The Robb Report

Out in the real world, where sometimes things do go wrong, is it ethical for practitioners to require patients to waive their legal rights, when nearly all practitioners in the area do so?

Randy Cohen, in The Ethicist, says “It is not.” A related issue is, what criteria can doctors use to choose their patients? He sums up by writing, “The right to our day in court should be among the inviolable.” The article is good food for thought:

New York Times Magazine / The Ethicist: Doctor, Bully

This issue is very interesting and complex. The Volokh Conspiracy has a post about the use of empirical data in oral argument. But down in the thread, there’s an insightful comment about the actual problems that pro se defendants face:

I once prosecuted a murder case against a pro se defendant. His first, counseled, conviction was reversed because the judge wouldn’t let him represent himself and I handled the retrial.

The result of the trial I prosecuted him in was the same — guilty. I did not think he did a bad job, given the situation, although a lawyer would have done better for him obviously. There were numerous eyewitnesses along with a confession he made, and testimony from his first trial, about his having shot several people, so it was hardly a whodunit. . . .

The biggest mistakes he made were not technical legal ones; they were mistakes in knowing what was important in the trial. The shooting arose out of some personal spat with his ex and her new boyfriend. He kept wanting to explore details of the relationships; in his mind, he was showing he was “right” or more moral in various relationship disputes, but to the jurors he was either wasting their time on irrelevant matters, or worse, proving that these disputes added up to enough reason for him to want to kill someone. That misdirected focus is why even an educated person, including a lawyer, should usually not represent themselves in a trial.

http://volokh.com/posts/1206745056.shtml

Here’s a twist on the expert witness rules — Findlaw has an interesting article on ethics issues raised by lawyers serving as expert witnesses:

When a lawyer testifies as an expert witness on a party’s behalf, is an attorney-client relationship created? [...] The lawyer would have to serve as an objective witness and even provide opinions adverse to the party that calls her “if frankness so dictates,” the panel said.

Further, the lawyer as an expert would be subject to deposition by the opposing party, where any communications between the expert, the retaining law firm, and the client would generally be discoverable.

The panel decides no, there is no attorney-client relationship created, but:

…a lawyer serving as an expert witness remains subject to the rules that govern lawyers generally. The lawyer could not, for example, testify falsely. Further, she could not take on a new client in a matter adverse to the party for whom she is serving as an expert.

(Emphasis added.)