PROFESSIONAL RESPONSIBILITY ESSAY SERIES ESSAY QUESTION #2 MODEL ANSWER
Knowles was retained to represent Baker on a federal bank robbery charge. The indictment charged that Baker robbed Freedom Bank on Third Street. The prosecutor's case depends on, among other things, photographic evidence from hidden cameras in the bank. None of the photographs clearly depicts the robber's face.
At their first meeting, Baker told Knowles that at the time of the robbery he was watching television at the home of his friend Peterson.
Knowles noticed that one of the bank photographs shows the robber wearing a ring on the fourth finger of his right hand. At one of the trial preparation sessions, Knowles saw that Baker had a ring on the same finger. Knowles mentioned this to Baker, and the following conversation occurred:
Baker: "So what? There must be lots of rings that look like this one."
Knowles: "Yours has a 'B' on it."
Baker: "You can't see the one in the bank photo clearly enough to see if there's a`B'."
Knowles: "You might if they blow it up."
Thereafter, Baker removed the ring and Knowles never saw it again. Knowles later suggested that Baker get a new ring to cover a mark left by the old ring. During the trial, but before Baker testified, he asked Knowles what might happen if the prosecutor asked him if he had a ring with a "B" on it. "Because you insist on testifying, you have to tell the truth," Knowles said.
On the evening before the day of closing arguments, Baker gave Knowles the balance of his legal fee in $100 bills. Knowles noticed that the serial numbers on fourteen of the $100 bills were the same as the serial numbers on some of the stolen bills, which numbers had been revealed during the course of the trial.
Knowles returned the fourteen $100 bills to Baker and told him to bring an equivalent sum in other denominations. The following morning, Baker came to court with twenty-eight $50 bills, which Knowles accepted.
In his closing argument, Knowles argued that the prosecutor was going after the wrong man and urged the jury to believe Peterson's alibi testimony.
What standards of professional responsibility, if any, has Knowles violated by his conduct in representing Baker? Discuss.
PREAMBLE STATEMENT. As a member of the California State Bar, Knowles must abide by the American Bar Association and California Rules of Professional Responsibility, or she will be subject to discipline by the Bar. May owes duties to her clients, the profession, other attorneys, the community at large and to the court.
DUTIES OF COMPETENCE AND CONFIDENTIALITY TO CLIENT.
A lawyer owes the duty of diligence to his client to represent his client's interests with zeal and competence. The attorney's duty to maintain confidential information is based on the policy of encouraging communication between the accused and the attorney. The reasoning here is that because of the candid exchange between the attorney and the client, the lawyer's ability to adequately represent the client will be enhanced. In the present case, the identity of the robber is an important part of the prosecution's case. It is the prosecutor's responsibility to prove beyond a reasonable doubt that Baker is the perpetrator of the crime. Here, the ring is important because it may be persuasive circumstantial evidence that Baker committed the crime.
DUTY OF CANDOR TO COURT.
A lawyer must not knowingly make false statements of material fact or law to tribunal, or fail to disclose information when disclosure is necessary to avoid assisting criminal or fraudulent activity by client. A lawyer must not act to further fraud, or to suppress evidence. However, sometimes, the Duties of Competence and Confidentiality to a client, must be weighed against the Duty of Candor to the court.
COMPETENCE V. FURTHERANCE OF FRAUD.
ADVICE TO REMOVE THE RING.
Here, Knowles is concerned about any the fact that Baker may be connected to the crime through the ring with a "B" on it. The defendant's attorney has an obligation to bring forth known evidence that he has in his possession. However, at this point in the case, Knowles has not been made aware that the prosecution knows anything about the ring. Knowles does not have a duty to disclose his own observations to the prosecutor or to the court.
Further, Knowles knew of the photo, but was not sure that Baker was wearing a ring with a "B" on it during the crime. When Knowles advised Baker to remove the ring, Knowles was not assisting in a fraudulent act or suppression of evidence. Remember, it is the prosecution's obligation to prove their case. Further, defense attorneys may advise their clients to dress or act in ways that are less incriminating. In fact, in advising Baker to remove the ring, Knowles was fulfilling his duty of competence as a zealous advocate of Baker.
Knowles may advise his client to remove the ring.
COMPETENCE V. SUPPRESSION OF EVIDENCE.
ADVICE TO WEAR A DIFFERENT RING AT TRIAL.
An attorney has a duty to the courts not to suppress evidence.
The question then is whether asking Baker not to wear the "B" ring is suppression of evidence. As stated above, it has not even been established or suggested that the person on the film was wearing a ring with a "B" on it. Thus, the ring is not evidence. Therefore Knowles's conduct in suggesting to his client not to wear the ring is not suppression of evidence.
CANDOR TO COURT.
KNOWLES ADVICE TO TELL THE TRUTH WHEN TESTIFYING.
