Torture memos, LA election raise ethics questions

By Diane Karpman

Karpman

After 12 years of writing this column, I sometimes become so desperate for a topic that I pray to the appellate gods for an interesting case. Other months, there are so many interesting ethics issues that it’s hard to decide what to cover. This is one of those chock-a-block months.

First, according to recent press reports, none of the lawyers involved in the torture memoranda will be prosecuted, but the Obama administration may recommend that the state bars where the lawyers are admitted (Pennsylvania, Nevada and the District of Columbia) look into the issue. Therefore, we can anticipate that nothing will happen. California has dodged a bullet, since none of the lawyers is admitted here. This article is not taking a position, but it’s an interesting question. Should lawyers be subject to discipline for writing an opinion letter unsupported by existing case law at the behest of the client, even if that client is the president of the United States? That sounds reminiscent of issues raised in Watergate, and President Nixon’s famous comment that “when the president does it, it’s not illegal.” Remember, the California lawyers in Watergate were disciplined, but after criminal convictions occurred. Segretti v. State Bar (1976) 15 Cal. 3d 878.

On another front, the hotly contested race for Los Angeles city attorney has spawned wild rhetoric that is polluting the airwaves. The election will be decided by the time you read this, but what has the ethics community in a tizzy are the negative aspersions being cast against the candidates based on their representation of certain clients. Lawyers are being accused of representing drug smugglers, drunk drivers, those who love assault weapons and people accused of violent crimes. In one ad, one candidate accused the other of being a “moral sinkhole,” because he represented someone accused of shooting sea lions. (Think about how you felt when Bambi’s mother was shot. Powerful stuff.) One lawyer candidate is criticized for taking money from the “worst toxic polluters” in the county, because he accepted a campaign donation from a law firm that represents an oil company.

One candidate in the race refuses to disclose his clients’ identities, which resulted in Erwin Chemerinsky’s critical op-ed piece in the Los Angeles Times (May 8) asserting that the public has a right to know. That piece seems to conflate issues involving attorney-client privilege and confidentiality, which are entirely different. What seems to be missing from all this rapidfire dialogue is that in our system, the representation of a client does not mean a lawyer espouses the client’s view. Why aren’t the lawyer-candidates explaining this, rather than misleading the public that it’s perfectly acceptable to evaluate a lawyer based on his clients?

John Adams successfully defended British soldiers accused of killing five civilians in the Boston Massacre in 1770. He was condemned by Paul Revere and Samuel Adams. One would hope that the public and, most importantly, lawyers have become more knowledgeable by now. Everyone is presumed innocent until proven guilty, and all are entitled to representation. Oh, well, hope springs eternal.

• Diane Karpman, a legal ethics expert, can be reached at 310/887-3900 or at karpethics@aol.com.