A package arrived from the appellate court the other day containing a former appellate client’s latest set of papers.  Having represented this client on appeal, and having prevailed on a substantial sentence reduction, though not on having his conviction reversed, my client was dissatisfied.  He wanted more, and I don’t blame him.  Even though my work was done, the client had enough time on his hands to give it a go.

There is nothing unusual about a client persisting, after the appeals process has wound to a close, in trying to obtain more relief.  Courts generally hate it, as their efforts clog the system and their work product is generally painfully bad, difficult to read and comprehend and replete with strange allegations that demonstrate why they are in prison.  Still, some have real grievances, and they are every bit as entitled to a fair hearing on their claims as they would be if represented by a lawyer.  It’s not about the lawyer, but about the client.

The papers that arrived on my desk claimed ineffective assistance of appellate counsel.  That would be me.  They alleged that I had failed to raise a half dozen arguments that the defendant now sought to raise, and that I was ineffective by having not raised every possible argument he thought had merit. 

As a matter of principle, I will happily accept the allegation by a client that I failed to raise a valid argument.  If the court thinks that an argument that I neglected is one that would justify reversal, then the client is absolutely right that I failed him, and winning his freedom always predominates over any explanation I could offer for my choices.  While it has never happened yet, it could and I will support it.  My reputation is of no consequence when it comes to obtaining justice for a client.

As a matter of courtesy, the court forwards the papers to appellate counsel when the papers allege ineffective assistance.  It has only happened 3 times in my 25 years of practice, which surprises me as I would expect it to be far more common.  I would expect every client to keep trying, even after my services are completed, but most realize the futility of the effort and spend their time doing more productive things.  Some don’t want to hurt my feelings, as they appreciate the effort I’ve put in on their account.  If they asked me, however, I would tell them not to worry about me, but to do anything they can to help themselves.

This set of papers, however, presented a problem.  This particular client fancied himself to be quite smart, despite his lack of formal education.   During his trial, by another lawyer, and his appeal, by me, he sought to contribute by sending caselaw and theories, demanding evidence and argument, and becoming what is commonly called a jailhouse lawyer.  This is the fellow who believes that he can read lawbooks as well as any lawyer, and is smart enough to work the system.  He believed that he had the juice to win.

In his effort to get his series of new arguments before the court on a writ of error coram nobis, he claimed that I refused to include his meritorious arguments because I would only include a certain number of argument for the fee paid.  This is where my client wades into troubled waters.  Naturally, the prosecution wants to know if I will provide an affidavit stating that the client is a liar. 

It comes as no surprise that a client is happy to throw his lawyer under the bus to save himself.  This is a basic tenet of being a criminal defense lawyer.  But when the client alleges something that implicates the lawyer’s ethical obligations, claiming an affirmative wrongdoing on the part of the lawyer, he steps into a problem that few clients appreciate.  He relieves the lawyer of the privilege and he places the lawyer in an adversary position.  As much as the client may think his plan brilliant, it has its pitfalls.

The lawyer cannot ethically lie to help the client.  Just because your desperate notion of how to get your case back before the court implicates some impropriety on my part doesn’t mean that I can support a lie.  I can’t.  I won’t.  I cannot back you up on this scheme, and you’re now on your own.

I won’t, as a matter of principle, respond to the papers.  I am not a party to the action, and the claim of impropriety against me should be obviously ridiculous to the court.  Worse still, it wasn’t necessary for the client to seek a writ, since any failure on my part to present a meritorious argument would be sufficient, regardless of reason.  The client, of course, doesn’t realize this, and that his lie was totally unnecessary.

But should the court ask, I will be forced to tell the truth.  And that will kill any chance the client may have had.  He will then be branded a liar, and may well be held accountable as a perjurer.  I am offended to be put into the position of providing evidence of a crime against my own client.  Should it come to that, the client’s doe-eyed stare, pleading at me not to add to his troubles, to lie for him by affirming that his lie is true, I will make every effort to refuse to answer.  But if I am forced to do so, I will tell the truth.  I will not lie to a court.

Lying clients are hardly a novelty in the criminal justice system.  Some will say anything to get out, and some of the things they say are just wild.  These lies never work in the clients favor, and almost invariably backfire.  Badly. 

So before a client, or a jailhouse lawyer, or both when your client thinks he is the jailhouse lawyer, comes up with some brainstorm that he can craft some lie against his lawyer to save himself, think again.  Don’t expect the lawyer to lie to help you, and understand that your lie has now placed your lawyer into an untenable position.  It’s enough that you have one adversary to fight in your uphill battle to win a post-appellate writ.  Don’t make it two.  Don’t expect your lawyer to lie for you.