Defense Ethics & “The Judge”

Shyster Lawyers? Reflections on Legal Ethics in Light of the Movie, The Judge, and on How Lawyers Can Defend Obviously-Guilty Clients and Still Sleep at Night 

By Ken K. Gourdin

At the outset, full disclosure is in order: I am not a lawyer.  I will gladly defer to any lawyer who disagrees with me about the points raised herein, and anyone with questions about legal ethics should contact a licensed attorney.  Now, with that out of the way, I recently saw the movie The Judge.  Robert Downey Jr. plays Henry “Hank” Palmer, a high-profile Chicago white-collar defense lawyer.  Hank is summoned back to his small, Indiana hometown when he receives news of his mother’s death.  His return forces him to confront the question of whether he has been true to the values with which he was raised and whether, in fact, he should have allowed his outsized ego and aspirations lure him away from those values.  While he is home for his mother’s funeral, his father, Judge Joseph Palmer (the movie’s title character, played by Robert Duvall), is accused of a hit-and-run, and Hank struggles to convince his father to put up a vigorous defense.

As often is the case, audiences have liked this movie better than critics.  While many of the latter have dismissed the film as sentimental, either audiences must prefer such sentimentality, or they must disagree that the movie falls prey to it.  As of October 16, 2014, it has a score of 7.8 on a scale of ten based on 3,990 user reviews at imdb.com.1  At rottentomatoes.com, it has only a 47% “fresh” rating from critics, while it has an 82% favorable score from audiences and an average rating of 4.1 out of five based on 23,677 user reviews.2

My purpose in writing, however, rather than providing a review of the movie as a whole, is to focus on its portrayal of defense lawyer Hank.  At one point in the film, Hank is asked the proverbial question asked of almost every defense lawyer in any legal drama, “How can you defend people you know are guilty?”  My purpose is not to analyze Hank’s answer to that question; anyone who sees the movie can do that for himself.  Rather, my purpose in writing is to provide my own answer to that question, and to explore the implications of that answer from the standpoint of legal ethics.

Near the beginning of the movie, during a court recess, a prosecutor comes in to the men’s restroom as Hank is relieving himself to question why Hank won’t accept the prosecutor’s reasonable plea offer on behalf of Hank’s client.  Before Hank is finished relieving himself, he turns and “accidentally” sprays the trousers of the prosecutor’s (no doubt expensive) suit with his bodily fluid.  (“You startled me,” Hank deadpans as an excuse.)  It’s conceivable (even likely, one would think) that the prosecutor would lodge a complaint against Hank for this behavior, and that Hank would face discipline as a result.  However, with respect to Hank’s refusal to accept a plea, it should be remembered that while strategies and tactics (including those relating to trial) usually are the province of the lawyer, and while decisions that will affect defendants’ substantive rights no doubt often are made with a good deal of input from the lawyer, according to the Model Rules of Professional Conduct, whether to accept or reject a plea offer is the province of the client.3

To begin our analysis of the movie’s portrayal of Hank, I’ll offer the uncontroversial, axiomatic view that I don’t think defense lawyers (or prosecutors, for that matter) should strive to win at all costs.  Integrity matters.  If I were to do something illegal or unethical in order to win a case, I think (and I hope) that I would have a hard time looking myself in the eye in the mirror, and a hard time sleeping at night.  In fact, I should have a hard time doing those things.  If I didn’t people would have the right to wonder whether I’m a sociopath.

I’ve heard people claim that prosecutors have unlimited resources, while their opponents at the defense bar have unfairly limited resources.  While whether lawyers who defend indigent clients in any given jurisdiction should be given more resources to do so certainly is a debate worth having, and while prosecutors do have considerable resources, I don’t believe those resources are unlimited (and not simply because speaking in such absolute terms is a logical fallacy).  If prosecutors truly did have unlimited resources, they would have nothing to lose by taking every case to trial rather than engaging in plea bargaining and other pretrial diversion options.

