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Volume 238—no. 53
Web address: http://www.nylj.com
friday, September 14, 2007
Outside Counsel
By Joel Cohen
T
‘Scopes’: Subpoenaed by Your Adversary
he Scopes evolution trial was a putup job—a collusive lawsuit.1 In 1925,
a business leader of Dayton, Tenn.,
wanted to put his floundering city on
the map2—and the O.J. trial du jour would do
precisely that.
It would make a cause célèbre of the newly
enacted Tennessee statute that forbade the teaching of evolution. He approached John Scopes,
a 24-year-old substitute science teacher willing to admit that he taught evolution, and got
local prosecutors, who were actually Mr. Scopes’
friends, to prosecute him for doing so.
To carry out the charade, the prosecutors inveigled William Jennings Bryan, former secretary
of State and thrice-defeated presidential candidate—and also the “Fundamentalist Pope”—who,
coincidentally, hadn’t tried a case in 30 years, to
join the prosecution team.3 In turn, the ACLU
cornered Clarence Darrow, the greatest criminal
lawyer of his day, maybe ever, by then in his 70s,
to join the defense team. Curiously, neither was
lead counsel for his side.4
And in proof that the trial had a carnival
atmosphere, after the judge ruled against most
of the evidence that Darrow and his team sought
to introduce, e.g., scientific experts, Darrow, in
summation, actually asked the jury to find his client “guilty”— ostensibly to facilitate an appeal.5
Just imagine the malpractice lawsuit nowadays
stemming from a criminal lawyer asking a jury
to “convict” his client!
But the moment that The New York Times
described as “the most amazing court scene in
Anglo-Saxon history,”6 occurred on the seventh
day of trial after the judge had pretty much rejected everything the defense had to offer. Leading civil liberties lawyer Arthur Garfield Hays,
Darrow’s co-counsel, stridently rose to call to
the stand prosecutor Bryan himself, as a leading
student in the interpretation of the Bible.7 Bryan
belittled his fellow prosecutors’ warnings that he
should not testify, and demanded in exchange
only that he be allowed to later examine the
Joel Cohen, a former federal and state prosecutor,
practices white-collar criminal law at Stroock & Stroock
& Lavan and teaches professional responsibility as an
adjunct professor at Fordham Law School. Eileen
Martinez, an associate at Stroock, assisted in the
preparation of this article.
But putting aside the questionably trumped
up—“collusive”—prosecution, didn’t Darrow also
stray far from his ethical obligations in calling
Bryan to testify? And did Bryan act irresponsibly—even unethically—in allowing himself to
be called?
What Rule Applies?
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Darrow’s co-counsel called to
the stand prosecutor Bryan
himself, as a leading student
[of] the Bible. Bryan belittled
fellow prosecutors’ warnings
that he should not testify and
demanded only that he be
allowed to later examine the
defense attorneys.
xxxxxxxxxxxxxx
defense attorneys. Actually, truth be told, wild
horses couldn’t have kept Bryan off the stand.
Such an opportunity to articulate and pronounce
the “literal truth” of the Bible was precisely why
he came to Dayton in the first place—in order
to “strut his stuff” and object to the teaching
of evolution as “sacrilegious.” At day’s end, the
incredible exchange that lasted two hours, and
was depicted in “Inherit the Wind,” a fictionalized account of the trial, was just a show.
The following morning, the judge ruled that
Bryan’s testimony was flatly irrelevant and
simply “expunged it.” 8 Acting at Darrow’s urging, the jury convicted Mr. Scopes who was
promptly sentenced to a simple fine. The case
was ultimately reversed on appeal, but on purely
technical, nonconstitutional grounds having
nothing to do with the First Amendment’s Establishment Clause.9
Interestingly, it does not seem that Darrow’s
defense team—it was actually his co-counsel
that called Bryan to the stand (for Darrow to
examine)—violated its ethics by calling Bryan
to testify.10
Although today one might imagine a trial
judge going ballistic if a litigator during trial
tried to spring such a subpoena ad testificandum on his adversary, the relevant ethical rule
is addressed to something altogether different.
Yes, as a matter of trial management, the judge
would undoubtedly bar such testimony, as the
subpoenaed adversary would typically move to
quash the in-trial subpoena. However, such a
motion would probably be based on surprise—not
the subpoenaing party’s ethical lapse, assuming,
of course, that the ambush itself is not an ethical lapse.
Assuming the trial judge had not demanded a
witness list before trial, which would have precluded such a sandbag, the only disciplinary rules
addressing lawyer-witness testimony address the
bar against a lawyer at trial testifying on behalf of
his client. For example, under DR 5-102(A), “[a]
lawyer shall not act, or accept employment that
contemplates the lawyer’s acting, as an advocate
on issues of fact before any tribunal if the lawyer
knows or it is obvious that the lawyer ought to
be called as a witness on a significant issue on
behalf of the client….”11
Similarly, under DR 5-102(C), “[i]f, after
undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness
on a significant issue on behalf of the client, the
lawyer shall not serve as an advocate on issues
of fact before the tribunal….”12 Both rules have
exceptions, as always, contained in the footnote,
and not pertinent here,13 but these rules would
have only prohibited Bryan (or Bryan’s prosecution team) from calling Bryan to testify, not
Darrow’s defense team from calling him.
