Corruption

There is an ilk of lawyer practicing in federal criminal court that gets a great deal of retained business through the jails: an incarcerated client talks up the lawyer and the miracles he can work to his cellies, some of whom get their families to scrape together the money to hire the lawyer, fire their court-appointed counsel, and themselves become evangelists for the lawyer.

Now, just about every defendant with a hired lawyer wants to believe that he’s got the best lawyer in the world. And just about every defendant with a free lawyer wants to believe that he could get a better result if only he could hire a lawyer. But that dynamic can’t account for the number of defendants who get momma to mortgage the house to hire these lawyers. Nor can the lawyers’ unimpressive reputations in the legal community, nor the unimpressive objective results they obtain.1

The strategy that these lawyers follows could fairly be described as “race to cooperate.” No case is triable; every defendant is a cooperator. As soon as a defendant hires one of these lawyers, they’re off to the US Attorney’s Office together to spill the defendant’s guts in hopes of providing substantial assistance to the government and getting some benefit.

In Houston, three of this ilk have stood out in recent years: John C. Osborne, whose license is under a probated suspension and who is facing a disbarment suit (PDF); Steven Rozan, who resigned in 2011 while his license was suspended; and Erik Sunde, who took the Fifth in a motion-for-new-trial hearing when his client alleged that he had misappropriated $200,000-plus that had been earmarked for restitution.2

Sunde’s taking the Fifth is not, of course, proof that he defalcated the client’s money. There are other explanations, including:

  • That the client had consented to the money being used for some purpose of uncertain legality;
  • That the money had been for legal fees but had gone unreported to the IRS; or
  • That the lawyer was falling most dramatically on his sword for the client.

The last seems improbable—while his taking the Fifth would not be admissible in a criminal prosecution, it would be admissible and would raise an adverse inference in a civil case, such as the client’s civil suit against him (PDF)3, or a State Bar disciplinary proceeding. So taking the Fifth because the truth would harm the client, even though it would not harm the lawyer, would not only be unethical, but also reckless if the lawyer wanted to remain a lawyer.

I don’t know that Sunde did anything wrong. He may be squeaky clean. There are surely numerous innocent explanations for his having taken the Fifth; if I represented him I’d think of a few. But like Rozan and Osborne before the State Bar got on their cases, he is followed by a funny smell.

The federal criminal system, with its trading of one person’s freedom for others’, is corrupt—not legally corrupt, because the Crown makes its own rules for its own benefit, but deeply morally corrupt. Lawyers of conscience have misgivings about the corrupt trading of information for freedom, but will participate for the good of the client when the terrain makes other courses—chiefly trial—impassable. To lawyers of conscience, triable cases are a joy; a good lawyer works hard to find the triable angle in each case before surrendering to the depravity of the substantial-assistance system.

Lawyers who, on the other hand, would trade one person’s freedom for others’ without hesitation, and without considering the other possible courses, share the system’s corruption. In many cases—perhaps most—clients may be legally better off cooperating sooner rather than later, but in those cases where clients are not better off, they are worse off.4

There’s a unifying principle behind lawyers who solicit business in jail, lawyers who rush to cooperate with the government, and lawyers who get in serious trouble with the State Bar: human corruption, like any rot, spreads if not excised.


  1. I have long suspected, but never seen proof, that incarcerated defendants received some financial benefit for their evangelism, which would be both unethical and criminal. 

  2. What if the court had ordered Sunde to testify? Sunde could have been jailed for refusing, but if he didn’t the State could not have made direct or derivative use of any of his testimony. 

  3. Sunde is represented in the civil suit by a Corpus-Christi based partner of Houston’s Flood & Flood, which would make excellent sense if his real concern were criminal liability. 

  4. Because only by fighting can a client be acquitted, cooperating forecloses fighting, and some clients should fight. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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6 Responses to Corruption

  1. nidefatt says:

    As entertaining and true as all this is, I’m not sure I can agree with your taking issue with someone taking the Fifth after being accused of misappropriation. Even as an attorney in a position to prepare a statement, I still wouldn’t advise anyone, including myself, to say anything to the government regarding an accusation that I had committed a crime. It’s not just being smart- it’s recognizing that anything you say can and will be used against you in a court of law.

  2. Mike Paar says:

    Sometimes after reading the newspapers I begin to think everyone is corrupt. Then you will post a meaningful blog that provides me with the hope that maybe all is not lost after all, and that there still exists honest people like yourself who have a strong enough character to resist temptation. So many attorneys would shrug their shoulders and say “that’s just business” and not give it another thought. Thanks to the Mark Bennetts in this country who keep our government in check and won’t rollover for money are a posh appointment to the bench. If you are ever to wear the black robe it would destroy my belief in humanity if you were to behave like the recently elected judge in Montgomery county who is now just another puppet of the district attorney there.

  3. Alex Bunin says:

    “Lawyers who, on the other hand, would trade one person’s free­dom for oth­ers’ with­out hes­i­ta­tion, and with­out con­sid­er­ing the other pos­si­ble courses, share the system’s cor­rup­tion.” The examples in the post are easy to condemn. A trickier question is “when does one hesitate?” Is the moral position to refuse to ever enter into deals for cooperation, or simply to act like you never would? Tony Serra says the former is moral and the latter immoral.

    • Mark Bennett says:

      How can “to act like you never would” be moral?

      I used to agree with Tony: tell your clients up front that you won’t help them cooperate, and then don’t.

      But the truth is that most clients don’t know enough up front to make that (or any other strategic) decision. So some clients with non-cooperating lawyers wind up needing and wanting to cooperate. What does Tony Serra do in that situation? I don’t know, but some lawyers we know refer their clients to someone else when the time comes to cooperate, which is no different, in my view, than cooperating themselves.

  4. Joe Aragon says:

    “To lawyers of con­science, tri­able cases are a joy” I am a fairly new lawyer practicing Criminal Defense in Austin, and I do not practice in Federal Court, but this line rang very true for me. I will often solicit input from other attorneys about whether guidance that I am giving a client is too bias toward or against going to trial. This is my first comment on your blog. I look forward to digging around more.

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