It’s not just that Charles Daum sold himself. It’s that he sold himself for a mere $6,000, proving Churchill’s quip to be too true.  Once you’ve established what you are, everything else is just negotiating the fee.  Daum was a criminal defense lawyer who “made a living by defending people accused of run-of-the-mill crimes.”  And now he’s convicted of his own.

Via NPR, by way of a twit from Mark Bennett :

The accused drug dealer, Delante White, turned the tables and helped convict his own defense lawyer of manufacturing evidence and putting on false testimony to help the drug dealer’s case.

Assistant Attorney General Lanny Breuer said the Justice Department pursued the unusual case because Daum crossed the line. “You do not get to manufacture evidence,” Breuer said. “You do not get to suborn perjury. You do not get to have people purposefully lie and mislead.

No, you don’t get to step on Lanny’s turf. The government is a jealous mistress.  And your client doesn’t really love you, no matter how strong his protestations to the contrary.

At his own trial this year, Daum argued that the plot was cooked up by White himself, because White was facing a mandatory 20-year prison sentence and the only way to reduce it was to cooperate with the Justice Department.

But a judge didn’t buy that argument, and convicted Daum.

Daum appears to have mounted a defense based upon his being the dupe of his client, where he was apparently set up and had no involvement in the planning or execution of the scheme.  Only a very sophisticated client could pull it off.  Only a very dopey lawyer could get caught in its clutches. 

In her opinion, U.S. District Judge Gladys Kessler said White “lied often and well” and called his girlfriend, Candice, “a total disaster” as a witness. But the judge ruled that despite their serious credibility problems, there was “simply no way” White could have orchestrated the whole plot from inside a jail cell.

Not sufficiently brutal that he lost at trial, then comes the truly humiliating part:

The Justice Department never offered a motive or reason that Daum and his private investigators might have crossed the line. The judge said Daum was getting only $6,000 to defend White and $6,000 more if the case needed to be appealed.

That is the value Daum placed on his career, his life. To put it into Churchillian context, if you’re going to be a prostitute, at least be a high priced one.  But as with all prosecutions and convictions involving criminal defense lawyers, there has to be a moral to this story.  This was offered by Bernie Grimm, who represented an investigator, Daum’s co-defendant.

“It’s very dangerous when … you’re representing somebody and you actually think the government’s involved in listening to those conversations or the government’s going to turn your client one day against you,” said Grimm, who defended one of the private investigators in the case. “So what that engenders is a lot of distrust between the lawyer and the client right off the bat.”

As much as I hate to be contrary, I beg to differ. While I would be beyond outraged to learn that the government had intercepted my confidential communications with a client, there would be nothing whatsoever dangerous to me in their doing so. I’m a lawyer. My communications reflect that. Never do I say anything that could be construed at being party to a crime, whether subornation of perjury, manufacturing of evidence or anything else. It’s not difficult at all to remain professional, and no distrust would arise because there would never be fear of being caught saying something wrong.

I tend to agree more with NACDL president Steve Benjamin:

“Of course, you never see or hear of prosecutors being prosecuted if there’s an instance where they have knowingly used perjured testimony,” Benjamin said. “And that’s one thing that is troubling to the defense bar, is what sometimes appears as a double standard.”

But Benjamin said he agreed with the Justice Department on one key point.

“It would make no sense whatsoever to present false testimony,” he said. “If you do that you’re a fool; if you do that, you’re relying on a cheap trick to try to subvert the truth.”

Still, that there is a double standard for prosecutors doesn’t excuse criminal conduct by defense lawyers.  It’s wrong, and it sucks, but the solution is that no one should be permitted to suborn perjury or manufacture evidence, not that should be okay for everyone.  As for using a “cheap trick to subvert the truth,” as long as it’s not illegal or unethical, that’s a different matter, but not one to be addressed in this post.

The practice of criminal defense is replete with temptation.  We are often offered choices that lead to the road to perdition, and sometimes a choice that is lawful in itself will take us to a dark place where we don’t want to be and can’t find our way back.  Don’t go there. Think of the consequences, the ramifications, of every choice. 

To believe that you can play the game dirty is to beg for disaster, and the government will be only too happy to take you down.  But the best reason to be honorable, to maintain your integrity despite the opportunity to do otherwise, is that you will not only do your best to fulfill your obligation to your client, but you can sleep at night.

It’s a tough job being a criminal defense lawyer. The double standard is real, the opportunity is available and the threat of being in the government’s crosshairs is omnipresent.  Choose wisely.