Yesterday we discussed lawyers providing estate and trust services to a man later charged with the killing of another man; the effect was to make the grieving widows efforts to enforce a civil judgment somewhat difficult. My point was that what the lawyers did was ethical and that it wasn't the lawyers' job to delve into the motives or reasons for the accused farmer asking for that legal advice. Today let's go a step further with what the general public doesn't get and seems it will never get because they aren't schooled in the law. Let's say the Iowa Bar Association's ethics committee decided to investigate the lawyers who created the trusts and executed the transfers of titles for the accused farmer and his wife. Would they be successful in gathering evidence? No they would not. Because even if the Iowa Bar Association investigated the lawyers those lawyers under investigation would never be able to disclose what they had learned from the farmer and his wife at their meetings that took place following the killing. What a client says to a lawyer can't be disclosed without the clients consent. And it's doubtful the client would ever consent to such a disclosure. It's called the attorney-client privilege and it's there to protect the client - which someday may be you.
I know what you're thinking, how can a lawyer whose client tells him he killed someone continue to represent the client and to carry out his wishes of being set free? This is a typical cocktail party question. First of all clients don't usually tell you they committed a crime and would you mind helping them hide it. Clients ask for legal advice to carry out specific wishes or plans. We live in a pretty educated society. People know what they want and how to get it. But let's say the lawyer suspected there might be a connection to the killing, that I'm sure was in the newspapers by the time the farmer and his wife showed up at the lawyers' office. Asking why isn't a meaningful question. Why isn't really relevant to the relationship. And so you say, "But don't you want to know why?" Sometimes we do ask why, but most of the time not. There are times when the reasons are relevant and time when the reasons behind the work aren't relevant. The more meaningful question is what do you hope to achieve by this? And the answer usually is to protect our assets from creditors. Maybe you're still confused or disagree with me, so let's put it into a context that may be more relevant to your life.
For the young readers lets put this into a context you can appreciate. You're driving to school and a cop that has it out for you issues you a ticket for speeding or for not stopping for a stop sign. You come to the lawyer for advice about whether to plead guilty or not guilty; but we both know what you really say is "Can you beat this ticket?" Do you want the lawyer to first make you admit or deny that you violated this law or any other motor vehicle rule of the road before he will give you the advice you seek? Is judging you a part of the lawyer's job? Isn't the exercise of judgment for you the client? You know what you did.
And what about the soccer moms out there who are just trying to raise their children and get them through a troubled time of being a teenager? Imagine your darling daughter who's a solid "A" student and will be awarded a full ride academic scholarship to an Ivy League school if she can just beat this possession charge. Kids make mistakes you explain but what should we do? As a lawyer maybe the lawyer knows that technically the police violated her Constitutional rights and he can get the charges dismissed; but should the lawyer first determine if your daughter did have pot on her and then refuse to file a motion to exclude the evidence based on the technical challenge? Would you have the lawyer exercise the lawyer's judgment or his skill as a lawyer?
And you breadwinners, how about you? You get a huge promotion and pay increase at work. Hurray! Out you go to celebrate and after two martinis drive home only to be stopped for suspicion of drunk driving. They cuff you and take down to the station where you're given that one free telephone call. You call the lawyer who realizes you're probably very close to the limit, maybe not over the legal limit, but close. What should the lawyer do with sorting out what advice to give you? Should it matter that the lawyer's sister died after being hit head-on by a drunk driver?
The public needs to stop trying to hold lawyers to the standards of judging clients as if we are saints and priests. We are lawyers, trained in the law and advising our clients about the law; we aren't offering advice to get into Heaven. We don't make decisions about what legal advice to dispense based on what the public wants or for that matter needs. We aren't St. Peter standing at the Pearly Gates deciding who gets in and doesn't get into Heaven. Save that for your own consciences and for the confessional.
If you want to be able to hire a good tough lawyer when you get in trouble, then stop asking the lawyers dealing with current legal problems for someone other than yourself to water down what they do and what advice they give. In other words either learn about the law or stay out of saying what lawyers should or should not be doing.
To read the Judge's decision in Estate of Tommy Ray Lyon, et. al. vs. Rodney N. Heemstra, et al follow the link.
To read other news stories about the case follow this link.