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kaitie
05-11-2011, 10:29 AM
Okay, I'm working on a plot for the book I'm hoping to write next, and I just had a somewhat clever idea. One of the characters is a lawyer. In my mind, she was once a criminal defense lawyer, but she switched to prosecution and is actually pretty highly regarded. Kind of.

Well, I need my MC to find some dirt on her that he can use to essentially blackmail her, and I'm thinking her boss is actually doing essentially the same thing, so whatever it is, there has to be evidence of it, and I'm trying to find something that would have her disbarred if it was ever discovered. The only problem is that I'm not well versed enough in law to know what would be both serious and plausible.

Any ideas? I'm thinking something that would have been illegal she could have done during her defense lawyer stage. I have some fallbacks for what this can be if I can't find anything, but I'd love suggestions. :)

alleycat
05-11-2011, 10:40 AM
We have a few attorneys here, and I'm sure they can give you some realistic suggestions.

The first thing that comes to mind is to have put a witness on the stand that she learned had committed perjury (say, the witness actually admits it to her some time later in the trial) when she was a defense attorney. She says nothing about it. More serious would be if she knew about a bribe to either a judge or juror (it does happen; a few years ago a judge here was caught taking bribes and ended up killing both himself and his wife).

By the way, it's a little odd for a defense attorney to change career track and become a prosecutor. It could be an interesting twist, but you do need a good explanation for it.

Medievalist
05-11-2011, 10:42 AM
Figure out what state she's in, if this is set in the U.S. and google Attorney ethics statename

kaitie
05-11-2011, 07:28 PM
Goodness, that's a little harder. Might have to be DC area because it involves a few lawmakers, but I'm not entirely sure on that. It could be their home state, too. I know it's east coast.

The perjury thing was the first that came to my mind as well, but I wasn't quite sure how someone would find evidence of that unless it was rather obvious. Well, evidence that didn't come out at trial, I mean. It's still a good potential idea, though, but you'd basically have to prove that she knew about it, and that's the harder thing to prove I think.

As for the switch, I had two thoughts for this woman. One is that she's relatively new and a young prosecutor who is idealistic and what not, but that she'd cheated on her law exam or something like that, which my dude could use to blackmail her.

The secondary thought was this one. I like the idea of her being a little older, and I was thinking that whatever it is that she did that's so bad is also a disillusioning moment for her that made her decide to go another direction with her life. She's unsatisfied and wants to do something with her life that she can feel better about where she (thinks she) won't be pushed to do things that she's morally uncomfortable with, so she switches to the prosecution.

I can actually change that if it really does sound unrealistic and go with the original, though. I like her being a little more experienced, but it can go either way. The main thing is that she needs to have an idealized sense that her job is about justice so that when her boss tells her she's not going to prosecute someone when she has clear evidence of a crime being committed, she's motivated to look into it behind his back.

Let me think about state. I'm obviously going to have to do a ton of research for this, but it's still at the early stages and I'm trying to figure out what I need to research lol.

jclarkdawe
05-11-2011, 11:11 PM
First off the perjury thing doesn't work. An attorney is not allowed to put a witness on the stand that the attorney knows is going to lie, but is not responsible for the witness lying. If the witness lied and then confessed it to the attorney, it would be covered by attorney/client privilege. And that assumes that the attorney actually believes the client. Personally, I won't trust them to tell me where the sun rises.

Second is many attorneys switch both ways. I know a couple of prosecutors that started out as defense attorneys and more who started out as prosecutors and became defense attorneys. It's not a big deal and just involves figuring out which makes more sense to an individual. And some attorneys don't really care either way.

But here's a good scenario for a defense attorney to get themselves hung out to dry. At the sentencing hearing, the prosecutor gets up and recites the defendant's criminal history. Prosecutor gets up and says the defendant has no prior convictions.

Defense attorney knows that his client did time in another state, both by admission of the client, and by independent investigation. After the prosecutor gets done, the judge turns to defense counsel and asks if the fact about the criminal conviction is correct.

There are three answers here and only one of them is right. First reaction is to assure the judge that the prosecutor is right. Wrong answer. Much as you might want to help your client, as an attorney and an officer of the court, you are not allowed to lie to a judge.

