Applied Ethics
Here’s an exchange on the comments to Murray’s blog, discussing keeping defendants from learning witnesses’ social security numbers (in the post (about the production of copies of offense reports to the defense) to which the comments belong, Murray does his best to think like a criminal-defense lawyer, bless his little heart, but fails miserably); the topic is what should be done to make sure that containing witnesses’ private information in copies of offense reports doesn’t find its way into the hands of bad people who will use it to do bad things to witnesses:*
1357 (anonymous, purportedly a criminal-defense lawyer) tells how he does it now:
I never give that information and I have been fired for refusing to do so. I never put that information in a file, either. In order to get around it, I simply write names and dates of birth in my file. Then I go to some online database and get the remainder of the info, which I then store on my computer. It never goes in a file.
1932 (also anonymous) replies:
But your computer file is still part of your file.
For those who are not criminal-defense lawyers: the lawyer’s entire file on the case belongs to the client. The lawyer’s notes belong to the client. The lawyer’s impressions belong to the client. The paper belongs to the client. The computer files belong to the client. The videos and DVDs and audio cassettes belong to the client. On discharge, the lawyer must, according to the Texas Disciplinary Rules, deliver the entire file — not just the parts the lawyer wants to produce — to the client. When the former client asks for his file, the lawyer can make a copy of the file for his own archives, but he can’t charge the client for a copy of it.
1357 again (I’m guessing; it’s impossible to be certain when commenters are so craven that they won’t even adopt handles in expressing their opinions):
1. Prove it! Things can get lost and deleted. Happens all the time.
2. Worst case scenario, I will take my chances about witholding info from some dangerous asshole that wants to know info that he has no need to know rather than turn it over and have someone killed or injured. I was a human being with a conscience for a long time before I became a lawyer.
Disciplinary rules are, as I’ve said here a hundred times, not the same as ethics. Sometimes the rules require us to do things that our ethics require us not to do, or not to do things that we are ethically obligated to do. So (2) is a good answer. If you have a principled reason not to tell your client where the witnesses against him live, don’t let him have that information.
But a good test of whether you are in fact violating a rule (any rule, not just the DRs) out of principle (rather than self-interest or some other motivation) is whether you are willing to face the penalty for breaking the rule. If it’s not worth facing the music, it’s not worth breaking the rule. If you’re going to violate the DRs because your ethics trump the rules, you should be prepared to be honest about it, face a grievance, and stand up for your higher principles. You should not, in response to your client’s demand for the file, pretend that the dog ate the pages you don’t want him to see. That would be dishonest, and if you are willing to lie for your own self-interest none of your other principles are worth a damn anyway.
So our anonymous “lawyer’s” first response about what you’d expect from a criminal-defense lawyer who is afraid to sign his name to his opinions: craven, and unethical, and dishonest.
* I haven’t seen the law barring the DA’s Office from revealing voluntarily-provided (or, for that matter, mandatorily-provided) SSNs. I’m not convinced that the problem that is causing all this hubbub is real. Can anyone help me out?
If there is a legal problem with the State revealing witnesses’ personal information to the defense in copies of offense reports, that problem exists when the defense is allowed to take notes from unredacted offense reports as well. The solution is for the lawyer to ask the client to waive his right to the offense report and then to sign an agreement with the State that he will not give the client a copy of the offense report. If the client refuses to waive his right to the offense report copy, the lawyer can’t sign the agreement with the State, and he has to do things the old-fashioned way.
I’ve decided that I’d usually prefer to do things the old-fashioned way (if typing notes into my MacBook Pro can be characterized as “old-fashioned”) anyway. When I take notes from the offense report, I learn the material in a way that I don’t learn it by reading.
While I’m writing asides, another solution is for the police to stop asking witnesses for their social security numbers or stop putting them in offense reports. The SSN is not supposed to be a national ID number. In fact, Federal law requires that “Any Federal, State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.” 5 USC § 552a note (Disclosure of Social Security Number) Sec. 7(b), according to our friends at the DOJ. (Would you bet that the Harris County Precinct 4 Constable’s Office is following that particular federal law?)
Disclosing your social security number to a cop investigating a crime is, as far as I can tell, never mandatory. If you voluntarily tell a police officer your social security number, it’s not clear to me why you should not expect the officer then to tell the prosecutor, the defense lawyer, and his cousin Julius in Lagos.
About The Author
Mark,
I believe that I “think like a criminal defense attorney” quite well, thanks, but I continue to write like I want to write. I’m not sure what I wrote that was worth the blog slam, but if you want to know the thought process on why the D.A.‘s Office is going slowly with turning offense reports, that’s why I wrote that post.
Other than that, I agree with everything you wrote. Especially the part about taking notes on the file being a better way of learning the information. Who knows? Maybe you think more like a prosecutor than you would like to admit.
I have been practicing for 35 years. I agree with much of what you write, but at some point your work product–your ideas, thoughts, impressions– are your own, not the clients. I never give my notes when I give over a file.
I don’t know about New Jersey law, but in Texas you would be wrong, as are many Texas lawyers who have been practicing for decades.
My first take was your last side comment — why in the hell are the police asking witnesses for their social security numbers? Sort of gives me those 1984 Orwellian chills.
Don’t shake too much, Ron. The Social Security Number is the most reliable method of locating a witness when it comes trial time. Sometimes the time between offense and trial can be years or even decades. The Social Security number never changes so it helps locate witnesses come trial time. More importantly, it can help find them where they work.
Although the prosecution uses this more than the defense, I would imagine it comes in handy from time to time for the defense, as well.
Mark,
I think the most thoughful part of this post was your statement that a lawyer can’t claim to be acting on principle unless he’s willing to risk the legal consequences. One of my more violent clients recently used the information in his file to send threatening letters to witnesses. I understand that I’m charged with an important duty as his attorney, and my client’s actions don’t diminish the sense of responsibility I feel or the level of representation I’m providing him, but the next time I get the same feeling from a client, I’m editing the witnesses’ contact info out of the reports I hand over. If that lands me in front of the greivence commitee, so be it.
It will take a court order to get my SSAN revealed to law enforcement. Same thing with my drivers license. If I’m not driving, they don’t need to see it. Period. The police get a little peeved at that attitude, but as far as I know, there’s no statutory requirement to present government ID unless you are operating a motor vehicle. If pushed, I might present a copy of my passport. And, unless I’m being interviewed at the scene of an accident or a crime that I witnessed, I won’t be talking to police without a lawyer present.
[…] For a more detailed discussion of the ins and outs of this practice, see Murray Newman and Mark Bennett. May there be more reforms like this coming from the DA’s office […]
Can a confidential informant sue the government if his identity is revealed through negligence and his life is subsequently put in danger? Are there any cases where this has happened in the past?
I doubt it. “Sovereign immunity” (doubt quotes because the people are sovereign, so “sovereign immunity” is really governmental immunity) keeps people from suing the government and its agents in most circumstances.