He didn’t try to talk the guy into doing what was in his best interest. And I know that because I asked him. He just waited for the check to clear and then did something harmful to his client.
I think **Mosier **made an excellent point. The lawyer’s code of ethics was written by lawyers. Its intent is not to ensure fairness or justice, and it is not necessarily based upon any other ethics or morals. So the lawyer’s code of ethics can be the opposite of what any reasonable person would define “ethical” to be, and the lawyers can still claim that they are being ethical. For instance, in the lawyer’s code of ethics, it is perfectly acceptable to lie and say that rape victims are not harmed by the crime, because the ends justify the means. A reasonable (ie: non-lawyer) person looks at that and sees it for the absurdity that it is. But the lawyers can point to their own code of ethics and state that it is perfectly acceptable to state that a rape victim is not harmed by a rape, because their ethics tell them so. The fact that lawyer’s code of ethics have no relationship to ethics in the real world is why debates like this one arise.
A person you previously defended on a DUI charge walks into your office. He says “my probation officer is trying to make me go to counseling and I don’t want to go. I want you to file a motion with the court to reverse the officer’s decision.” You are telling me that you are obligated to file this motion? You can’t refuse to file it? You have to file every single motion someone asks you to?
A person you are defending for rape asks you to stand up in front of the judge and state that rape victims are not harmed by the crime. Are you obligated to make that argument?
Why did you even put it on your list then, since legal tactics have nothing to do with me?
That explains a lot. Volumes.
Irrelevant. This was post-sentencing. The attorney’s appearance was withdrawn at sentencing. He had to re-enter an appearance in order to file the motion. Are you saying he had no choice in this matter?
Or maybe she won’t be traumatized for life. There are any number of victims of violent sexual crimes, including gang rape, who get over it and live happy lives. Not personal to Contra, but it always chaps my ass something fierce when people blithely assume that a rape victim is damaged for life because of what happened to them. I’m not saying it’s easy, but people get over it - they put it behind them and go on with their lives.
I can tell you how the lawyers in that case were able to look themselves in the mirror each morning - or at least a possible explanation. Everyone deserves the best representation they can get when faced with serious criminal charges - everyone. Not just guys with million-dollar bankrolls - everyone. So any lawyer defending a criminal matter (and, for the record, the phrase “defending a criminal matter” includes all the post-trial work as well - sentencing, appeals, etc. - it’s all part of the same process and an attorney is almost never going to be allowed to bail on a case after the trial but before sentencing) knows going in that the integrity of the system depends on their doing the best job they possibly can. In this country, it’s impressed with great force and vigor on law students that regardless of how they personally feel about their client and what he or she may have done, they must always, always do everything they can to represent their interests.
Do you really want defense attorneys deciding who to give their best effort to and who they can half-ass it with based on the defense attorney’s perception of guilt? You want defense attorneys thinking “You know what, I think this guy’s a dirtbag, so fuck it - I’ma just phone this one in.”? What if your defense attorney decides you’re a dirtbag? Criminal defense is very, very much a go big or go home prospect from the attorney’s side. Either you are prepared to go to the wall for every client, every time - or you find another area of law to work in. The system depends on defense attorneys being as zealous as they can throughout the whole proceeding - it’s one of the checks in the system to keep prosecutors and police on the straight and narrow.*
I don’t think these attorneys should be ashamed - or if they should be ashamed as human beings, it shouldn’t be on this front. This isn’t to say there aren’t defense attorneys who personally feel like Hell about some of the things that a zealous defense requires them to do - and I’d venture to guess it’s a rare defense attorney indeed who doesn’t get the occasional twinge - but the same can be said of prosecutors as well. There’s nothing quite like criminal law to slap an attorney in the middle of a damned-if-you-do, damned-if-you-don’t scenario - but doing your best for your client is not something about which to feel ashamed as a human being. One doesn’t have to like it, but it isn’t shameful, either.
*Not that I think prosecutors or police aren’t generally on the straight and narrow - I’m not trying to imply widespread corruption or anything - but the prospect of a zealous defense for everyone is one of the things that works to keep corruption out of that end of the system. There are checks and balances throughout the legal system, and this is one of them.
Most of the time, when reading the Dope, I am scrolling down the page with my finger constantly holding down the mouse key. Sometimes when I read a funny post and begin to giggle, my finger stays down on the mouse and, as my giggling increases to the point where my hand shaking, the screen begins to shake up and down with my hand. This of course only adds to my hilarity as my coworkers notice this effect and begin to laugh and point. This was one of those occasions.
