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A Good Point

Mark Bennett, a criminal defense attorney from Texas who blogs over at Defending People, wrote the following yesterday:

I just got back from the State Bar’s Advanced Criminal Law Course in San Antonio, at which I spoke about jury selection. As well as speaking, I watched all of the other presentations. One speaker advised that we lawyers shouldn’t say things that diminished public confidence in the criminal justice (hyphen deliberately omitted) system.

If the truth is that the criminal justice system is broken, that lawyers and judges are incompetent or corrupt, lawyers have an ethical obligation not to cover that up. (Yes, Scott, we’ve plowed this ground before. Indulge me.)

I stand by Mr. Bennett’s statement, and wholeheartedly support the stance that we, as members of a community, have a responsibility to that community to speak about its flaws and imperfections, and to call light unto those shadows and dark crevices such that those imperfections can be corrected.  Or, at the very least, so that others can know where those imperfections lie – and either avoid them or fight them.

But what really caught my eye was a little later down in the post:

This gentleman likes to get along with judges. He’s made a career of it. He pitches clients on his relationship with the bench. His clients buy it, and they’re welcome to him (my question to them, though, is this: when it comes time to choose between a) maintaining his relationship with the judge, and b) fighting for you, which do you suppose he will choose?).

And it struck me that I was recently discussing something very similar for one of my cases with a colleague about a particular trial tactic.  He became instantly leery, blustering about how that particular tactic (one I’m quick to add was neither illegal nor unethical – in fact, I believe it would have been ineffective assistance of counsel not to use it, and the rules explicitly allow for it) would have just angered the trial judge, despite it’s complete and total compliance with the laws.  (It’s not even like I was being particularly clever, or trying to get something past the ADA – everyone had the information I needed to use.)  He went on about how he would never stake his reputation before the judge by using that information.

I didn’t know how to feel about that.  This is a lawyer that I otherwise consider quite a good attorney – but I would never allow myself to be constrained for something as small as my reputation before the bench.  I’ll let my trial skills do that for me.

I am glad, however, that Mr. Bennett points out the problem in such simple light: between The Fight and My Reputation, I’ll always choose The Fight.  Because that’s what this is about.

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