Nix v Whiteside 1986

Citation. 22 Ill. 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986)

Brief Fact Summary.
The defendant and two others went to the victim’s apartment looking for drugs. An argument broke out and the defendant ended up inflicting a fatal stab wound to the victim. Defendant expressed to his attorney that he had to concoct a story the victim having a weapon in order to win on a theory of self-defense. Defendant’s attorney informed him that if he perjured himself on the stand, the attorney would have to inform the court of the deception. Defendant was found guilty of second degree murder. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ.

Synopsis of Rule of Law.
An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand.

Facts.
Defendant, Whiteside and two others went to Calvin Love’s apartment looking for drugs. An argument broke out and Love allegedly told his girlfriend to get “his piece” and then he returned to bed. According to Whiteside, Love then started to reach under his pillow and moved toward him. In fear of his life, Whiteside inflicted a fatal wound by stabbing Love in the chest. Whiteside was charged with murder and he initially told his court-appointed attorney that he stabbed Love as the latter was pulling a gun from underneath his pillow. After further questioning by his attorney, Whiteside told him he had not actually seen a weapon. No guns were found on the premises and none of the individuals there at the time of the incident saw a gun. Defendant’s counsel informed him that the existence of a gun was not necessary to establish the claim of self-defense. Defendant, however, expressed to his attorney that he had to concoct a story about seeing the victim with a weapon in order to win on a theory of self-defense. Defendant’s attorney told him this would amount to perjury and if he perjured himself on the stand, he would inform the court of the deception. In addition, the attorney indicated he would seek to withdraw from the representation. At trial, Whiteside testified he knew Love had a gun and believed Love was reaching for a gun when he acted in self-defense. On cross, Whiteside admitted he had not actually seen a gun. Defendant was found guilty of second degree murder and he moved for a new trial claiming he was deprived of a fair trial by his lawyer’s admonitions not to state he saw a gun. The Supreme Court of Iowa affirmed the conviction and held that the right to have counsel present all appropriate defenses does not extend to perjury, an attorney’s duty to a client does not extend to assisting a client in committing perjury, and the attorney’s actions in the instance were required. Whiteside then petitioned for a writ of habeas corpus and the Court of Appeals granted the writ. Even though the Court of Appeals accepted the findings of the trial judge and the Iowa Supreme Court that trial counsel believed with good cause Whiteside would perjure himself, the court reasoned that an intent to commit perjury when communicated to counsel does not alter a defendant’s right to effective assistance of counsel. Thus, the attorney’s admonition to Whiteside constituted a threat to violate the attorney’s duty to preserve client privilege. Therefore, the Court of Appeals found that the threatened violation of client confidences breaches the standards of effective representation laid out in Strickland v. Washington.

Issue.
Does an attorney’s admonition to his client that he will inform the court about what he sees as a client’s plan to commit perjury violate a defendant’s right to effective assistance of counsel under the Sixth Amendment?

Held.
No. The judgment of the Eighth Circuit Court of Appeals is reversed and habeas corpus denied.
In Strickland, we held that to obtain relief under the Sixth Amendment, the moving party must establish both serious attorney error and prejudice.
Also recognized in Strickland were a counsel’s duty of loyalty and the duty to advocate on behalf of the client. These duties, however, are limited to legitimate, lawful conduct compatible with a desire to search for the truth.
Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence.
These principles are codified in the Model Code of Professional Responsibility and the Model Rules of Professional conduct. An attorney’s first duty when faced with prospective perjury is to dissuade the client from the unlawful course of conduct.
In light of the accepted norms of professional conduct, Whiteside’s attorney did not fail to adhere to reasonable professional standards that would make out a deprivation of the Sixth Amendment. Whiteside did testify and he was only “restricted” or “restrained” from doing so falsely.

