NEWS: Worst. Lawyer. Ever?

Not that I care about repelling you, I am sorta scared of you. So let me clarify said opinion: If I thought there was a possibility of obtaining exculpatory evidence from someone's computer, I would engage in the conduct at issue without feeling like I had transgressed the rules of professional conduct. Depending on the facts of a particular case, due dilligence might at least require looking into it. And yes, I would of course consider the propriety of whether I was looking to obtain this information just to blame the victim or bolster a pathetically thin alternative theory of the crime. Not only because that might be inappropriate, but also because that shit doesn't play too well in front of a jury anyway.

And I don't recall reading that the defendant's child pornography was on the defendant's computer. Just that he was busted for posession. Did the images the defendant allegedly show the victim come from the defendant's computer? From the defendant's stash of VHS tapes? What images did the victim claim to have viewed? Were those images in the defendant's posession? Is there any possibility those images were only on the victim's computer? If this guy was my client, this is stuff I'd want to know.

As far as defrauding a minor into an exchange that he cannot legally engage in, law enforcement stings do it every day with the blessings of the district attorney's office. And that kind of fraud lands kids in juvenile detention, jail, prison.

Well, assuming that I was accused of a crime that I didn't commit, especially something like fiddling with kids, I would want my lawyer to do whatever he had to do to keep me out of prison. But only if I were actually innocent. I don't think I would be cool with my lawyer doing something like that to get me acquitted of a crime that I did commit. Then again, maybe I wouldn't mind. I really don't ever want to go to prison. Ask me again if I ever get caught breaking the law.

Seriously. Did Hurley kick your dog or something? I know you haven't watched this saga of a case unfold and I know you have no idea what went on at the trial level. So why this crap about incompetence?

I've only met Hurley long enough to shake his hand at bar functions and so forth. I just know the guy wins cases. Lots of them. And his partners win cases. Lots of them.

I'm repelled by poor logic. Let's play, spot the fallacy!

I'm sorry, I have nothing against the guy. In fact I'd never heard of him before reading this thread. I have no personal knowledge of his competence, or lack thereof.

That (admittedly snarky) comment was simply to point out that the illustration you chose to show his apparent brilliance as a defense attorney did not actually do so. Perhaps if the panel of judges in the appeal had started out biased against him, and he changed their minds with his arguments. But really, it isn't hard to win if the judges are making your case for you.

I am going to go out on a limb and guess that there is some type of ex-parte hearing in WI which would allow criminal defence counsel to get an injunction allowing the seizure of the computer. Using such a method would not only be following the rules, but would be more effective because it wouldn't allow for time to wipe anything off the hard drive. The defence didn't use such a method (assuming, as I have, that it exists), because it knew that it would be considered a fishing expedition and permission to seize the computer wouldn't be granted. Therefore if I were the judge I would not let anything from the hard drive into evidence, even in the unlikely event I would otherwise find it relevant.

Huh. A closing on a double wide trailer. All I can say is I'm speachless at that one. Wow. Reading this stuff is like being back on the playground. In, like, middle school.

When the fuck did I ever say what I do is lofty and worthwhile? You're the one parading around as a pillar of rightousness and condemning others who, unfortunately for you apparently, share your profession; not me. Who knows, I might work with obsure blah blah blah. And I might hate it and wish to god I was working with crack whores.

If you really, really need to know what I do/did/have done, send me a personal message. Rest assured, you'll think I'm keen. But, sir, I am willing to admit to you and cyberspace that I. Am. No. Weanie.

Weanie.

I love this thread. I thought it would get like 4 comments.

Thank God for lawyers.

I think you've touched on something important here. As a 1L (first year law studet, that is) I'm busy getting it drilled into my head that everyone is entitled to the best legal council they can get. From child molesters who diddle little boys to multinational financial institutions who diddle entire nations, it is every client's right to expect their lawyer to do everything legally and ethically available to win their case. That's how the rule of law (as we inherited it from Britain) works. I make my strongest case, you make your strongest case, and we let a judge and jury decide what the truth of the matter is. It is a denunciation of the rule of law to claim that someone is less worthy because they defend the lowest common denominator. If this guy's a dick, he's a dick because he behaved unethically, not because he is defending someone accused of child molestation.

1. We're not talking about some unstated hypo with radically different facts, we're talking about this case.
2. The defendant was convicted of possession of child pornography. I don't really give a rats ass what format it was or whether it was specifically the porn the kid claimed to have seen. I'm actually not one for the whole meme of the child molester is the new boogyman, but I think that people who actively seek out close and unsupervised relationships with kids and also collect kiddie porn do not get the benefit of the doubt. res ipsa loquitor. Zealous defense, sure, but this shit is pure sleaze.
3. Civil authorities engaging in this behavior is called "entrapment".

