Saturday, May 21, 2005

NY Court of Appeals ethics decision

I know, I have been downright prolific lately. See what a little time in the tropics can do for a mind frozen on the North Shore's "Frozen Tundra"!
I have been attending the ABA General Practice sections Spring meeting and when not attending mixers and CLE ( see the earlier post on Marketing) I have been sitting in beautiful nooks and crannies of the World Famous FONTAINEBLEAU HOTEL AND TOWERS. My room here is in the towers facing the ocean and overlooking the pools and gardens with a wonderful side view of all of downtown Miami and South Beach (of course).
Anyway because I am traveling alone I have had lots of time to read all the wonderful blogs of other lawyers (blawgs) and to work on this one as well as it's two sisters That Lawyer Dude and our new baby The Positive Review. I am sure once I return to the Island of Long ( as in Long lines, long hours, and Long Beaches.) I will get so busy I will barely have the time to post.

In the meantime... I stumbled across a case I must have missed while I was in the Hospital. People v. Andrades ___NY2d___, ____NYS3d____ (March 29,2005. The Andrades case is a murder case. In it the defendant confessed on video and on paper. Ok it is already going to be a tough case. On the day of the Huntley Hearing the defense attorney informs the court that it would be inappropriate to proceed because he is facing an unstated ethics dilemma. The prosecutor (always the first to pile on when things are going poorly for a defense counsel) objects to a delay and the judge forces our defense colleague to go forward. Ok so far so good. You have made your application now be a good soldier and after preserving your issue go forth and defend. Problem is the Defendant wants to testify ( as is his right) and he wants to lie to the court ( which is NOT his right.)

This is where the case gets twisted. Defense Counsel knows just what to do. Advise the guy not to lie, advise him not to testify. If forced put him on ask name rank and serial number and then ask him what happened. Then sit the hell down and never mention the damn testimony again! It isn't fun and it makes you feel funny but the best thing you can do is to just get it over with quietly. Not this guy, nope, He decides to tell the judge and fact finder just what he intends to do.

Now had counsel said nothing ( which I think is the proper thing to do) the judge would have had to be a moron not to understand that counsel believed his client to be lying. Something the Ct of Appeals acknowledges. Forecasting the play however, (telling the fact finder outright what is going on, or drawing undue attention to it) seems really wrong. Maybe because I actually represent clients and the Court of Appeals does not. Nope they decided that the lawyer's actions were OK!! By a vote of 7-0! (Where is Judge Titone when you really need him.)

Clearly I am not Court of Appeals material (I know that was never in question!) but I am sorry, this just goes too far. It is like the Pacino character in "And Justice For All". This was a murder trial for God's sake. Shouldn't this case have been overruled just because the Attorney client privilege was completely destroyed before the start of the hearing. I mean this guy got 25-life! Shouldn't he even have been entitled to the sham of a procedure where his lawyer pretended to be on his side??

If nothing else, it would have been nice if the Court of Appeals had sustained the case on a harmless error analysis only. They could have said "Even though counsel's actions were wrong here and he should learn to do his job and shut the Hell up, the judge would have to be a moron to have not understood the nature of the ethical conflict counsel had and would have guessed it any way so no harm no foul" (told you I am not destined for the high court.) Instead the court points out that had counsel not told the court of the problem, it would not have allowed the narrative form of testimony. Ridiculous. Given the prior application, once the defendant was called, even had their been an objection it should have been overruled as it would be clear to the court ( and everybody else too) just what counsel was up to.

The problem here is not the perjury. I have no problem with the attorney's decision to question in the narrative if he was absolutely positive the client was about to mislead the court. My problem is that now there can be no lawyer/client relationship. The Client has to feel like his attorney has abandoned his ship. The Court of Appeals by ruling the way it did, now requires counsel to go right up to the precipice of the attorney client privilege and that will have dire effects on the relationship.

Look, it is one thing for me to tell a client you shouldn't lie I will not help you to lie and if you insist I have to ask to be removed from the case and I cannot use your testimony on summation. It leaves the door open for me to give other advice and I can still represent the fellow if I have to. Chances are he will still want my advice and maybe even respect me as a straight shooter. But by forecasting a subtle change of sides appears to be going on. It reminds the client that no one but himself has his best interest in mind. That even his own advocate owes his first duty to the court, a branch of the government.

I think the ruling was unnecessary and decided on a question the court did not have to reach thus I dissent ( as if anyone really cares.)

If you have any thoughts on this please leave a comment here or write to me at

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