COLUMBUS BAR briefs Summer LAWYER AS ADVISOR Giving the best by redheadwaitress


									                           COLUMBUS BAR
                                                             Summer 2006

                     LAWYER AS ADVISOR
                                       Giving the best advice
                                                            By Alvin E. Mathews

       otter charged with                       because his testimony would be detri-        nothing of the stock tip that led to the
       insider trading                          mental to Findley.                           improper sale transaction. Potter’s
        Martha Potter faced trial for                As the prosecution concluded pre-       lawyer next called Potter as a witness
insider trading. Potter was innocent of         senting its case, Potter determined who      and she confirmed Sawyer’s testimony
the crime but she wanted to protect her         her trial witnesses would be. Potter’s       that she did not know of the stock tip.
long-time friend and business advisor,          lawyer met with her to finalize Potter’s     Findley decided not to testify and was
Huck Findley, who was the responsible           strategy. Potter’s lawyer advised her        ultimately found guilty of insider trad-
party in the stock sale transaction.            that they really needed to call Sawyer       ing by the jury.
Findley had received the stock tip and          as a witness because his testimony                In the end, Potter’s lawyer was
had encouraged Potter to sell her stock.        exonerated Potter and removed the risk       gratified that he fulfilled his ethical obli-
However, he did not share the details of        of conviction. Potter responded that         gation to his client by providing the best
the tip with Potter.                            she did not want to betray her friend,       advice, so the truth would prevail.
     Findley had convinced Potter that          Findley and wanted to continue the
they would both be exonerated if they           unified defense.
put on a unified defense. Potter told her                                                    1.   See Mark Twain, Adventures of Tom
lawyer that she wanted to align her             Good lawyers do not                               Sawyer (1876).
defense strategy with Findley to protect        compromise ethical principles                2.   Ohio Code of Professional Responsi-bili-
him. Also, Potter’s lawyer was friends               Potter’s lawyer advised her that the         ty, EC 7-5
with Findley’s lawyer. This friendship          “unified defense” was a lie that was         3.   Ohio Code of Professional Responsi-bili-
clouded his judgment and he advised             designed to protect Findley at the risk of        ty, DR 7-102(B)(1)
Potter to go along with Findley’s               prejudicing Potter’s defense. Potter’s       4.   Id
defense plan.                                   lawyer told her that he had a profes-
     The plan of Findley and his lawyer         sional obligation to give his opinion as
was to refrain from cross-examining any         to the likely outcome of the course of
of the prosecution’s witnesses and to           action they were taking.2 Potter’s lawyer
later tell their side of the story. The story   advised her that Findley’s defense strat-
they would tell protected Findley. This         egy was very risky for Potter. He also
strategy was risky for Potter. If the jury      stressed that he could not continue to
did not believe their testimony, both           take a course of action that involved the
Potter and Findley would be found               presentation of false testimony. 3 He
guilty.                                         stressed that, if he was going to contin-
     As the trial played out, prosecution       ue to represent her, Potter had to pres-
witness after prosecution witness took          ent Sawyer’s truthful testimony. He told
the witness stand, but they were not            Potter he would ask the court to with-
cross-examined by Potter’s lawyer.1             draw from representing her if Potter
                                                continued to pursue the risky defense
Potter’s lawyer reassesses                      that would involve presenting false tes-
his advice to potter                            timony.4 After a period of soul search-
     Potter’s lawyer squandered several         ing, Potter agreed to present the truthful
opportunities to make good points for           defense of Thomas Sawyer and to aban-
Potter’s defense. As Potter’s lawyer            don the fraudulent Findley defense.
reflected upon these lost opportunities,
he began to question whether he gave            Sound legal advice leads
Potter the best advice by presenting a          to the best result
unified defense. Potter’s lawyer learned              As the presentation of the
of a witness, Thomas Sawyer, whose              defense’s case was set to begin, Potter’s
testimony was beneficial to Potter’s            lawyer opened the proceedings by call-
defense.                                        ing Sawyer to the stand. Potter felt a
     Sawyer was a young Wall Street             sense of calm, as she knew she made
stockbroker who had handled Potter’s            the correct decision. Findley felt
investments. Sawyer possessed impor-            shocked and betrayed. Findley’s lawyer
tant information that demon-strated             knew his client was about to go down in
Potter knew nothing of the stock tip.           flames. Potter’s lawyer felt relieved that

                                                                                                  Alvin E. Mathews
Sawyer knew that Findley urged Potter           he led his client to a course of action
to sell her stock but did not tell her          that was based on sound ethical princi-
why. Findley’s lawyer discouraged               ples.
Potter from calling Sawyer as a witness               Sawyer testified that Potter knew


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