Last Fall Steve posted about United States v. Williams, in which the Seventh Circuit rejected a Strickland challenge based on the reaction of the defendant's initial lawyer to the defendant's attempt to suborn perjury, using the lawyer as a means of delivering (mailing) the letter soliciting perjury. The suborning letter was sealed inside a letter to the lawyer marked to avoid prison inspection; the lawyer became suspicious and opened the sealed letter. The lawyer withdrew, disclosed the letter to the prosecutor, and later testified against his former client.
The post itself and comments to it favored Judge Hamilton's dissent over Judge Posner's majority opinion. Steve wrote: "Posner's opinion gives inadequate (actually almost no) recognition to the adversary system and the role of a criminal defense lawyer or to the consequences of allowing defense lawyers to do what the lawyer here did." In general, the sentiment was that, even if the lawyer did not violate the relevant rules, disclosure should not have been his first move, and he certainly should have tried to keep the prosecutor in the dark.
I spent some time with the opinion recently and would like to suggest an alternative reading, which I think generates useful implications for teaching this subject. The alternative reading is that the opinion reflects simply the different priorities generated by different orientations to the law; the implication is that one of the hardest yet most important things practitioners must do is understand how their actions might look to persons outside their practice communities who may nevertheless pass judgment on their actions.
From a strictly rational choice perspective Williams is not particularly remarkable. If one presumes the point of trials is simply to ascertain factual guilt (rather than reward the best advocate or provide lawyers a forum to enact their conception of state accountability to law) then a defendant who attempts to undermine that process deserves harsh treatment and a lawyer who blows the whistle on the attempt deserves no condemnation.
To generate a problem from this perspective one must buy the argument that such disclosure systematically reduces client willingness to confide in attorneys (note that Williams did not attempt to confide in his counsel but to keep his counsel from learning what he was doing). Perhaps. But I have not seen very good data on the point and there is no obvious reason to presume that defendants as a class will ever learn about such disclosures. The benefits to allowing such confidences are themselves open to debate--recall Dan Fischel's utilitarian take on the privilege itself.
More to the point, though, Judge Posner gives the back of his hand to the notion that the lawyer might have talked Williams out of suborning perjury: "Facing a possible sentence of more than 50 years for the bank robberies and having already attempted to suborn perjury, Williams was unlikely to hearken to an ethics lecture by his lawyer."
This, I think, is the key passage, for in it Judge Posner treats as naive romanticism the notion that lawyers can trump rational, self-interested behavior by clients. (He presumably would be more receptive to the notion that the lawyer might have dissuaded the client by pointing out that actually suborning perjury might increase the client's sentence.) He sees the defendant rather than the lawyer as the central actor and defines the lawyer's role largely in relation to the function his framework assigns to trials: getting the right person. From this view the "fair fight" conception of a fair trial is more diffuse romantic rhetoric than guide to analysis. Strickland cases vacillate between the notion of a fair trial as a fair fight and as producing a reliable result, so this conception is not wholly removed from the relevant case law.
Judge Hamilton's opinion operates within the conception Judge Posner treats as romantic eyewash. That is likely why it is more appealing to those of us who are familiar with that conception and to some extent take it for granted. That does not mean Judge Hamilton is wrong--his opinion hews much more closely to common understandings of the lawyer's role than does the majority opinion. The only point I want to make is that Judge Hamilton's perspective cannot be taken for granted. He has not found the bottom turtle, and his premises are as subject to challenge as any other. (He does not say otherwise, and this is no criticism of his reasoning; he is writing an opinion not doing philosophical analysis.) I think it is fair to say that his view has aspirational and romantic elements to it though, as is usually the case, they can be reframed in instrumental langauge as needs be.
Romanticism itself does not discredit doctrine. First Amendment doctrine is imbued with it, I think, and to say that such elements are present is not to say they should be absent. (Those interested could compare Judge Posner's opinion in this case to his treatment of free speech theory, which he also drains of elements he sees as romanticism.)
From a teaching perspective, I think the case illustrates a very general point: What you see depends a great deal on where you stand on issues implicated by your observations. Lawyers uncomfortable with Judge Posner's reaction to the norms of the criminal defense bar might replicate his reaction when viewing the norms of M&A lawyers or bankruptcy lawyers. And I recall confidentiality issues arising from the prosecution of John Walker Lindh being framed as laudable whistleblowing.
The trick, I think, is to convey to students two facts in tension with each other: Any action may be viewed from very different normative perspectives and will appear different from each of those perspectives yet lawyers nevertheless must act if they are to serve their clients and pay their bills. The trick is to acknowledge that fact, and take it into account when necessary, without succumbing to paralysis. Hard to do, but necessary.
*Genuinely brain-dead spelling of Rashomon fixed courtesy of Patrick O'Donnell