Can you keep a secret? If you can't, you probably shouldn't be a practicing attorney. Lawyers are, among other things, professional secret keepers. We, as lawyers, are bound to keep client confidences, communications and a myriad of other secrets. We have an ethical obligation not to vouchsafe any information that, very broadly speaking, relates to a client representation.
This duty of confidentiality raises the following question: To what extent must we also keep inviolate other lawyer-type information gleaned in the course of representation, that may appear sacrosanct, such as judges' and courts' reputations? All practitioners, as officers of the court and as members of a self-governing legal bar, must maintain certain core traditions and standards of ethics both in and outside our practice. We have an obligation to serve our clients and also to serve the profession. To that end, we guard both their individual and collective reputations fiercely. This involves, again, a great deal of discretion and, for lack of a better phrase, secret keeping.
So when, and why, exactly must lawyers stay buttoned up and when are they permitted, maybe morally obligated in some sense, to be critical of the professional environment in which they work? Should lawyers have to, or do they feel any untoward pressure to, guard these ostensible secrets of the profession that could be seemingly scandalous if exposed especially to non-lawyers, i.e., the real world? If you find yourself nodding yes, keep reading.
About a decade ago, a defendant was facing trial on high-profile fraud charges before a very "challenging" New York judge, viewed by most in the criminal justice system as extremely "pro-prosecution." So pro-prosecution, that a number of defense lawyers in the case had argued to the court's administrative judge that the case-assignment system had been manipulated by the district attorney's office to get this important case (and others) before her. The defendant's longstanding civil attorney, aware of this history, flatly told her client her view that the judge would be biased against him.
When the defendant later, and obviously without the knowledge of this attorney, lost touch with reality and offered a wired-up prosecution informant $35,000 to kill the judge, he was indicted separately for murder conspiracy. On trial before a second judge, the defense called the civil lawyer to testify to her client's state of mind, and she testified that she had indeed told the defendant that, based on the research she had done on the judge, he wouldn't get a fair trial before her. So astonished was the second judge presiding over the murder conspiracy case that she later referred the civil lawyer's conduct to the disciplinary committee.
After asking for and receiving an explanation from the lawyer, as is routine, the disciplinary committee closed the matter without comment or further action. The civil attorney was not faulted for trying to give her client the best representation she could. Should one be surprised? Isn't a lawyer supposed to get "the book" on a judge to whom a case is assigned and let the client know what "the book" is, warts and all? Should a lawyer not tell his client whether a non-jury trial is a bad idea; whether a guilty plea and cooperation is the only way to go with this judge; or whether a recusal motion should be strongly considered if at all possible -- and the reasons why?