ruling, to judge that a snap decision of an attorney under stress, under all these circumstances, and her belief that the letter was a privileged communication [due to a joint defense agreement], was an ethical violation. While Respondent's tearing of the letter to tell her client "no" might seem in hindsight not to be a very effective form of communication, there is simply no evidence that Respondent tore the letter as a way to keep either the prosecution or the Court from having access to it....it is not fair in hindsight to judge Respondent's conduct from the safe distance of many months perspective, reflection and consideration what [Respondent] should have in those short moments with all that had been and was going on, realized what the letter represented and tempered her frustration with her client. Respondent's actions were rash and, in hindsight not wise, but they were not a violation of the Ethical Rules.
I agree that a lawyer's conduct should be considered in context in determining whether an ethical violation has been proven. (Mike Frisch)
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What is the beef here, anyway? I am trying to figure out what right the prosecution, the sheriff, or the judge, or the jury ad to this privileged communication. I guess if the attorney stupidly just left it on the table and had abandoned it, then it's fair game. But, destruction of evidence? Give me a break. Good thing the Bar got it right. But this is Arizona, where the files of the defense attorney are open game to the State's employees-i.e. the sheriff, etc.
Posted by: Don Waggoner | Jan 10, 2010 4:39:31 AM