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Loose lips sink ships for attorneys in Trayvon Martin case

By Diane Karpman

Diane KarpmanThe 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 be unemployed.

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 were made?

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 any, fanfare.

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