New York Times profile of Ivan Fisher, "Defending the Notorious, and Now Himself"

Interesting NYT profile by Benjamin Weiser, with a quote from our very own Steve Gillers, on the noted criminal defense attorney Ivan Fisher, who's been suspended from federal court practice after a finding that he improperly took $250,000 that belonged to a client.

UPDATE: oops, I see that I repeated Brooks' earlier post. Sorry about that.

Comments

[Nicole Hyland]

From the article: "He says that in representing clients, he is always careful about where 'the absolute line' is. 'I’m worried about it all the time when I’m near it,' Mr. Fisher said. 'I don’t want to cross it. But on the other hand, I want to be as near to it' as required, he added."

I'm fascinated by this statement. Is this an appropriate legal ethics philosophy?

In the article, our Steve Giller's challenges the premise of there even being a "line":

"'Very often there is no line,' he said. 'The image that lawyers promote is that the line is as clear as the line down the center of the interstate: that you know when you’re over it. But it’s not. It’s wobbly. It’s vague. It moves. It changes as the courts keep refining the borders. And you often don’t know where the limits are.'"

That seems to be the right answer. If it's a black and white issue, then perhaps it's appropriate to go right up to the "line." But few ethics issues are black and white, and if your strategy is always to get as close to the ethical "line" as possible, at some point you're going to get in trouble.

[Monroe Freedman]

Yes, but.

Some ethical rules provide lines that are as sharp and clear as they can be, and yet those lines should on occasion be crossed.

For example, in 1970 I purposely violated the Model Code restriction on advertising, raising for the first time a First Amendment challenge against the rule (which was challenged by the D.C. bar, which then approved it). At the time, violation of the rule was considered foolhardy at best. See ULE 4th ed., 329-331. (As I recall, a short article that I wrote about it at the time in Juris Doctor was edited for the magazine by Steve Gillers.)

Other clear lines relate to making a false statement of fact to a court, making a false statement of fact to a third person, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Yet all three should be, and properly have been, violated in certain circumstances. See In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, 34 Hofstra L. Rev. 771 (2006). See also Solicitation of Clients: The Professional Responsibility to Chase Ambulances, ULE 4th ed., ch. 11, and The Professional Obligation to Raise Frivolous Issues in Death Penalty Cases, 31 Hofstra L. Rev. 1167 (2003).

[Monroe Freedman]

I should have said that the D.C. Bar brought disciplinary charges, but then approved the advertising.

I debated the issue in a Bar program with Antonin Scalia (then in the DOJ), who said in exasperation at one point, "I wish Professor Freedman would forget about the First Amendment and stick to the issues."

[Question]

Very interesting, MF. Is your praise for selectively following the rules one that you apply equally to prosecutors, or is it a one-way street for the side of the bar that you happen to belong to?

[Nicole Hyland]

I can see the point that you shouldn't have to comply with ethics rules that are unconstitutional (as long as you're willing to live the consequences if the court decides you were wrong). I admit that I do tend to view the ethics rules from the standpoint of "how would I advise my lawyer-client so that it minimizes his risk of getting sanctioned or disciplined?" This tends to result in a more risk-averse approach to the rules. I can't imagine telling my client "sure, go ahead and violate that rule because it's unconstitutional."

But the point in my first comment was more general. Assuming the rule isn't unconstitutional or otherwise offensive, is "I will get as close to the ethics line as possible" a reasonable philosophy of legal ethics? I guess another way to put it is: Should lawyers view the ethics rules as a floor or a ceiling (or something in between)?

[Monroe Freedman]

Nicole,

I agree with you regarding advising lawyers who are clients, and take the same position with my lawyer-clients.

As Alan Dershowitz has pointed out, however, the problem in general is not overzealous representation, but underzealous representation, which is rarely subjected to professional discipline. When I was actively practicing, my preference was for pushing the lines and the non-lines.

[Monroe Freedman]

"Question": I posted a long response to you, which hasn't yet appeared. If it doesn't, I'll try again.

In the meantime, do you have any illustrations of ethical rules that prosecutors should on occasion violate?

[Monroe Freedman]

Reply to "Question." The following is an excerpt from a longer analysis in ULE:

