Legal Ethics Seminar
Cooper & Wendel
Fall 2002

Cases for Discussion

	1.	Lawyer for the Taliban.  Consider the defense of John Walker Lindh, the American captured with the Taliban after the prison uprising at Mazar-i-Sharif, in Afghanistan.  Lindh is represented by well known San Francisco attorney James Brosnahan, who has also represented “political activists” from Northern Ireland and the Philippines.  Brosnahan sees his job as not only defending his client against criminal charges, but also as trying to win sympathy for his client from the American public.  His strategy has been to try to persuade American to withhold judgment on what many have called a traitor.  For example, he has supplied television networks with pictures of Lindh as a child, and has perhaps encouraged Lindh’s parents to portray him as simple-minded and probably “brainwashed.”1  Two questions suggest themselves:  (a) Can someone legitimately criticize Brosnahan in moral terms for deciding to represent Lindh?  (b) Is there anything Brosnahan may do on behalf of Lindh (without violating the law) that would subject him to justified moral criticism?  

	For a civil case, consider the representation of the Holy Land Foundation for Relief and Development, a Texas-based Muslim charity whose assets were frozen by executive order, on the grounds that it had funneled money to terrorists.  The Foundation seeks to bring a civil action challenging the president’s power to freeze assets of suspected supporters of terrorists.  The Foundation denies that it supports terror, and characterizes itself as a humanitarian relief organization.  One Dallas lawyer defended the decision of several law firms to refuse to represent the Foundation, observing:  “It’s all a business decision.  Firms will lose business if they represent an organization that the president says is aiding and abetting Hamas.”2  But another lawyer recalls the defense by John Adams of British soldiers accused of murdering American colonists in the Boston Massacre.  “The British were hated as much as Hamas are now.”  Adams’s practice declined because of his defense of the British, but he is now regarded as one of the heroes of the legal profession for taking that risk.  A lawyer who has represented the Foundation in the past contends that the government has insufficient evidence to pursue criminal charges, so it is relying on civil asset forfeiture powers.  “[The Foundation] has never even been interviewed by the FBI,” the lawyer notes.  “The facts have not changed.  But the politics have changed.”  Who is right, the lawyer who defends as a “business decision” the refusal to represent the Holy Land Foundation, or the lawyer who analogizes the representation to John Adams’s defense in the Boston Massacre trial?  
	2.	Black Lung Benefits.  Duane Victor is a lawyer with the largest law firm in Krzyzewski.  Among the firm’s clients is a mining company, Matewan Mines, which for many decades has operated a coal mine.  Matewan is required to pay benefits under a federal statute to particular classes of miners who had been employed by Matewan who have become totally disabled due to pneumoconiosis, commonly known as “black lung disease.”  As the preamble to the statute observes, black lung disease is a serious occupational health hazard for coal miners, and few states provide disability benefits.  “It is therefore the purpose of this [statute] . . . to ensure that . . . adequate benefits are provided to coal miners and their dependents in the event of their death or total disability due to [black lung disease].”  30 U.S.C. § 901(a).  

	For the companies, black lung claims are an expensive administrative headache, and Matewan wishes to avoid paying them whenever possible.  Lately Matewan has been facing increased competition from foreign mining companies, who are not required to pay benefits to miners suffering from black lung disease; thus, its profits have been gradually dwindling relative to foreign competitors, leading to some consternation among shareholders.  The board of Matewan is worried that if its profits decline any further, the company may be taken over by a multinational conglomerate, possibly leading to a loss of jobs in the area.  

	Cole Minor was employed by Matewan for all of his working life.  (Thus, the injury “arose out of the course of his employment” as required by the statute.)  Last year he had a chest X-ray which revealed that he was suffering from black lung disease and had a lesion on his lung which measured 1.5 cm.  Under the governing statute and regulations, Cole was presumed to be “totally disabled” and therefore eligible for benefits simply because of the presence of the 1.5 cm lesion.  Matewan therefore began paying benefits of $760 per month to Cole.  

