Selective representation

Mark Bennett wrote yesterday of “principles” that we live by and how he’s thinking of a new personal policy of not co-operating with the government (read: representing snitches).

His post is nice and heroic and principled, but I think it misses some practical aspect. These principles are fine in theory, but in reality, you may just end up harming your client. Not all cases are obviously snitch cases from the beginning. Sometimes you have a client that overhears something in prison and if it will help him, why not? Our ultimate duty and obligation is to our client and as defense lawyers we must explore every avenue that will result in benefit for the client.

To foreclose an avenue entirely in advance, arbitrarily, is doing the client a disservice. I’ve written about this before (here and here) and my thoughts haven’t changed. What’s the difference between declining to represent snitches and then saying murder is repugnant so I won’t represent murderers? It’s a slippery slope and if you start going down that road, don’t you have to ask yourself whether this is what you want to do?

9 thoughts on “Selective representation

  1. S.cotus

    I generally agree. Cooperation is a fact of life in criminal and civil practice. Parties that may be enemies one day, are cooperating the next.

    Instead, I think a better idea is to say that one won’t agree to cooperate if certain things are present. For example, I think most lawyers would say that they won’t enter into a cooperation agreement in which their client agrees to lie. (This sounds obvious, but in reality there are some gray areas.) Likewise, lawyers perhaps should not assist their clients in entering into cooperation agreements that would pierce extant privileges. I am not saying that these things are necessarily the “best” principles, but I think that lawyers should strike a middle ground between being an agent of the client in negotiations with the government, and simply refusing all offers. Instead, we should identify which values are most important to the legal profession, and refuse to allow prosecutors to erode them by offering deals that would harm them.

    (Actually, I vetted these principles with a couple of prosecutors, and they generally agreed with me. But, I think that there needs to be more study and research in this area.)

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  2. Scott Greenfield

    It doesn’t have to be that complicated. We have a duty to inform clients that cooperating may be their best (and only) choice. As a private lawyer, I do not have to represent a defendant who wishes to cooperate. This is particularly true where I do not believe that I am the best lawyer for that aspect of the job, and the client would be better served with other counsel.

    If I’ve properly advised the client, and informed him that I am not a suitable lawyer to represent him in this effort, I can initiate the client’s request and then have the client obtain other counsel for the purpose of representing him in cooperation. The client gets the best of all worlds, and I remain in a position where I can do the work for which I am best suited.

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  3. Mark Bennett

    What’s the difference between declining to represent snitches and then saying murder is repugnant so I won’t represent murderers?

    When I represent a murderer, I’m not a party to the murder.

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  4. name withheld

    I am fortunate, my office doesn’t, as a general rule, represent snitches. Instead we “farm out” those cases where the client is cooperating as snitch representation, when each attorney in the office is handling dozens of felony cases at any one point, is fraught with too much danger.

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  5. Miranda

    When I represent a murderer, I’m not a party to the murder.

    I don’t think you’d be a “party” to the snitching, either, but I think I know what you’re saying. Representing the murderer, you can keep a clear conscience in terms of your own ideals of right and wrong. Even if you know your client is guilty, you fight like hell for him/her because you believe in principles and ideals rooted in our constitution that are more important than one guilty conviction. (Or something like that but perhaps better stated). Representing a snitch, on the other hand, you feel you would be supporting a principle that you don’t believe is right, and you, therefore, won’t do it.

    I tend to think that it is ethically responsible to recognize and decline to represent those clients for whom we know we cannot provide adequate representation – no matter what the reason.

    I disagree with Gideon to the extent that he suggests that we’re in the wrong line of work if we can identify certain clients we cannot represent as a matter of our own personal issues.

    However, this presupposes that in the case of snitching, we will always know ahead of time that it will be an issue. I’m curious how those opposed to representing snitches handle a situation where they are already representing the person and an opportunity to snitch arises…

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  6. Mark Bennett

    [blockquote cite=”776″]I’m curious how those opposed to representing snitches handle a situation where they are already representing the person and an opportunity to snitch arises…[/blockquote]

    Here’s a provision from the contract of a prominent (and excellent) Houston criminal defense firm:

    [blockquote]It is well known that our firm does not represent people who “snitch,” “rat,” or cooperate, which means giving information against others to the government in order to avoid criminal charges, receive leniency, or get some other type of consideration. Three major reasons exist for my policy. First, representing people who cooperate does not require any legal expertise. I have not dedicated myself to the art and science of criminal defense law to help the government convict more people, virtually all of whom are likely innocent or nowhere as guilty as the person cooperating will make them look. Second, because of the government’s incentives to and pressures on the person cooperating, innocent people are often charged and convicted, and I will not be a part of helping the government do its dirty work. Third, a person who cooperates could implicate one of my clients and, whether true or not, create a conflict of interest where one did not exist before. If the government offers you a deal to cooperate, I will certainly convey it to you and not pass any judgment if you choose to cooperate. But should you cooperate, I will withdraw from your case and not refund any portion of the fee you pay me.[/blockquote]

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  7. Windypundit

    Might there not also be, uhm, market segmentation? That is, if your firm develops a reputation for representing snitches, I think that would drive away clients who do not intend to snitch and—more importantly—who do not want their associates to think they’re going to snitch.

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  8. S.cotus

    There are lawyers out there with a reputation for cooperation in criminal matters. Most of the time, however, lawyers can keep their MO secret, preferring to tell people that every case is different.

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  9. Pingback: Snitching: Here we go again | a public defender

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