Loose lips sink ships for
attorneys in Trayvon Martin case
By Diane Karpman
The death of Trayvon Martin
is a terrible tragedy. A couple months ago we considered media manipulation. It is ironic that this month we have two highly questionable press
conferences by lawyers in the prosecution of Mr. Zimmerman, the shooter now
accused of the second‑degree murder of Mr. Martin.
This case is a free-for-all
or a "giving tree" in the ethics community. You can join the dialog
by clicking on various legal ethics forums linked below. It’s like watching the
Titanic. You can’t take your eyes off the horror of the ethics ship sinking.
Let’s consider some of the more remarkable foibles.
The withdrawal of
the two star-struck Florida lawyers was in itself a teaching moment. What were
they thinking? The overarching mantra for withdrawal is the avoidance of
foreseeable prejudice to the interests of the clients. (Rule 3‑700) Improper withdrawal frequently leads to claims of legal malpractice or
complaints to the State Bar.
A lawyer cannot disclose
client confidences when withdrawing from a case. In other words, do not call a press conference. The
lawyer duo had a laundry list of complaints, including that Zimmerman was not
reaching out to them. They claimed he was mentally unstable. Actually, not
contacting these hypercritical chatterboxes might be considered an indicator of
Zimmerman’s mental stability. The lawyers also claimed not to know his
whereabouts, suggesting he might be out of state. Gosh, you think that may have
had an impact on his bail hearing and potential flight risk issues?
They were troubled because
Zimmerman was not following their direction. Listen, and this is fundamental,
clients do not have to follow our sage advice.
Some have speculated that the reason clients need lawyers is precisely because
they don’t follow advice. In other words, if they followed our advice, we would
The Florida duo then stated
the information was not "attorney‑client privileged." Of course
not! Privilege only occurs when someone is attempting to compel the disclosure
of information in a tribunal. It is a mere particle of the vast duty of
confidentiality all lawyers owe to their clients forever (in California,
Business and Professions Code 6068 (e), Rule 3‑100). And, in additional backpedaling, they believed they mitigated their
comments by stating the information was already available in the press.
Remember, in California there is no public records exception to the tremendous
duty of confidentiality. In the Matter of Johnson, 4 Cal. St. Bar Ct.
Rptr. 179 (2000).
The bizarre press conference
could be characterized as a career killer, but it’s highly doubtful there will
be any repercussions. Liability for legal malpractice in a criminal case is
severely limited. How could damages be established? (See CBJ November 2008.) Some authorities speculate that the State Bar of Florida will
prosecute, but it’s unlikely. Ethics trainer Jack Marshall reminded the blogosphere
about Sam Dash’s withdrawal from the representation of Ken Starr’s Whitewater
prosecution of Bill Clinton. Nobody prosecuted Dash, but who would prosecute
the special prosecutor of the Watergate scandal?
The lawyer duo criticized
Zimmerman for attempting to directly contact the special prosecutor, in
violation of the anti‑contact rule (in California, Rule 2‑100). Sean Hannity of Fox News reported having had a
conversation with Zimmerman, but he agreed not to "report" about it.
The special prosecutor’s
press conference also raised endless ethics issues. How about the second-degree
murder charge? Certainly there is substantial evidence that hasn’t been leaked
that would support a murder charge. Many pundits have suggested this might be a
difficult charge to make. Although grand juries are often accused of rubber
stamping prosecutors, they serve a valuable purpose in society. That’s why 22
states require a grand jury indictment before charging.
Remember, prosecutors are
nonpartisan ministers of justice. They face little if any consequences for
misconduct because as long as they are performing their duties they are
protected by absolute immunity. It is well established that a prosecutor should
not make extrajudicial statements because it could prejudice the criminal
proceeding. Some suggest the comments of the special prosecutor have already
created a prejudicial environment.
Years ago, counting the
constitutional and ethics violations on "Law and Order" was a
"sport" in the legal community. Here is a link to the special
prosecutor’s press conference. How many questionable statements do you think
Finally, there was the
judicial conflict created by Zimmerman contacting a partner of the judge’s
husband’s law firm for legal advice. Many members of the firm were paid pundits
for CNN. That incident was handled quietly and appropriately with little, if
I’m confident this will not
be the last we hear about this case. It could be an entire ethics course.
Other interesting ethics commentary about the Zimmerman case
can be found at the Legal Ethics Forum blog and Jack Marshall’s Ethics Alarms.
Legal ethics expert Diane Karpman can be contacted at 310 887-3900 or email@example.com.