A Lawyer’s Duty of Loyalty

Scott Greenfield writes about a terrible wrong — by the attorney — in the New York case of Leiby Kletzky.

Levi Aron’s lawyer, Gerard Marrone, announced that he is withdrawing from the Aron defense.

It’s not Marrone’s withdrawal from the case that I find so disconcerting: it’s the way in which he withdrew.

Scott’s post is, frankly, a must-read on the question of a lawyer’s duty to his client. Scott would never take such a case himself, for reasons which partly explain why I continue to respect him as a lawyer (although I personally don’t understand the reasons). But, as he writes, having taken the case, Marrone owed several duties to his client. While the duty to provide competent representation — and by the use of that word, I don’t mean the watered-down version that satisfies our courts — is important, another important duty owed is that of loyalty.

In that respect, Marrone has failed miserably.

Normally, the “duty of loyalty” rears its head with regard to the potential conflict that comes from representing more than one client. However, that is not the only way in which “duty of loyalty” issues arise. Marrone’s case demonstrates another.

Take a look at the comments to the American Bar Association Model Rules of Professional Conduct, Rule 1.7, for example. Rule 1.7 deals with duties to a current client, but comment 10 is applicable to what Marrone has done to Aron.

The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. […] In addition, a lawyer may not allow related business interests to affect representation….

Marrone’s comments clearly have an adverse effect on representation of a client, if “only” of a Casey-Anthony sort. Furthermore, if Scott’s opinion is correct and Marrone abandoned the case because by taking it he had become a pariah, then he did allow business interests to affect representation. And, as Scott pointed out, Marrone knew about what attorneys call the “ick” factor going into the case; he should have known it would not cause people to want to come up and hug him in public (or other) venues.

Rule 1.9 makes it clear that while some of a lawyer’s duties to his client may dissipate, or even disappear, with time, the duty of loyalty does not. Obviously, the duty to represent a client competently and zealously no longer exists once you cease to represent the client. The duty of loyalty, however, persists. In fact, as both Mark Bennett and Jeff Gamso point out, the duty of loyalty persists even beyond the death of the client!

The core of the American system of justice relies upon sound legal ethics. As I noted in my own comment on Scott’s blog post,

Look at any failure in the system and it is almost always traceable to an ethical failure on the part of a lawyer (defense or prosecution), judge, or juror.

Arguably the most important of these failures is the failure of duties of loyalty. Prosecutors owe a duty of loyalty, first to the Constitution and the laws and secondly to “the People” — frankly, I think there’s a built-in redundancy there. Judges, similarly, owe a duty of loyalty to the Constitution and the laws. Only the defense attorney’s duty differs: defense attorneys owe a specific duty of loyalty to specific individuals first — and to the court, the Constitution and the laws second (or third, or fourth, or ….).

By putting his own interests ahead of his client’s, Marrone has failed in his ethical obligations to all parties and to the American system of justice.

In that sense, as another commenter to Scott’s post noted, he has perfectly positioned himself to practice, not as an attorney, but as an understudy to one of the biggest modern threats to that system: Nancy Grace.