Yes, I am sure that he didn’t try to talk him into going to counseling. Both the lawyer and the client told me so. And I had a long discussion with the lawyer about it. During which he spouted the “vigorous defense” bullshit I’ve come to expect.
I do know lawyers that try to get their clients to go to counseling. Some even encourage their DUI clients to go before they even set foot in the courtroom. One that I know even refuses to take their case if they won’t go to counseling right away, which kind of puts the lie to this notion that attorneys have to do exactly what anybody tells them to do.
He was talking about my job. That’s what I was responding to when I said that.
Depends. If you don’t know that to be a lie, then probably yes. The assertion that no significant physical injury was done to the victim is entirely plausible.
This is an Australian trial, and presumably their rules of procedure are a bit different. New appearance or not, though, the lawyer would certainly be expected to represent the guy for the appeal if he represented him in the original criminal proceeding, unless the appeal is based on a question or issue that the original counsel has no knowledge of. Even then, he’d be expected to appear as co-counsel to an appellate attorney.
Well, sure, if lawyers can magically manipulate the space-time continuum. Refusing to represent someone in the first place is completely different than withdrawing from their case, as you should know damn well given your claimed familiarity with the legal system.
Heh, reading the article in the case, I can easily see what the lawyer here is doing - and it is not pitworthy.
Here is the quote:
The context is a sentencing hearing. Though I’m not familiar with Australian sentencing, usually in common-law countries it is a matter of a range of possible sentence for any given offence. At one end of that range is the maximum sentence - say, 5 - 20 years (I don’t know the actual range, this is just an estimate) for aggrivated sexual assualt (sexual assault with violence).
The maximum sentence is supposed to be reserved for the ‘worst offence by the worst offender’.
Now, no-one is going to argue that gang rape at gunpoint isn’t very, very bad, and any rape does untold trauma to the unfortunate victim, no matter how much actual violence they experience.
But allegedly in this case the victim wasn’t physically injured - to be blunt, no teeth knocked out, no bones broken, etc. etc. The victim was not tortured for days on end.
What the lawyer is saying is that this sentence was excessive in light of the facts - that this wasn’t the “worst offence”, and thus did not justify the sentence at the top of the penalty range.
Contrary to much that has been written in this thread, this is a perfectly respectable argument. What some of you are missing is that sentencing is comparative. All rape is bad, that’s a given, but the unenviable task of a sentencing judge is to determine just how bad a particular rape (or any other crime) is, and assign an appropriate punishment. Whether a rape caused permanent physical damage to a victim is certainly a factor to consider in sentencing.
Oh, for the love of Pete. Talk about people talking about things they don’t know anything about. You ever read the MRPC? Know what the acronym even stands for? You have any idea at all how the “lawyer’s code of ethics” was developed, implemented, is enforced or regulated?
There’s so much pure horseshit in that paragraph I’m not even sure where to start. I think I’ll refer the curious to http://www.abanet.org/cpr/mrpc/mrpc_toc.html and call it good.
Take your bigotry and stick it directly up your nose.
We’re talking about two different cases. You’re talking about the OP, I’m talking about the case I talked about in my first post. In my case, his appearance had already been withdrawn and he had to re-enter it to file his bullshit motion.
I’m guessing that the second lawyer just makes attending counseling a requirement of representing them at all. Attorneys have a whole lot of freedom when choosing who to represent in the first place - it’s entirely acceptable to just refuse to take DUI clients who won’t go to counseling. That’s quite different than dictating moves after the relationship is established, though. Once the attorney-client relationship is established though, an attorney is required to abide by their client’s decisions as to how to proceed. You’re comparing apples and oranges there - of course a lawyer can say “I’m not going to take as a client anyone who comes to me with a DUI and refuses counseling” and then abide by that decision. However, if an attorney has already accepted the task of defending a DUI, the most they can do is encourage their client to have counseling.
In essence, you hire an attorney to attend the administrative details of a legal task and to give you advice as to how the best way to go about achieving whatever your goal is within the existing legal framework. Deciding what that goal is and choosing among the various options (once each is thoroughly explained to you including a cost-benefit and risk-reward analysis) is entirely the discretion of the client. Sometimes the advice is “your goal is impossible to achieve under these circumstances”, in which case the advice shifts to “this is how close we can get of we do Y” or possibly “here’s an alternate, similar goal that is achievable by doing X”. Even then, the decision about whether or not X and Y are acceptable courses of action are entirely up to the client.
