Reviewed by Doug Salvesen
October 22, 2000
Officers of the Court
One of the roles of an attorney is to be an advocate. To take up the cause of another person - and speak for that person - before a court or a jury. Generally, the attorney is expected to represent his or her client "zealously," which calls forth an image of a tenacious, frothing-at-the-mouth, briefcase-wielding fanatic who will do anything to win. You put two of these zealous advocates in the courtroom and let them battle it out. May the best case win - a kind of legal Darwinism. This is justice. Not pretty, huh?
What stops every case from turning into a World Wrestling Federation event is the caveat that attorneys are not merely advocates, but also that they are "officers of the court." This is simply an obscure way of saying that there are some limitations on that zealous representation stuff and that a lawyer has a larger responsibility towards the judicial system to ensure that he or she is fair. A lawyer cannot bring a case that he or she knows is groundless. A lawyer cannot knowingly make a false statement to the court. If the lawyer knows that there is case precedent that goes against the position he or she is arguing, the lawyer must inform the court of that precedent. These are the sort or Marquess of Queensberry rules of litigation.
This week's episode of The Practice is subtitled "Officers of the Court" and the two cases covered raise issues of the ethical obligations of lawyers that go beyond representing them in their court cases. In the first story, Jimmy Berluti is called back to represent Jennifer Cole. Berluti, you will remember last season, was arrested for allegedly soliciting Cole when, in reality, he was giving her twenty bucks for cab fare and telling her to go home and do her homework (or something like that). Now, Cole finds herself in the Big House, pregnant (which will be a recurring image this season, I am sure), and facing charges of possession of an illegal substance.
Cole's problem is that she is guilty of the charge that she is addicted to crack cocaine and had some in her possession when she was arrested. Guilty, guilty, guilty. But of course, Berluti gets the charges dismissed, because the arresting officer who patted Cole down says the reason he searched her parka's pockets was because he just knew that what he had felt when patting her down was a rock of crack the size of an aspirin, wrapped up in a paper bag - this was not a reasonable search.
And was this good for Cole, that her charges were dismissed, I mean? Therein lies the dilemma. As her lawyer, Berluti should be seeking the best outcome for Cole. But what is the "best" thing for Cole? Is she better off getting off? Or is she better off getting arrested and being put in jail, under surveillance, so her addiction can be arrested?
The Assistant District Attorney agrees with the latter conclusion, and she has Cole arrested again on the obviously bogus charge of distributing to a minor. The theory being that Cole is taking the crack and distributing it to her unborn child. Clever, but too clever. Still, the ADA argues to Berluti that she is trying to help Cole and her baby, convincing him that this is the right thing to do. Berluti convinces Cole to plead guilty. Of course, the Judge knows that the charges would never stick anyways, and will have none of this. (The Judge does get to yell, "Chambers!" to the lawyers - which is always good for a laugh to me). Cole feels betrayed when she finds out Berluti has deceived her. She appoints another lawyer who argues to get her off, and the Judge throws the case out.
There are some judges here in Massachusetts who believe that a lawyer's responsibility to his or her client should go beyond the particular case or the particular charge. The thinking goes that in certain instances, the best advocacy for the client is to have the client walk away from a winning case, lose a case he or she would otherwise win, or plead to a criminal charge that he or she could beat - all for the larger good. Hmm.... makes you think.
I didn't think much of the second case, a continuation of the Jamison v. EPA saga in which Ellenor Frutt files a complaint against the Federal Court Judge who pressured (or blackmailed) her clients into accepting a reduction in the $72 million jury verdict they had won. One of the defense lawyers is called upon to testify and, as an "officer of the court," is reluctantly forced to acknowledge that he too perceived the Judge's actions to be in the blackmail range. The $72 million jury verdict is reinstated.
None of this was believable. While the judge perhaps used a phrase or two that was somewhat inappropriate, he didn't seem to cross a line to me. If he believes that the evidence did not support the verdict, and it didn't, he has an obligation as a judge to reduce it. As I pointed out last week, under current law, the case against the EPA was worth $0. In my opinion, the Judge was being kind by giving the Jamisons $400,000. It would be poetic justice (a whole other type of proceeding) if now that the case was reinstated, the new judge appointed to handle it threw it out entirely.
Don't count on it.
Doug Salvesen is an attorney with the law firm of Yurko & Perry in Boston. In his practice, Salvesen represents a mixture of clients, including businesses and individuals. A significant portion of his time is spent on pro bono matters, including law suits seeking to vindicate the civil rights of prisoners. He writes out each of his reviews of The Practice in long-hand.