	Cole’s doctor was concerned that the disease might spread rapidly, so she put Cole on the list for a lung transplant.  Two months ago, he was approved for a transplant and successfully underwent lung transplantation surgery.  His rapid recovery from the surgery was due in part to powerful (and expensive) drugs used by his treating physicians to prevent Cole’s body from rejecting the new lung.  

	Last week, a representative of Matewan called Duane Victor at his law office.  “Duane, I want you to cut off someone’s benefits,” he said.  The representative said he had learned that Cole’s diseased lung had been removed and that he had recovered from his surgery.  “The way I read the statute, he’s not totally disabled anymore.  That means we don’t have to pay those *!&%# black lung benefits, right?”  Duane replied that he’d talk to some of his partners and then make a decision.  The first partner he encountered in the hall was Caroline Vance.  Duane explained the situation to Caroline, adding, “I’m inclined to file a motion to cut off the benefits.”  Caroline was outraged.  “But he’ll die without the benefits, won’t he?  He needs the money to buy drugs to keep his body from rejecting the new lung.”  Duane realized that Caroline is right — in fact, Cole is dependent upon the disability benefits to buy anti-rejection drugs.  But he decided to file the motion anyway, concluding that the responsibility for ensuring payments to Cole properly rests on Congress and the courts.  Duane reasoned that the faulty drafting of the statute, which did not make clear that the surgical removal of a lesion did not change the miner’s presumptive disability status, was Congress’s fault, not his.  Thus, there was nothing morally wrong with seeking to terminate Cole’s benefits.  

	Duane filed the motion.  Cole, representing himself, filed a brief in opposition, but a bored, overworked administrative law judge granted the motion.  (The ALJs who consider these motions are notoriously incompetent.)  Cole’s pro se challenge to the denial of benefits in federal court was denied, the district court reasoning that it owed deference to the findings of fact of the ALJ.  Six months after his benefits were terminated, Cole’s body rejected his transplanted lung.  He died of complications from emergency surgery to remove the lung.  

	Who is right about the morality of filing the motion to terminate benefits — Duane or Caroline?  

	3.	Counseling and the Boundaries of the Law.  Battier & Hill is a large law firm with an established practice representing wealthy individuals in financial-planning matters.  It has recently begun marketing a planning technique to dramatically reduce the income taxes of its clients.  The transactions are complicated, but they essentially involve the use of partnerships, trusts, and subchapter-S corporations to isolate a sheltering scheme from an individual’s tax return.3  The sheltering mechanism itself uses a technique called T-bill futures straddling, in which the taxpayer purchases and sells offsetting futures, which are simply contracts to buy Treasury bills at a particular price at a given time in the future.  (The value of these futures contracts varies as interest rates fluctuate.)  Essentially the taxpayer, through the partnership, trust, or S-corporation, realizes a gain and a loss by closing out the contracts at the same time.  The loss “leg” of the transaction is treated as an ordinary loss and the gain “leg” is treated as a long-term capital gain, which in effect reduces the amount of tax, as compared with what would be due on ordinary income.4  The gains and losses are reported through the partnerships, so that it is harder for the IRS to learn about the substance of the transactions merely by auditing the taxpayers’ individual returns.  

	The transaction structured by Battier & Hill could be characterized as a “loophole” in two senses.  First, “it yields a tax result that no sensible legislator would have approved of it the transaction had been called to the legislator’s attention when the statute was drafted.”5  Second, it is purely tax-motivated.  No investor would purchase offsetting T-bill futures with legs that expire close together if there were no tax advantage to doing so.  Because of the rules governing “sham” transactions, it may not be allowed by the IRS if challenged.6  In this case, however, there is just enough “investment risk” on the T-bill straddles (because of the time between closing out the two legs) so that the transaction may not be treated as a sham by the IRS.  An associate in the tax department at Battier & Hill concluded, in a confidential memo, that the taxpayer would have between a 25% and an 85% probability of prevailing if the issue was raised in an audit.7  (The IRS assesses a penalty for underreporting, unless the taxpayer’s position was supported by “substantial authority.”   Is substantial authority a matter of the percentage chance of prevailing on an audit?)  Significantly, the audit rate for partnerships is low — approximately 1 in 400 — as compared with the audit rate of 1 in 142 for individual income tax returns for taxpayers reporting over $100,000 in income.8  Thus, even taking the downside risk into account, the transaction is likely to save the taxpayer 33.9% on her total tax bill.  

