However, when I am counseling a lawyer, that lawyer is my client, to whom I owe a fiduciary duty and whom I represent zealously. My client is not my view of what the rule should be; nor is my client my lawyer-client’s client (i.e., the criminal defendant). I therefore view my job as doing my best to help my lawyer-client avoid possible disciplinary action or criminal prosecution.
In a recent pro bono case, for example, I represented a lawyer who learned that his client had concealed a videotape in anticipation of a government search. The videotape contained information showing that the police had committed perjury about a search that they had conducted, but the videotape also contained incriminatory information. I advised my lawyer-client to go immediately to the judge ex parte, and to give the judge the videotape along with a motion requesting leave to use the videotape to impeach the police, and also asking the judge to allow them to turn over to the prosecution only the exculpatory part of the videotape. In response (which we expected) the judge told the lawyer to turn over the entire tape to the government, which he then did.
A short time later, the government told the defense lawyer that it intended to charge him with aiding and abetting a felony and with obstruction of justice. I advised the lawyer to immediately move to withdraw on grounds of conflict of interest. Here is what defense counsel emailed to me thereafter:
The Court asked me why I was withdrawing. I said it was because the government threatened me with prosecution and therefore gave me no choice. The government told the judge that they were concerned that, before I produced the tape, I was "impeding" the investigation and it was "serious." And then:
THE COURT: Well, we all thought it was a serious matter, which is why we had the hearing. And let me just be very up front and candid. This matter was brought to both the Court's attention and your attention by the voluntary disclosure of [the defendant’s lawyer].
THE PROSECUTOR: No, that's not true, Your Honor.
THE COURT: It is true. He filed ex parte, under seal, a notice to the Court.
THE PROSECUTOR: But not to us.
THE COURT: But I told you about it then, and then he voluntarily provided the tape. Had he desired to do anything of an unethical or illegal nature, he wouldn't have retained an eminent expert on conflicts and responsibilities of defense counsel, gotten that opinion, and then brought it to the attention of the Court.
THE PROSECUTOR: And I have never seen that opinion, Your Honor.
THE COURT: Well, I have, and I'm confident that there is no impropriety on the part of [defense counsel], period. Now, let's move to the next issue.