Slide 1Bar associations and codes of ethicsEthical issuesAttorney-Client PrivilegeExceptionsChange in policyThe Belge case (New York) “The Lake Pleasant Bodies” caseBelge legal proceedingsComparisonsNix v. Whiteside U.S. Supreme Court (1986)AppealU.S. Supreme CourtU.S. v. Dunnigan (1993) Defendant has no “right to lie”(9-0)The Freedman trilemmaOther contextsToyota product safetySlide 17QuestionsThe Role of the LawyerLegal EthicsBar associations and codes of ethics1. American Bar Association (ABA)History of biasReactionary stands on free speech/loyalty oaths2. Regulation of the legal professionABA Model Code of Professional ResponsibilityState bar associationsself-regulated industryFew disbarredEthical issues1. Fees2. Multiple representation3. Attorney-client privilege (confidentiality)Attorney-Client Privilege1. Definition: the right and duty to withhold information because of some special status or relationship of confidentiality2. Confidentiality – one element of the privilegeWhat is covered by the privilege:It must be a communicationIt must be a particular sort of communication3. Purpose of the attorney-client privilegeExceptions1. Consent – if client consents to disclosure2. Court order – if required to be revealed3. Future actsOld rule – if clients intends to commit a crimeNew rule – if client intends to commit serious or substantial bodily harm4. Self-defense – if client sues the lawyer for malpracticeChange in policyModification in 2002 – a lawyer may reveal confidential information to the extent the lawyer believes necessary to prevent reasonably certain death or substantial bodily harm.The Belge case (New York) “The Lake Pleasant Bodies” case 1. Facts: Robert Garrow charged with child molestation and subsequently murder. Assigned attorneys Frank Armani and Francis Belge.2. Garrow informed them of location of two more dead bodies.3. Lawyers did not tell authorities.Question: Whether the location and existence of the bodies fell w/in the attorney-client privilege.Belge legal proceedings1. Indictment for violating NY public health laws (notification; right of burial)2. Constitutional rights5th Am. Rt against self-incrimination6th Am. Right to counsel3. Balance individual rights against harm to family and societyQuestion: Whether Belge acted properly.Comparisons1. Scott PetersonCalifornia Business and Profession Code: “It is the duty of an attorney to maintain inviolate the confidence, at every peril to himself to preserve the secrets of his client.”2. Bernardo case (Canada)Lawyer, Kenneth Murray, withheld evidence.Prosecuted for obstruction of justice.Question: How to deal with incriminating evidence.Nix v. Whiteside U.S. Supreme Court (1986) 1. Issue: Whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.2. Facts: Whiteside kills Love in an altercation. During preparation for trial, Whiteside asserts: “If I don’t say I saw a gun, I’m dead.”3. Legal arguments: Self defense only requires a reasonable belief the victim had a gun. Haphazard police search of victim’s apartment. Love known to own a gun.Appeal1. After jury verdict of 2nd degree murder and 40 year sentence, Whiteside appealed. Supreme Court of Iowa affirmed. The right to counsel does not include rt to present perjured testimony.2. Federal court – petition for the writ of habeas corpus (“You have the body”).3. Key question: whether the lawyer’s admonition to Whiteside that he would inform the Court of Whiteside’s perjury constitute a threat to violate the attorney’s duty to preserve client confidences.U.S. Supreme Court 1. The Court relied on Strickland v. Washington which requires showing serious attorney error and prejudice [harmless error rule]2. The Court concluded that there is a specific exception from the attorney-client privilege for the disclosure of perjury. The Court said this is required by legal ethics.3. Conclusion: A defendant’s right to effective counsel was not violated when his attorney used threats to dissuade him from committing perjury.U.S. v. Dunnigan (1993)Defendant has no “right to lie”(9-0)1. Issue: whether a defendant can deny charges and if subsequently convicted be given a longer sentence.2. Facts: Sharon Dunnigan denied being part of a cocaine ring but was convicted later.3. The U.S. Supreme Court upheld sentencing guidelines that allow “enhancements” for the obstruction of justice.Justice Kennedy concluded it was reasonable to permit a stiffer penalty “for the willful presentation of false testimony”.4. Implications for due process – Right to testify on one’s own behalf; presumption of innocence.The Freedman trilemmaThe difficult questions are what a lawyer must, should, or may do after his client has given testimony he or she does not believe.Professor Monroe Freedman trilemma:The lawyer is required to know everything.The lawyer is required to keep it in confidence.The lawyer is required to reveal it to the court.Other contextsResponses to Enron Corporation and other catastrophies – exception for material fraud.Compare SEC policy requiring disclosure toABA policy saying lawyers may disclose wrongdoing.Limited impact – states have rules permitting disclosure in case of economic crime or fraud.Disadvantage – discourages executives from disclosing problems to lawyers.Toyota product safety1. Former Attorney for Toyota Motor Corporation revealed evidence he obtained while in-house counsel showing product safety problems.2. Toyota alleged this violated a confidentiality agreement and the attorney-client privilege; Toyota won a $2.6 million arbitration judgment against him in January 2010.3. Biller had countersued, accusing Toyota of a “ruthless conspiracy and relentless effort to prevent evidence of its vehicles’ structural shortcomings from becoming known” (LA Times, 1/6/10, pp. B 1,4).Swidler & Berlin v U.S. (1998)Effect of Death on atty-client privilege1. Investigation of White House Travel office employees during Clinton Administration. Deputy White House Counsel, Vincent W. Foster, Jr. sought legal representation and then committed suicide 9 days later.2. Federal grand jury sought the notes from that meeting.3. Question: whether the atty-client privilege survives death.4. District court said yes, Court of appeals no, and U.S.