“Why Do Lawyers Mouth Clients’ Ridiculous Alibis?”

Letter to the editor, WSJ, Mar. 22 (via YallPolitics):

It’s bad enough and sad enough to read the sorry story of the greed of tort-king “Dickie” Scruggs. The evidence and the transcripts was, of course, damning.

It was really nauseating, however, to read the absurd assertion by John Keker, his lawyer, that Mr. Scruggs was innocent and that the “prosecutors have concocted a ‘manufactured crime’ in which his client had no part” (“A Lawyer’s Trials: Tort King’s Path to Bribery Charge,” page one, March 14). So, according to Mr. Keker, the prosecutors could freely be accused of trying to frame an innocent man.

All Mr. Keker should have said was that his client had pleaded not guilty and that the matter would proceed to trial.

One assumed that when Mr. Keker made factual assertions he was accurately reporting what Mr. Scruggs had told him, since he presumably knew Mr. Scruggs’s side of the story through lengthy interviews under the protection of the attorney-client privilege.

Then we learned, a few hours later, that Mr. Scruggs was guilty all along. Either Mr. Keker knew this or he was ignorant.

Why lawyers in criminal-defense cases feel compelled to make factual assertions about their clients’ innocence, facts which they couldn’t possibly know, is beyond me.

Every day these lawyers appear on television and in the papers repeating the ridiculous alibis of their clients, not as their clients’ legal positions but as facts, only to be ultimately made foolish by a plea or a trial.

Innocent or guilty, a lawyer should retain his dignity and that of his client, if possible.

Felix M. Phillips
Attorney at Law

More: Discussion continues in this Tuesday post.


  • So we have lawyers repeatedly lying in public and bar associations and discipline groups doing nothing.

    Reason no 4,397,432 why lawyers are so well beloved.

  • I dread to think what Nancy Grace will do if attorneys stop going on her show to mouth ridiculous alibis. Fortunately, attorney dishonesty is not a professional liability. If you manifest it before a congressional committee it can get you elevated to the Supreme Court.

  • For the first time in over 125 years, the North Carolina legislature last week expelled a sitting member, Thomas Wright from Wilmington, NC.
    Wright has been accused of using campaign funds for personal use, not filing mandatory election returns for several years and influencing a state employee to do something disreputable that I can’t remember.

    Wright is under indictment and will stand trial at the end of May on these charges.

    During the expulsion hearing, Wright’s attorney compared Wright’s prosecution to the Crucifixion but mercifully that is where the analogies and comparisons ended.

    In this century in the US an attorney can say anything and will say anything without any regard to how it relates to the truth.

  • I have to disagree with Mr. Phillips. First, it seems reasonable that a brief elaboration of a denial is appropriate for a criminal defense attorney to make to the press. What else are they going to say? My client did it? And I doubt the public hears those denials and misunderstands the source and context. Second, in Scruggs’ case, the “alibi” I see referenced isn’t really a specific one, more of a dressed-up denial. That’s fair. In the civil context, would Mr. Phillips accuse defense attorneys of being ‘wrong’ or ‘ignorant’ to settle a case they’d filed an answer denying liability on? Nah.

  • If anyone cares to comment on this, I’d appreciate it.

    A defense attorney has a duty to his client to give the client sound advice and to advocate vigorously for his client’s interests, subject to (1) applicable law, (2) applicable ethics rules, and (3) the client’s wishes.

    On (3), if the client insists on taking the position that he is innocent and has an alibi, is it not the lawyer’s duty to advance that position to the extent that law and ethics allow? Was Mr. Keker aware, when he made those statements, of the evidence against Scruggs? If not, if Scruggs wanted to assert his innocence, and if any good faith argument could be made that Scruggs was, in fact, innocent, then it doesn’t seem so heinous to me that Keker would make the statements he did.

    Also, does Mr. Phillips mean to imply that when a lawyer arguably “vouches” for his client in public that that should operate as a waiver of the attorney-client privilege?

    I’m a big fan of this blog and the opposite of a big fan of Dickie Scruggs and his ilk, but I’m a bit curious about some of the statements in this post.