Short Take: 90 Day Disgrace

Ed Genson, together with Sam Adam, tried R. Kelly’s first case for child porn to an acquittal. You would think that would be the sort of legacy a dying man would want. But not Genson.

Genson is still around at 77, though ill, his usual candor honed by the approach of death.

“I have bile duct cancer,” he said in the paneled study of his Deerfield home. “Terminal cancer.”

Doctors gave him 90 days to live.

“That was a year and a half ago,” said Genson. “They don’t know what they’re doing.”

Even death wants nothing to do with him.

Perhaps this is a good moment to set the record straight.

Perhaps this is a good moment to keep his mouth shut and honor his duty to maintain the confidences of his clients. For criminal defense lawyers, there is no setting the record straight. There is the honor of upholding one’s ethical obligations and the disgrace of being Ed Genson.

Any insights into R. Kelly, the man? Guilty as hell?

“He was guilty as hell!” Genson said.

But he’s not done. Not only does he try to shed his flagrantly unethical conduct, but his claims are unadulterated bullshit.

I wondered if this statement might violate attorney/client privilege. But 1) Genson volunteered the information; 2) Kelly is no longer his client; and 3) attorney/client privilege doesn’t hold if a client is engaged in ongoing criminality or is perjuring himself. Both might be the case if Kelly is indeed found guilty.

The first argument relates to reporting Genson’s outrageous violation of client confidences, and there is no journalistic duty to conceal what an unethical lawyer spews. That Kelly is no longer his client is utterly irrelevant, as the duty does not extinguish when the relationship ends, even if Kelly has a new lawyer. The third is similarly nonsensical, as it’s not an ongoing course of criminal conduct but, if a crime has been committed at all, it’s discrete and individual, each independent of the other.

And regardless, no criminal defense lawyer would ever, but ever, say that his client, or former client, who was acquitted at trial, was “guilty as hell.”

It’s been suggested that Genson might be mentally incapacitated, whether by age, disease or senility, and that his violating his ethical duty to his client isn’t him talking, but the idiot now occupying the space in his head where his brain used to be.

I refuse to make excuses for him, even if this is senility violating one of the most fundamental precepts of the attorney/client relationship. You don’t do it. You can’t do it. And if you can’t control yourself for being the most disgraceful mutt of yourself possible, too bad.

We all possess secrets about people, about things that have happened in this world, that others who believe they can justify anything by whatever flavor of morality they prefer, would spill, or have us spill. What about the victims? What about the families? What about the children?

Yes, we know. We all learn the Christian Burial Speech in law school, and how it plucks the heartstrings of the emotionally manipulated. Maybe we have no heart. Maybe we’re some weird group of people immune for all sad tears. But criminal defense lawyers never, but never, reveal client confidences.

I don’t wish death on Genson, as I would never wish it on anyone. But as long as he lives, this will be his disgraceful legacy, his badge of dishonor. his shame. For revealing this, he is dead to the criminal defense bar, at least those of us who will take our secrets to the grave. And if you aren’t among us, if you fail to see the problem when your duty to your client conflicts with your feelings or feigned morality, you’re scum too. It’s too late for Genson, either way.

29 thoughts on “Short Take: 90 Day Disgrace

  1. Chris Van Wagner

    This is truly macabre, and ever more sad. Genson was as quick and persistent a lawyer as walked the halls of the Dirksen Courthouse in the Loop, not to mention the halls of 26th and Cal (the echo chamber that is the Cook County criminal courts building). Genson and his partner, Terry Gillespie, were the go-to guys, the A-team, the lawyers you wanted if you had enough shekels. Dying or not, to see him spilling his guts unethically for one last star turn, one last story on page one, is sickening and worse.

    He’s not some Harvard professor being maligned for defending the constitution on behalf of any manner of alleged scoundrel. He is a sad, sorry shadow of the bright light lawyer he was, with this last, and worst, blast of his spout. No doubt there are many other former clients who might themselves want the Illinois ARDC to step in and shut his mouth and send him quietly to his maker. This is so, so wrong. I have lost my admiration for him as an attorney and as a person.

