NEWS: Worst. Lawyer. Ever?

POLITICS: Worst. Lawyer. Ever?

Stephen Hurley is no Merl Ledford III. In fact, Stephen Hurley is kind of a douche. Stephen Hurley is the kind of fucking douche that would do something like this:

And how exactly did he trick the allegedly-molested teen-aged boy?

So yeah. Complete, utter and unmitigated doucheface. Right?

Well, as is the case of everything in the legal world, the answer is “It’s not so simple.”

So is this just a case of zealous representation? It’s not actually immediately clear whether Hurley violated any Wisconsin legal ethics rules (which I’m sure will prompt all sorts of jokes on the inherent contradiction in the term “legal ethics.”) Furthermore, a battalion of criminal defense legal organizations are lining up to back Hurley in his ensuing disciplinary action.

Personally, it’s questions like these that made me feel like I’d be a terrible criminal attorney. Because while I understand Hurley’s intentions, I could never equate lying and trickery with zealous representation. As attorneys we have a duty to be honest not only to the court and our clients, but also to our opposing counsel and the public at large wherever possible. It boils down to me preferring to think that I could never be as big of a douche nozzle as Stevie here. Of course, I’m only a year out of school and all starry-eyed and innocent, so take that for what it’s worth.

So maybe it’s better if I humbly defer to you, gentle reader. Pretend you’re an attorney. Your client, for whom you have undertaken the solemn duty of representing to the best of your ability, vehemently maintains his innocence. You think that there may be evidence that keeps him out of jail, but the only way to get it involves serious douchebaggery, but not (necessarily) illegal activity. What would you do?

If there are any law students reading this blog, Subrosa would like your answer by 12:00pm Monday afternoon. In order to receive full marks, answers must be researched and cited, using footnotes only when necessary. Nothing longer than 10 typed, double-spaced pages in 12 point Courier New font will be read for credit. Also, Subrosa really likes lawyer jokes, so if you wanted to work some of those in as well, that would be peachy.

I thought this was going to be about Alberto Gonzalez. Or maybe John Yoo.

Wait, this is baffling. How does anything on the boy's laptop clear the accused buy? Why didn't the lawyer just ask for a forensic disk-image? Once the lawyer has lied to get the laptop there's no way that I would trust anything that came off it.

break out the ninjas, of course. Justice must be had!!!!

Hm. On a more serious note... douchebaggery implies a lack of ethics. I don't do "lack of ethics". So I guess I could never be a lawyer.

Plus, it's not as if they punched the kid in the face and then ran away with the computer.

I'm confused about why anyone wouldn't want to swap their computer if they know it's going to be used for evidence, but are happy to swap it for "research into student computer use".

AND: If I gave anyone my computer I'd use something like dban to wipe the drive first.

I'm not sure what the problem here is. If it's not illegal, then that's exactly what he should be doing. If prosecutors can lie to defendants to get confessions, then the defense sure as hell should be allowed to lie to witnesses. I wouldn't want someone defending me who was worried about being a jerk to the detriment of my case.

In the immortal words of James Woods: Our job is to win. Justice is God's problem.

No, seriously, it's a rather complicated issue, which in my opinion depends largely on whether you're willing to do whatever it takes or you just want to use the tools you've been given by the Law, which are often limited in number and reach.

Then again... if he didn't actually break the law, well... He's not paid to be nice, douchebaggery is sometimes a necessity in a number of professions, not just law.

Damn skippy I'd do it. In fact, I'm kinda pissed that I didn't think of it first. I wonder if they're hiring?

Margins?

One inch on all sides. Just like my Evidence prof demanded.

If I were a cunning douchebag and I'd been paid appropriately, not only would I snake the computer, I'd wipe away all of the incriminating evidence also. After pulling this off my street cred would go through the roof the Republican party would call me up, and then...well who knows maybe I'd run for President.

If I'd legally got hold of the computer as evidence, it is entirely possibly that I would have been monitored and unable to tamper. Not that anyone who lies to snake a computer would go so far as to tamper with the evidence, that just doesn't happen.

To be clear: It may or may not be illegal, and I'm guessing it's not since no criminal charges have been brought of yet that I'm aware of, but may very well be unethical. Hurley's looking at possible censure.

exactly
lawyers are held to a higher standard than just "obeying the law." we are supposed to comply with various ethics rules as well (oh,MPRE, how little i studied for ye and still passed!)

