In theory, at least, loyalty to a former client is forever unless the client agrees otherwise or sues the attorney.
But under certain other circumstances, can that period be shorter—perhaps much shorter? What if that celebrated duty of loyalty got in the way, saving the former client’s life from an untimely, probably avoidable, death?
fall background
Meth was my former client’s drug of choice, but he was no stranger to heroin and other toxic substances.
In the multiple complaint in which I represented him, two allegations were made. About half were drug-related offences, and several were charged with secondary offences. Therefore, if convicted, an increased punishment would become a major problem for the client. The other half was domestic violence against his longtime girlfriend, whom I will call Jane.
Given the client’s rich past and the plethora of new charges, it is not surprising that, early in the case, the Commonwealth prompted a judge to declare him dangerous and hold him without bail.
But many months later, on the day the case came to trial, the charges fizzled. The Commonwealth did not request continuation, did not request a mandatory trial for the presence of a missing witness or other evidence, and replied that it was not ready for trial.
Even the drug offenses required testimony from Jane, who was “not on board” due to the particular circumstances of the incident.
In fact, throughout the development of the case, Jane had been in regular contact with me by first name. She wasn’t without problems, but she didn’t have to pry my cell number from me; I was happy to give it to her. And she still loved the client dearly, as a best friend and protector, despite the physical and mental abuse she continued to endure.
Thus, on the day of the trial, all charges were dismissed. Even the judge acknowledged, perhaps reluctantly, that the client appeared clean and sober after months in detention.
Would the client be able to remain clean and sober without being monitored by a probation officer, without having to be in an outpatient program, without having to adhere to random drug tests? Who could have predicted that?
So the client walked out of the courthouse a free man, with no money owed and no further court dates to worry about. Jane stood on the courthouse steps and waited for him.
A shocking update
About six months later, out of the blue, I got a call from Jane. “He’s going to die, he’s going to die!” She begged me, almost hysterical between sobs and desperate pleas for help.
She told me that the very day the former client left the courthouse, he went back to his dealer without hesitation and resumed his meth addiction.
Since then, he hadn’t gone a day or night without meth, ate little, lived in a tent most of the time, and became increasingly paranoid and delusional, violent, and abusive toward her. But she seemed far less concerned about her own health and safety in his presence. What bothered her, and even terrorized her, was his steady, ever-worsening deterioration.
I listened patiently and could hardly calm her down. Then came the almost inevitable question. Still fighting back sobs, she wanted to know if the criminal case – in which all charges had been dismissed because prosecutors could not meet their burden of proof without her testimony – could be “reopened”.
The question she kept coming back to seemed to haunt and obsess her at the same time. But I could not see the slightest desire in her to punish the client. Nor did I hear the slightest hint that her love for him had diminished in any way. Rather, she was utterly and desperately convinced that the former client would die without help and without help soon.
Ethical Rules and Duties
The duties of confidentiality and ongoing loyalty to a former client are not mere platitudes or goals to aspire to. Rather, they are fundamental foundations of the legal profession. A lawyer who neglects or ignores these duties puts his professional life at risk.
The more common scenario involving questions of loyalty to a former client is quite different from the circumstances presented here. Typical is the situation where the attorney has been engaged or appointed to represent a new client and the name of the former client, possibly dating back many years, ’emerges’ in the early stages of the case.
Now the former client appears in a clearly new role, for example as an alleged victim, as a witness, as a tipster, as a co-accused. In this regard, Rules 1.7 and 1.9 of the Rules of Professional Conduct must be carefully examined to determine whether the Attorney is entitled to take on the new case.
Jane wasn’t a former customer, of course. Loyalty was owed to the former client, but not to her. Of course, she had been both victim and witness. And she probably could have been charged with illegal drug possession as part of a joint venture, too. But for some reason the police decided not to do this.
In any event, neither I nor any other attorney in my firm had any legal or ethical ties or obligations to Jane. But does it inevitably follow from this analysis that we should have ignored her throughout and not even spoken to her while the case was pending or after it was resolved?
I have no regrets about being open and available to Jane while the case was pending. It was clearly important, perhaps even critical, to the client’s success. Any defense attorney who would have dismissed her or paid little attention to her would have flirted with a valid allegation of ineffective legal assistance.
I can’t say I was surprised by Jane’s decision not to cooperate with the Commonwealth, but I never pushed her in that direction. Nor could I have anticipated that the Commonwealth would have responded as it did at the very first hearing scheduled for the trial.
Reopen the case
Could the charges against my former client be effectively “reopened,” as Jane was dying to know? Procedurally yes, as all of these charges were dismissed with prejudice. There was neither serious misconduct by the public prosecutor’s office nor other reasons that would have led to a different result that would have prevented the retrial of the proceedings. However, there were two great unknowns hanging over this question.
First, having failed to get cooperation from Jane six months ago, would the prosecution be so distant or hostile towards her that Jane would soon abandon the idea? Inevitably, the prosecution would reevaluate the case and want to be sure of Jane’s determination and memory before making a decision.
Second, what Jane wanted most was for the former client to get help. But what help did the former client receive during the six months of his imprisonment?
Apparently, those six months without access to the street world weren’t enough to stop him from running back to his meth dealer on the first day of his freedom after leaving prison. Deprivation of liberty during criminal proceedings and “getting help” are hardly the same.
Diploma
Mass shootings and other gun violence may be attracting more public attention these days, but the number of lives lost and destroyed by the scourge of toxic drugs remains an ongoing tragedy.
In the ex-client’s case, recommendations for substance abuse treatment and counseling would quickly have become the predominant focus of the defense when convictions and sentences were based on a trial or an admission of guilt. My office had several worthwhile programs to suggest. But thanks to the unexpected dismissal of all charges, that plan didn’t come into play.
After dismissal, the former client was practically no longer a client. There were no more court dates, no more prison visits, no need to appeal anything.
Did the legal system owe him anything, especially after the former client’s rapid descent into the abyss of drug addiction? Or, besides the flawed and short-sighted legal system, did I owe him anything more?
I suppose some lawyers would have chosen not to take Jane’s call in the first place. Cold and callous perhaps, but he spares such attorneys the learning, and possibly the agony, of the troubling details of what happened after the former client’s release.
Other lawyers may have answered the call but quickly closed it when it came time to reopen the criminal case.
There are probably many other ways to deal with a troubling call like Jane’s, which comes out of the blue and without warning. Which approach is the most ethical, correct, and commendable may be the subject of some debate.
For my part, I just want to say – and say no more – that I listened carefully to Jane, sympathetically, thought, and didn’t protest or even interrupt when she finally started railing against me, the prosecution. and the failed criminal justice system that had allowed this cruel indifference. In her eyes, this system had failed someone she still loved.
But unfortunately, or rightly so, I have not forgotten and not breached the duty of loyalty to a former client.
Francis D. Doucette is an attorney with the Committee for Public Counsel Services. The views expressed in this article are solely his.
