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The Case of the Client Who Hit His Attorney

When a defense counsel is physically attacked by the man he is duty-bound to represent, it presents an ethical dilemma.

September 14, 2001|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

Daniel W. Cohen has defended accused robbers, kidnappers and thieves, but he drew the line at Johnny Stanley Jr. During their first jailhouse meeting last November, Stanley allegedly punched the court-appointed lawyer in the face.

Declaring he could not ethically continue to represent the accused rapist and kidnapper, Cohen, a San Diego lawyer, went all the way to the California Supreme Court to get off the case. No judge obliged him.

In February, Cohen was still representing Stanley in a San Diego courtroom when the brawny defendant lured him close enough to land a second punch, according to a sheriff's investigator. This time, the blow required an ambulance and stitches.

The second attack was Cohen's ticket to freedom--the judge finally let him off the case--but it also inflamed the San Diego criminal defense bar.

The defenders insisted that Cohen should have been allowed to step down after the first blow and formed a support group to help lawyers in similar predicaments. The group also sought to convince judges that ethics require attorneys to resign once a client has bloodied them.

"It is an awkward situation to be in," confided Cohen, 34, who will be called to testify against his former client in a newly filed assault case. "You still owe him certain duties, and you have obligations to him--yet you have conflicting feelings."

Cohen was one of seven lawyers who defended Stanley on rape and kidnapping charges earlier this year. Before a San Diego jury deadlocked on the felony counts, Stanley allegedly had also attacked two of his other attorneys.

The alleged assaults underscored the ethical conundrum attorneys face when they become victims of the clients they are vowed to protect.

"You have to get off the case because clearly, the attorney-client relationship is broken down and you know you are not effective," said Peter Keane, dean of the Golden Gate University Law School in San Francisco.

Some judges, however, are reluctant to allow lawyers to resign because appointing a new attorney and bringing him or her up to speed takes time and prolongs the case.

In Stanley's case, San Diego Superior Court Judge Louis R. Hanoian figured the defendant was attacking his lawyers in a ploy to postpone his trial.

Stanley will be retried next month on the rape and kidnapping charges, and his family has retained a new lawyer from Beverly Hills.

Winston K. McKesson, the lawyer, said Hanoian fully apprised him of the other lawyers' fates and told him he would have to stick with Stanley even if Stanley assaults him, McKesson said.

McKesson is 5 feet, 9 inches, 175 pounds and 44 years old. Stanley is about 6 feet 4, 280 pounds, 32 years old and a former college football player.

McKesson said he is not intimidated.

"You can't practice law and be afraid," he said.

Legal analysts agree. Lawyers must be able to go to the mat for their clients. Once they've been brutalized, they may no longer have only their clients' best interests in mind.

"When it happens, it is obviously serious, and I think it does create an immediate conflict," said Mary Broderick, executive director of the California Attorneys for Criminal Justice, a statewide criminal defense group.

Although physical attacks on defense lawyers are rare, it is not uncommon for public defenders or appointed defenders to be threatened by clients. Depending on the severity of the threat, defense lawyers may elect to continue to represent the clients.

Accused criminals facing long prison sentences often view the defense attorney as the only barrier between them and prison. Their lawyer can become the target of their disappointments and fears.

During his 20-year career in the San Francisco public defender's office, Keane said, he feared for his safety once. He was meeting in a holding cell with a psychotic client who had killed several people. Keane told the bailiff he could leave.

"Sure enough, it was at that time that we hit a tense spot and he started telling me he was going to kill me," Keane said. "I really found my skills as a hostage negotiator. I just kept talking and talking and talking for two hours.

"As I walked out of that holding cell, my feet were squishing because I had sweated so much into my socks," said Keane, who continued to represent the client.

Gilbert E. Newton, the first lawyer Stanley allegedly attacked, had no quibbles about making his feelings about the defendant clear to the court. During Newton's tenure with Stanley, the defendant had twice tipped over the defense table in the courtroom.

Newton got off the case by summing up his conflict of interest with Stanley this way: "I feel he should be permanently removed from society at this point," the defense lawyer said in a court declaration.

Cohen was the second alleged victim, and John R. Fielding the third. Stanley had been shackled by the time Fielding entered the picture, but prosecutors say it failed to deter him.

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