Louisville criminal defense lawyer Keith Kamenish must be pretty darned good, as it seems like everybody wants his representation. LaJuante “B.B.” Jackson wanted Kamenish to defend him on drug charges, and Kamenish did, getting Jackson out on bail.
That’s how it came to be that Jackson was sitting on his front porch on August 19, 2005, when someone put 36 bullets into Jackson’s head. Kamenish’s stained business card was found in Jackson’s wallet.
A fellow named Dion Neal is one of two defendants accused of the murder. And wouldn’t you know it, but Neal wanted Kamenish to be his lawyer as well. The guy must be good. The government, however, saw an issue. From the Louisville Courier-Journal :
Kamenish, however, thinks otherwise.The government says the practice is unseemly — and just plain wrong — because the lawyer would have an irreconcilable conflict between guarding the confidences of his dead former client and zealously defending his new one.
In an interview and in court papers, Kamenish said he represented Jackson only briefly and never gleaned any confidential information from him, which he would be barred from using in Neal’s defense.
It’s unclear how often this situation arises, but it’s a situation that I faced a while back. After a very nice meeting with some fellows in need of a murder defense, the name of the dead guy was mentioned, and it turned out to be a young man I knew all too well. Lest there be any confusion, the fellows in need of a murder defense were fully capable of paying the freight.
I demurred. The government’s argument is correct; it was unseemly.
While it wasn’t completely clear that the defense of the murder charge would create a conflict with the duty owed a client, even a dead client, the potential was undeniable and overwhelming. What if, during the course of trial, something was alleged about the poor victim that my knowledge, no matter how narrow or broad, could dispel? I couldn’t ignore my duty to keep the victim’s confidences, but I couldn’t ignore my duty to defend my current client. The situation had enormous potential for conflict, even though it had yet to manifest.
Clearly, this inchoate concern flies in the face of modern views on ethics and representation. The internet tells lawyers that no paying client should ever be turned away, that no ethical conflict should ever stand in the way of earning a living. As I’ve been informed dozens, no hundreds, of time, things are different now. Lawyers are entitled to make money, and arcane niceties like ethics are for dinosaurs.
“The prosecutors are right in raising this issue,” said Monroe Freedman, a law professor at Hofstra University and the author of “Understanding Lawyer Ethics.”
Sure, he’s a lawprof and gets a paycheck. What does he care about paying scoring a new case so he can pay back student loans.
Several practicing lawyers, including prominent Kentucky criminal defense advocates William Johnson and James Shuffett, as well as Miami attorney Neal Sonnett, a former president of the National Association of Criminal Lawyers, said they would never undertake such a representation because of the inevitable questions.
“Will the lawyer be less aggressive out of loyalty or affection for the deceased?” Sonnett asked. “Will the lawyer use the former client’s confidences as a part of the defense, or avoid doing so, even when it might help the client’s case?”
Sonnett doesn’t need to scrounge “leads” on the internet, and clearly doesn’t get it. Time for the old men to fade away so the new kids in town can get that new BMW. Who can be saddled with the burdens of client confidences when there’s money to be made on a case.
At a time when the word for budding lawyers is that they are entitled of necessity to use any resource available, without regard for truth, intergrity or ethics, to turn that frown upside down and make themselves into a star, the idea of turning away a murder defense seems inconceivable.
It’s not hard to make the arguments that the relationship was trivial, and that no confidences came out. After all, the only person who could disagree is dead, and it’s not like Kamenish is getting any more business from Jackson. Concern for Jackson’s confidences is so backward looking, when Kelly offers the future, meaning payment of future fees. And really, isn’t the payment of fees what lawyering is all about?
It’s completely understandable that Kamenish wants to take the case. He just can’t. Despite the heresy of this statement, criminal defense lawyers cannot ignore the potential conflict of trading off the confidences of one client against the duty to defend another just because there is money to be made. Painful at it may be, sometimes you just have to follow Nancy Reagan’s advice.
Contrary to all the voices proclaiming entitlement to make money, what allows us, as lawyers, to hold the trust of a client is our competence combined with our overarching ethical responsibilities. And sometimes, those responsibilities compel us to walk away.
H/T Bad Lawyer
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I think your ethical conclusion is correct, and appearance of impropriety should be a basis for demurring on representation.
I think the conflict of interest problem, however, comes up more frequently with prosecutors and represents a far greater public policy concern in practice. In Colorado, I was quite dismayed to learn a few years back that Colorado had changed its law on prosecutorial recusal to eliminate appearance of impropriety as a basis for mandatory appointment of a special prosecutor. Further research for my blog uncovered that this was accomplished by the DA’s lobbying organization, which further research revealed was funded by taxpayers via a judicial branch slush fund snuck in by the ruling Democrats – creating in my view a judicial branch separation of powers issue (and separation of powers is interpreted quite extremely in Colorado – to the point the courts cannot participate in plea deals).
And of course the state bars of the country are essentially inert when it comes to any form of discipline for DA misconduct, except maybe in North Carolina, where the public got the erroneous impression that Mike Nyfong’s disbarment was somehow typical.