Wednesday, January 30, 2008

Loose Talk Lands Attorney In Jail

According the Associated Press, Oklahoma City attorney Derek Smith was jailed by Judge Twyla Mason Gray for lying to her. He is currently serving a four day sentence for contempt. However, the story appears to be more complicated.

Apparently, the judge asked Smith if there had been discussions about arranging for the witness not to appear. Smith replied that there had not been. According to Smith, he only offered a legal opinion to his client that the witness could not be jailed for not appearing. Again, according to Smith, his client or someone closely associated apparently approached the witness and told her not to appear. The witness then told the judge that she had been advised by Smith not to appear.

The client obviously acted in their own best interest even if that meant misrepresenting their attorney's communications and placing the attorney in danger of professional discipline as well as contempt charges.

This illustrates the importance of not allowing your clients or their associates to talk to witnesses or especially to other parties in the litigation. Many clients will say whatever they have to to protect themselves regardless of who else they hurt. Also, attorneys are accustomed to speaking carefully in very nuanced terms and balancing seemingly contradictory information in a way that conforms the standards of the justice system. Civilians are not.

Attorneys are expected to control their clients and associates to prevent this type of loose talk. If Judge Mason's decision stands, the attorney can apparently be held personally responsible even when the client misbehaved and not the attorney. So, the only safe rule is to instruct your client and their associates to never communicate with witnesses or especially other parties to the litigation and to take decisive action to protect yourself if you find out that they have.


I just received a very pointed post indicating displeasure with Judge Gray and announcing the formation of a website critical of her. I have also seen other very public comments (published elsewhere) showing great concern that her honor may have had inappropriate ex-parte contact with the parties in this case. But, because of the highly restrictive and sometimes arbitrary nature of the Oklahoma Rules of Professional Conduct concerning attorney discourse about sitting judges and prosecutors, I regretfully cannot post these comments. However, I think this is a good time to re-post a portion of Justice Marian Opala's excellent dissent in State v. Erickson:

¶3 By accepting a license to practice law, Bar members are required no more than to conduct themselves in a manner that is consistent with lawful behavior and be compatible with orderly administration of judicial process;6 they are neither expected nor required to relinquish fundamental constitutional freedoms. The court’s pronouncement imposes upon a licensed Oklahoma legal practitioner the affirmative duty to stand "four square" for the purity of criminal law enforcement process and to whitewash it even when a doubt may exist. The lawyer is forced affirmatively to assert that all is well with the prosecutorial service; he is free neither to suspect nor to be apprehensive that, in fact, things are not so well. Implicit in the expected affirmations is the disturbing notion that lawyers must serve as enthusiastic cheerleaders for the government. I view § 22 as commanding the government to maintain the very same neutrality that the U.S. Supreme Court has found to be embodied in the First Amendment’s protection of free expression.7 Had respondent been vocally denying the possibility of any corruption in the prosecutor’s office, no disciplinary action would likely have followed and this case would not have been called to our attention.

¶4 By counseling the court that respondent’s comments are indeed shielded, I do not mean to condone his failure affirmatively to state that he would not participate in any improper action. What I emphatically and firmly advance is that professional discipline should not be invoked to chill free speech. Today’s opinion places a higher burden on a practitioner than any licensed legal professional may be required to bear in the constitutional order of our free society.

¶5 Lawyers are not government mouthpieces to be programmed for incantation of an absolution mantra that will sanctify officialdom in power.8 The court’s pronouncement reduces them to the very same status they were forced to endure in the most repressive totalitarian regimes of yesteryear’s Europe. I cannot countenance a decisional [29 P.3d 558] course that turns the Bar into mindless champions for government-dictated orthodoxy.


Saturday, January 26, 2008

On Attorney - Client Privilege

The following is taken from the ABA Journal: link


Inmate’s Freedom Hinges on Lawyers’ Revelation That Dead Client Killed Guard in ‘82

Posted Jan 22, 2008, 12:32 pm CST
By Martha Neil

Almost 26 years ago, as two Chicago public defenders were representing a client accused of murdering two police officers, their case suddenly got a lot tougher.

A lawyer defending another man accused of murdering a security guard in an unrelated case told the two PDs that his client said that their client, Andrew Wilson, was guilty of the security guard's murder, too. And, when Dave Coventry and Jamie Kunz confronted Wilson, he admitted the accusation was true, reports the Chicago Tribune.

"He kind of chuckled over the fact that someone else was charged with something he did," recalls Coventry, now 64. However, he said that his two lawyers could reveal the truth after his death.

Because the two PDs were representing Wilson, attorney-client privilege applied and they couldn't ethically tell anyone else about his admitted role in the January 1982 killing on Chicago's far south side. However, they wrote down the details in a notarized affidavit and locked it in a metal box. Last week, after Wilson's death of natural causes in November, as he was serving a life sentence for the police officers' murders, Coventry and Kunz testified in court about their client's confession to them.

That sets the stage for the potential release of Alton Logan, 54, who was convicted of the security guard's murder based on witness testimony.

Both lawyers say it has been difficult knowing for decades that an innocent man was in prison, while they had no choice but to keep their client's secret.

Now that the truth has come out, "it was a relief," says Kunz, 70. "Oh my God, I have been wanting this. I have considered this to be the truth. I have been wanting this to come out for years. I don't know anything about Alton Logan. It hurts to know somebody is in prison all these years and is innocent."


