Thursday, April 10, 2008


There are rules against lawyers revealing client confidences. It's called the attorney/client privilege and only the client has the right to permit a lawyer to reveal confidential communications between them. High profile criminal defense lawyer, Rusty Hardin, broke this ethical rule when he gave the New York Lawyer an interview about how he counseled Roger Clemens prior to his congressional testimony (h/t Simple Justice):

H: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

B: You don't think much of your critics?

H: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

B: It seems like he was asking for trouble.

H: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

B: Even if that decision sends him to jail?

H: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

Hardin had been severely criticized in the media for permitting Clemens to testify before Congress. To justify his position and deflect criticism Hardin revealed confidential communications between he and his client to the media.

I see this happening frequently in courts across Texas. It's called lawyers "covering their asses" and I don't like it. Lawyers asking their clients on the record whether they're satisfied with the representation provided. Whether they've answered all their questions. Whether they've discussed all plea offers to settle the case. Whether they've advised them of their right to jury trial or their right to present evidence. Or whether they've recommended the client take the plea or fight it out in trial.

The reason lawyers do this is to protect themselves against a grievance or claim of ineffective assistance of counsel. However, I doubt these lawyers asked permission to reveal these confidential communications. I doubt these lawyers explained the client's right to not answer.

Just like Rusty Hardin, it's about making yourself look good and protecting your backside. Frankly, I'm critical of this C.Y.A. (I've even had a prosecutor ask the judge to make me interrogate a client on the record about whether I've advised him of all plea offers in the case . . . no way!)

If lawyers want to protect themselves then just work hard, investigate your case, and document your file. Grievances and claims of ineffective assistance are facts of life for the criminal defense lawyer. But you can't live your professional life in fear of them. And you shouldn't be asking your client in open court whether you advised him of this or that. That's C.Y.A. and it doesn't make you look good.

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