Imprisoned Lerach fires John Keker is a post from Overlawyered - Chronicling the high cost of our legal system

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.

“My client is being framed”, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system

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
Minneapolis

More: Discussion continues in this Tuesday post.

“Why Do Lawyers Mouth Clients’ Ridiculous Alibis?” is a post from Overlawyered - Chronicling the high cost of our legal system

* In major blow to defense, Judge Biggers denies motions to suppress wiretap evidence and evidence of similar bad acts [Rossmiller]

* Balducci says he and Patterson got $500K from Scruggs to influence AG Hood to drop indictment of State Farm, motive being to advance civil settlement [Folo]

* WSJ gets into the act with some highlights of wiretap transcripts [edit page; earlier here]

* Sen. Trent Lott says he’s a witness, not a target, of federal investigation [Anita Lee, Biloxi Sun-Herald]

* Scruggs off the hook on Alabama criminal contempt charge [WSJ law blog, Rossmiller, Folo]

* “Mr. Blake has served for many years as a conduit and a layer of separation, if you will, between Mr. Scruggs and other people on sensitive issues.” (Balducci transcript highlights, Folo; more)

* In effort to get Zack Scruggs indictment dismissed, his lawyers dwell on switch from “y’all” to “you” as implying shift in persons addressed from plural to singular [Folo first, second; Rossmiller first, second; on a “sweet potatoes” point, NMC @ Folo and sequel; also]

* DeLaughter/Peters branch of scandal reaches deep into Jackson legal community [Adam Lynch, Jackson Free Press]

* Article in new American Lawyer notes that Scruggs’s ambitious suits have lately hit a big losing streak, notably those against HMOs, nonprofit hospitals and Lehman Brothers [Susan Beck]. And Lotus catches an interestingly lawyerly wording on John Keker’s part [Folo]

* I’m quoted and this site is discussed in an article on blog coverage of the case; my lack of clarity as an interviewee probably accounts for Scruggs being said to have addressed audiences at the Manhattan Institute “a few” times, when if memory serves the correct reference is “twice”. [Patsy Brumfield, Northeast Mississippi Daily Journal (Tupelo) @ Folo]

* For more background see our Scandals page; also YallPolitics.

Scruggs scandal update: sweet potatoes by the acre is a post from Overlawyered - Chronicling the high cost of our legal system