An attorney cannot assist his client in fraud or a crime. Accordingly, if an attorney is questioned about whether a fact should be hidden or lied about, the attorney must tell his client to tell the truth. If an attorney becomes aware that his client is going to commit perjury, he must advise his client not to commit perjury. If it appears the client is going forward, the attorney must seek leave to withdraw.
Under the ABA rules, an attorney must advise the court of the client's perjury, and under California rules, an attorney does not need to inform the court, but cannot advance the client's perjury. In other words, Knowles should refrain from asking questions regarding the ring, nor should Knowles argue the perjured aspects of the testimony. Knowles cannot encourage, condone or participate in the presentation of false testimony at trial.
Here, Knowles knows that Baker has a ring with the "B" emblem on it. If the prosecution seeks information about the ring during cross-examination, then Knowles must advise Baker to answer truthfully. Knowles properly advised his client to tell the truth about the "B" ring. This advice is correct. It is not clear whether or not Baker testified. However, Peterson apparently did testify, and perjured himself. Since Knowles was aware of the perjury, he should have notified the court of the perjured statements.
COMPETENCE / DECISION-MAKING.
ADVICE NOT TO TESTIFY.
The decision-making capacity of the client is paramount, and Baker may decide to testify, whether or not Knowles advises against testifying. When Knowles stated to Baker, that Baker must tell the truth, he Knowles may have been inferring that Baker should not testify. This is proper. Knowles may give advice regarding testifying, but it is Baker's final decision as to whether to testify, or not to testify.
CONFIDENTIALITY TO CLIENT V. CANDOR TO COURT.
An attorney owes his client the Duty of Confidentiality. This is a broader concept than the attorney client privilege in that it includes more than communications. The ethical confidentiality privilege or duty covers all communications or facts learned during representing a client that may be harmful or embarrassing to the client. If an attorney is given an instrument of a crime or the fruits of a crime, he has a duty to turn it over to the authorities. In this case, there is a conflict between Knowles's Duty of Confidentiality to Baker and Knowles's Duty of Candor to the court to turn over evidence. If evidence of the crime such as the instruments of the crime or the fruits of the crime get into the attorney's hand, he must turn them over to the proper authorities. The attorney can first retrieve any evidence he needs, but he must then turn them over.
The facts state that the serial numbers of the stolen money were presented in the trial. Baker gave give Knowles $100 bills with the same serial numbers as presented at trial. Accordingly, the $100 bills presented to Knowles were evidence of the crime, and they were the actual fruits of the crime in his client's hands. If evidence of the crime such as the instruments of the crime or the fruits of the crime get into the attorney's hand, he must turn them over to the proper authorities. While Knowles did not tell his client to commit fraud or to suppress evidence, Knowles did have a duty to turn in the money. The attorney can first retrieve any evidence he needs, but he must then turn them over. However, the attorney may maintain the client's Confidentiality by not providing any comment to the prosecution at the time the evidence is turned in. In fact, Knowles was prevented from informing the court where he received the bills from because divulging such information would breach his duty of Confidentiality to Baker.
Therefore, Knowles should have bridged the gap between his Duty of Candor to the court, and his Duty of Confidentiality to Baker. In other words, Knowles should have submitted the evidence of fourteen $100 bills to the court so that Knowles was not a partner to the suppression of evidence. However, he need not divulge any other information to the prosecution, in order to prevent breach of his Duty of Confidentiality to Baker. He should also have informed Baker that the court was presented with the evidence.
COMPETENCE V. CANDOR TO COURT.
Prior to the closing argument, Peterson, a friend of Baker's, had testified that Baker was at Peterson's house watching TV at the time of the robbery. Knowles knew that the alibi was false, because Knowles knew about the fourteen $100 bills with serial numbers, that had been in Baker's possession.
Knowles had a duty of candor to the court, which should stopped him from using the false alibi in the closing argument. Instead, Knowles, instead of referring to Peterson's testimony, should have referred to the ways in which the prosecution failed to meet their standard of persuasion. Knowles could have focused on the prosecution's failure to prove the identity of the perpetrator, and other salient aspects, and thereby have met his duty of competence to his client, Baker.
At all times before the end of the proceedings, Knowles had a duty of candor and honesty to the court, which ended after the proceedings ended. Knowles breach his duty of candor and honesty to the court when he suppressed the fourteen $100 bills. He will be subject to discipline for his failure to submit the stolen bills. The duty of confidentiality to the client and candor to the court is often a delicate balance, but it favors candor to the court in the instance of the stolen money.
Knowles also breached his duty of candor to the court when he forwarded an alibi theory that Knowles knew to be false in his closing statement.
In other regards, Knowles properly held the balance between confidentiality to Baker and candor to the court.
COPYRIGHT 2010 PATRICK GOULD, J.D., M.A.