	Give ethical arguments for and against Battier & Hill’s practice.  

	4.	Triangle Shirtwaist Fire.  Max was one of the best known trial lawyers of his generation.  His skills were put to the utmost test when he was retained by the owners of the Triangle Shirtwaist Company, after a fire swept through their factory, killing 146 women.  The victims were mostly immigrants, and worked in true sweatshop conditions, laboring for 12 hours a day for paltry wages.  Many of the laborers spoke little or no English, and had no choice but to take a miserable factory job such as this one.  To make matters worse, the factory owners had locked the shop doors to prevent theft.  As a result of the barred doors, the death toll from the fire was substantially higher than it would have been.  

	The factory owners were indicted for manslaughter, based on violation of a New York statute, which provided:  “Factory doors shall be so constructed as to open outward, and shall not be locked, bolted, or fastened during working hours.”  It seemed like an unwinnable case, which is why the owners hired Max.  

	Just before the prosecution rested its case, it called a worker as a witness, to establish a crucial fact.  The prosecution had to prove that at least one of the victims named in the indictment was actually killed in the fire.  One of these victims was a woman named Rose Schwartz.  The prosecution’s witness was going to testify that she saw Rose Schwartz die in the fire in the factory.  (Without this testimony, the prosecution’s case would lose, because the bodies of the victims were burned beyond recognition.)  The witness took the stand and testified to a heartbreaking story.  She said after the fire broke out, she saw women running all around the factory floor, looking desperately for an open door.  Some of them ran to the windows and jumped out.  The witness said she decided to head for the windows, and just as she was about to jump out, she turned and saw Rose Schwartz, her hands locked around the doorknob, pulling frantically on the door.  The last thing the witness saw was Rose Schwartz, covered with flames, crying and praying while she pulled on the doorknob.  

	It was a dramatic moment in the trial.  The jurors were riveted by this testimony, and several were crying.  Then Max started his cross-examination.  He asked the witness to relate what happened, in her own words.  When she told her story, Max noticed something odd.  She started her story in the exact same words she had used the last time, and went on in precisely the same way.  Max changed the subject and asked a few unimportant questions.  Then he returned to the witness’s story.  Once again she used the exact same words she had used in her direct testimony.  The only difference was, this time she omitted a word.  Max asked her if she left out a word.  She said yes, blushed, and started the story over.  After another digression, Max again asked her to repeat her story.  For the fourth time, she started with the same words, and again omitted a word – this time a different one.  Max asked her whether she forgot a word.  The witness narrated the story to herself, her lips visibly moving, until she reached the missing word.  “Yes, I made a mistake,” she said.  “I left that word out.”  She then continued with her story.

	The witness’s credibility was destroyed.  No one in the jury was crying now.  The witness cast suspicion on the prosecution’s whole case, and created a reasonable doubt in the jury’s mind over the guilt of the factory owners.  The jury acquitted the owners.  Max regarded the case as a triumph of effective criminal defense work. 

	Assume (as was the case) that the factory owners had indeed locked the doors, and the death of Rose Schwartz, and many others, was caused by the locks on the doors.  The witness had been telling the truth, but had been over-prepared by the prosecutors, who were concerned that her limited English proficiency would have made her testimony hard to understand.  What do you think about the morality of Max’s cross-examination? 

	This description of the Triangle Shirtwaist fire case is adapted from Stephen Gillers, Regulation of Lawyers:  Problems of Law and Ethics 409-14 (5th ed. 1998).  