1. I disagree. The question posed:

"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?"

2. Sleazy? Absolutely. My point was I would want certain questions answered had I been representing such a client. Especially in this area. The consequences, regardless of stiff penalties, can be dire. Can you imagine being wrongfully convicted and having that spicy meatball hanging over your head?

3. Having a sibling who filed cert., briefed, and argued in the U.S. Sup. Ct. one of the seminal cases changing United States law regarding entrapment, I do happen to be familiar with the term.

The thread devolved from that narrow question when you started defending the instant lawyer's specific actions.

And my point was that those questions have been answered and were answered when the douchebaggery occurred. Thats why they were to the right of the word "Fact" in my post. Raising them now is a transparent attempt to muddy the waters

I have a sibling whom I am absolutely certain has sex with his wife. Doesn't mean I know how to give her an orgasm.

Unless you subscribe to some theory of genetic memory or cosmic unconsciousness what someone who isn't you has done means fuck all. What is salient, however, is that a "sting" to induce someone into an action that they wouldn't have undertaken themselves absent the inducement of government is called entrapment. Alternatively since the whole "sting" analogy is beyond tortured, if you assume that the victim is the defendant and the exculpatory evidence is inculpatory, tricking a defendant into producing physical evidence against him or herself abrogates a little thing called the bill of rights. Either way it is forbidden for the government.

Set the time and date to some point in the relevant past. Copy files to the computer. Change back to the current time and date.

As far as when something was uploaded, that'd likely require additional software, or perhaps cooperation from the site it was uploaded to.

Meh.

There's no reason to criticize oyaji's knowledge of art.

I looked back and read my posts and I'll admit that some blur the lines b/w Subrosa's question and the facts/timeline of this specific case. Especially when there was some discussion of exculpatory evidence and chain of custody. In other words, when writing about some of the tangential issues/topics I may not have clearly distinguished between this specific case and the original question posed. Mea culpa.

So ok. Assume the Office of Lawyer Regulation and/or Wisconsin Supreme Court decide that it is douchebaggery. Should they reprimand because Hurley only wanted to "bolster a pathetically thin alternative theory of the crime" and/or because the information would not have helped his case? [Insert some cliches from me about slippery slopes and chilling effects.]

And come on. It's not hard to believe that I might know what entrapment is because of what my sibling has done. Especially given the fact that we share a profession. Not to mention a whole truckload of other reasons that I'm not going to get into.

I think I recall having a similar discussion with you about search and seizure or something . . . pretexts . . . something. I don't remember the specifics, but you had a similar position that because entrapment [or whatever it was we were discussing] abrogates the Bill of Rights, it must never result in criminal charges or adverse effects for the entrapped.

You're correct in the sense that an attorney must provide a diligent defense (timely and with an acceptable amount of preparation) and the rules' preamble mention zealous advocacy on multiple occasions. The attorney should of merely subpoenaed access to the computer. The boy probably would have went through the same data destruction process for the subpoena that he did in selling.

However, if the transaction violated state law, then the evidence would be deemed inadmissible in most cases (although the majority of these cases deal with prosecutorial misconduct, i.e. fruit from the poison tree) and the attorney would be subject to discipline. This, of course, assumes that Wisconsin uses the Model Rules.

Model Rules of Professional Conduct
Transactions With Persons Other Than Clients
Rule 4.4 Respect For Rights Of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

There may also be a claim under 4.3.

Transactions With Persons Other Than Clients
Rule 4.3 Dealing With Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

A final potentially violated rule is the broad Rule 8.4 regulating misconduct.

Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

These rules are subject to much interpretation, so you would have to look to WI opinions concerning ethics and evidence to get the exact state of the jurisdictions law.



**Not legal advice**

So wait a minute... When prosecutors do it, it's good prosecutorial work, but when defence attorneys do it, it's unethical?

See: Nifong, Mike.

So that must really hamstring the prosecution of some cases...

No. That doctrine is only applied to evidence that is illegally obtained by the government. The evidence in this case was apparently excluded for relevance reasons, however.

Did I say that? No. I didn't.

I wasn't suggesting that you did. But prosecutors are allowed to gain evidence via deceit especially if they use the police as their agents. Why shouldn't defence attorneys?

Prof, I know my answer was late but what's the score?