I offer the above to reassure my reader that I don’t expect anyone to feel sorry for prosecutors.  Still, although I don’t expect anyone to feel sorry for them, the fact remains that they do have obligations that defense attorneys do not.  For example, if I were a defense attorney, and if my client confessed that he actually did what he is charged with doing, I would have no obligation to report that confession to the prosecutor, and if I did so, I could be disciplined for violating the ethics of my profession.  Conversely, if I were a prosecutor, and if I encountered evidence tending to show that the accused in reality did not do what he has been charged with, I would have an ethical duty to turn that evidence over to the defense; if I did not do so, I could be disciplined.

As the conflict in the movie between Hank and his father about defense tactics indicates, defense attorneys have a duty to defend their clients zealously and vigorously.  Regarding that duty, I wrote the following elsewhere:

How does anyone sleep at night knowing that he defended (perhaps successfully) someone who actually was guilty by exploiting one or more “loopholes” in the law, such as the exclusionary rule [which mandates that evidence obtained in violation of constitutional rights cannot be used in prosecuting the accused]?  The simple answer (provided he acted ethically in doing so) is, because the Constitution and the law say he can.  That is not to say that anything that is legal also is right, but a lawyer’s first duty, provided no other ethical considerations rightfully intrude, is to his client, and his next duty is to the ethics of his profession—even if those ethics produce what some [perhaps many] might consider an undesirable result.4

Expanding further on an attorney’s duty of zeal, I also wrote the following:

I might tell a jury (at least if I were defending a “hopeless” client with a lousy reputation in the community), “Ladies and gentlemen of the jury, don’t convict my client simply because he’s an S.O.B., and because everyone who knows him thinks that what he stands accused of seems exactly like something he would do.  If you’re going to convict him, convict him because you’re convinced beyond a reasonable doubt that he actually did what he’s been accused of.  Make the prosecution carry its burden of successfully proving every single element of the crime or crimes with which my client has been charged.  And if you were my client, you would have every right to expect me to do for you exactly what I’m going to do for him.  In fact, the ethics of my profession demand it.  And not only do the ethics of my profession demand it, the Constitution does, as well.5

The case of the State of Florida v. George Zimmerman provides a useful illustration of how an attorney’s duties of zeal and vigorousness in defense of his client work in practice, given the fact that many people felt that George Zimmerman should have been convicted (and some, it seems, felt that way despite the quality of evidence against him).  Regarding the case, I wrote:

[I]f the situation had been reversed [i.e., if Martin had been put on trial for killing George Zimmerman], Martin would have wanted the most vigorous, zealous defense possible within the bounds of law and legal ethics. He would have wanted his attorneys to cross-examine the state’s witnesses vigorously, just as Zimmerman’s attorneys did. He would have wanted them to elicit as much mitigating, exculpatory evidence from those witnesses (as well as from his own witnesses) as possible, just as Zimmerman’s attorneys did. In short, he would have wanted exactly what George Zimmerman got. And nobody would be rioting (or even protesting) in the streets if he had gotten it.6

In commenting further on the Zimmerman case, I pointed out elsewhere that as much as we might disagree with any given verdict, “justice by mobocracy” based on the weight of public opinion would replace the current regime of “rule of law” in the United States with “rule of men.”  I wrote:

While we might say that we believe it’s better for a hundred guilty people to go free than for one innocent person to be convicted, too many of us want to have our cake and eat it, too: if a jury reaches a verdict with which we disagree, many of us blame the very system whose protection we would demand if we were falsely accused (or if we believe there is insufficient evidence to convict us).

Many then take to the streets chanting such slogans as “No justice, no peace!”  What is justice?  It is what we say it is.  What is peace?  Peace may be achieved by using the system to further whatever ends will keep us from rioting in the streets.

That sounds an awful lot like “rule of men” and not a whole lot like “rule of law” to me.  As much as I understand why those who don’t believe that a just result was achieved in the Zimmerman case are frustrated, that’s not a country in which I think most of us would want to live.7

Another case in which the sympathy of many for the victim (in this case, combined with the antipathy of many toward law enforcement) seemingly colored their view of what a proper result is has been the case of the State of Utah v. Shawn Cowley.  Former West Valley City Police Detective Cowley and his partner, Kevin Salmons, shot and killed Danielle Willard after Willard allegedly tried to run Cowley over with her vehicle.  Regarding that case, in a recent Deseret News Op-Ed, I wrote:

We often form opinions based on what we, a priori, “know,” then we become upset when charges are dismissed or an acquittal is returned against someone we “know” is guilty, or when someone we “know” is innocent gets convicted.

