I love sports. Before becoming a lawyer I was a sports writer. As you already know, I have a great interest in the law. (And no, I did not participate in my law school’s renowned “sports law” program.) So when those two areas collide, I get excited. Except when my favorite teams and athletes are in legal trouble…unless they hire me.
I’m a Patriots fan (I’m also a fan of the Red Sox and Celtics and–while I’m rooting for the Bruins, don’t feel I’ve earned earned it into their fanbase because I was an NHL neutral for so long). Today I was talking to someone from Boston and the subject of Aaron Hernandez came up. As you probably known, the New England tight end is being investigated in connection to a suspected homicide. It is currently being reported that police believe Mr. Hernandez destroyed a home security system, broke a cell phone and hired house cleaners in the past few days. I was asked if I thought that his lawyers told him to do these things. I responded that they probably did not because lawyers cannot legally do that.
Lawyers must represent and counsel their clients as zealously as possible within the bounds of the law and ethics. Lawyers therefore cannot advise clients to commit, further or cover-up crimes. Connecticut rule of professional conduct 3.4 provides:
A lawyer shall not:
(1) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
Lawyers also have a duty of candor to courts, which is one of a few reasons why they cannot allow a client or witness testify falsely. These rules are pretty standard throughout the country. In addition to violating the rules of conduct, lawyers must be cognizant to not violate criminal laws. When an attorney goes beyond giving unethical advice and into actually destroying or hiding evidence, it becomes a crime itself, such as federal obstruction of justice or Misprision of Felony, of which a Connecticut attorney was convicted a while back when he destroyed a church’s hard drive that contained child porn.
So what can lawyers tell clients who are embroiled in investigations? I would start with, “Don’t say or show anything to the police unless I’m there and tell you to.” With the Supreme Court’s latest chip to rights of the the accused, Salinas v. Texas, issued earlier this week and about which I wrote here, that advice takes on even more importance.