    Reply
    1. Chris Van Wagner

      Here below (taken from the Cornell LII archives) is all one needs to know about this, and to realize that not even the client’s death lifts that sacred, unmoving veil of secrecy. One doubts that Kelly has given Genson a waiver.

      1.6:495 – Duration of Attorney-Client Privilege: IRPC 1.6 indicates that the attorney-client privilege lasts even after the termination of the attorney-client relationship. The attorney-client privilege is perpetual and continues after termination of [the case and] the attorney-client relationship. Taylor v. Taylor, 359 N.E.2d 820 (Ill. App. 1st Dist. 1977). The confidentiality of attorney-client communications continues after sentencing of a criminal defendant. People v. Halluin, 344 N.E.2d 579 (Ill. App. 5th Dist. 1976). The privilege even exists after the death of the client. Hitt v. Stephens, 675 N.E.2d 275 (Ill. App. 4th Dist. 1997).

      While it may be true that even the Illinois ARDC suffers from classic Chicago star-immunity syndrome, this is an egregious breach by Genson.

      Reply
  2. REvers

    I’m going to chalk it up to senility. After all, his statement was utterly wrong.

    “He was guilty as hell!” Genson said.

    No, counselor, he was acquitted.

    Reply
  3. John Barleycorn

    So much for chilling in the mahogany paneled playroom…..I guess?!

    Come on now Ed! Detonating a petard or two full of bitter greenish-brown acidic fluid isn’t gonna make you a better man nor bring you any comfort.

    P.S. This was a pretty conservative bit of bile esteemed one. I am impressed, but somehow I am a bit disappointed your weren’t able to distill or sharpen your distain for Ed’s conduct into a concise sentence or two.

    Reply
  4. KP

    It would seem that rule only holds society back. It merely progresses the false persona of the person involved when people don’t know the facts behind them, one only has to look at any political scandal to see how the Gods turn out to have feet of clay.

    Maybe it suits the Law as an industry, “this is how we found the defendant within the narrow little confines of the game we play”, but society as a whole would be better off knowing more.

    Has anyone done a cost-benefit study on keeping secrets??

    Reply
    1. SHG Post author

      If this was law 101, I could explain to you why maintaining client confidences was a fundamental requirement of the 6th A right to counsel. But it isn’t. It’s SJ.

      Reply
      1. KP

        No, its not in there Boss… It appears to be ” a long tradition”, or ” one of the oldest recognized privileges for confidential communications”. I didn’t find any law that said “from this day on lawyer-client communication is secret and must never be disclosed.

        I suppose these unwritten laws are why people hire lawyers!

        Reply
        1. SHG Post author

          I see your google skillz aren’t any better than your law skillz. Here’s the rationale: If clients are unable to speak frankly and truthfully to their lawyers, their lawyers cannot provide constitutionally-mandated effective assistance of counsel. In order for clients to do so without fear that their lawyers will breach confidence on their own, or be compelled to do so by others, the law requires lawyers to maintain client confidences and protects the attorney/client privilege. If you need a deeper understanding, law school is down the hall, second door on the right.

          Reply
  5. RedditLaw

    I’m going to go ahead and be generous and assume mental decline. I just checked iardc.com, and he still has an active law license although he might be joining Michael Cohen on the ash heap for this statement.

    If it isn’t mental decline, this would be the equivalent of running almost an entire marathon, stopping about one hundred yards from the finish line, pulling down your shorts, and jerking off in front of the spectators.

    Reply
    1. SHG Post author

      There are a host of excuses people could dream up with a little effort to rationalize his breach and absolve him of responsibility. A lot of good that does the client. It’s about the client, not the sad dying old nutjob.

      Reply
      1. Dave

        The duty never ends, but people do sometimes become senile and may spout things that they otherwise shouldn’t. What then – can anything be done about that – some sort of gag law or law to keep reporters away from such people lest they spill their former clients’ beans? I can’t imagine any workable way to do that, but it seems worth exploring because it addresses the same core reason for the rule – will people feel less free to tell their lawyers things if they know that if their lawyer gets senile or some other mental disability, it all might come out and there’s nothing that can be done about it and the law will take no steps to stop it under those circumstances (I imagine a senile lawyer is already not going to be practicing law anymore regardless – or I would hope!)