It’s ironic that if someone we “know” is guilty is acquitted or has charges against him dismissed, we decry the system’s ineffectiveness. Conversely, when someone we “know” is innocent is convicted, that once-ineffective system suddenly becomes heavy-handed and oppressive.

In a court of law (unlike in the court of public opinion) it doesn’t matter what anybody “knows,” or how sympathetic a victim is: it only matters what they can prove. Whatever anyone’s opinion of the justness of a given case, rulings and verdicts should be based on the law and on the evidence.

Either everyone accused of a crime is entitled to the most vigorous defense within the bounds of law and legal ethics, and to a zealous advocate who will hold the prosecution’s feet to the fire by demanding that it prove every element of the crimes charged, or no one is.

If we were accused of a crime, we would want (indeed, we would be constitutionally entitled to) the same thing Cowley got: a vigorous defense by a zealous advocate and weighing of the evidence by a neutral arbiter.8

In summary, how, in good conscience and good faith, do defense attorneys defend those of whom it often can be said that the weight of public opinion (if not the weight of the evidence) is against them, and still sleep at night?  Because the Constitution, legal ethics, and other laws say they can.  Whether this will change the often-stereotypical view of defense attorneys portrayed in movies anytime soon is doubtful, but such portrayals are simply another reason in a long list of reasons why knowledgeable viewers will be required to suspend disbelief in order to watch Hollywood portrayals of the law.

END NOTES

  1. See http://www.imdb.com/title/tt1872194/?ref_=nv_sr_1, last accessed October 16, 2014.
  2. See http://www.rottentomatoes.com/m/the_judge_2014/, last accessed October 16, 2014.
  3. The American Bar Association’s Model Rules of Professional Conduct Rule 1.2, “Scope of Representation and Allocation of Authority Between Client and Lawyer,” states, in relevant part, “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered[.]”  See the following address, last accessed October 17, 2014:

    http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_lawyer.html.

    The Utah Rules are in accord. Utah Rule of Professional Conduct 1.2(a) states, “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, … as to a plea …” (emphasis added).  The rule is available at the following address, last accessed October 16, 2014:

    https://www.utcourts.gov/resources/rules/ucja/ch13/1_2.htm.

    Even some prosecutors appear to have lost sight of this rule.  See, e.g., Ken K. Gourdin (September 28, 2014) “In Defense of Defense” (Letter to the editor), City Weekly 4.

  4. Ken K. Gourdin (March 25, 2013), “The Ethics of Zealous Defense” (Blog post), http://www.greatgourdini.wordpress.com/2013/03/25/the-ethics-of-zealous-defense/, last accessed October 16, 2014.
  5. Ken K. Gourdin (July 31, 2013), “The Ethics of Zealous Defense II” (Blog post), http://www.greatgourdini.wordpress.com/2013/07/31/ethics-of-zealous-defense-ii/, last accessed October 16, 2014.
  6. Ken K. Gourdin (July 16, 2014), “Living With Unlikeable Verdicts” (Blog post), http://www.greatgourdini.wordpress.com/2013/07/16/living-with-unlikeable-verdicts/, last accessed October 16, 2014.
  7. Ken K. Gourdin (July 30, 2013) “Zimmerman acquittal tests faith in U.S. legal system,” Tooele Transcript-Bulletin (Utah), A4.
  8. Ken K. Gourdin (October 15, 2014) “Justice system: Same for everyone,” Deseret News, http://www.deseretnews.com/article/865613139/Justice-system-Same-for-everyone.html?pg=all
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About kenngo1969

Just as others must breathe to live, I must write. I have been writing creatively almost ever since I learned to write, period! I have written fiction, book- and article-length nonfiction, award-winning poetry, news, sports, features, and op-eds. I hope, one day, to write some motivational nonfiction, a decent-selling novel, a stage play, and a screen play.
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