	5.	Justified Deception?  The following findings of fact are taken from a disciplinary action against a state prosecutor in Colorado:  

	On July 8, 1998, Jefferson County [Colorado] law enforcement authorities learned that an apartment in the southwest portion of the County contained three dead bodies.  The victims, three women, had been savagely killed by repeated blows from a wood-splitting maul.  Not long thereafter, authorities learned that a fourth woman, JDY, had been lured to the crime scene by William “Cody” Neal.  She had been tied, spread eagle, to eyebolts which Neal had installed in the floor.  Neat stripped JDY, and forced her to watch him repeatedly attack one other victim with the wood-splitter.  After Neal savagely killed the other woman, he placed a gun to JDY’s head and raped her.  The next morning Neal returned JDY to her apartment.  Shortly thereafter, another woman arrived at the apartment.  Neal held the two women at gunpoint in the apartment for thirty hours.

	During the hostage situation, Neal dictated the details of his crime spree into a tape recorder.  Neal allowed the two women to call a friend to come over to comfort them, but when the friend arrived, he too was taken hostage.  On July 8, 1998, Neal left the apartment, leaving his three hostages with explicit instructions to contact law enforcement and provide them with a pager number where he could be contacted.  He also left the taped confession behind.

	After midday on July 8, 1998, the Jefferson County Sheriff’s Department informed Chief Deputy District Attorney Mark Pautler about the multiple homicides, and Mr. Pautler went to the scene.  He saw “one body wrapped in plastic, one body of a woman duct-taped to a chair, bloody, kneeled over ... a body of another woman, whose head has been wrapped in a white plastic bag filled with blood.”

	Mr. Pautler went with a deputy to get soft drinks, and they were called to assist in apprehension of a bank robber. Mr. Pautler armed himself.  Before they could return to the scene of the murders, Mark Pautler was told that police were in contact with three hostages Neal had released.  After discussions with the released hostages, Deputy Sheriff Cheryl Zimmerman established phone contact with Cody Neal.  She engaged in lengthy negotiations with Neal
over a three and one-half hour period.  Neal was using a cellular phone and, despite extensive efforts, law enforcement was unable to determine Neal’s location.  Mr. Pautler was present during the telephone discussions.  Both Deputy Zimmerman and Mr. Pautler perceived that Neal posed a significant risk of harm to members of the public.

	During the hours of conversation with Zimmerman, Neal stated that he had no problem making a confession.  When asked about the three women found dead, Neal told Deputy
Zimmerman, “I did murder them.”  “With like an axe with, you know, like a chopping wood thing, with a sledge hammer end; that is how they died.”  He stated that he had killed before he was a contract hit man [sic], he was heavily armed, and he would not hesitate to kill again if necessary.  He also gave graphic details and confessed to the murders of the three women.  The victims verified that Neal was armed.  “They believed him to be dangerous ... And they told the law enforcement officers they needed to do whatever Neal said in order to keep him from killing again.”  JDY believed that if Neal's orders were not followed “more people would die.”

	During his conversation with Deputy Zimmerman, Neal indicated that he would not surrender without talking to a lawyer.  In an attempt to facilitate Neal’s capture, Deputy Zimmerman introduced Mark Pautler as Mark Palmer, a public defender.  Mr. Pautler had two short conversations with Neal, lasting approximately seven minutes out of three and one-half hours of negotiations.  Neal relayed to Mr. Pautler his desire to be placed in solitary
confinement and his desire to be given a pack of “smokes” when he surrendered.  In addition, Neal expressed his desire to have Mr. Pautler present when he surrendered to ensure that there would be no “bloodbath.”

	Mr. Neal surrendered later that night to the SWAT team, with Mr. Pautler and deputies present.  The evidence shows that Mr. Pautler's conduct “was an extraordinary step that was necessary to try and secure the surrender of an extremely dangerous person; that the harm, if any that was caused by that was minimal, but it was in the public interest to do that; and that the only motivation on Mr. Pautler's part was not self-motivation, but motivation to protect the community.”  Mr. Pautler played no part in the criminal prosecution of Neal and provided no testimony regarding his conversations with Neal. 

	In thinking about this problem, consider whether the following rules of professional conduct shed any light on the moral issue, or whether resolution of the moral issue would lend any clarity to the legal standard.  

In the course of representing a client [here, the state] a lawyer shall not knowingly make a false statement of material fact or law to a third person.

