Adjunct Professor Joel Cohen wrote an op-ed in the New York Law Journal where he weighs in on whether an attorney’s predisposition is unethical.
Years ago, I attended a court-ordered proceeding with an extremely avuncular state trial justice, since deceased, before whom I was prosecuting a corrupt judge. (One could say) I whined about the invective my adversary, a distinguished lawyer who primarily litigated in the civil arena, used to describe the prosecutorial conduct engaged in by myself and my colleagues that led to the indictment. The bemused judge asked whether I had ever seen (the now late) Roy Cohn’s typical motion papers in a divorce case in which he blithely swore to accounts given by his client. No, I hadn’t. Intending to pacify me, he explained: “You’ll come to learn, young man, that most criminal practitioners on both sides of the aisle are far more cautious than their civil counterparts, particularly in how easily they form, and articulate, conclusions about their opponents or their clients.” Maybe so (although I expect to receive some emails about this from the civil bar.)
Let’s assume that the judge was right—that we, criminal litigators on both sides, are more circumspect about what we’re willing to say in court or even think. Or even conclude.
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Is an attorney’s predisposition an ethical matter? Surely, no ethics rule can fairly draw foul lines for attorneys on such amorphous ingredients as human bias in reaching determinations about guilt or innocence, and none presumptuously seek to. On some ethical considerations, professionals need instead to introspectively assess whether they are being fair—professionally fair—to the array of objective facts that have been or will be presented to them. We all have a confirmation bias—just consider your own thinking or musings before you ever heard the testimony of Brett Kavanagh or Christine Blasey Ford. When thinking about them, we wouldn’t need to keep our confirmation biases in check. Not so, though, when we’re the lawyers investigating or litigating a criminal case, on either side of the v.