Sunday, June 7, 2009


It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. Rompilla v. Beard 545 U.S. 374, 387 (2005) This constitutional duty to thoroughly investigate sometimes comes into conflict or overlaps with an individual lawyer's ethical obligations.

It is well known (especially in a college community such as Madison, WI) that witnesses will post personal information on Facebook or MySpace. This personal information may include not only discussion about the case in question but also potential impeachment material. How far can defense counsel go in attempting to access and secure this data? How does one balance the constitutional requirement of providing effective assistance of counsel with various ethical rules?

Recently, The Philadelphia Bar Association Professional Guidance Committee issued an opinion which impacts on approaching the Facebook/MySpace issue. Counsel asked for an opinion as to the propriety of having a 3rd party (who would truthfully identify himself but would not disclose his relationship to the lawyer) seek to be a "friend" of the witness and thus be able to access the witness's personal Facebook pages and provide any relevant information observed back to counsel. The committee determined that the proposed course of conduct would violate Pennsylvania Rule of Professional Conduct 8.4(c) because the planned communication by the third party with the witness was deceptive. The opinion goes on to find that the conduct would also violate Rule 4.1(a) and cites to a couple of law review articles and state supreme court decisions.

Does this impact on the criminal defense practitioner in Wisconsin? Significantly, the Philadelphia Bar Opinion involves a civil case and not a criminal case. While criminal defense lawyers have the same responsibilities to their clients and the public as do civil counsel, criminal defense lawyers must take into account constitutional criminal procedure and the additional burden that they hold a person's life in their hands. The seriousness of the consequences do not justify ignoring ethical obligations. However, the constitutional considerations definitely impact on the reach and ultimate applicability of the ethical rule in question. Indeed, that was just the finding which caused the OLR case against fellow Madison defense counsel Steve Hurley to be dismissed. Rule 8.4(c) is not infinitely broad and is qualified --especially when it unduly interferes with a criminal defendant's constitutional right to effective assistance of counsel.

OFF TOPIC...recently it was reported that Jerry Koosman of the 'Miracle Mets' pled guilty to a criminal tax charge of failure to file in the Western District of Wisconsin. I show my age by recalling that the Sports Illustrated article celebrating their 1969 World Series victory was entitled "Never Pumpkins Again." Oh the irony! What most older locals really recall is the collapse by the Cubs during September of that year. Koosman, 17-9, was the second pitcher of a rotation featuring Tom Seaver, Gary Gentry and Nolan Ryan. Once again a lesson that we should not put athletes on a pedestal.

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