ethics

STUPID TEXTING OR 13TH AMENDMENT VIOLATION? Maybe Both!

In a stunning move, the New Jersey Supreme Court censured an attorney for texting his client about nonpayment of his legal fee.  The attorney, a criminal defense attorney, texted his client that he would not prepare for trial if the legal fees were not paid.  The criminal defendant was charged with sexual assaults of four minors and faced 200 years in prison.  The lawyer had twice requested the trial judge to allow him to withdraw from the case due to his client’s inability to pay.  The lawyer also thought the client was unreasonable in refusing a favorable plea offer from the prosecutor.  The lawyer texted:  “HAVE FUN IN PRISON.”  When the client showed the text to the Judge, the Judge allowed the attorney to withdraw and appointed another attorney for the criminal defendant.

The attorney was charged with engaging in a conflict of interest and conduct prejudicial to the administration of justice.  The conflict of interest occurred because the lawyer placed his own economic interests in getting paid above that of his client in receiving a defense to the charges against him.

This presents a real dilemma for criminal defense counsel.  Often, after taking a case, the client becomes unreasonable and cannot or will not pay the attorney’s legal fees.  In such cases, the attorney has little choice but to request to withdraw from the cases.  The ruling gives no reason as to the Judge’s refusal twice to allow the attorney to withdraw as counsel.

Indeed, in Ohio Rule 1.16, a proper reason for terminating representation is in instances where the client fails to fulfill a financial obligation regarding the attorney’s services.  To required the attorney to remain on the case without getting paid is tantamount to involuntary servitude, a requirement abolished by the 13th Amendment to the U.S. Constitution in 1864.  This is the same reason raised for the not requiring attorneys to provide pro bono services. Pro bono work is strictly voluntary.

Certainly, the attorney’s text was imprudent, brash, inadvisable and, perhaps even rude.  Indeed, such conduct could, arguably, be prejudicial to the administration of justice where, as here, the trial was postponed as a result.  And, of course, it is arguably a violation of the administration of justice for an attorney to fail to prepare for trial.  Troubling, however, is the ruling that a conflict exists where the attorney insists on payment prior to preparing for trial.   Even more troubling is allowing a judge to refuse to release an attorney from representation under such circumstances.  The concern is that criminal defendants everywhere will now refuse plea bargains (not that I am a big fan of many of those either) and refuse to pay counsel relying on their ability to exact sanction against the attorney’s license should the attorney refuse to give services for free. Censure is akin to Ohio’s version of a public reprimand.

The moral of the story from that attorney perspective is not to put such language in texts.  Things in cyberspace stay forever!  But I ask you which is worse:  an attorney who so advises his client and then is released from representation or an attorney who keeps it under his hat, fails to prepare for trial, and renders insufficient services.

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