Another Common Ethical Violation

 Posted on May 07, 2007 in Uncategorized

Yesterday Gideon blogged here about trial lawyers trying to help the government defeat their (former) clients' habeas claims. "Occasionally," he writes,

I will try habeas corpus cases. Some of them will be challenges to pleas, enforcement of plea agreements and then the usual ineffective assistance claims. What really grinds my gears is the lack of co-operation from trial counsel. It seems as though there is a certain percentage of attorneys that don't like it when their former clients file petitions for writ of habeas corpus alleging IAC.

The he goes on to ask, "Why? Isn't it supposed to be about the client? Isn't that the bottom line?"

I've often seen it happen that lawyers faced with allegations of ineffective assistance go out of their way to help the state keep their clients in prison. Sometimes they'll violate attorney-client privilege by signing an affidavit prepared by the state before they have been ordered to respond to the allegations.

This practice - lawyers resisting helping their clients get post-conviction relief - fits into the same category as lawyers making records against their clients. In fact, once I saw a twofer of those two violations when a "lawyer" in Victoria County filed confidential documents harmful to his client in the court's public file "in anticipation of a federal writ" (I expect that the grievance committee will be contacting that "lawyer" some day soon).

The answer to Gideon's "why?" is "ego." Many lawyers see an allegation that they made a mistake as a personal affront. Their self-image is so tied up in their attainment of error-free perfection as lawyers that anything that reminds them of their feet of clay is a threat to them. They respond to the threat defensively.

The truth is that we all make mistakes. We may think we didn't make a mistake in a particular case (or we may think we might have, and be afraid that someone is going to punish us for it) but the truth, of course, is that it is about the client; that is the bottom line.

A client who alleges that his lawyer screwed up isn't trying to hurt the lawyer; he's trying to save himself. The lawyer's job, when faced with allegations of ineffective assistance, is to remember that it's about the client, take a breath, smile, and respond as helpfully as possible to the client's allegations.

The task is to tell the truth; if the truth can be told in a way that helps the client, so much the better.