Dec. 20, 2017 – The substitution of a defendant with someone who looks similar for witness identification in a trial was a successful tactic for a defense lawyer – but not without consequences for the lawyer.
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Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel org tpierce wisbar Timothy Pierce and org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
A lawyer represents a client charged with driving with a revoked license and failure to yield.
The lawyer notices that one of his clerical employees bears a general resemblance to the client, and comes up with an idea to test the identification of the state’s only witness, the police officer who responded to the matter. On the day of trial, the lawyer has his employee sit next to him at counsel’s table and has the client present in the courtroom, but seated in the gallery. As expected, the officer misidentifies the employee as the defendant.
The lawyer then has his employee take the stand, where the employee reveals who he is and that he was not driving the car. The lawyer then asks for the case to be dismissed.
What were the problems for the lawyer as a result of this tactic?
These are the basic facts of People v. Simac.1 The lawyer’s strategy worked for the client when the trial court entered a not-guilty finding, but not so much for the lawyer. The trial court held the lawyer in criminal contempt based upon the following findings:
The court finds that it was the totality of the conduct of [defense] attorney in court in connection with this case that is the basis for the court ['s] finding of criminal contempt for misrepresentation by inference including the following findings:
That a person with the likeness of the defendant, a young, white male, was the only person with defense attorney at the counsel table when defense attorney came to the bench and said, ‘Here is my jury waiver.’
That person was dressed in jeans and a shirt with no tie that is not the courtroom attire of an attorney or co-counsel, yet that person sat in the customary location of a defendant throughout the State's case.
That person was asked by the clerk to be sworn with other witnesses at the start of the trial, to which defense attorney said that said person was not going to testify. The obvious inference of this comment to the court and clerk was that the person was the defendant because witnesses were excluded except for defendant.
That person was identified as the defendant by the State witness police officer, and all of the foregoing resulted in the court's comment that the record could show that the defendant was identified for the record; there was no defense attorney response to this court's comment that advised of the court's impression and finding based on all that had occurred and that the court was misled as to the identity of the defendant.
That person's only apparent purpose in the courtroom, in a defendant's customary location with defense attorney, was to create an inference to the court that he was the defendant, and this was done with the knowledge of defense attorney.
That while there was no express misrepresentation by words, there was a misrepresentation by inference by the totality of the conduct of the defense attorney, and that was the basis of the criminal contempt of court finding.
The criminal contempt finding was upheld in the Illinois Court of Appeals. In the supreme court, the defendant lawyer argued in part that requiring him to reveal his strategy to the court and opposing counsel would violate his professional responsibilities:
Appellant raises an additional argument that we will briefly address. Before us, appellant argues that requiring a defense attorney to give the court prior notice and obtain its permission before placing a substitute at counsel's table would violate principles of professional responsibility. Appellant contends that, in a bench trial such as this where the court also functions as the trier of fact, prior disclosure to the court of his concern regarding an identification issue would somehow influence the court's ability to render a just verdict based solely on evidence presented during the proceedings. Additionally, appellant argues that, since he cannot engage in ex parte communications with the court, he would also have to reveal his concern and strategy to the prosecution in violation of ethical obligations. Further, appellant contends that the prosecutor would then be placed in the ethical dilemma of deciding whether to inform the State's identification witness what to expect, or to seek a just result by refraining from influencing the identification witness' testimony.
In rejecting those arguments and upholding the criminal contempt finding, the court stated:
We reject appellant's arguments. It is well established that, in a bench trial, the court is presumed to consider only competent evidence in making a finding. (People v. Tye (1990), 141 Ill.2d 1, 26, 152 Ill.Dec. 249, 565 N.E.2d 931.) In order to overcome this presumption, the record must affirmatively demonstrate that the court's finding rests on a private investigation of the evidence or other private knowledge about the facts in the case. (Tye, 141 Ill.2d at 26, 152 Ill.Dec. 249, 565 N.E.2d 931.) Furthermore, the court and prosecution are frequently made aware of defense concerns and potential strategies in situations involving motions in limine. Such pretrial motions occur on a daily basis. Defense attorneys who utilize this pretrial procedure do not violate their ethical obligations to their clients. Nor has the State ever indicated that such motion practice places it in an ethical dilemma. Many times in cases where the defense attorney's motion in limine has been granted, the prosecution is aware of evidence which it cannot use or allude to at trial. Nevertheless, the prosecution has been able to proceed with its function without violating its professional responsibilities. We find the practice of giving the court prior notice and obtaining its permission to place a substitute at counsel's table to be analogous to the filing and arguing of motions in limine. Therefore, we dismiss appellant's argument.
While this was not a disciplinary case, the facts present likely violations of SCR 20:3.3 (candor to the tribunal) and SCR 20:8.4(b) (criminal conduct) and (c) (misrepresentation).
Finally, while it is perhaps unsurprising that the contempt finding was upheld, it is worth noting that this was not the first case with similar facts that resulted in the lawyer being held in contempt – see United States v. Thoreen2 and Miskovsky v. State ex rel. Jones.3
In Case You Missed It: Read Past Ethical Dilemmas
Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:
Can I Donate Old Client Files of Historical Significance? Nov. 1, 2017
A lawyer's obligation of client confidentiality has no end, according to a recent ethics opinion. Wisconsin's ethics rules – and those of other states – agree that a lawyer may not voluntarily give closed files of historical significance to a historical society, university, or any third party.
Administrative Suspensions: What Are Your Duties to Clients and Court? Oct. 18, 2017
Apart from providing a lesson to read without delay any letter from the Board of Bar Examiners (BBE) and to keep up with your CLE requirements, this ethical dilemma addresses what you should do while waiting to be reinstated while on administrative suspension. In other words, does SCR 22.26 apply to administrative suspensions?
1 641 N.E.2d 416 (Ill. 1994).
2 9th Cir.1981, 653 F.2d 1332.
3 586 P.2d 1104 (Okla.Crim.App.1978).