Nothing illegal about what Hurley did. And had he used "legal" channels, chances are that the boy would have buggered with it himself. And its somewhat naieve to assume that prosecutors are above that kind of thing either.

The direct issue deals with Atty. Hurley's use of exclupatory, not inculpatory, evidence. Meaning Atty. Hurley would have little incentive to wipe anything off the boy's computer. What would he gain by tampering with it?

If something incriminates his client wiping would be good. Or, he could add something that appeared to clear his client's name.

If he were my lawyer I guess I would be glad he'd cleared me. Then I would hope he got censured. Again, I'm glad I'm not a lawyer, because I think he did the right thing vis-a-vis his client, but I don't think it was particularly ethical. I bet he'll get in trouble.

I have a few issues with it.

To wit: how would the presence of pronography on the boy's computer be in any way exculpatory toward the defendant? This would be even less relevant than investigating a rape victim's sexual history. And it wouldn't even address the child porn possession charge.

Also, since this is a criminal case, what happened to evidentiary Chain of Custody?

None of which actually addresses the douchebaggery, but still ...

And I'm pretty sure one of those ethical rules (at least for a defense attourney) is to provide a vigorous defense. They don't have the luxury of half-assing it. If we're not talking legality here, I'm not sure it wouldn't consider it unethical for the lawyer NOT to do something like this if it were needed.

the obligation to be a zealous advocate is subject to, not a means around ethics rules.

i don't know if he has violated any or not, i'm just saying that the "zealous advocacy" responsibility doesn't mean you can use any means not prohibited by law to represent your client. i'm sure a lot of shady stuff done by lawyers has been motivated by a sincere desire to accomplish the client's objectives.

Agreed.

What concerned me is that one of the ethical rules I memorized for the CA bar was that a lawyer "shall not be involved in conduct involving dishonesty, fraud or misrepresentation." Now, I don't know what kind of wacky legal ethics rules they got in Wisconsin, but to me this falls squarely within that realm.

I'm not saying it doesn't go on all the time on both sides. I'm sure it does. But that doesn't make it ethical or right.

From what I know about computers, which isn't much (that is what experts are for!), you can pretty much tell when something was downloaded on or uploaded from same. So adding something wouldn't help much, because in a criminal case you are dealing with specific acts at specific time. If the activity doesn't temporally jive, it's irrelevent to the conduct at issue. Unless of course it is relevant and probative enough for some other reason.

You are right that wiping incriminating info might help. But thats just too bad for the prosecutor who didn't get her hands on the computer in the first place or request it through the formal discovery process soon enough. And per above, the fact that the computer was wiped after the attorney got ahold of it or whatever might be presented to a jury. The judge could even rule that the jury may assume there was something inculpatory on it as a sanction for the attorney's conduct.

He might get in trouble. But not much. And nothing he can't handle.

Your trying to bait me, aren't you?

Wisconsin Supreme Court Rule 20:8.4(c) is the same and is the provision of our rules of professional conduct that is at issue. In fact, it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." So there!

Oh please. I was absolutely trying to bait you.

So why is this an "unclear" ethical issue? It's clearly deceptive and dishonest behavior. Is it because of the whole "the other side does it too" argument?

The exclupatory nature of the presence of porn on the boy's computer is explained in the article. Relevance is one for the judge and he evidently agreed with you. But comparing the appropriateness of examining whether or not someone has looked at porn on his own time with the appropriateness of the application of the rape shield laws is kind of insulting.

I assume chain of custody would be an easier hurdle given the nature of a computer's memory. But again, thats one for the experts.

Nothing illegal about it, but it was lying. Well, unless you consider it to be telling the truth to lie, I really can't help you at all with that issue.

As for naive, I guess it was naive to assume that I was serious with that statement.

So exculpatory evidence, that might have been inculpatory....Hmmm I don't know what could he have gained by wiping away the incriminating evidence on the laptop and presenting it as evidence? Not that a lying douchebag would ever do something sneaky like that.

Don't ever use the term "clearly," counselor. It betrays your lack of confidence in your position.

I would never justify behavior just because the pigs do it too. It is unclear because while this rule of professional conduct can be applied to any number of activities, and rightfully so, it should not be applied to all of the activities that an attorney might engage in in the course of zealous representation. Like any black letter law, the courts need to interpret it. And that is exactly what they are doing. The system works. The end.

I'm having some difficulty understanding the motivation behind this statement. The just too bad part, in particular.