The Ethics Of Using Money To Link Criminal And Civil Sexual Abuse Cases

Norm Pattis’ latest blog post raises an issue near and dear to me: the ethics of personal injury lawyers. I certainly don’t think personal injury lawyers are above reproach, and I’ve commented before on some of the stupid things they can do, but I’m not going to sit quietly and nod politely when a lawyer in another field claims its unethical for an alleged victim’s lawyer to zealously represent their client.

Norm is a criminal defense lawyer; as he posted a few days ago, the next year brings for him “trials involving child sex abuse, child pornography, drugs.” I’m going to go out on a limb and speculate that at least one of those defendants is in fact guilty of at least one crime with which they’re charged, and yet I wish Norm the very best in his defense: that’s his job, and he is required to zealously represent his clients and use every appropriate tactic available to further their defense. That’s how our adversarial system works. That’s how constitutional rights are protected.

Norm, however, apparently doesn’t have the same respect for what the civil lawyers for sexual abuse victims do.  His latest post accuses the civil lawyers for an alleged victim of childhood abuse of “the worst sort of ambulance chasing imaginable:”

I represent a former teacher accused of sexual relations with a student a decade ago. My client is a woman. The complaining witness is a young man. She denied consensual sex with the young man, but told the police that when he was a lumbering and awkward teen he raped her. She was afraid of him, so she kept the contact secret.

Along life’s way, the young man got into his own legal troubles. Not long ago, he told the police he was a victim. My client took advantage of him when he was too young to consent to sexual contact, he claimed an awkward decade later. The police pressed charges, a judge signed a warrant for my client’s arrest, and we’ve pled not guilty to the crimes charged and are preparing for trial.

Comes now a set of lawyers for this complaining witness. If our client will but enter a straight guilty plea and identify those in the school district who were aware of the relationship between student and teacher, the complaining witness will not object to a nominal prison term and will not seek significant money damages against our client in the forthcoming civil suit.

The teacher’s defense doesn’t strike me as incredible. As I’ve discussed before, there’s no “normal” way for a sexual assault victim to act. It’s plausible the student assaulted the teacher and the teacher was afraid to report it. We have jury trials to resolve these factual disputes.

I don’t know what happened between the student and the teacher. Neither does Norm; he only knows what his client told him happened. The prosecutors and the civil lawyers for the student also don’t know what happened; they know what the student told them. Except for prosecutors, who have an ethical duty to “do justice,” lawyers aren’t required to believe their client’s versions of events, they’re just required under the Model Rules of Professional Conduct not to “make a false statement of fact or law to a tribunal,” “offer evidence that the lawyer knows to be false,” or allow their clients to “engage in criminal or fraudulent conduct related to the proceeding.” Unless the student’s lawyers truly “know” their client is lying or engaging in a fraud on the court, they are well within the standards of our professional by advocating on behalf of the student.

Indeed, civil plaintiffs lawyers rarely represent clients whose testimony they don’t believe. Why would they? Lawyers for sexual abuse victims, like injury lawyers in general, invariably represent their clients on a contingent fee. It’s not easy to hold an employer liable for the criminal conduct of their employees; these cases raise complicated issues of the employer’s awareness that the employee posed a risk (like in the Annie Le case against Yale), run into statute of limitations issues when child molestation from years ago is alleged (like in the civil claims against Penn State in the Sandusky case), and trigger insurance coverage problems (as has already happened in the Sandusky lawsuits). The cases are risky, expensive and time-consuming enough even when you’re 100% convinced of your client’s testimony. If we don’t believe clients, we don’t take their cases. Period. We’re not alone on that.

So I’m going to make an uncontroversial remark: I bet that Norm believes his client, the teacher, while the civil lawyers believe their client, the student. There would be nothing unusual or unexpected about that.

Back to Norm’s main point, that it was somehow improper for the student’s civil lawyers to propose that the teacher plea guilty and identify who at the school knew in exchange for the victim not objecting to a nominal prison sentence (the complaining witness has a voice in criminal sentencing, but sentencing isn’t their decision, it’s the judge’s) and not seeking compensation in a civil case.

I can see why the civil lawyers proposed the settlement. Sexual abuse victims often don’t want to go through a criminal or civil trial; the proposed settlement would spare both the teacher and the student a public criminal trial and would limit the teacher’s involvement in the civil suit. On the civil side, the proposed settlement provides benefits for both the student and the teacher. It offers the teacher a way out of a lawsuit for which she likely has no insurance to even defend, much less indemnify, the case, as Jerry Sandusky is finding out (see the above link about insurance coverage), while for the student it provides easier access to the teacher’s testimony, which he’ll likely need to prove liability against the school.

I don’t know enough about the case to say if I would have recommended the same settlement if I were representing the student. I would worry that there’s a good chance the settlement, or at least a part of it, would end up being admissible at the civil trial at the school, and that might give the school’s defense lawyers more ammunition to argue that the student fabricated the allegations to get out of legal trouble and make a buck at the same time. Frankly, I doubt such an offer would ever work unless the evidence against the defendant was overwhelming and a guilty plea was a foregone conclusion — the most the teacher gets is an opportunity to protect her assets from a lawsuit, while at the same time she confesses to child molestation, ruining her future — and I’m not surprised that Norm told the student’s lawyers to go pound sand.

But that doesn’t mean the offer was improper; indeed, I see nothing about the offer at all that was improper. It offered benefits to, and demanded compromises from, both sides, and it did not require anyone engage in any illegal or unethical conduct. If the teacher’s guilty, she should plead guilty. If not, then not. There’s nothing wrong with the student’s lawyers, believing his version of events, advocating on his behalf and proposing settlements that further his case.

I don’t fault Norm for representing his clients to the fullest, even though many of whom have been accused of — and some of them are in fact guilty of — unspeakably heinous crimes. I wouldn’t do it, but “What Would I Do?” isn’t the standard by which we measure the ethics of lawyers. We measure them by the loyalty they show their clients, the competence and diligence they exercise, and the respect they have for the adversarial process. If Norm had told me the civil lawyers had schemed with the prosecutor to conceal exculpatory evidence, well, that would be another story, but a mere offer for the teacher to compromise her criminal defense in exchange for the student compromising his civil claim is by no means inappropriate.

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