law, lawyer

A fairly large number of people seemed stunned by the prospect of a lawyer “taking a bullet” for his client—a case of cognitive dissonance with the shop-worn caricature of lawyers as amoral sharks. I have a different perspective. During my time on the bench and the years I spent in private practice, defending lawyers, I saw far more attorneys willing to compromise their own positions to advance those of their clients than examples of self-dealing at the client’s expense.

There are, of course, the examples of falling on one’s sword for the good of the client. Lawyers who blew statutes of limitations regularly filed certifications with the court, attesting to the merits of a client’s dismissed claim, virtually ensuring a malpractice suit against them. Defendants sentenced to long terms routinely file petitions for post-conviction relief in which they assert ineffective assistance of counsel claims. To prevail and have their convictions set aside, they must essentially show their attorneys were incompetent. Yet, public defenders almost consider it an article of faith to refrain from vigorously opposing such claims, however lacking in merit.

Who can criticize such attorneys, who feel called to protect their client’s interests under uncomfortable circumstances? Whether you agree with their decisions or not, there is an unmistakable nobility to such choices.

Unlike those attorneys, Michael D. Cohen’s professed fealty—for as long as it lasts—does not appear to be born out of a generalized code of conduct toward his clients. It reminds me of lawyers who crossed the line from dispassionate advocate at their peril.

These were not just the lawyers drawn to the glitzy muscle flexed by organized crime. There was the young attorney, star-struck by the wheelings and dealings of a successful businessman. He crafted transactions, meticulously following his client’s instructions, only to be sued by his newly naïve client when a deal went sour.

I often recall a solo practitioner with a modest office who represented an elderly woman for most of his professional life. She was not a woman of means but had accumulated savings by husbanding her money. As he handled her matters over the years, he grew familiar with her family relationships, including a $40,000 loan to one of her children. When he read the terms of her will to her children, they rose up as one and protested that he had falsified the terms. And, to my everlasting astonishment, he admitted it was so.

This was not a matter of self-dealing; he did not profit from the changes he made. Rather, he explained, he felt an allegiance to his deceased client to modify her will to reflect what he believed she would have wanted based upon the circumstances existing at the time of her death, which included the unpaid loan. The malpractice suit was promptly settled.

To be sure, Mr. Cohen’s position, standing at the intersection of potential criminal liability and loyalty to client, is more hazardous than that of the attorneys I represented. But there is a sorry sameness between the path that led him there and that followed by attorneys who find themselves at more mundane risk.

The moral? It remains an honor to be admitted to the confidence of a client, to navigate the legal challenges presented and optimally reach a satisfactory resolution. But blurring the line between attorney and client brings to mind a corollary to the aphorism about the lawyer who represents himself—he who sees himself in his client serves neither wisely.

 

Marianne Espinosa is a retired judge of the Superior Court of New Jersey, Appellate Division.