Concurrence.
Justice William J. Brennan concurring in the judgment. This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. The Court’s essay is pure discourse without the force of law.
Justice Harry A. Blackmun, Justice William J. Brennan, Justice Thurgood Marshall and Justice John Paul Stevens concur in the judgment:
The only federal issue in this case is whether Robinson’s behavior deprived Whiteside of the effective assistance of counsel.
Whether an attorney’s response to what he sees as a client’s plan to commit perjury violates the Sixth Amendment may depend on the following factors: (1) how certain the attorney is that the proposed testimony is false; (2) the state of the proceedings at which the attorney discovers the plan; and (3) the ways in which the attorney may be able to dissuade the client. The Court’s adoption of a set of standards of professional responsibility for attorneys in state criminal proceedings is troubling. The Court’s responsibility only extends to ensuring that a state’s restrictions don’t infringe on a defendant’s federal constitutional rights.

Justice John Paul Stevens concurring: In this case, it is clear that Whiteside intended to perjure himself. His lawyer knew of his intentions and had a duty to both the court and his client to take extreme measures to prevent the perjury from taking place.

Is a discharged personal injury attorney entitled to compensation in Maryland?

Published May 13, 2013 | By Stewart Sutton

In Brault Graham, LLC v. Law Offices of Peter G. Angelos, P.C., __ Md.App. ___ (2013),  the Court of Special Appeals reiterated that a client has the inherent right to discharge his or her personal injury attorney at any time.  First Union National Bank of Maryland v. Meyer, Faller, Weisman & Rosenberg, P.C. 125 Md.App. 1, 9 (1999) (a “client may discharge an attorney at any time”); Skeens v. Miller 331 Md. 331, 335 (1993) (“The client’s power to discharge the attorney is an implied term of the retainer contract”).

Whether a discharged attorney is entitled to zero or some compensation depends upon the reason for discharge.

A.      DISCHARGED FOR CAUSE

When a personal injury attorney is discharged for serious misconduct, the discharged attorney is not entitled to any compensation.   Somuah v. Flachs 352 Md.App. 241, 264 (1998).   For example, abandoning a client, which is typically manifested by not returning phone calls, constitutes serious misconduct.  Rule 1.4 of the Maryland Lawyers’ Rules of Professional Conduct; Scamardella v. Illiano 126 Md.App. 76, 95 (1999) (“If the attorney is discharged for cause in a situation in which the attorney commits serious misconduct, he will receive no compensation”).

B.       DISCHARGED FOR A GOOD FAITH REASON

When a personal injury is discharged for a good faith reason, then the discharged attorney has a claim for part of the eventual recovery based upon quantum meruit.  The Brault Graham decision exemplifies when a client has a good faith reason to discharge the original personal injury attorney.  The client had retained the Law Offices of Peter G. Angelos in a medical malpractice case.  When the assigned attorney left the Angelos’  law firm, the client terminated his relationship with Peter Angelos’ firm and hired the attorney who had been working on his case for many years.

“[W]here a client has a good faith basis to terminate the attorney-client relationship but there is no serious misconduct warranting forfeiture of any fee, the attorney is entitled to compensation based on the reasonable value of services rendered prior to discharge, considering as factors the reasonable value of the benefits the client obtained as a result of the services rendered prior to discharge and the nature and gravity of the cause that led to the attorney’s discharge”.  Somuah v. Flachs 352 Md.App. 241, 258 (1998).

After the client receives a recovery in the personal injury case via settlement or judgment, the court will determine how much the discharged attorney should receive based upon the reasonable value of the legal services that had been rendered.  This quantum meruitrecovery cannot exceed the original contingency fee.  First Union National Bank of Maryland v. Meyer, Faller, Weisman & Rosenberg, P.C. 125 Md.App. 1, 24 (1999).

C.      DISCHARGED IN THE ABSENCE OF GOOD FAITH REASON

When a client discharges an attorney in the absence of a good faith reason, the attorney is immediately entitled to recover the reasonable value of his legal services from the former client.   Skeens v. Miller 331 Md. 331, 343-44 (1993) (“we hold that, where an attorney has been discharged without cause, the attorney’s claim in quantum meruit accrues immediately upon discharge, notwithstanding the fact that the contingency has not occurred).

Practice pointer for clients: When you terminate your personal injury attorney, you should always express why you have a valid, good faith reason for your discharge decision.