Shirley, you don’t know the law, you don’t know lawyering, you don’t like lawyers, you don’t think through your visceral reactions, and yet you want to be taken seriously.
Do they make you memorize this word for word in law school? Because this is exactly the same thing I’ve heard over and over. It is very inspiring.
Then I go to court, and watch how it really works.
Several times a week, I will be sitting in court waiting for a violation hearing. The defense attorney will come up to me and say “I’m representing so-and-so. Is that person here?” I will point out our mutual client in the courtroom. The attorney will then go up to that person and introduce themselves for the first time. Five minutes later, we are having a trial on the violation. And I see this happen all the time. I’d say 5-10 times a week. Not just one attorney. Dozens of them. Every week. For the last eleven years.
So you’ll forgive me if I don’t throw roses at the attorneys’ feet for their inspiring dedication to their clients.
I am not accusing you of being this type of person. I sincerely hope that you are not. I hope you live up to every word of what you just wrote. It has not, however, been my experience. And that is why I am underwhelmed when an attorney talks to me about their code of ethics.
Whats wrong with asking for clemency. Their options are pretty limited. That is all they could come up with . I am sure they racked their brains trying to come with a way to defend what can not be defended. So they took a shot at that. I am pretty sure they do not believe it either.
Exactly my point. Which is why the attorney in my case was not required to file his motion about the defendant not going to counseling. Because his appearance had already been withdrawn. So now that we have that established, I’m wondering if anyone will continue to defend this lawyer’s actions.
Lawyers in America do have a certain amount of freedom in the tactics they use. Lawyers are only required to consult the client about the means they will use to achieve the objectives of the representation. It is the objectives of the representation that are at the sole discretion of the client.
Further highlighting the fact that you can put a horse in front of Sesame Street, but you can’t teach him to count.
That situation exists because there are attorneys there who show up to court:
-as court-appointed attorneys for whoever happens to come in that day;
-because their client’s case was continued or because the client elects to go to trial right away
-because this is the third time the defendant has failed to show up for a hearing and the attorney generally does not know where he is;
-because the attorney inherited the case from someone else;
-or any of dozens of other reasons why an attorney, especially a defense attorney, wouldn’t know where his client is or even what he looks like.
I saw this sort of thing all the time at the DA’s office. Defense attorneys, in cases like these, are eking out a living defending people who forget to show up to court or flee the state or who just couldn’t be bothered to go. They certainly ain’t doing it for the money. I’ve known a great many attorneys who do it to get trial experience. I’ve known an equal number who do it simply because they believe that even Joe Asshole who can’t figure out (on his fifth try) that taking a cab home from the bar is a good idea deserves a fair trial.
It’s amazing that you haven’t figured that out yet. Maybe you should spend less time judging them and actually getting to know them.
Here’s the thing, though: you don’t have the option of showing all your clients to the door, especially indigent clients appointed to you by the court, and even worse, some clients are batshit insane. Believe me, it boggles my mind why a client thinks he needs my legal expetise and then won’t listen to a single thing I say or follow any recommendation I make. I argue with my own clients far, far more than I ever argue with the district attorney.
It can be absolutely maddening, but part of being a defense lawyer is being able to handle absolutely maddening if not outright batshit insane clients. Some things the client wants done I can refuse to do, like file ridiculous and frivolous motions or take actions that would outright sabotage their defense. Other things I can advise or even beg the client to do or not do, but the decision has to be theirs, not mine. I can explain why something is a good or bad idea until I’m blue in the face, but some decisions like the decision of whether to take a plea or go to trial, or whether to testify or not, has to be the clients. I have zero control over it.
As far as the action here, imagine this nightmarish scenario: you wake up one morining and find that you’re this guy’s defense attorney. It’s day four of the sentencing hearing and you have to get up and offer some sort of mitigating factors. Blessedly, there was no lasting physical trauma, the victim made a complete recovery of her injuries. Do you mention this in argument? If you don’t, what justification can you give for not doing so? What do you say instead?
Changing the subject for a second, I would no more intentionally put on perjured testimony than I would steal cash from the register at a business I was working at.
No doubt this is true in many cases. One could wonder, however, if it would make the recovery process easier, or harder, if you knew that the more you dealt with it the less your rapist would be punished.
Isn’t there any room at all between “phoning it in” and not arguing, “Come on, suck it up - being gang-raped for forty-five minutes isn’t that bad”.
Isn’t there anything you wouldn’t say to try to get your client off? “She was asking for it, with those tight jeans - give a poor kid a break. She could get over it, if she wanted to - she’s malingering to get back at my client just because he raped her.”