End of Story


This illustrates the real problem with attorney client privilege. Clients are not always honest. Some clients lie. They lie to their lawyers, to law enforcement authorities, their families and friends and anyone else who can help them. It is disgustingly common for a criminal defendant to accuse someone else of his crime and then let that person take the heat. In the middle of this you have the Defense attorney. The most sacred oath an attorney takes is that he will never reveal the secrets of his client, even if the client has committed truly horrible, immoral acts. This makes the attorney an unwilling but nevertheless vital enabler to his client's misdeeds.

There is a spirited debate going on over this case in bar associations all over the nation. Attorney's may now break privilege in limited circumstances, usually when another person is in imminent danger of death or serious injury. Don't be surprised to see bar association resolutions in the future that will allow an attorney to divulge attorney-client privileged information when it is necessary to prevent a gross miscarriage of justice such as the conviction of an innocent man.


Monday, January 07, 2008

Huckabee - The ABC Candidate

I have watched in awed amazement as the bigots of the chattering classes on both sides of the American political spectrum have set about to destroy Gov. Mike Huckabee’s presidential aspirations. It is ABC (Anything But Christian) politics at its worst. Huckabee’s problem is that he is too Christian for the chattering classes who never let their faith get in the way of good politics and too compassionate for doctrinaire conservatives who prefer pristine theoretical politics over doing the right thing in a bad situation.

Let me begin by defining Mike Huckabee politically. He is a social conservative and a political populist. To establishment Republicans that is a singularly frightening combination.

Establishment Republicans have long used social conservatives to fuel the flames that heat the issues that keep them in power while granting them almost no real power in the administrations they have elected. And, in the process they have convinced many Christians that should know better that doctrinaire political conservatism is indistinguishable from the tenets of the Christian faith when nothing could be farther from the truth.

Huckabee’s actual work as Governor of the State of Arkansas frightens establishment Republicans as well. He approved a number of death sentence commutations. Well, there is a reason that the Governor of a state has that power. It is entirely possible to convict and execute an innocent man in state court. John Grisham proved that in his recent non-fiction blockbuster about an Oklahoma murder case. Would we really want a Christian governor to execute a man when there was doubt about the facts or due process his conviction was based on?

Huckabee fixed the roads in Arkansas. Arkansas used to be the only state in the union that had worse roads than Oklahoma. Bad roads cost the citizens a fortune in car repairs and discourage business and travel. The money to fix the roads had to come from someplace and if you want to wait for Wal-Mart or Tyson to fix the roads through trickle down instead of direct taxes you had better buy a Land Rover.

Arkansas, despite the spectacular economic growth in the northwest corridor, is still a very poor state. Arkansas was one of the few states in the nation with poorer public schools than Oklahoma, particularly in rural areas. Through a series of lawsuits in the Arkansas Supreme Court, Huckabee was forced by court order to "equalize" education funding in Arkansas. If you want better schools and better teachers you have to pay for them, even if they are going to vote against you. Huckabee followed court order. Frankly, given my intimate personal knowledge of the quality of education offered in many poor district rural schools in the South, I would have applauded Huckabee for doing it without the court order. I attended one of these "problem" rural schools and started college with good grades but nevertheless two years behind my city classmates in key areas like mathematics and hard science.

Huckabee’s position on illegal immigration is problematic but so is the problem itself. The illegals are here. While they are here they should be treated fairly. The Scriptures demand it. But, they should not be allowed into the U.S. to start with and once they are here they should be subject to all U.S. laws including immigration laws. The business about a Mexican Consulate in Arkansas concerns me as well. But, I suspect that wherever Huckabee is on the issue that he would not ignore the American public on it as the Bush dynasty has.

Some Christians may have a problem with Huckabee because of his Rock and Roll hobby. All I can say to that is, “To each his own.” Rock and Roll doesn’t bother me one bit. I play the blues every chance I get. Huckabee is a gifted bass player and does not shy away from getting down. A few years back, I attended a private party where he and his garage band, The Capitol Offense, played. They were good and they knew how to have a good time. The attendees were an influential group of oil industry representatives and associated regulatory officials from all over the U.S. Don’t ever think Arkansas doesn’t produce skilled politicians. Huckabee and his people worked that meeting like the pro’s that they are.

I am also amazed that so many Christians are supporting Romney or Thompson. Their faith, or lack of it in Thompson’s case, is far less of an issue than their actual performance in real life. Romney has had more positions on abortion than I have neckties. He is facing real credibility problems on a number of issues. For several years, Thompson made his living as an actor on the disgustingly left wing “Law and Order” series whose writers never saw a conservative or Christian they wouldn’t vilify or a liberal cause they wouldn’t champion. Week after week, Thompson was one of the key players in one of Hollywood’s most effective and biased left wing propaganda organs. I have quit more than one job because my conscience wouldn't allow me to be associated with that organization or its people. Thompson’s lack of conscience concerning his long running Law and Order gig concerns me deeply.

At the end of the day, Huckabee’s real problem is that he is not predictable. He just might rule in office according the dictates of his conscience as informed by the Scriptures and nobody in politics wants that …. except a lot of thinking Christian Conservatives who are tired of being used the GOP during the election cycle and then being ignored.