Second reaction is to tell the judge about the mistake. After all, honesty is important. So what if it tanks your client. Yeah, not only will it piss off your client, it violates attorney/client privilege.

Third reaction is to say that you can't answer because of attorney/client privilege. Right answer but is going to make everybody unhappy.

Smart defense attorneys become very adept at not answering questions about their clients. Best course in this situation is to avoid answering the question while seeming to. Unfortunately, some judges pick up on this sort of stuff.

Anyway, have your attorney lie about something like that to the judge. There's a record, and the potential of being disbarred is reasonable.

This does play out a little differently if the prosecution gives you the correct criminal history and the prosecutor screws up. But you still can't lie to a judge. Or for that matter to a prosecutor. You learn how to exactly answer questions.

Best of luck,

Jim Clark-Dawe

alleycat
05-12-2011, 01:14 AM
First off the perjury thing doesn't work. An attorney is not allowed to put a witness on the stand that the attorney knows is going to lie, but is not responsible for the witness lying. If the witness lied and then confessed it to the attorney, it would be covered by attorney/client privilege.
Just for clarification (and to ask a question for my own education). What I meant was the attorney puts a witness on the stand (NOT the defendant) to testify for the defense. Later, during the trial, the witness admits to the attorney that he or she lied during their testimony. Wouldn't the defense attorney have an obligation to make this known? Would it still be covered by privilege since the witness isn't a client?

The Grift
05-12-2011, 02:07 AM
First of all, nothing weird about switching sides of the table during your career. I've usually heard of it going the other way (prosecutor or US Attorney to criminal defense is EXTREMELY common) but it's common the other way too.

So my next question is what kind of violation do you want it to be from a character standpoint? Is it something the reader would be repulsed by, or something where the reader might view the lawyer as a victim of circumstance or that they made a simple, but not morally objectionable, mistake?

For instance, one of the fastest ways to get disbarred is simply to commingle money. Put simply, as an attorney you're supposed to keep different money in different accounts. One account for operating expenses, and then various other accounts for client's money, escrow money, etc. A surprising number of attorneys get disbarred for just not having separate accounts. They're not even misusing the money, they're just commingling it. Usually it's something more akin to using client money to cover their own expenses/debts, but sometimes it's as simple as laziness or making a mistake in where you put the money.

Or maybe you want whatever the attorney did in their past to be reprehensible. An attorney in NJ was just disbarred for arranging to have an opposing witness killed. Apparently that's frowned upon in New Jersey, although I swear I don't remember that specific issue being addressed on the MPRE.

For a single incident to lead to disbarment, that incident has to be pretty bad. Disbarments are often the result of an aggregate of actions.

jclarkdawe
05-12-2011, 05:02 AM
Originally Posted by jclarkdawe http://www.absolutewrite.com/forums/images/buttons/viewpost.gif (http://www.absolutewrite.com/forums/showthread.php?p=6133485#post6133485)
First off the perjury thing doesn't work. An attorney is not allowed to put a witness on the stand that the attorney knows is going to lie, but is not responsible for the witness lying. If the witness lied and then confessed it to the attorney, it would be covered by attorney/client privilege.
Just for clarification (and to ask a question for my own education). What I meant was the attorney puts a witness on the stand (NOT the defendant) to testify for the defense. Later, during the trial, the witness admits to the attorney that he or she lied during their testimony. Wouldn't the defense attorney have an obligation to make this known? Would it still be covered by privilege since the witness isn't a client?
Definitely a witness is not covered by attorney/client privilege.

Short answer is that any attorney at trial, upon becoming aware that a witness committed perjury, should inform the court of the situation, unless some privilege applies. Normally this would be done in chambers. The court would then investigate further.

Long answer is it would quickly get complicated. First off, how convincing is the perjury. If someone gets up on the stand and says one thing, then says another later on, how do you know which one is true? And is one statement simply a mistake?

Second question is whether the perjury involves something material. If the witness lied about something that didn't affect the trial, then the perjury doesn't matter, other than it may affect the credibility of the witness.

