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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.

So I didn’t post all week, and for this I apologize. I had what I will just characterize as “one of those weeks” and it took the entire weekend for me to recover from it. But now I bring you an installment of one of my favorite topics…Lawyers Behaving Badly. This time it involves an NYC lawyer who sent sexually explicit text messages and emails to someone he thought was an underage boy…it was, of course, an undercover. And this story has some legal twists - specifically, what does the word “depict” mean?

Jeffrey Kozlow was originally convicted in 2005 of five counts of disseminating indecent materials to a minor (I will leave aside, for now, the separate discussion about cases like this never actually involving any minors).

Kozlow shared his sexual fantasies with “JohnInYonkers914″ and tried to get the purported teen to discuss his sexual habits. But Kozlow never sent pictures or images of minors engaged in acts he fantasized about, prosecutors acknowledged. He cautioned “JohnInYonkers914″ in e-mails that he was interested only in talking on the day of the arranged meeting, and not physical contact.

Following his arrest, Kozlow said he believed “JohnInYonkers914″ was a 14-year-old boy. But he also told authorities that he thought he could say anything he wanted in text messages as long as he did not send “pornographic pictures.”

He appealed the convictions and the appellate court overturned them, holding that there were no pictures involved and thus the communications did not “depict actual or simulated nudity, sexual conduct or sado-masochistic abuse…” as the statute reads.

But this week, the New York high court overturned that decision by relying on the good ole OED, which states that in colonial times “depict” could mean “to represent or portray in words.” I at least give them credit for not resting solely on this and acknowledging that the legislature meant to give a broad meaning to the law in order to target so-called sexual predators on the internet. A strict constructionalist dissent took the politically and socially unpopular position and noted that many other dictionaries never mention mere words in their definition and that, just because the legislature recently amended the law to explicitly include just words, Mr. Kozlow’s actions were not felonies at the time that he did them.

He was, not surprisingly, disbarred.

Everyone’s “favorite” tabloid, the New York Daily News, apparently decided that a Brooklyn Law School 3L posing nude in a Playboy short is front page news.

Adriana Dominguez - a third-year student at Brooklyn Law School - happily strips naked, gets spanked and holds gavels up to her bare breasts in the provocative clip.

“I wanted to do something a little crazy before I graduate and do become a lawyer … do something kind of out of character,” Dominguez said with a grin as she posed for photographer Andrew Einhorn inside his friend’s DUMBO apartment.

Really? She held a gavel up to her boobs? I find this downright hilarious.

But it brings up an interesting question - should doing something like this (and by “this,” I mean “getting naked on the internet”) be considered as a factor in admission to the bar? Is she actually unfit to practice law because she did a striptease? Or is it merely something that employers should be wary of (or excited about, perhaps)?

Personally, I do not think that posing nude has any actual effect on your ability or fitness to be a lawyer or on your character in general. I may be biased, in that I have several dear friends who model naked on the internet, but I also may just be numb to it because, well, I have several dear friends who model naked on the internet. It just does not seem like a big deal to me. At all. But I can see why it may be a big deal to other people - employers, clients, opposing counsel, judges, etc. It isn’t always easy being a female in the boy’s world of criminal trial law, though my thoughts about dealing with sexual harassment (running the spectrum from flirting to outright gross inappropriateness) on the job is best saved for another time. Let’s just say that I can only imagine the comments, disrespect, and difficulty she would face in the courthouses where I practice. I want it to be a harmless blip that shouldn’t matter if she’s an otherwise smart, skilled, and good lawyer…but I also realize that, in reality, it is not.

Christian Hatfield is the Chief Public Defender in Aztec, New Mexico and on Friday, he was also briefly an inmate at the San Juan County Detention Center. Why, you ask? Not because he showed up drunk to a trial or anything (see below), but because one of the attorneys in his office realized that he had previously represented a witness in the case against his client. Yes, he was held in contempt of court for respecting the code of ethics that we as lawyers abide by. Granted, it meant postponing the trial (which seems to only be a problem when it is the defense asking for it), but it also meant standing up for those ethics that Judge Wilma Charley apparently found pesky.

The judge told Hatfield that [public defender Stephen] Taylor could not withdraw from the case and gave him two options: Stay the course or be found in contempt of court.

Hatfield, who had his criminal mug shot hanging on his office door Friday, said that as the chief public defender, he felt it was his duty to uphold his ethical values, and decided he would rather be found in contempt of court than allow Taylor to represent [defendant Ismael] Cordova.

“Since I’m the manager of this office, I didn’t want any of my lawyers to go to jail,” he said.

Contempt of court is punishable by a fine between $100 and $1,000, or a sentencing of 30 to 90 days in jail, or both, according to state statute.

This brings to light another issue - that of recognizing conflicts of interest. Hatfield acknowledged that his office should have caught this error ahead of time, but such things can sometimes be extremely difficult. Contrary to what some people (some prosecutors included) think, there are no hard-and-fast categories of Defendants and Victims. Those who sometimes appear as Victims in a particular case have also, at some point, been Defendants and vice versa. Of course, Defendants are usually precluded from bringing up a Victim’s past as a Defendant and a Victim’s veracity is never questioned once they are given that label (whereas the Defendant is always seen as the lying scum).

Anyway. I have to go prepare for a violation of probation hearing that I will likely lose because, of course, Police and Probation Officers are also never mistaken or lying.

Defense lawyers have a less than stellar reputation - they (we?) are considered unscrupulous and willing to defend the most heinous crimes for a pile of money. Public defenders have, perhaps, a worse reputation - we are sometimes thought to be the sad saps willing to settle for poorly paying jobs because we aren’t smart enough to get a better job. Last year, when talking about a public defender interview I had, a friend said, “Well, if you can’t get a job with the public defender’s office, that’s pretty sad.” And an rerun of Law & Order that I watched yesterday featured a lawyer who got “stuck” with Legal Aid and reveled in representing a serial killer as a way to boost his career to fame and fortune. If you ever decide to throw this particular notion my way, I may have to eviscerate you. But every once in a while, a defense lawyer does something so stupid that it seems to validate the piss-poor image of the defense bar. Like, say, showing up drunk to a trial in which a client is facing life imprisonment.

Las Vegas defense attorney Joseph Caramango showed up an hour-and-a-half late to his client’s trial, smelling of alcohol, slurring his words, and accompanied by a woman that he had just met at a bar. Caramango claimed that he was not drunk, but that he had been in a car accident, hit his head, and didn’t contact the police about it. He said he was ready to go forward with trial but the judge wasn’t buying it - she declared a mistrial and ordered him to take a breathalyzer. His blood alcohol level was .075, just below the so-called “legal” limit.

Winner.