Lawyers, Check Your Ethics at the Door

Over the weekend, I read this column in the Washington Post about a mentally ill soldier being criminally prosecuted for attempting to commit suicide and threatening another soldier with her weapon. She faces life in prison if she's convicted at court martial. I didn't have time to write about it, but Scott Horton does today, and there's something he says that I think is worth highlighting. First a quote from the article:

Her hands trembled as Maj. Stefan Wolfe, the prosecutor, argued that Whiteside, now a psychiatric outpatient at Walter Reed, should be court-martialed. After seven years of exemplary service, the 25-year-old Army reservist faces the possibility of life in prison if she is tried and convicted. Military psychiatrists at Walter Reed who examined Whiteside after she recovered from her self-inflicted gunshot wound diagnosed her with a severe mental disorder, possibly triggered by the stresses of a war zone. But Whiteside’s superiors considered her mental illness “an excuse” for criminal conduct, according to documents obtained by The Washington Post.

At the hearing, Wolfe, who had already warned Whiteside’s lawyer of the risk of using a “psychobabble” defense, pressed a senior psychiatrist at Walter Reed to justify his diagnosis. “I’m not here to play legal games,” Col. George Brandt responded angrily, according to a recording of the hearing. “I am here out of the genuine concern for a human being that’s breaking and that is broken. She has a severe and significant illness. Let’s treat her as a human being, for Christ’s sake!”

And Horton's comments:

...now we have Major Stefan Wolfe, who knows that all psychology is just bullshit. Major Wolfe has probably been given an inner vision into this affair by God Almighty, from the sounds of it. He is apparently also ignorant of the rules of professional ethics that require lawyers (yes, including prosecutors) to treat the work and opinions of other professionals with respect.

Horton is making a larger point about the ease with which military commanders simply dismiss "psychobabble" when their soldiers commit acts that would be criminal but for the fact that they're mentally ill. That's an important point, as military commanders are given great leeway to either bring charges against soldiers, or recommend them for psychiatric treatment. As you can well imagine, there are quite a few who make it to commander ranks who are utterly dismissive of even the idea of mental illness as an excuse to "bad" conduct.

But Horton really goes after Maj. Wolfe, who apparently doesn't have a problem with demeaning the defense's legal argument and badgering the defense's witnesses. Now you might be surprised to learn that though lawyers don the uniform when they're sworn into military service, they are still required to adhere to a standard of professional ethics that they also swear to when they're licensed as lawyers. Here for example, is a relevant portion of the Texas Lawyer's Creed, the code that lawyers licensed in Texas are expected to adhere to:

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.

And under that heading, this section:

I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

In short, don't be a jackass, and don't impugn the credibility or motives of your opponent or his witnesses.

As you can imagine, a lot of trial lawyers forget these standards when they get into the courtroom, where for many the adversarial nature of the American legal system means "anything goes." But what particularly bothers me is not how trial lawyers forget how to behave, but the larger problem of lawyers who go to work for someone forgetting that whatever loyalty they owe their client, they still must adhere to certain standards of conduct that apply to all lawyers wherever they work. As of late this has been particularly problematic in the field of government service, where some lawyers have come to believe it's ok to carry out political prosecutions, make tortured legal arguments supporting the insupportable, or in the case of Maj. Wolfe, demean that arguments of an expert witness as "psychobabble" in the interests of furthering some military commanders prejudices.

Lawyers are poorly regarded by the American public. To some extent this isn't fair, as the American adversarial system encourages lawyers to play it to the hilt to defend their clients against the world. But lawyers should never, ever forget that their interest is not in helping a weasily client get away with something, especially when their weasily client is the U.S. government. Their duty is to see that justice is done, that truth is revealed. This is true no matter what suit or uniform they wear.