When I Was Just a Baby, My Mama Told Me, Son/Always Be a Good Boy . . .

. . . but I internalized the norms of the legal profession early. I first became a lawyer at Badger Boy’s State. My first case was to defend a floormate who was accused of throwing water out a window on a counselor. I knew he did it because I was there. I also knew that he was far enough from the window that he could not be identified. Great cross (for a 17 year old) and an acquittal. Since then, I haven’t been clean a day in my life. My name is Rick E., and I believe in the adversarial system . . . .

I’m not stalking Mr. Samis through the Blog, but his post on the demands of confidentiality when a client has disclosed evidence of a past crime reflects a timeless ethical dilemma. Here’s another good one.

Assume that your client has told you that he committed the crime. You now can’t call him to deny it, but you were probably never going to do that anyway. How else should that impact the way in which you present a defense?

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Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?

I am just finishing up Law Governing Lawyers with Prof. Schneider.  I did wonder before the class first met why the course was not called something like “Legal Ethics”; after all, even our text is entitled “Ethical Problems in the Practice of Law” by Lerman and Schrag.

It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.

The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility.  In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).

[paragraphs (b) and (c) omitted.]

The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences.  Everyone has a right to fair treatment by the law ensured by effective representation.  I get that, and at first glance, there is no apparent ethical dilemma.  If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.

But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify.  The most tragic cases are child killers whose victims have not been found.  When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police?  From several cases, the answer is ‘No’.

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Eckstein Hall Rising

Last Wednesday afternoon was sunny and mild and a perfect day to wander the concrete slab of the ground floor of the Eckstein Hall construction site, below the steel beams that hint at this great building, and imagine the spaces where Marquette law teachers and students will read and write, discuss, dine and generally enjoy one another’s intellect and company. For some reason, the construction site reminded me of years ago being on the playing field at a totally deserted Michigan Stadium in Ann Arbor; on that day, an awesome silence permitted the perfect imagining of the awesome roar of the packed stadium.

I should be embarrassed to admit that much of my imagination has been dedicated in the last couple of years to imagining Eckstein Hall. I have driven every ramp of the Marquette Interchange in an effort to envision how it will appear to the hundreds of thousands of people who will pass by it daily (yes, literally hundreds of thousands daily). When and how will drivers see its complex sweep of brick, metal, and (mostly) glass? Will they note the substantial columns behind the glass curtain wall, meant to show that Eckstein Hall soars as well as sweeps? Will the building be bold, maybe even heroic, and beautiful?

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