Advising a client to do something he or she wants to do is easy. Giving counsel that contradicts a professed desire is a lot tougher.
When Ed Genson, one of Chicago’s top criminal defense lawyers, resigned his representation of Rod Blagojevich in January 2009, he said:
“I have been practicing law for 44 years. I never require a client to do what I say, but I do require them to at least listen to what I say…I intend to withdraw as counsel in this case. And I wish the governor good luck and Godspeed.” ( http://www.nbcchicago.com/news/local-beat/genson-quits-blagojevich-criminal-case-012309.html#ixzz0x9jPaEpt)
At the time, Blago had just begun what became his protracted media blitz. He hadn’t yet learned the self-described lesson of his sobering guilty verdict: “I talk too much.” Although Genson didn’t elaborate on the reasons for abandoning his leading role as defense counsel in a high-profile case, it’s fair to assume that his inability to prevent Rod from using television, radio, and a book tour to proclaim his innocence was an important factor.
Uncontrollable clients get their lawyers and themselves into trouble. I sometimes brought clients back to reality with a simple statement: “People brighter than you are in prisons all over America because they thought they were too smart to get caught.”
Which takes us to Roger Clemens. When persuasion alone doesn’t deter a self-destructive client, a lawyer’s options are limited. Sometimes a threatened resignation reins them in; at other times, even following through on the threat doesn’t.
Then again, there’s the possibility that the attorney blew it. I can’t say that Clemens’s lawyers gave him bad advice because, like the rest of us, I’ll never know what that advice was. But the chronology of the events leading to his recent indictment for lying to Congress raises interesting questions.
The story began in December 2007, when former Senator George Mitchell released his report about the widespread use of illegal, performance-enhancing drugs. Clemens and fellow Yankees pitcher Andy Pettitte were the most prominent of the implicated players. Pettitte eventually admitted taking HGH while recovering from an injury.
On a January 6, 2008 episode of 60 Minutes, Clemens steadfastly denied the claims. At the same moment, his lawyers were filing a defamation suit against the trainer who’d provided Mitchell with the incriminating testimony.
Meanwhile, the U.S. House Committee on Oversight and Government Reform continued its investigation into the matter. A week after Clemens’s 60 Minutes appearance, noted trial lawyer Rusty Hardin released this statement:
“I want to make very clear that there has been absolutely no change in Roger’s willingness and indeed desire to testify under oath before Congress in a public hearing at a date of the Oversight Committee’s choosing. Any suggestion that he or we are having any second thoughts about that is absolutely false.” (http://sports.espn.go.com/mlb/news/story?id=3194113)
House Committee Chairman Waxman later took Hardin’s comments a step farther, saying that he and the ranking Republican had decided that no public hearing was needed because prior depositions would suffice.
“[T]he only reason we had the hearing was because Roger Clemens and his lawyers insisted on it,” Waxman said. “Roger Clemens’s lawyers told us he wanted the opportunity to make his case in public.” (http://www.nytimes.com/2008/02/15/sports/baseball/15clemens.html )
In its totality, Clemens’s strategy was the litigation equivalent of “shock-and-awe” warfare.
When it became clear that the hearing had gone badly for Clemens, Hardin called Waxman’s statements “unbelievable, disingenuous and outrageous.” But according to the same Times article, “Once the depositions were taken…the Clemens side felt it had no choice but to proceed, fearing that the committee would use the depositions to produce a hostile written report. ‘We wanted this out in the open,’ Hardin said.” So Waxman appears to have the better of the “whose bad idea was this anyway?” argument.
In any event, this much is certain: Clemens didn’t have to: 1) appear on 60 Minutes; 2) file a defamation lawsuit on the Sunday evening that the show aired (or ever); or 3) tell Congress anything (unless it first chose to grant him immunity).
So what do Clemens and his lawyers have to show for their efforts?
In February 2009, a judge dismissed most of Clemens’ defemation claims against his former trainer. The Fifth Circuit Court of Appeals affirmed on August 12, 2010. The public has long forgotten about the Mitchell Report, but Clemens himself remains headline news. One of the great pitchers of all time now faces unpleasant proceedings that could culminate in a prison sentence.
I assume that his capable attorneys explained how high-profile politicians and celebrities consistently fail to learn the most important lesson of Richard Nixon’s shame. He resigned the Presidency over obstruction of justice charges stemming from a subsequent cover-up — not the original sin of breaking into Democratic National Committee headquarters at the Watergate. It’s rarely the underlying offense that creates the biggest problem. It’s what people say and do in its aftermath.
I also assume that Clemens’s lawyers were counseling him to keep his mouth shut and his profile low at every stage of that evolving circus. But the record on that is ambiguous, at best.
Blago is right that the jury failed to reach a verdict on 23 of the 24 counts against him. Whether he sought to exchange a Senate seat for campaign contributions will be decided another day. But unless an appeallate court reverses, he’ll go to jail for lying when the government asked him about his practices.
With the former governor back on the road again — and on the way to The Daily Show, among others — I’ll bet Ed Genson has lost little sleep over his wise decision to cut his former client loose.
I suspect that Clemens’s lawyers don’t think they have that option.
The investigation and potential prosecution of Lance Armstrong (and his former US Postal Service teammates such as George Hincapie) also will provide ample opportunity to dissect that legal team’s approach, which is different and much more tight-lipped than the Clemens team’s approach and is the polar opposite of Blago’s self-absorbed grandstanding. At the end of the day, I am not convinced that Blago’ primary goal was or is to avoid jail time. It is pretty clear from the tapes that he and Patti needed money, and I think that all of his self-promotion and outrageousness is designed to capture and keep himself in the headlines so that he can maximize his opportunity for appearance fees, book rights, and who knows, possibly a movie. In his mind, perhaps a few years in Club Fed is a small price to pay for a big payoff down the road.
It bothers me that you seem to assume that these people were guilty. It seems that, in today’s legal world, everyone who is accused of something is automatically assumed to be guilty. The media plasters charges all over and innocent people have their reputations and futures destroyed by false accusations on a daily basis. I certainly don’t want a lawyer representing me, particularly when I am innocent of the charges, who assumes that I am guilty and he has to cover it up. The law was supposed to assume innocence until proven guilty. That very important factor has been thrown out the window, particularly in civil law.
I make no assumptions about guilt or innocence. I don’t know if Clemens will be found guilty of perjury, but if he’d never testified under oath, he couldn’t have been indicted for that crime. Now he faces new and continuing legal headaches that a lower-profile response — or invoking his Fifth Amendment right to remain silent — would have avoided. Likewise, Blago has been convicted of lying to the FBI about his behavior — although whether the behavior itself was illegal will presumably be the subject of his retrial. Lawyers don’t assume or decide the guilt of innocence of their clients. But sometimes their most important job is to help high-profile defendants remain calm in the face of serious, credible accusations of wrongdoing. Most defendants in that situation have an initial impulse to fight back publicly. That’s often a mistake. Clemens learned that lesson too late. Here’s what he said Friday on a Boston sports-talk radio station: “It stinks to be on the other end of some things or be quiet. But we’ll have our say….” He also said, “I got my eyes opened up quite a bit when we went in there…” (http://www.nytimes.com/2010/08/21/sports/baseball/21clemens.html?_r=1&ref=sports) Blago may never learn it.