Our weekend post questioning defense attorney John Keker’s assertions of the innocence of client Dickie Scruggs (“prosecutors have concocted a ‘manufactured crime’ in which his client had no part”) drew a couple of comments from readers who saw Keker’s statements as no more than the zealous advocacy we should expect of a defense attorney. They’ve also been discussing the issue over at the WSJ law blog, where they quote defense attorney Benjamin Brafman’s rapidly disproved boast that his client Mel Weiss “will be fully exonerated,” as well as Monroe Freedman, the Hofstra legal ethicist and regular antipode of views expressed on this site, who

says that generally speaking, he doesn’t see problems with a lawyer making aggressive statements to the press in defense of his client. “We don’t know what the client told the lawyer when the lawyer made the statements,” he says. “We don’t know what Scruggs told his lawyer. We don’t know if Scruggs said I did it, but I want to fight it or something else entirely.”

George Sharswood’s Essay on Professional Responsibility, the standard American text on legal ethics before the modern period, contains the following assertion (pp. 99-100 of Google Books digitized version):

…no counsel can with propriety and good conscience express to court or jury his belief in the justice of his client’s cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard — it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests.

Now there are obviously some differences between what a lawyer may ethically assert in open court, and what he may ethically assert to the press — though I doubt very much that Sharswood would have viewed those differences as bestowing on a lawyer any prerogative to issue to the press false statements of confidence in a client’s innocence. What this passage does help illuminate, I think, is why many defense attorneys still hew to certain carefully wrought formulas when discussing their cases: “It’s my client’s position that the building caught fire accidentally”, or “I think the state will have trouble proving that my client stole one point three million dollars as charged”, etc. We may chuckle at the lawyerly phrasings involved here — only beginners fail to catch on that the client’s actual innocence is not being asserted. But behind those lawyerly phrasings is an impulse that at least deserves respect: to get the client’s case on the table (when the situation calls for doing that) without in fact turning the lawyer into a liar. (Other legitimate purposes might also be served as well; for example, a lawyer’s endorsement of false frame-up theories might tend to poison relations between members of the bar and undermine public confidence in the workings of justice.)

As Sharswood goes on to discuss at length, lawyers are sometimes obliged to put forward positions they believe to be untrue (and even disgraceful) when their client desires that such be made the basis of a defense. It is by carefully establishing that they speak on instructions from their client, rather than putting their own authority and credibility on the line, that they may trust to do so without contamination. More: Greenfield.

Filed under: Dickie Scruggs, ethics, John Keker, Melvyn Weiss, Monroe Freedman, overzealous advocacy