Third question is the credibility of the witness in general. I've done prison assault cases, where most of the witnesses are inmates. How much do you think you should believe any of the witnesses? In one case, one of the prosecutor's witnesses made four different statements pre-trial, and something different at trial. How do you decide which one to believe? (Prosecutor had no choice, since she knew I was going to call the guy if she didn't. Damage control on her part was calling him and trying to control the twit. Whole case was a shambles for both sides and ended in a plea before the jury got the case. But a better plea than my client was getting offered before trial.)

This is the type of situation in which the attorney will frequently hire another attorney for advice. It's a complicated situation. And the specific facts will make a lot of difference.

Best of luck,

Jim Clark-Dawe

mgencleyn
05-12-2011, 05:08 AM
Did you read the Wikipedia article on disbarment? It has a few examples.

http://en.wikipedia.org/wiki/Disbarment
and
http://en.wikipedia.org/wiki/List_of_disbarments_in_the_United_States

kaitie
05-12-2011, 07:47 AM
I actually know of a few things, though it's more a matter of wanting something that would be realistic, and I don't know enough about legal issues to know for sure. Granted, I watch a ton of Law and Order, but if that's like most shows, a real lawyer would probably recognize things that would be unlikely or unrealistic in there that I wouldn't. ;)

These answers are fantastic btw. Thanks for everyone's help!

Here's some more clarification on what I'm looking for. Again, I have two options. The first is this idea that she does something iffy at trial and then switches sides partly because she's not happy with what she did. It can involve money, though I might want to go a different direction with it because there are a lot of politicians in the story who are getting taken down on bribery and corruption or fraud or any number of other monetary issues, so if I can do something a little different with her, it might be better.

An inappropriate sexual relationship (judge maybe?) could work, though I'm not sure I want to turn the reader off her, and prostituting herself to get her way is...well, squicky.

A little more detail: I have the main MC who is the one doing the blackmailing, and the lawyer girl who is either a secondary MC or a high-ranking second-tier character. Basically, I'm setting up a situation where she wants to take down the MC for one thing that could quite literally ruin his life and put him in jail for years, and I want him to come up with something on her he can use to stop her. They're both actually pretty much the good guys in the story as the villains are outside, and both are fighting the same antagonists, just in different ways. And it probably works better if she's a little more on the good side of morality just because the actual MC is pretty morally ambiguous.

So really I need something he could ruin her career with, but if I can avoid having it be straight up related to money that would be nice. On the other hand, because she's pretty much a good person and her whole motive throughout the story is that she's upset with some rather unethical behavior going on in the chain above her (and they're forcing her to go along as well), it needs to be something that wouldn't make her look like a total sleaze bag.

The perjury thing I was thinking of was more along the lines of putting a client on the stand and encouraging him to lie about something rather than finding out after the fact that he had lied. The only thing is, it would be nearly impossible to prove, correct? Short of the client later saying "The lawyer told me to lie" and even then if the client has a self-serving motive (getting out of perjury conviction lol) he's not going to be exactly trustworthy either.

My other option is to do something a little different, like have her do something before her career actually begins that would still get her kicked out. My current thinking is something like she plagiarizes a paper during her final term in school. If she did it and got away with it, then the MC could find out about it easily enough from an old roommate or something, and it would be easy enough to prove. If she's at a high-ranking school, it's possible she could have her degree revoked, and I would be amazed if she didn't lose her job for it.

That has an advantage because it's something that a person could be pushed into under enormous pressure, and it's separated enough from her legal career that she can easily have grown beyond that sort of thing. I'm just not certain that it sounds serious enough to really hang over her head.

I've been reading through codes of conduct, but this is like reading a foreign language. ;) My degrees are in psychology so I get jargon, but it's just nuts. I'm going to have to learn a lot just to do the research for this one, but it should be fun. I'm also going to look up specific cases in which people were disbarred and see if anything seems inspiring.

I'm loving these thoughts, though. This is incredibly helpful.

jclarkdawe
05-12-2011, 08:18 PM
I actually know of a few things, though it's more a matter of wanting something that would be realistic, and I don't know enough about legal issues to know for sure. Granted, I watch a ton of Law and Order, but if that's like most shows, a real lawyer would probably recognize things that would be unlikely or unrealistic in there that I wouldn't. ;) L&O isn't too bad. Most of the issues involve the speed at which cases move. One reason that publishing's speed doesn't bother me is it's about as fast as the legal system. If anything, the legal system is slower.

