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Where legal ethics and common morals clash

You know who murdered someone, but you can't tell anybody. You vow to tell the truth in a courtroom, but your client is about to lie.

Every lawyer promises to follow a set of ethical rules, but some recent cases show how agonizing that process can be.

Tampa lawyer Jimmy Thomas felt it when he began to suspect one twin was posing as another in a fraud trial in Pinellas County this week.

Clearwater lawyer Jay Hebert felt it for nine years, staying quiet about a possible murderer, because he learned about him in a confidential way.

And two Chicago lawyers dealt with it for even longer, knowing confidential information that kept an innocent man in prison for 26 years.

It's easy to say "legal ethics" is a contradiction in terms, or maybe the start of another lawyer joke. It actually is a complex area of law designed to make sure people get a fair shake.

But sometimes, legal ethics and common morality seem to clash, causing agonizing decisions for lawyers — and others.

Lawyers themselves do not understand every facet of legal ethics. Consider that the Florida Bar maintains an "ethics hot line" staffed by nine attorneys — eight of them full time — who handled nearly 30,000 calls last year.

Elizabeth Tarbert, the Bar's ethics counsel, said many questions are routine, such as how long lawyers should save their files. Others are not — such as the attorney whose client acknowledged having AIDS, but didn't want to let his partner know.

In this week's case, Thomas was set to begin defending Matthew Mauceri on a charge of scheming to defraud in a case involving auto parts. But when Thomas started discussing basic aspects of the case, the man claiming to be Mauceri didn't seem to remember them. Thomas began suspecting it was really Mauceri's twin brother.

It was a quandary for Thomas because if the man really was Mauceri, it was his job to defend him vigorously. If it was someone else, then he couldn't discuss confidential aspects of the case with him.

Thomas, a former Tampa police officer, said it put him in "a really bad position that I didn't want to be in." He said that when he approached the judge to discuss the case, a prosecutor told him he looked white as a ghost.

"I've never felt like that before where I knew the right thing was to get it out," but in a manner that protected his client's rights, he said.

Thomas began seeking advice and help from other lawyers and eventually the matter was brought before a judge, who had the man fingerprinted.

It proved Thomas right. Marcus Mauceri said he was standing in for his brother Matthew because Matthew was having trouble getting to his trial on time.

Seeking advice from fellow lawyers and the Florida Bar is something Hebert recommends. And he is someone who knows what it's like to wrestle with a vexing case.

In 1999 his client Lesley Stewart admitted to him that she helped bury the body of Belleair real estate agent Rosemary Christensen. Stewart said her boyfriend, Robert Glenn Temple, had murdered Christensen, who was his wife.

Although Hebert urged her to tell police, she declined. One of the foundations of the legal system is attorney-client privilege — information a client shares with an attorney is secret. So Hebert had to stay quiet.

For nine years.

He said it was incredibly stressful to have a case in which "you know who did it, you know where the body is buried and you can't say anything." He said the case never left him during those years.

Couldn't he find another way to get the information out, like anonymously calling police?

No, says Hebert. There were so few people who knew this information, that it would have been obvious. This could have tainted the case in a way that might have prevented the evidence from being used in court.

Stewart finally told police what she knew in 2008 and led investigators to Christensen's body, which had been buried in North Florida woods. Temple was charged with murder and is awaiting trial.

Criminal defense attorneys could work long careers without ever encountering that conundrum. It's more likely they would face this situation: a client who wants to take the stand in his or her own defense, and lie.

It's another delicate balance. On the one hand, the client has a constitutional right to defend himself. On the other hand, the lawyer cannot participate in a "fraud on the court."

A Florida Bar rule says if the attorney knows his or her client plans to testify falsely, he or she must let the court know about the false testimony that's coming and ask to withdraw from the case. The lawyer must also try to talk the client out of lying.

Of course, there is no guarantee the judge will allow the attorney to get off the case.

In the Chicago case, two attorneys heard that their client — accused of killing a police officer — had also killed a McDonald's security guard in 1982. They asked him about it and he confessed — but only to them.

Because of attorney-client privilege, they felt they could not come forward. They revealed it only after their client died. The man who was wrongfully convicted was released after 26 years.

One of the attorneys, Dale Coventry, acknowledged that in this case, legal ethics clashed with commonly held morality.

"If you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it's very, very clear — it's not morally clear — but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would," Coventry told 60 Minutes. "It's just a requirement of the law. The system wouldn't work without it."

Pinellas-Pasco Public Defender Bob Dillinger said a situation like that wouldn't sit well with him. If he encountered it, he said he would use every ounce of legal creativity he could to seek a solution that would free the innocent man from prison, without also giving his client a new conviction.

"It's just wrong for a wrongfully convicted person to be there," Dillinger said.

Where legal ethics and common morals clash 05/07/10 [Last modified: Friday, May 7, 2010 10:54pm]
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