There is another ethical rule, DR 5-102(D),
New York Law Journal
that deals with a lawyer called, or likely to be
called by his adversary—but again, the rule deals
with the ethical problem of the subpoenaed or
likely-to-be-subpoenaed lawyer. It provides that
“[i]f, after undertaking employment in contemplated or pending litigation, a lawyer learns or it
is obvious that the lawyer or a lawyer in his or her
firm may be called as a witness on a significant
issue other than on behalf of the client, the lawyer
may continue the representation until it is apparent that the testimony is or may be prejudicial to
the client at which point the lawyer and the law
firm must withdraw from acting as an advocate
before the tribunal.”14
Putting aside the reality that no sane judge
would have allowed Darrow to call Bryan without
his consent in the middle of a trial, and that
Bryan’s testimony wasn’t substantive but rather
“show” on both sides—under this rule, theoretically, if Bryan realized that he would be called by
Darrow “on a significant issue” at trial (which he
wouldn’t have been in the Scopes trial), Bryan
would have been obliged to move to withdraw,
at penalty of violating the rule.
Justification for the Rule
The reason for the rule is somewhat clearcut, and is fleshed out in Ethical Consideration
(EC) 5-9. Basically, if the lawyer is both counsel
and witness on a particular issue, even if he is
not asked about privileged matters, “the lawyer
becomes more easily impeachable for interest and
thus may be a less-effective witness…. An advocate who becomes a witness is in the unseemly
and ineffective position of arguing his or own
credibility. The roles of an advocate on issues of
fact and of a witness are inconsistent….”15
It makes sense. Though, it does seem a bit
inconsistent with the rationale for the rule barring a lawyer from calling himself to testify—the
view that because the witness is the trial lawyer
in the case, that fact will actually “bolster” his
testimony (perhaps a dubious rationale given the
often low esteem in which trial lawyers are held
by the general population, which may or may not
apply to the lawyers in an individual case).16
Ethical Rule for Subpoenaing?
But, again, what about Darrow? Forget Bryan’s
obligations. Would it have been ethical for Darrow to pull this stunt? Theoretically, if Bryan was
ethically barred from testifying, one supposes
an argument could be made that Darrow had
“aider and abettor” liability for causing the ethical breach —since Darrow was clearly not looking
for a mistrial only to start the trial all over.
We find nothing on the ethics of Darrow calling Bryan midtrial. The closest thing, described
in Professor Roy Simon’s excellent two-part piece
on deposition subpoenas addressed to opposing
counsel, addresses pretrial “deposition” subpoenas
to an adversary litigator.17 Mr. Simon describes
how the Second Circuit in In re Subpoena Issued to
Dennis Friedman assigned four factors in deciding
whether such a subpoena should be allowed: 1)
the need to depose the lawyer; 2) the lawyer’s role
friday, September 14, 2007
in connection with the matter and in relation to
the pending litigation; 3) the risk of encountering privilege and work product issues; and 4) the
extent of discovery already conducted.18
These are obviously litigation-management
considerations, and surely the factors in a deposition scenario are quite different than at trial.
Friedman, importantly, doesn’t advance any particular ethical proscription against the lawyer who
issues the subpoena, except to say that deposing
an opposing lawyer disrupts the adversary process
and “lowers the standards of the profession” in
part by “chilling” truthful communication from
the client to the attorney.19
Suppose that, rather than ambush Bryan by
calling him to testify on a substantive issue—if
it can be characterized as an “ambush,” given
Bryan’s enthusiasm to testify, Darrow’s defense
team had subpoenaed Bryan shortly before trial.
What consideration would apply? Note that DR
5-102(A)(4), an exception to the general rule
requiring withdrawal or declination of the representation, does enable a lawyer subpoenaed,
or likely to be subpoenaed, to ethically testify as
to any matter “if disqualification as an advocate
would work a substantial hardship on the client
because of the distinctive value of the lawyer as
counsel to the particular case.”20 Again, here, this
rule addresses the lawyer’s ethical duty, not what
a court might do as a matter of trial management
if such a subpoena were issued.
Since the Scopes trial was a criminal prosecution, and most defense lawyers (and maybe some
judges) see prosecutors like Bryan as fungible and
replaceable (making typical litigation economic
considerations inapplicable), it might be hard
to fathom Bryan’s potential disqualification as
working a hardship to the state of Tennessee.
