The criminal lawyer’s worst nightmare is being gulled by a client and losing his or her good name.
Consider Ontario lawyer Ken Murray’s predicament when serial killer Paul Bernardo sent him into his house to collect videotapes that an extensive police search had missed.
Then there was the Lake Pleasant bodies case, in which New York lawyers Frank Armani and Francis Belge checked out dump sites serial killer Robert Garrow had disclosed to them. Belge even took photographs and moved one victim’s skull closer to her body.
Murray was prosecuted for attempting to obstruct justice but was acquitted. Belge was indicted by a grand jury for interfering with burial rights and failing to give notice of death but was also ultimately acquitted.
Many lawyers lauded Armani and Belge for heroically protecting their client’s confidences, but the public didn’t, which meant their reputations and practices suffered.
Luckily, not many of us will encounter serial killers and fall prey to their instructions, but ethical issues arise daily in our work, often in seemingly innocuous situations.
A very common one in criminal practice is the employment lie, which is frequently accompanied by a letter appearing to be real.
How would you handle the following scenarios?
• That long-awaited employment letter needed for an intermittent sentence looks a little odd. It’s the date of the sentencing, so what do you do? The Crown has said it won’t oppose an intermittent sentence accompanied by an employment letter.
• The client will be diverted on condition of doing community-service hours. But you can’t reach the author of the letter. There’s a time limit on the Crown’s offer.
• Prior to the bail hearing, your client told you about a recent job with someone named Joe (last name unknown). But key information changed when the client testified.
What submissions can you make?
Questions 1 and 2 are very similar, but in the first scenario you have a feeling that the letter is a forgery. You have a duty not to mislead the court.
Knowingly filing false evidence clearly violates the Rules of Professional Conduct, but we’re not talking knowledge. We’re really talking negligence.
One lawyer told me that filing such a letter on the fly as he juggled different courts resulted in a police investigation for obstructing justice and an inquiry from the law society.
He was never charged, but all of that would have been avoided by an adjournment to confirm the information. Once he took a proper look at the letter, he could see that part of it was photocopied.
The second question raises a similar issue: can you give the note that purports to confirm community service to the Crown? Suppose you give it to the Crown with the proviso that you couldn’t confirm it, but it later proves to have been forged. It’s not a pretty situation.
Every letter has to be checked. The mens rea for uttering a forged document is as little as recklessness. The commentary to Rule 2.02(5) states that a lawyer “should be on guard against becoming the tool or dupe of an unscrupulous client.”
What about those garden-variety lies given to you by the client when you prepare for a bail hearing? The client may be planning on fooling the court or may be exaggerating in the cells in an attempt to impress you.
In either situation, make no reference to the client’s testimony about employment in your submissions because you don’t believe it’s true.
It’s easiest to advise all clients that all employment letters, character references, and other documents have to be checked so that no one has any nasty surprises and they understand that this is how you practise law.
So what do you do with a false letter provided to you by the client? Litigation privilege attaches to the document, so it can be kept secret or even destroyed by counsel.
When Armani was appointed to represent Garrow in 1973, he wasn’t even aware there was a written ethics code for New York lawyers, yet he said he would have handled the case in the same way if he had to do it again.
That’s OK for him, but personally, I wouldn’t want the tsores (a Yiddish word for trouble, distress or problem).
Who wants to be remembered as a chapter in an ethics text? If you are asked to do something that makes you feel uncomfortable and you can’t find the answer in the Rules of Professional Conduct, don’t do it. Get the client to change the instructions.
Acting upon inappropriate instructions, tendering the forged document or referring to the perjured testimony will only create problems for counsel.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].
