05.10.07

Lawyers Behaving Appallingly

Posted in lawyers behaving badly, ethics at 8:58 pm by misstyrios

Today, a man named Joseph Downey was convicted of second-degree murder in the 1997 stabbing of a man in a South Boston bar. This is actually the second time that Mr. Downey has been convicted of this crime, but he was granted a new trial because his lawyer (and the lawyer of his brother/co-defendant) was wearing a microphone throughout the entire trial without his knowledge or consent. I suppose this is technically old news because the first trial was in 1999, but this is the first I have heard of it and I am just…appalled.

Interestingly, I can’t find the names of the original defense lawyers or whether they were actually charged with crimes - it is illegal in Massachusetts to record a conversation without the other party’s knowledge. But the sheer and gross violation of attorney-client confidentiality in this instance is astonishing. The lawyers were working with the producers of “Frontline” on a documentary about the murder case and were wearing microphones not only throughout the trial, but also during talks with their clients about potential guilty pleas. As the Massachusetts Appeals Court case that upheld the order for a new trial states:

[T]he lawyers undertook to wear concealed microphones tied to recording devices during the course of a criminal trial. The attorneys’ communications with their clients during trial were within range of the hidden microphones and were captured, if the microphones were not shut off, or if the recording system was not muted. As shall be seen, the microphones remained active during most of, if not all of, the trial and did, in fact, record privileged attorney-client communications, certain of which were later broadcast on television and published in print. As noted, all of this was done without the consent or, initially, the knowledge of the accused clients being tried.

The trial judge was also unaware that defense counsel were equipped with hidden microphones and that the attorneys’ voices and communications with their clients were being recorded. Thus, unbeknownst to the trial judge and without the consent of the defendants, the broadcast recording arrangement not only reached public speech and acts in the courtroom, but also intercepted private and privileged conversations between the lawyers and clients on trial.

WHY? Was the prospect of being in a PBS documentary really SO enticing as to make these lawyers forget the most basic premise of being a lawyer? It is just such a complete evisceration of attorney-client confidentiality as to leave me nearly speechless. I cannot, for one second, imagine what was going through their heads and how horrifically violated their clients must have felt. It is often the defense lawyer who is the ONLY person in the entire court, system, or even world who is supposed to always be on the side of the defendant, no matter what, no matter how horrific the allegations or the chances of conviction. And these lawyers not only violated trust, but also ethics, and the tenets of decent humanity.

So, while Daniel Downey pled guilty to manslaughter and Joseph Downey was convicted of second-degree murder, at least they (hopefully) got fairer shots than they had with the lawyers who sold them out so disgustingly the first time around.

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