These answers are fantastic btw. Thanks for everyone's help!

Here's some more clarification on what I'm looking for. Again, I have two options. The first is this idea that she does something iffy at trial and then switches sides partly because she's not happy with what she did. It can involve money, though I might want to go a different direction with it because there are a lot of politicians in the story who are getting taken down on bribery and corruption or fraud or any number of other monetary issues, so if I can do something a little different with her, it might be better. You need to understand that prosecutors and defense attorneys are fairly similar, compared to say a big league corporate attorney. For both, it's more alligence to the system than anything else. Criminal law is very much about checks and balances, and for my money, the English and US system, giving a preference to the innocence of the defendant, works the best. This is compared to systems where the defendant is presumed to be guilty. We screw up, but probably less than other countries.

Young attorneys don't knowingly violate the Code of Professional Ethics. They do it by accident. That's why I gave you the example that I did. Although it is a clear cut situation, it's something that comes up frequently enough and it's hard to think of the correct answer while you're standing on your feet.

I can't think of any behavior that would come up at trial that wouldn't be obvious to the judge, with the exception of suppressing evidence. And for a criminal defense attorney, that's a hard one to get to. A criminal defense attorney, unlike the prosecutor, has no duty to produce evidence. In civil cases, the duty to produce evidence comes through the use of interrogatories.

An inappropriate sexual relationship (judge maybe?) could work, though I'm not sure I want to turn the reader off her, and prostituting herself to get her way is...well, squicky. It could happen. Definitely I know of a couple of relationships between judges and attorneys. But the legal world is small and people talk. You'd know who was screwing who fairly quickly, and normally steps are taken to reduce the issue. I know one case where the judge was not allowed to see or hear anything about any of the cases his girlfriend was involved in.

A little more detail: I have the main MC who is the one doing the blackmailing, and the lawyer girl who is either a secondary MC or a high-ranking second-tier character. Basically, I'm setting up a situation where she wants to take down the MC for one thing that could quite literally ruin his life and put him in jail for years, and I want him to come up with something on her he can use to stop her. They're both actually pretty much the good guys in the story as the villains are outside, and both are fighting the same antagonists, just in different ways. And it probably works better if she's a little more on the good side of morality just because the actual MC is pretty morally ambiguous. I really can't come up with anything better than what I gave you.

So really I need something he could ruin her career with, but if I can avoid having it be straight up related to money that would be nice. On the other hand, because she's pretty much a good person and her whole motive throughout the story is that she's upset with some rather unethical behavior going on in the chain above her (and they're forcing her to go along as well), it needs to be something that wouldn't make her look like a total sleaze bag.

The perjury thing I was thinking of was more along the lines of putting a client on the stand and encouraging him to lie about something rather than finding out after the fact that he had lied. The only thing is, it would be nearly impossible to prove, correct? Short of the client later saying "The lawyer told me to lie" and even then if the client has a self-serving motive (getting out of perjury conviction lol) he's not going to be exactly trustworthy either. No attorney would encourage a witness to lie. You don't need to. For example, let's say you have an eyewitness who's going to lie and say they just saw John at the scene, and not Tom, your client. Witness has told you they actually saw both. Question to the witness would be "Did you see John at the scene?" You would not ask if the witness saw anybody else. You'd work at developing the inference that the witness only saw John. "The whole truth" is rarely encouraged by either side in a trial. We want to shape the story to our client's favor.

My other option is to do something a little different, like have her do something before her career actually begins that would still get her kicked out. My current thinking is something like she plagiarizes a paper during her final term in school. If she did it and got away with it, then the MC could find out about it easily enough from an old roommate or something, and it would be easy enough to prove. If she's at a high-ranking school, it's possible she could have her degree revoked, and I would be amazed if she didn't lose her job for it. Yeah, I suppose, although I've never heard of it. And my guess is someone that dishonest isn't going to improve as an attorney and would probably have other honesty issues.

