Tag: Allocating Decision-Making Between Lawyer and Client

“This sounds like my ethics class in law school…” Justice Sotomayor

Renee KnakeLeave a comment

The Supreme Court heard arguments today in McCoy v. Louisiana, which presents the question of whether it is unconstitutional for defense counsel to tell the jury that a client is guilty when the client insists he is innocent. It also raises interesting questions about the ethical obligations under ABA Model Rule 1.2 that “a lawyer shall abide by a client’s decisions concerning the objectives of representation” and ABA Model Rule 3.3, Candor Toward the Tribunal.

As Justice Sotomayor observed in questioning McCoy’s attorney, “this sounds like my ethics class in law school, and this very hypothetical of what do you do with a lying client?” Full oral argument transcript is here.

Adam Liptak noted in the NY Times that the justices seemed likely to side with McCoy: “Several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer.” Full article here.

Cross-posted at the Legal Ethics Forum

Teaching MR 1.2? 60 Minutes Offers Some Great Material to Jump Start the Conversation

Renee KnakeLeave a comment

If you haven’t yet watched 60 Minutes’ recent episode on Anonymous, Inc., you might consider using in class it to spark conversation about Model Rule 1.2(d)’s requirement that:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The episode features interviews with 16 attorneys by a fictitious client seeking help with money laundering.  Interestingly, only one attorney flatly refused to engage.  Among the rest, we see fascinating clips of their conversations as they weigh whether or not to take on the client. The second half of the show features legal ethics expert Bill Simon discussing the attorneys’ behavior.

Here’s a brief synopsis from the 60 Minutes website:

If you like crime dramas and movies with international intrigue, then you probably have a basic understanding of money laundering. It’s how dictators, drug dealers, corrupt politicians, and other crooks avoid getting caught by transforming their ill-gotten gains into assets that appear to be legitimate.

They do it by moving the dirty money through a maze of dummy corporations and offshore bank accounts that conceal their identity and the source of the funds.

And most of it would never happen without the help — witting or unwitting — of lawyers, accountants and incorporators; the people who actually create these anonymous shell companies and help move the money. In fact, the U.S. has become one of the most popular places in the world to do it.

More coverage below:

Full report from Global Witness, the group conducting the investigation, is here.

ABA Journal, Group goes undercover at 13 law firms to show how US laws facilitate anonymous investment

NY Times, Report describes lawyers’ advice on moving suspect funds

ABA President Paulette Brown responds to 60 Minutes segment here.

LT addition: For an article on US legal profession efforts to combat money laundering, see here  and here for related slides.

Boston Marathon Bomber Trial and Allocation of Decision-making issues

Contemporary Professional ResponsibilityLeave a comment

This blog post from the “Best Practices for Legal Education” blog and the accompanying comments do a nice job of framing an “allocation of decision-making” issue:

http://bestpracticeslegaled.albanylawblogs.org/2015/04/22/best-practices-in-counseling-ethical-practices-in-counseling/