        Reply
        1. SHG Post author

          A few people argued on the twitters that he had chemo brain, was senile, was taken advantage of by the reporter, all of which may be true. How does rationalizing what he did change anything for the client? Or in other words, it’s the lawyer’s job to figure it out, and it doesn’t matter how, family, friends, other lawyers, whatever, but no excuse makes it okay.

          Reply
  6. Joe

    I cannot figure out why so many attorneys think confidentiality is an aspirational rule. Treating confidentiality like it’s a joke will only empower judges to treat privilege like it’s a joke.

    Reply
  7. B. McLeod

    It will be his legacy even after he is gone. This illustrates one of the reasons why law schools used to not name buildings and lecture halls and libraries after people who were still living. While a lawyer is still drawing breath, he still retains the ability to disgrace himself utterly. Unlike the presumption of Centenarian fertility, this one is actually true.

    Reply
  8. T

    I agree with you. it never should have happened. Same confidentiality goes for doctors of former patients…it can’t be done

    Reply
  9. Casual Lurker

    With the few free moments I have, I thought I’d drop by for one of our “private” chats, just between the two of us…

    “It’s been suggested that Genson might be mentally incapacitated, whether by age, disease or senility…”

    You ignored the possibility that various meds he’s taking, typical of those given to end-stage cancer patients, has loosened his tongue. The typical cocktail given generally consists of concurrent use of one or more Schedule II pain-killers, anti-anxiety meds, and other mood-altering drugs. Which, when combined, often has an effect typically associated with a class of drugs known as “sedative-hypnotics”.

    Anything someone says while under the influence of such a cocktail cannot be relied upon, whatsoever.

    Note that this is generally independent of any effects chemotherapy may have on the brain/mind.

    Reply
    1. SHG Post author

      It wasn’t ignored. It doesn’t matter. We don’t have the latitude to harm clients for our issues, whatever they may be.

      Reply
      1. Casual Lurker

        “We don’t have the latitude to harm clients for our issues, whatever they may be.”

        I got that. (We have similar obligations).

        But when circumstances cause an individual to lose the capacity to keep client/patient confidences, what are the options? Do we intubate him, so he can’t speak?… Or have his wife put a ball-gag on him?

        Do you whisk him away to a secure, distant location, operated by “The Brotherhood Of The Bar”? (À la the Portmeirion “village” from The Prisoner series, ostensibly for retired — or “resigned” — secret agents who know too much?)

        During WW-II, drunk sailors on shore leave would sometimes talk too much, which led to a (moderately effective) publicity campaign with the saying “Loose lips sink ships!” But having the public tell nearby SPs that a tipsy sailor was blabbing about their next port-of-call is not likely to be even remotely effective in the Internet age.

        Now, couple drug-induced loosening with someone who, at the end of life, fundamentally believes* in the need to make their peace with God** before departing, and you have a recipe for trouble. When weighing “honor” or other earthly considerations against impending death, only those with an exceptionally strong sense of duty are likely to give a damn and resist the urge to unburden themselves. Even so, sufficiently diminished capacity may render any sense of duty moot.

        Without some mechanism — legal or otherwise — to forcibly gag those with the obligation to ‘take it to the grave’, no good options exist. The only saving grace in this mess seems to be that occurrences of a ‘Genson’ situation appear to be extremely infrequent.

        *The effect of cognitive dissonance resulting from early childhood religious teachings are almost impossible to overcome, especially under a condition of diminished compartmentalization.

        **This presumes they don’t have a priest they can “confess” to, under confessional seal.

        Reply
  10. Casual Lurker

    So you’re saying ‘The Brotherhood’ is carting them off to the secret village for retired and/or dying old lawyers?

    Reply
      1. Casual Lurker

        I *did* use the reply button. However, I also used your newly added edit function. It seems a scripting error in that function causes a positional reset of the post offset value. I suspect this may only effect certain versions of Firefox, which, as of late, is somewhat less tolerant of such errors. Stercus accidit.

        Reply

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