Model Rules of Professional Conduct, Rule 4.1(a).  

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Id., Rule 8.4(c).  

	6.	Dalkon Shield Litigation.  The A.H. Robins company was the manufacturer of an intrauterine contraceptive device (IUD) that caused thousands of injuries to users, including stillbirths, hysterectomies, sterility, and even death.  There is no question that the product’s unsafe design could allow bacteria to accumulate in the uterus, causing the injuries.  However, the injuries could be exacerbated in some cases by certain kinds of sexual activity.  This is not likely in most cases, but possible in some.  Accordingly, the judge supervising pretrial litigation in the consolidated nationwide product liability action has allowed inquiry into claimants’ sexual history, as long as the questions are “reasonably likely to lead to the discovery of admissible evidence.”   

	The manufacturer has been besieged by both groundless and meritorious claims.  In general, its practice has to settle the valid claims for a fair amount, but to contest vigorously the doubtful cases.  In the course of defending these actions, the manufacturer has learned that aggressive questioning of women about their sexual practices tends to motivated many of the claimants to settle early, for comparatively small sums.  Thus, in cases it judges without merit, the manufacturer has directed its lawyers to probe the sexual histories of the women maintaining the claims.  The lawyers conducting the depositions have learned that they can linger over the subjects for a long period of time, ask many different varieties of the same question, use explicit terminology, and focus on particularly embarrassing details, such as extramarital affairs.  The result of that mode of questioning is generally to humiliate the witness and sometimes to intimidate her into settling the case for less than she otherwise would be able to obtain by way of settlement or judgment.  

	What should the defense lawyers do in the depositions of the plaintiffs?  How far should they go in questioning them about past sex partners, sexual practices, and similar subjects?  Does it matter whether these questions will humiliate the women or cause strife within their marriages?  Can you criticize either Robins or its lawyers, or both, in moral terms for using embarrassing questions in depositions to induce early settlements?  

	This problem is based on the Dalkon Shield products liability litigation, described in Deborah Rhode, Professional Responsibility:  Ethics by the Pervasive Method 669 (2d ed. 1994).

	7.	Spaulding v. Zimmerman.  Spaulding and Zimmerman were involved in a car accident.  Spaulding filed a lawsuit against Zimmerman, alleging that Zimmerman was negligent and this negligence was the cause of Spaulding’s injuries.  As part of the post-accident litigation, Zimmerman’s lawyer required Spaulding to submit to an independent medical examination (“IME”) at which a doctor hired by Zimmerman examined Spaulding, to make sure he wasn’t exaggerating his injuries.  This doctor diagnosed an aortic aneurysm — a dilation and weakening of a major blood vessel, which might rupture if not repaired surgically.  

	Zimmerman’s lawyer immediately realized the significance of this information.  Spaulding’s own doctors had missed the diagnosis of the aneurysm, and the plaintiff’s lawyer was therefore preparing the case for trial or settlement on the assumption that his damages were relatively modest.  Disclosing the aneurysm would eliminate the lurking risk of Spaulding’s death, but would drive up the Zimmerman’s damages, perhaps over the limits of his liability insurance policy.  The defendant may be ruined financially.  Settlement negotiations have begun, and Zimmerman’s lawyer wonders whether he should disclose the aneurysm to Spaulding.  
	This description is altered somewhat from the facts of Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), but the dilemma presented in the actual case was substantially the same.  For an excellent discussion of this case and the extensive commentary it has generated, see Roger C. Cramton & Lori P. Knowles, Professional Secrecy and Its Exceptions:  Spaulding v. Zimmerman Revisited, 83 Minn. L. Rev. 63 (1998).    

	8.	The Poker Game Alibi.  (Based on a real case, from a Michigan state bar ethics opinion.)  The client is charged with armed robbery, and has admitted the crime to his lawyer.  At the preliminary hearing the victim testified that the crime took place at midnight, when the defendant was — truthfully —  playing cards with three friends, all of whom have a good reputation in the community and will probably be believed by the jury.  But the victim was mixed up on the time.  The robbery actually occurred at 2:00 a.m.  The defendant thinks the victim was confused because he hit the victim on the head during the robbery.  The defendant is not going to take the stand.  May the lawyer call the friends to testify about the card game?  