That has an advantage because it's something that a person could be pushed into under enormous pressure, and it's separated enough from her legal career that she can easily have grown beyond that sort of thing. I'm just not certain that it sounds serious enough to really hang over her head.

I've been reading through codes of conduct, but this is like reading a foreign language. ;) My degrees are in psychology so I get jargon, but it's just nuts. I'm going to have to learn a lot just to do the research for this one, but it should be fun. I'm also going to look up specific cases in which people were disbarred and see if anything seems inspiring. The Code of Professional Ethics is in simple English. It becomes nuanced at points, but it's real simple.

I'm loving these thoughts, though. This is incredibly helpful.

Best of luck,

Jim Clark-Dawe

Phyllo
05-12-2011, 08:59 PM
What about having her destroy some incriminating evidence? Like, let's say she represented someone charged with murder and found herself in possession of the weapon. If she destroys it she is committing a crime (at the least, obstruction of justice).

And it doesn't have to be anything so dramatic as a murder charge -- it can even be a sympathetic situation: she represented a young man/woman facing the peril of a third-strike conviction for a comparatively minor offence, so she destroys the evidence to prevent her client facing a life term.

kaitie
05-12-2011, 09:06 PM
Thanks, Jim. Good points all. :) I might let her do something that she doesn't realize is unethical. I kind of liked the idea of her having this stain in her past that she's basically working on the assumption of no one knows, but if I make it something she did unintentionally, it also makes her a little more sympathetic and she's less of a bad guy in that regard as well, so that's a good point. :)

PinkAmy
05-12-2011, 09:27 PM
Thanks, Jim. Good points all. :) I might let her do something that she doesn't realize is unethical. I kind of liked the idea of her having this stain in her past that she's basically working on the assumption of no one knows, but if I make it something she did unintentionally, it also makes her a little more sympathetic and she's less of a bad guy in that regard as well, so that's a good point. :)
20 years ago I was vacationing in New Orleans and I got a speeding ticket. I got home and realized the ticket was lost. I didn't know what to do (I was young) and eventually forgot about it. When I had to renew my drivers license I couldn't, because there was a warrant for my arrest for the unpaid ticket. I never got any notices. I freaked out. I never even got detention in high school. Fortunately I resolved the problem with a cashier's check and they cut the fine down to the original cost of the ticket (with lots of apologies and begging from me.)
Maybe you can use something like my situation, where she gets in trouble in another state and forgets or doesn't realize.

Karen Junker
05-12-2011, 09:32 PM
What if she slept with someone she met in a bar and then it turned out he was a witness in a case? I'm not an attorney, just morbidly curious...

The Grift
05-12-2011, 11:57 PM
What if she slept with someone she met in a bar and then it turned out he was a witness in a case? I'm not an attorney, just morbidly curious...

I'm an attorney, but not a trial attorney so someone might correct me. But, on its own, that's nothing. Now, if she was lying about it, or allegations were made that she was trading sexual favors for the witness to testify a certain way or something along those lines, that's a different story.

EDIT: For the prosecution there would be a duty to disclose that incident to the Court. Brady v. Maryland, Giglio v. US, etc. Again, the act isn't the issue, but the defense gets to know about it so they can cross-examine (or direct examine) the witness for potential bias.

Karen Junker
05-13-2011, 12:42 AM
Yeah, it's those allegations that can get you. I can say that people can lie about what happened and if you can't prove the negative, you can be sol.

jclarkdawe
05-13-2011, 02:24 AM
What if she slept with someone she met in a bar and then it turned out he was a witness in a case? I'm not an attorney, just morbidly curious...

I know of a prosecutor who was banging a law enforcement officer. So didn't every attorney who frequented that court. Both were also married. The officer testified at several trials where the prosecutor was assigned.

None of us used it at trial because no one could figure out how it was relevant. Any of us would have used it if we could figure out how to get it in and we thought it would help our case. Several attorneys objected to the officer testifying outside the presence of the jury. Nothing ever came from it.

Especially in smaller states, you've got a relatively closed community. Unless there was some evidence of prejudice or evidence the attorney is not doing their job properly, the fact that a witness and an attorney are having an affair is not that big a deal.

But fun at the coffee shop.

Best of luck,

Jim Clark-Dawe