The Decency Dilemma

Does decency have to be justified or explained? I recently wrestled with whether it was right to show professional courtesy to a government lawyer.

1. A client seeks relief from the harsh conditions of Jessica’s Law.One of my clients seeks relief from Jessica’s Law. He doesn’t want to have to find housing more than 2,000 yards away from a school/park/place where children "congregate", even though he is a parolee and a registered sex offender.

The law is hard to comply with. It’s hard to find such housing. Few houses are that far away from those locations. And local ordinance frequently forbids more than one un-related sex offender from living in one home. So sex offenders can’t live with other sex offenders when they find rare compliant housing, and that adds to the burden of finding a place to live.

So my client filed a petition for a writ of habeas corpus for relief from Jessica’s law. I was appointed to represent him.

2. The government blunders.Now, after my client filed his petition, the judge ordered the government to file a return. That’s a document that states that they oppose my client’s request for relief, and it explains why. The government didn’t file the return.

So the judge issued an order for the government to explain why he shouldn’t grant the petition because the government failed to file a timely return.

I was in court for the hearing to determine whether the judge would grant my client’s petition for failure of the government to file a timely return. The attorney for the government is a nice women. I’ve dealt with her before. I spoke with her, and, without going into detail, I thought that her reasons for her failure to file a timely return were plausible.

Our case was called. We went up and stood before the judge. The judge scolded the government lawyer. Then he turned to me and asked for my position on whether he should grant my client’s petition because the government failed to file a timely return.

3. My memory greens.Now, let me back up. Let me go back almost 30 years.

I was a young deputy district attorney with big ambitions and a boss who hated me. One day, there was a hearing on a petition for a writ of habeas corpus that a colleague of mine had failed to file a timely return to.

My boss loved him, my colleague, as much as she hated me. So, on the day of the hearing, she sent him to handle the calendar at a remote court. She ordered me to attend the hearing on his failure to file a timely return to the petition for a writ of habeas corpus. If the case blew up, it would blow up in my face, not my colleague’s.

At the hearing, the judge gave my office another chance to file a return. But before he announced that, he chewed me up. I knew I wasn’t at fault, but the judge so skillfully humiliated me that I felt shame.

Now, the habeas petitioner’s lawyer was at that hearing. He was old, and he was old-school. He tried to tell the judge that I was not the lawyer he had been dealing with, that I was not the lawyer who had failed to file a timely return. But the judge proceeded to crush me between his judicial teeth anyway.

But when the judge started to chew me up, the petitioner’s lawyer came over to me, and he stood by me as I was being chewed on by the judge. He did this to show solidarity with me. I have always remembered that lawyer as deeply decent.

This story percolated under my skull as I waited for the recent hearing to start. I even shared this story with the government lawyer.

4. I act based on my memory of decency shown to me.This story was on my mind when the judge called the recent case and the lawyers went forward. It was on my mind when the judge asked for my opinion about what he should do. When he asked for my opinion, I took no position. The judge seemed mildly surprised. Then he gave the government one more chance to comply. That’s what I thought he would do.

5. Moral dilemma?But my conscience has been pricked by my failure to argue for granting my client’s petition. I think I did the moral thing, but it’s an open question whether I served my client well. After all, if I had argued for the immediate granting of my client’s habeas petition, maybe the judge would have ruled the other way, and maybe my client would have then and there had the relief from Jessica’s law that he sought.

Maybe this is what’s called a moral dilemma.

 It wouldn’t be a moral dilemma for some lawyers. Once, our co-counsel, an enormously talented trial lawyer, became ill just before trial started. We tried to postpone the trial so that he could become well and participate in it. The other side opposed the postponement and convinced the judge that our co-counsel wasn’t really ill. That was horseshit. Of course he was ill. But we had to proceed to trial without him, because the judge rejected our request for a postponement.

Later, in a court filing, the other side acknowledged that our co-counsel was in fact ill. Their claim that he had been malingering had been opportunistic.

I consider their actions indecent – misleading the judge about their true opinion and exploiting our co-counsel’s illness for tactical advantage. They would have had no trouble deciding what to do if they had stood in my place at the hearing on granting my client’s habeas petition.

The attorneys who falsely claimed that our co-counsel was malingering acted like a great many lawyers would. There was a time when professional courtesy was common. It’s rarer now.

6. My practice.This is the position I routinely take: I show professional courtesy to lawyers whom I consider ethical. To hard-edged lawyers, I show a hard edge. That’s the line I draw.

So a few years ago, a lawyer won a motion against my client. He won by lying to the commissioner about a telephone conversation with me. A few weeks later, he missed a court hearing. The commissioner asked me whether he should dismiss the lawyer’s case against my client. That isn’t the usual practice when a lawyer misses a court hearing; but for some reason, the commissioner did not follow the usual practice of postponing the hearing and ordering the missing lawyer to be present. My heart did not beat once between the moment that the commissioner asked me this question and my answer that, yes, I wanted the case against my client dismissed. The commissioner dismissed the case. I never lost a minute of sleep over that.

In that case, I was glad to exploit an unethical lawyer’s calendaring error to bring an end to his client’s case. In the recent case, the lawyer’s decency made me forbear.

             7. My practice justified.

Now, was my client harmed in the recent case by what I did? I don’t think so. I don’t think the judge was going to deny the government one last chance. I believe that. I could be wrong. But I think he wanted me to be part of his pageant of piling on this government lawyer without actually ruling against her.

So I don’t think I harmed my client because I didn’t join in turning the screws. But I can’t be sure.

On the other had, I believe that my clients benefit from my good reputation among honorable lawyers. That’s a strategic benefit that my clients have because I routinely extend professional courtesies to lawyers of good will on the other side.

These benefits are intangible but real. As a young prosecutor, I usually knew the reputations of the lawyers I dealt with. And I cut breaks to lawyers with reputations for decency. I think other lawyers did too. I remember a colleague saying, "When some lawyers show up, you assume their clients are guilty; but when [lawyer with a reputation for good character] shows up, you assume that his client is innocent, or that his client is over-charged [meaning charged with crimes too serious for what really happened]."

I think that some government lawyers think like that today. I want to the like those lawyers I knew when I was a young lawyer, who got breaks for their clients based on their good reputations.

I believe that I should not sacrifice that ethic that benefits my clients for the sake of a possible tactical advantage at one hearing in one case.

So I think I did right. I think there’s a practical justification for what I did; and a moral justification; and a justification in a dying-but-still-clinging-to-life ethic in the legal profession.