Posted by
NOTLEGALROADKILLYET on Sunday, September 17, 2006 2:05:41 PM
When it comes to the subject of ethics in criminal cases, ethics enforcers are, and probably should be, somewhat less stringent as to the tactics an attorney can use to defend his client.
However, there are limits. For example, society (and even the legal profession) frowns on lawyers who smuggle guns into jails to assist their client's escape attempts. Likewise, the ethics rules supposedly discourage attorneys from knowingly presenting false evidence or allowing false testimony. Of course, attorneys get around these last two restrictions by not allowing their clients to tell them that the evidence or testimony is false. (It is rumored that the Hear No Evil, See No Evil, and Speak No Evil monkeys were modeled after a defense attorney intent on seeing his guilty client walk.)
I have a question for the legal establishment. Assume that Congress has the constitutional authority to limit the US Supreme Court's jurisdiction on a certain issue, and the Court itself has recognized that authority in
Ex Parte McCardle. Assume also that Congress limited to the US Court of Appeals the jurisdiction on a certain matter, and stated in the law that other than that court, "no court, justice, or judge shall have jurisdiction to hear or consider" the matter being litigated.
My ethics question is: Should an attorney who knows the law, the intent of Congress, and the precedent and in spite of that knowledge takes his case to a court that lacks jurisdiction be brought up on ethics charges, the court's decision notwithstanding?
The answer to this ethics question is that, of course, no one will file an ethics charge against that attorney. A major theme of this blog is that the legal ethics system is totally broken and will remain so until it is put in the hands of someone other than the legal establishment.
The assumptions are taken from the recent
Hamdan US Supreme Court
decision*.
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*I italicize the word "decision" because a court without jurisdiction cannot legally make a decision. I think that legal historians will either celebrate these five justice's liberation of the Supreme Court from the constraints of the Constitution or rue that action. I hope the latter, but fear the former.