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Lawyer faces ‘ethics emergency’ when client plots against accusers

Peter Vieth//January 27, 2014

Lawyer faces ‘ethics emergency’ when client plots against accusers

Peter Vieth//January 27, 2014

Conversation shadows2“What’s wrong with this man?” wondered Warsaw lawyer James Monroe as he sat in a jailhouse meeting room.

Monroe’s court-appointed client did not seem to be paying attention to what Monroe was saying.

It was Dec. 12, 2012. The lawyer was trying to explain that the man on the other side of the table was facing a possible 30-year prison sentence on charges of abduction with intent to defile and aggravated sexual battery.

The initial meeting between the two would set the scene for a rare drama involving a criminal defendant planning an attack on the state’s witnesses and a lawyer suddenly confronted with clear evidence of the plan.

In the jail’s meeting room, Monroe’s new client seemed to be oblivious to the lengthy potential sentence. Instead of paying attention, the man was mumbling to himself as he looked at documents in Monroe’s file.

When he looked up, the client asked to borrow a pen from Monroe. Puzzled, Monroe obliged.

Asked what he was writing, the client said he was noting the street address of one of the witnesses listed in the file.

“I’ve got to get some of my boys,” the client said, as Monroe recalled. The client said he was going to make sure the witnesses “got taken out.”

Taken aback, Monroe immediately admonished the client. What the client was suggesting could earn him the death penalty, the lawyer told him.

Monroe told the client he would have to report the statement to authorities if the client did not clearly give up the idea of plotting harm to the witnesses.

A retired Marine gunnery sergeant, Monroe can be emphatic. “I wore him out,” he said.

The client agreed he really did not intend any illegal action. He said he was just being stupid, Monroe recalled.

Monroe went to his truck and made a note to the file about the encounter.

The client’s plan proved more than just a one-time stupid idea, however.

Three months later, with trial approaching, Monroe got a phone call from the client’s mother. She was disturbed about a letter from her son in jail.

In the letter, the client asked his mother to instruct his friends on a plan to kidnap the two female witnesses at gunpoint and “have them drive somewhere” until his case is over. The plan apparently involved three people who would lay in wait for the witnesses at the courthouse on the day of trial.

“What I’m asking of them is some serious stuff they could get locked up,” the client wrote.

The letter described the targets and the car they would be driving.

In the letter, the client told his mother to let the friends read the letter, “then tear it up.”

“You can get a conspiracie [sic] and we don’t need that,” the client wrote.

Monroe was shaken by the obvious threat. Having trained in military bomb disposal, Monroe said it takes a lot to rattle him.

“That rattled me,” he said.

The client’s mother was driving in the Richmond suburbs when she called. Monroe insisted she find a way to fax the letter to him immediately. When she balked, he said the alternative was for her to stop somewhere while he called police to meet her and get the letter.

“People’s lives are in danger,” he told her.

“When I told her that, I think it sunk in that this was deep, deep stuff,” Monroe said.

The mother sent the letter, and Monroe then made an urgent call to the Virginia State Bar. He skipped the VSB’s Ethics Hotline because he did not want to have to leave a message. Instead, he called the main number and asked to speak with someone immediately.

“I don’t know if I have a real ethics emergency, but this will have to do until a real one comes along,” he told the receptionist.

It took about 45 seconds for VSB Ethics Counsel James M. McCauley to get on the line, Monroe said.

“Holy crap!” McCauley exclaimed as Monroe explained the situation, according to Monroe’s account.

After considering the circumstances in detail, McCauley agreed that Monroe had no choice but to report the threat to the appropriate authorities, according to Monroe.

The next step was to withdraw from representation of the client, Monroe said.

Monroe already had told the mother to meet him at the local sheriff’s office with the letter. He called to alert the sheriff. Monroe turned over the letter to the sheriff at a meeting that included the commonwealth’s attorney.

A judge later agreed to allow Monroe to withdraw from the case.

When he realized what the letter said, Monroe said his ethics training took a back seat to his concern about safety. “My thing was to do what I needed to do to make sure these witnesses weren’t harmed,” he said.

Reflecting on the call from the mother, Monroe said it was “one of the most heart-stopping ethical dilemmas I ever encountered in my life.”

“It takes a lot to scare me, but that really freaked me out,” he said.

McCauley declined to comment on any aspect of Monroe’s call, since the VSB ethics hotline is intended as a confidential consultation service for bar members.

Nevertheless, McCauley noted that public safety is the key goal of the duty to report a client’s threat of harm.

“The purpose, of course, is to protect others from harm or death,” McCauley said.

The duty is spelled out in the Rules of Professional Conduct.

Rule 1.6 (c) (1) requires a lawyer to promptly reveal a client’s stated intention to commit a crime. Before doing so, however, if feasible, the lawyer should advise the client of the legal consequences, urge him to desist, and advise him that the lawyer must reveal the plan unless it is abandoned.

The rule says the lawyer should seek to withdraw as counsel if the threatened crime involves perjury.

“In most cases, the lawyer is going to want to withdraw or use the threat to withdraw to persuade the client to abandon his plan,” McCauley said.

There are circumstances, like the client’s letter to his mother, in which a lawyer has little chance to turn the client around.

“When you have information that clearly establishes your client intends to commit murder, to kill material witnesses in the case, it’s not likely you’re going to get the client to stand down,” McCauley said.

The rest of the story

In the accompanying account, Warsaw lawyer James Monroe declined to identify his client, citing ethical concerns. After reviewing court records and interviewing law enforcement sources, Virginia Lawyers Weekly was able to learn the man’s identity.

According to online court records, following the letter incident, the defendant was charged with two counts of obstruction of justice by threat or force, two counts of abduction by force or intimidation and one count of solicitation of a felony.

In a deal apparently involving those charges and the original charges, the obstruction and the abduction charges related to the letter were dropped. The defendant pleaded guilty to criminal solicitation, and that charge added one year to his sentence.

In the original incident, the defendant pleaded guilty to sexual battery (amended from aggravated sexual battery) and to abduction by force or intimidation (amended from abduct w/ intent to defile). His sentence was four years to serve.

The letter Monroe turned over was submitted to the judge at the sentencing hearing, said Richmond County Commonwealth’s Attorney Wayne L. Emery.

The defendant is scheduled to be released in 2017, according to online prison records.


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