Judge Posner has been in the news a lot lately (reviewing tearing apart Justice Scalia’s new book here). He is normally known for being a pragmatic judge, which is why his recent opinion is so bizarre. In United States v. Williams, Judge Posner’s pragmatism was instead replaced with a cavalier attitude towards the right to counsel and towards the relationship that must exist between defense counsel and client in order for the defense counsel to properly represent the client.

The defendant in Williams was facing an over 50-year sentence for bank robbery and firearm charges. So, when criminal defendants are facing the equivalent of a life sentence, they normally take two paths. They either cooperate with the government and say whatever the prosecutor tells them (even if its not exactly the truth), or they come up with some hairbrained scheme to try to get out of the conviction. Judge Posner recounts the scheme:

The lawyer testified that Williams had mailed him an envelope marked “legal mail” (so that it would not be opened by the jail) that contained a sealed letter addressed to a cousin of Williams and a note asking the lawyer to forward the letter to Williams’ family to give to the cousin. The lawyer was suspicious and read the letter. It instructed the cousin to provide an alibi for Williams by testifying that Williams had been involved in a marijuana deal on the day of the robbery. Realizing that Williams was trying to obstruct justice by asking the cousin to provide him with a false alibi, the lawyer did not forward the letter. Instead, with the judge’s permission, the lawyer withdrew as Williams’ counsel, turned the letter over to the government, and agreed at the government’s request to testify at Williams’ trial. He testified that the letter was a “blatant attempt to get me involved in smuggling something out of the jail that in turn would be a potential instrument for obstruction.” Williams, who like Austin had decided to testify, admitted on the stand that his aim in writing the letter had indeed been to induce his cousin to lie for him.

Predictably, the defendant alleged that his lawyer committed ineffective assistance of counsel when he testified against his own client. Judge Posner rejected the ineffective assistance claim, holding that no ethical rule prohibited the attorney from disclosing the contents of the letter to the judge. Nor did the ethical rules prohibit defense counsel from turning over the letter to prosecutors and then testifying for the prosecution. Judge Posner wrote:

The literature on the ethical duties of lawyers counsels that a lawyer should attempt to dissuade his client from illegal conduct before disclosing his client’s intentions to the court or to law enforcement authorities. But the literature phrases this as a recommendation rather than as a flat command, frequently hedging it with qualifications such as “ordinarily” and “practicable.”

[citations omitted] This makes sense in the usual case; the harm to the client’s interests and to the attorney-client relationship from disclosure is great, and the benefit of disclosure in preventing criminal activity is usually small when the crime is perjury since the lawyer can refuse to introduce the perjured testimony. But this is not the usual case. Had Williams’ lawyer merely refused to forward the letter, Williams might have found a different means of conveying his unlawful request to his family (maybe orally in jail to a visiting family)—perhaps with instructions to find someone other than the cousin to be the false alibi witness, someone the lawyer had never heard of and therefore would have no basis for refusing to call as a witness. Facing a possible sentence of more than 50 years for the bank robberies and having already attempted to suborn perjury, Williams was unlikely to hearken to an ethics lecture by his lawyer.

So why did Judge Posner believe the defense lawyer could go running to the judge and prosecutor? Because the defendant was about to commit a horrendous crime. No, the defendant wasn’t going to murder a witness. No, he wasn’t even going to threaten a witness. Instead, the defendant was concocting a scheme to his cousin to lie for him on the witness stand.  In other words, Judge Posner was willing to create a rule that allows–indeed invites, distrust between defense attorneys and their clients–so that one attorney could prevent a case of … perjury.

That’s an interesting take.

Circuit Judge Hamilton dissented, and he took Judge Posner to task for eroding the right to counsel. He also faulted the defense attorney, not for withdrawing from the case once he learned his client was about to commit perjury, but for how he withdrew.

Any lawyer who has had a dishonest or unethical client, and just about any experienced criminal defense lawyer, can appreciate the problem here. Ryan was upset and offended, and he decided to withdraw from the case. Ryan had that right, but the problem is how he did so. Without talking with his client, his first action was to file in court a motion to withdraw supported by his own affidavit fully explaining the circumstances. Making matters much worse for his client, he failed to obtain court permission to file his motion under seal, and thus gave the prosecutor full access to the motion and the affidavit, and eventually to the letter. In my view, the result was a breach of his professional duties of loyalty and confidentiality to his client, and a failure to act as the counsel that the Sixth Amendment promises.

I think Judge Hamilton recognizes the greater danger here. If the defense attorney had gone to the judge alone, he could have prevented any shenanagins on the part of his client. That, contrary to Judge Posner, would have solved the problem without any residual effect on the delicate balance of trust between criminal defense attorneys and clients.

Listen, when defendants are facing life sentences, they do stupid things, which is why they need the guiding hand of counsel. The lawyer should have told the defendant to stop, which was his duty to do.

And for those of you who think that trust between the defense bars and defendants is overrated, I’d say that I’ve seen cases won because the client was engaged in the process and was a help, not a hindrance, to his lawyer. Also, its hard enough for people to trust lawyers as it is and that trust will be hard to gain if people think their lawyer might turn state’s evidence against them.