Legal Ethics Issues in “Making A Murderer”– Part 2 of ?

Two recent events have brought me back around to wanting to talk about ethics issues raised by this fascinating documentary.  One event is public and absurd.  The other event was semi-private and surprising (at least to me).  As neither of the recent events are actually the thing I wanted to talk about a couple of weeks ago when I wrote my first post about this documentary, I will try to dispense with them with relative speed.

First, this story that made the rounds this week further cements the notion that the former prosecutor is really something else.  While, strictly speaking, it is hard to think of an ethics rule directly implicated by his letter to the person he put in prison for murder trying to cajole an admission of guilt so that he (the former prosecutor) can write a book revealing the true story, the mere act of writing such a letter certainly isn’t a strong look for the lawyer.  Perhaps the saddest aspect of it is the desperation of the “this was your absolute last chance to tell the truth and you blew it…. but let me know if you change your mind because I’m probably still going to be interested” approach to coercion.

Second, I found myself enmeshed in an interesting APRL listserv discussion when some lawyers who were taken aback at the “disclosure” made by Avery’s former lawyer, Bob Oedenkirk as Saul Goodman Dean Strang in an appearance on ABC’s Nightline that he worries that Avery “might” be guilty.  A number of lawyers expressed belief that even with the passage of almost ten years, it was bad for the profession for the lawyer to publicly express any such misgivings about a former client, particularly for as long as there are still folks pursuing proceedings to try to have the former client exonerated.  I was a bit taken aback for what I’ve now been able to figure out are three reasons.  First, and the most embarrassing for me because I didn’t realize it until I had already weighed in on the listserv was that I forgot that Tennessee’s RPC 1.9 differs significantly from the ABA Model Rule approach in applying the exception for “generally known” information to both adverse use and disclosure of confidential information of the former client.  Second, having watched all of the documentary, he didn’t seem to me to be saying anything in the Nightline piece that he hadn’t already said in the documentary itself — thus the current disclosures would be merely repetitive of disclosures that presumably had to have been consented to by Avery for broadcast in the first place.  The third reason though finally provides a segue into the original thing I wanted to talk about — given how detestable the conduct of at least one of the other defense lawyers in the drama appears — Strang came across to me as exactly the sort of lawyer you’d hope to have on your side.

That other defense lawyer is, of course, Len Kachinsky.  The second court-appointed lawyer for Avery’s nephew, Brendan Dassey.  The notion that Kachinsky never was disciplined for the way he handled his representation of Dassey is exceedingly difficult to fathom.  A lawyer’s duty to be the client’s zealous advocate is at its highest when the client in question is accused of murder.  Add into the mix details such as the client is a juvenile with well below average intellect and social coping skills, and you’d expect the likeliest ethical failings to come from a lawyer crossing lines that shouldn’t be crossed in the name of trying to protect that client.  Yet, Kachinsky now stands as an example of a lawyer managing to violate ethical duties to his client in the course of undertaking what appears to be the polar opposite of zealous advocacy.

As we learn in the course of the documentary, Kachinsky spoke to the t.v. cameras [as shown in Episode 4] before ever speaking to his client and made a much more damning statement about his client than Strang can ever be accused of making about his former client: indicating that his client was “morally and legally responsible” for the murder.  While that alone was unforgivable, it was not as impactful a transgression in the end as was his role, both active and passive, in coercing his own client into giving another “confession” to the police outside of his presence which also managed to lead to an admissible telephone conversation between his client and his client’s mother.

This story from The Guardian lays out much if not all of the detail necessary to take in something of the big picture of the problems with Kachinsky’s performance.  I certainly won’t condone anyone who has harassed or threatened the man as the article indicates has happened and, of course, cancer is awful and thankfully the article reports that his is now in remission.  But as to his explanations for his handling of the case, I’m not inclined to give him any more benefit of the doubt than he afforded to his minor client.

With all that being said, that article also happens to be the first time I’ve heard Kachinsky indicate that he was not aware at the time of the conduct and tactics of the private investigator that he hired.  Kachinsky’s portrayal of that private investigator as a “loose cannon” tees up an interesting discussion about a lawyer’s obligations with respect to the conduct of such a non-lawyer assistant under RPC 5.3, so it seems there will be a part 3 on this topic in my future.

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