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