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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-82
Zealous Advocacy - Criminal Defense Attorney Having Unrelated Individual (As Opposed to Defendant) Sitting At Trial Table
You ask whether or not there is anything unethical about employing the following trial tactic: Defense counsel in a criminal case takes a person who is totally unrelated to the case to sit with counsel at the counsel table during the trial, while his client, the defendant in the case, sat in the back of the courtroom. The stranger merely sits at the table, and is never expressly identified by counsel. During the trial the government's witnesses identify the stranger at the counsel table as the guilty party. Thereafter, the stranger is asked to testify for the defense, and then he identifies himself.
We are of the opinion that this tactic is violation of the Rules of Professional Responsibility. Rule 8.4 contains a general statement of prohibited conduct by lawyers:
""It is professional misconduct for a lawyer to:. . .
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.""
More specific Rules which we believe are pertinent are: Rule 3.3, requiring candor and truthfulness to a tribunal and Rule 3.4 prohibiting falsification, obstruction or concealment of evidence.
In U.S. v. Thoreen, 653 F. 2d 1332 (9th Cir. 1981), cert. denied, 455 U.S. 938 (1982), trickery and obstruction of justice were found under similar facts. Also, in U.S. v. Sabater, 830 F. 2d. (2d. Cir. 1987), the court referred to this trial strategy as ""a trick, which misled the court, opposing counsel, and the witness . . .""
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