But suppose it was a civil litigation. Bryan,
as lawyer for the proponent of creationism, was
obviously a valued persona as a “movement lawyer” (to coin a 1960s phrase). Accordingly, his
client would have likely been prejudiced by the
loss of Bryan (just as surely as O.J. would have
been prejudiced by the loss of Johnnie Cochran),
even though able prosecutors were the principal
lawyers assigned to prosecute Scopes.
Still, the Scopes trial and Bryan present an
uncommon fact pattern —Bryan desperately
wanted to testify despite the urgent misgivings
of his fellow prosecutors. So with “waivers all
around,” this article examines Scopes largely as
a historic oddity.
In a realistic case, either during discovery or
even at trial, a judge will have to decide whether,
at core, applying the Friedman standards, the
testimony is vital and probative enough to defeat
the subpoenaed party’s motion to quash and
require the lawyer to testify. Assuming that the
client of the subpoenaed lawyer won’t actually
suffer a serious, qualitative hardship even with
a late-day subpoena to his lawyer who wasn’t
ambushed—i.e., he should have anticipated the
subpoena and therefore his ethical obligation to
withdraw was activated—it still lies within the
court’s discretion to bail the subpoenaed lawyer
out of his dilemma and quash the subpoena.
Conclusion
The decision to subpoena or call one’s adversary to testify is not to be lightly made, given
that the appearance of an ambush will typically
not succeed nowadays. The bigger issue faces the
litigator who has good reason to believe that his
adversary may or should call him to testify. That
lawyer may face not only an ethical quandary,
but also a judge displeased with the development
if a subpoena eventuates. He or she needs to
address that possibility early in the game, lest the
client be forced to change counsel in midstream
of the litigation or as trial impends, much to his
financial and other prejudice. That can make for
an extremely troubled client indeed.
Just remember, “He that troubleth his own
house, shall inherit the wind.” The Bible, particularly the Book of Proverbs, tells you so!21
•••••••••••••
•• ••••••••••••••
1. U.S. Constitution, Article III, §2. See e.g., New York
Insurance Law §3420(g) (McKinney’s Ed.).
2. See Douglas O. Linder, “State v. John Scopes (‘The
Monkey Trial’),” 2 (April 17, 2007), available at http://www.
law.umkc.edu/faculty/projects/ftrials/scopes/evolut.htm.
3. Id.
4. Id.
5. Foote, “The Complete ‘Scopes’ Trial Transcript: The
Definitive Transcript of the Most Famous Court Trial in
American History,” at 306, available at http://ebooks.ebookmall.com/ebook/78296-ebook.htm.
6. See n. 1, supra, at 4.
7. Id.
8. See n. 4, supra, at 305.
9. See n. 4, supra, at 305.
10. In 1990, the ABA amended Rule 3.8 of the Model
Rules of Professional Conduct to include ¶(f) restrictions
when a prosecutor could subpoena defense counsel to limit
invasions of the attorney-client relationship. The amendment required an adversary hearing and court order. The
ABA later withdrew the pre-approval requirement. See Stern
v. U.S. District Court, 214 F.3d 4 (1st Cir. 2000). But no
rule addresses subpoenas issued by non-prosecutors. Model
Rule 3.8(e), as amended, prohibits prosecutors from issuing
subpoenas to deter attorneys unless the evidence is essential
and there is no other feasible alternative to obtaining the
information.
11. DR 5-102(A) (2002).
12. DR 5-102(C); see generally Lamborn v. Dittmer, 873
F.2d 522 (2d Cir. 1989); FDIC v. U.S. Fire Ins. Co., 50 F.3d
1304 (5th Cir. 1995).
13. The exceptions are, if the testimony a (1) relates to an
uncontested issue; (2) relates largely to an issue of formality;
(3) relates to the nature or value of legal services; or (4)
disqualification could work a hardship to the client because
of “the distinctive value of the lawyer as counsel in the particular case. DR 5-102(A)(1)-(4).
14. DR 5-102(D) (emphasis added).
15. EC 5-9. See People v. Paperno, 90 AD2d 168 (1st Dept.
1982).
16. See generally, U.S. v. Locascio, 6 F.3d 924 (2d Cir.
1993); U.S. v. Arrington, 867 F.2d 122 (2d Cir. 1989); U.S.
v. DeFazio, 899 F.2d 626 (7th Cir. 1990).
17. Roy Simon, “Depositions of Opposing Counsel—Developing Law” (pts. 1 & 2), N.Y. Professional Responsibility
Report (September 2004), N.Y. Professional Responsibility
Report (October 2004).
18. Id.
19. In re Subpoena Issued to Dennis Friedman, 350 F.3d 65,
70 (2d Cir. 2003).
20. DR 5-102(A)(4) (2002); MacArthur v. Bank of New
York, 524 FSupp 1205 (SDNY 1981).
21. Proverbs 11:29 (New King James).
Reprinted with permission from the September 14, 2007 edition of the New York Law Journal. © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact 212.545.6111
or visit www.almreprints.com. #070-09-07-0019