	9.	Trial on the Merits?  This is a well known example invented by legal ethicist Steve Gillers.  See Steven Gillers, Regulation of Lawyers 256-58 (6th ed. 2001).  Karen Horowitz is a Jewish associate at a large law firm in a midwestern city.  She has served as second-chair on a large litigation matter which is being handled in a state court in a rural county in Alabama.  As the case approaches trial, the client expresses some reservations about being represented at trial by a Jewish woman, given the location of the court.  The partner asks Karen if she would be willing to step aside, just for trial, and be replaced by a man whose last name is Smith.  Was it appropriate for the firm to tell Karen she can’t be on the case?  

	9A.	Consider the reverse problem of using lawyers of a particular race or sex to make the client more appealing to the jury.  For example, if you are representing an employer in a Title VII race-discrimination case, may you assign an African-American associate from the corporate transactional department to sit in as second chair on the litigation?  

	9B.	If you are troubled by the firm’s conduct in problem 9, what is the distinction between other methods of ingratiating oneself with a jury, such as (a) wearing a shabby suit instead of the $2,000 Hugo Boss suit that is hanging in your closet, (b) speaking in a folksy, aw-shucks idiom, when your ordinary diction would impress William Safire, (c) hiring a local lawyer who is prominent in the community?  

	9C.	A friend of mine is an attractive woman and an experienced criminal-defense lawyer.  She told me that in suitable cases (such as those in which the opposing lawyer is likely to pick a jury full of young men), she has no problem wearing a low-cut blouse and dressing in a professional, but provocative manner.  Is this appropriate?  If you think it is, would you object to being told by a partner at your firm, a la Karen Horowitz, that you should wear a low-cut blouse to trial?  

	9D.	The following passage is taken from an article by Paul Butler in the Yale Law Journal:  “John T. Harvey, III is an African-American criminal defense attorney who practices in the District of Columbia. Harvey represents a black man who is charged with assault with intent to murder.  The case is scheduled for arraignment before a white judge.  At the arraignment, Harvey wears a business suit and tie, and his jacket is accessorized by a colorful stole made of kente cloth.  Kente cloth is a mutltihued woven fabric originally worn by ancient African royalty, and many African-Americans have adopted it as a fashion statement and a symbol of racial pride.  In pretrial proceedings, the judge had warned Harvey that he would not be permitted to wear kente cloth before a jury.  According to Harvey, the judge told him that wearing the fabric during a jury trial ‘was sending a hidden message to jurors.’  The judge had informed Harvey that he had three options: He could refrain from wearing the kente cloth; he could withdraw from the case; or he could agree to try the case before the judge, without a jury.”   

	Was the judge correct in this ruling?  

	10.	Representing the Unabomber.  Ted Kacszynski was indicted for a string of killings that had been attributed to the “Unabomber.”  This serial bomber had attacked executives at technology companies, airlines, and universities (hence the name), as part of a crusade to turn back the clock on what he perceived to be the dominance of technology over nature.  He was caught after publishing a lengthy manifesto in the New York Times, which his brother recognized as being written by Kacszynski.  Now, during the phase of litigation leading up to trial of the multiple murder counts, Kacszynski and his lawyers are having a serious disagreement.  

	His lawyers, two extremely talented and experienced public defenders appointed by the court, wanted to put on a mental-status defense, portraying Kacszynski as a paranoid schizophrenic.  But Kacszynski adamantly refused:  He said he could not endure being portrayed as mentally ill or, as he put it, as a “grotesque and repellent lunatic.”  His reasons?  “I am bitterly opposed to the development of a science of the human mind,” he wrote.  Kacszynski was quite serious about this position — in one letter to the court he said he “would rather die or suffer prolonged torture than have [a mental status] defense imposed on me in this way.”  Rather than being portrayed as mentally ill, Kacszynski wanted to argue that the killings were a form of “self-defense against the intrusion of industrial civilization into the wilderness of Western Montana.” 