Special ethical rules are appropriate for prosecutors because the role of the prosecutor is significantly different from that of other lawyers. In the words of Justice Felix Frankfurter, the prosecutor “wields the most terrible instruments of government.” This “formidable” power of the prosecutor includes discretion to initiate and direct investigations, to decide whether to prosecute, to designate the crimes to be charged, to affect the punishment, and to accept or reject a plea of guilty to a lesser offense. In the words of a former United States Attorney, “The power to investigate and prosecute is the power to destroy.”
In the course of exercising this extraordinary discretion over the lives of other citizens, the prosecutor frequently makes decisions that no other lawyer has the power to make. Moreover, even when attorneys for private clients do participate in similar kinds of decisions, they are required to abide by their clients wishes. To say that a prosecutor is subject to special ethical rules relating to the exercise of prosecutorial discretion, therefore, is simply to recognize that the prosecutor is the lawyer who has that discretion to exercise.
Also, the defense lawyer’s professional responsibilities are determined in large part by her client’s constitutional and related rights, which protect the dignity of the individual in a free society. These rights include the effective assistance of counsel, the presumption of innocence, the privilege against self-incrimination, and confidentiality between lawyer and client. The prosecutor, who does not represent a private client, is not affected by these considerations in the same way. On the contrary, prosecutors are ethically obligated to assure that the rights of their adversaries are protected.
In addition, the prosecutor represents the majesty of our government. Conduct that is tolerable on the part of a private person may be intolerable when done under color of law, on behalf of the United States or a state. Because the prosecutor speaks and acts on behalf of the sovereign, she must do so with due regard to the majesty of her office.

[Question]

Thanks for your response and return-question. Here's my answer:

Neither the prosecutor nor defense lawyer may violate ethical rules. For the prosecutor, that means she may not refer in closing to matters outside the record, even to keep a dangerous man from killing again. She can't elicit inadmissible evidence, even to keep the jury from being deceived by the other side's misleading statements. And she can't make misrepresentations to the court, even to preserve a witness' safety or protect national security.

That has nothing to do with special constitutional rules imposed on the government. For instance, ethical rules may require disclosure of exculpatory information sooner than the constitution does. Prosecutors still can't violate the early-disclosure rule, even when the violation has morally defensible reasons.

The only exception I think I'd be willing to admit is that either the prosecutor or the defense can violate a rule if they believe the rule to be invalid (constitutionally, or through preemption or statutory displacement), where they notify the court of the violation contemporaneously, where the violation and sanction are necessary to obtain judicial or appellate review. (Of course, as with other such cases, the lawyer runs the risk that the rule will be deemed valid and her sanction upheld.)

This exception actually allows for test-cases, such as the solicitation-ban challenges you mention. But it applies to all sides equally, prevents deception to the tribunal, and and the public-violation requirement reduces the risk that a self-interested lawyer will violate the rules based on spurious or questionable reasons.

[Monroe Freedman]

Question[er]:

Consider an issue raised with me several years ago by Legal Aid lawyers in Brooklyn. Some judges, they said, would routinely call defense counsel to the bench prior to trial in criminal cases and say, “Come on, let’s move this along. Did he do it or didn’t he?”

In the large majority of cases, the honest answer to the judge’s question is, “Yes, Your Honor, he’s guilty as charged.” To say that, however, would be a violation of the ethical requirement of confidentiality and of the client’s constitutional privilege against self-incrimination. Accordingly, the “proper” response to the judge’s question is, “I’m sorry, Your Honor, but I can’t ethically answer that question.” However, the problem with that reply, and with similar non-responsive answers, the lawyers said, is that the judge invariably would assume that the lawyer had impliedly acknowledged her client’s guilt.

Also inadequate to zealous representation and to maintaining the client’s confidences would be, “He has pleaded not guilty, Your Honor.” Again, the judge will infer an acknowledgment of guilt by the lawyer. A more pertinent response would be, “Your Honor, you know that you shouldn’t be asking me that question,” but that answer is likely to prejudice the client even more, both by implying guilt and by criticizing the judge.

In short, the judge has improperly placed the lawyer in the position of violating confidentiality and incriminating her client.

The response that I recommended, therefore, is, “Your Honor, I have no doubt that this defendant is innocent.” That statement by the lawyer, however, would appear to involve dishonesty, fraud, deceit, or misrepresentation, and to constitute a false statement of fact to the court. And, of course, the lawyer would not have any intention of making an effort to create a test case.

In the article In Praise of Overzealous Representation, I justify that answer by relying on (1) Rule 1.6, (2)the Scope section of the Model Rules, (3) the Fifth Amendment, (4)the criminal defense lawyer’s constitutional role, (5) moral philosophy, (6) the Torah, (7) the Gospels, and (8) religious doctrine.

[Question]

A judge's asking the lawyer "did he do it" is clearly and grossly improper. Nonetheless, I don't think the system can license lawyers to decide for themselves when it's appropriate to lie to the tribunal. Especially because many lawyers (not the indigent defense bar, but rather those who solicit paying clients) have an incentive to tilt their analysis towards whatever will help their client most. It would be like inviting prosecutors to justify hiding Brady material whenever they think that achieves a greater good.

My view

[Andrew Feinman]

Fisher may "go to the line" or over it but it is not in order to defend a client it is for his own selfish purpose. He succeeded in convincing the reporter his brush with the edge was for the client, it is not. Had he researched Fisher thoroughly prior to printing he would have found this is not the first client he has borrowed from, he has plead guilty to tax evasion, owes a fortune in unpaid taxes and has a list of judgements against him running more than 60 pages.
What is amazing is that he has not been disbarred long ago