Saturday, January 17, 2009

Message to Prosecutors: We Can Advise Clients. Really We Can

Over at the 2nd best criminal defense blog in the country, Simple Justice, Scott Greenfield brings us this story about yet another lawyer indicted for, uh, being a lawyer.

So here's what happened: Lawyer was hired by some nurses. The nurses were made some empty promises in order to get them to come to the United States to work for a company named SentosaCare.

Working conditions were abusive and the lawyer advised them to quit.

Let me say that again; "the lawyer advised them to quit."

He didn't advise them to kill people, traffic in drugs, steal things, assault people, break into homes, tie up people and pistol whip them. He advised them they should quit.

The nurses waited until the end of their shift when other nurses arrived, and they left.

The theory, with a capital "T," was that the lawyer caused the nurses to leave patients without care. It wasn't true, but I digress. The trial judge denied the motion to dismiss, and the appellate court, apparently more interested in the role of attorneys, said :

"We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect,"


"Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice," the panel said.


It continues:

"The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing," concluded Eng, adding that the prosecution of any matter potentially involving the disclosure of confidential attorney-client confidences as a defense "is an assault on the adversarial system of justice."

Congratulations to lawyer Oscar Michelen for his wonderful work in this case.

Scott sums it up:

"In the scheme of prosecutorial abuse of authority in an effort to chill an attorney's ability to advise clients to take action against governmental or powerful corporate interests, this decision is huge. In exceptionally strong language, it makes clear that lawyers are protected from prosecution for providing good faith legal advice to clients, and that overreaching prosecutors cannot punish lawyers because they disagree with the advice."

This correct application of the law makes me think of my friend Ben, and his case. In Ben's case, prosecutors allege that Ben gave legal advice that was not the advice they would have given.

I have thought long and hard about the prosecution of lawyers, and I'm not talking about the prosecution of a lawyer for DUI, possession of drugs, taking drugs into the jails, tax evasion, or theft. I'm talking about arresting particularly criminal defense lawyers for doing their job. It's happening. It's denied, but it's happening.

It's disgraceful, but it won't stop. There is an arm of the prosecution in this country that figuratively and literally pops a cork when a criminal lawyer is indicted, I've seen it.

The word to young lawyers today going into criminal defense is not "defend your clients well," or "have fun, it's a great practice." The advice is first, "be careful."

It is unfortunately not always anymore the people sitting next to us that we have to be so careful of, as much as the people across the courtroom at the other podium.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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