	The conflict went on and on.  Then one of the lawyers hit on a plan.  She would get Kacszynski to agree that the lawyers will not introduce expert testimony relevant to the mental-status issue in the guilt phase of trial, reserving expert evidence of mental illness for the penalty phase.  (Because this was a capital murder trial, it was divided into two proceedings — one at which guilt or innocence would be determined, and a subsequent proceeding in which the jury would decide whether or not to recommend the death penalty.)  The lawyers told Kacszynski that his counsel would forego “12.2b evidence” in the guilt phase.  This statement was a carefully worded act of manipulation by the lawyers.  Federal Rule of Criminal Procedure 12.2(b) requires defense lawyers to give notice of their intent to put on expert testimony pertaining to the mental illness of a defendant, but it does not require notice of lay (that is, non-expert) testimony.  The lawyers intended to use non-expert witnesses to build a case that Kacszynski was crazy.  

	The day before trial, Kacszynski got a preview of the lawyers’ opening statement, where it appeared that they would present mental-status evidence in the guilt phase.  (This was non-expert testimony, so the lawyers’ plan to offer it did not violate their agreement with Kacszynski not to introduce “12.2b evidence.”)  Kacszynski informed the court that he wanted to fire his lawyers and proceed through trial representing himself (“pro se”).  The court refused, because the request to represent himself came too late.  Despondent, Kacszynski agreed to plead guilty to the murder charges in exchange for the government’s agreement not to seek the death penalty.  Kacszynski was sentenced to several consecutive life terms.

	Did Kacszynski’s lawyers behave unethically?  Assume they did nothing legally wrong, and did not violate Kacszynski’s constitutional right to represent himself.  

	This description of the Unabomber case is based on U.S. v. Kacszynski, 239 F.3d 1108 (9th Cir. 2001).  

	11.	Counseling and the Boundaries of the Law.  Stephanie is a lawyer specializing in environmental law at a large firm in Seattle.  One of her clients is a paper mill located in Aberdeen, Washington, an economically depressed timber town (and the home of Kurt Cobain) on the Olympic Peninsula.  The mill has a permit from the EPA allowing it to dump 0.05 grams of ammonia per liter of water into the Hoquiam River.  This is a fairly stringent limitation, adopted by the EPA in an attempt to keep the fisheries in the area in a healthy condition.  (Many residents of Western Washington depend for their livelihood on salmon fishing.  The salmon run up the Hoquiam River to spawn, so any pollution in the river directly affects the quality of the salmon fishery.)  The effluent limitation is not without costs, however.  Stephanie’s client is forced to spend $10,000 per month to comply with the permit.  It could, by emitting 0.075 grams of ammonia per liter, save the $10,000 it must spend on filtering out the extra 0.025 grams of ammonia, and invest the money in additional equipment which would allow the plant to process more logs.  The expanded plant, in turn, would mean more jobs for the residents of Aberdeen. 

	Stephanie knows the following facts:  (1) Discharging a pollutant into a waterway (such as the Hoquiam River) in excess of an amount specified in an EPA permit is a federal crime, and the violator may be fined.  (2) Because of budgetary limitations, the EPA regional office in Seattle does not take enforcement action unless violations are severe – generally, emissions in excess of 200% of the permit amount.  So, in this case, she knows the EPA is highly unlikely to take action against the mill unless it emits 0.1 grams or more of ammonia per liter.  (3) The first step taken by the EPA is usually a warning prior to applying a monetary sanction.  (4) Inspection is relatively infrequent in rural areas.  It’s a long drive from Seattle to Aberdeen, and most of the EPA’s inspectors are disinclined to make the trip absent some specific evidence of a violation.  

	Before returning her client’s phone call, Stephanie reviews the standards of professional conduct established by the Washington State Bar Association:
C	A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of law.9  

C	In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.10

What advice should Stephanie give her client?  More specifically, what are her ethical obligations?  

	This example is adapted from Stephen L. Pepper, Counseling at the Limits of the Law:  An Exercise in Jurisprudence and the Ethics of Lawyering, 104 Yale Law Journal 1545 (1995).