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South Carolina Cop Deserves a Better Lawyer

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The correct ethical response to the video of Officer Michael Slager shooting Walter Scott in the back is to condemn the crime -- with one exception. The exception is Slager’s attorney, who has an ethical obligation as a lawyer to defend his client, not to abandon him or harm him by a public act of distancing. Yet in an interview with the Daily Beast, Slager’s lawyer did just that, dropping his client like a hot potato and strongly implying that Slager either had been set on a course of perjury or was simply too repulsive to represent.

Obviously, the overwhelming cause for outrage here is the apparent murder of an unarmed, fleeing black man by a police officer in North Charleston, South Carolina. But the whole point of having defense attorneys is that they’re especially necessary when the whole world considers their client immediately guilty. It’s therefore worth spending a moment examining what Slager's lawyer did and said -- and why it was an ethical mistake for him to act like any other ordinarily moral person.

Start with the decision by the lawyer, David Aylor, to drop his client. Aylor declined to say exactly why he fired Slager as a client. In the interview, the lawyer said, “I can't specifically state what is the reason why or what isn't the reason why I'm no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately.”

The Model Rules of Professional Conduct promulgated by the American Bar Association and adopted with trivial changes by the South Carolina Supreme Court provide for several circumstances in which a lawyer must or may withdraw from representing a client. The lawyer is only obligated to withdraw if the representation would lead him to break the rules or the law, if he's physically or mentally unable, or if he's fired.

None of those circumstances would appear to apply to Aylor. He could certainly represent Slager zealously without breaking the law. Think of the lawyers for the Los Angeles police officers who were recorded beating Rodney King. The world considered their clients guilty, but they got the officers acquitted of state charges nevertheless.

That means it's overwhelmingly likely that Aylor withdrew from the case under one of the rules that allows voluntarily dismissal of a client. The first condition is that “withdrawal can be accomplished without material adverse effect on the interests of the client.”

It’s very difficult to argue that Slager’s lawyer could resign on the very day that his client became a nationally known villain without materially harming Slager’s interests. The withdrawal itself looks to every ordinary observer like a statement that even Slager’s lawyer now considers his conduct indefensible.

Add to the withdrawal itself the possibly more outrageous decision by the lawyer to give a public interview to underscore the resignation. Aylor clearly wanted to engage in a public act of distancing -- which is to say, of condemnation. He wanted the world to know that he wanted no part in defending a client who was so repulsive.

If this distancing and implicit condemnation by his lawyer doesn't materially harm Slager, I'm not sure what would. Slager can get a new lawyer, of course. But he can't easily undo the damage from his own lawyer seeming to come out against him.

The details of the interview with lawyer make things worse. Aylor strongly implied to the interviewer that information in the video made him doubt Slater’s veracity. He said he “first became aware of” the video “via the media. In fact, a reporter sent it to me via e-mail.” Then he explained: “I'm not going to analyze the video, but again ... the video came out and within the hours of the video coming out, I withdrew my representation of the client.” It's hard to avoid the implication that Slager hadn’t told his lawyer what really happened, and that lawyer withdrew at least in part because he thought his client had misled him.

Under the bar rules, a lawyer may withdraw if he believes his client has used him to act in a “criminal or fraudulent” manner or intends to continue acting that way, or if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” By his withdrawal, Aylor arguably implied that he believed one of these circumstances existed -- that Slager was lying to the world in a way that could be considered fraudulent or criminal or at least repugnant. Saying that you aren’t guilty when you are guilty doesn’t count as fraud or repugnant behavior, otherwise many defendants would lose their lawyers. The implication would seem to be that the lawyer thought Slager intended to commit perjury.

What’s wrong with a lawyer abandoning a client who looks guilty and may have misled him? The answer lies in the systemic need for a strong defense for every accused criminal -- especially those who stand convicted in the court of public opinion. I think Slager must be guilty, for the reasons everyone else does. And that’s exactly why he needs a zealous lawyer to take his side and tell us we may be wrong.

In China, public outrage would guarantee a conviction dictated by Communist Party officials. In the U.S., the adversarial system demands that the defense be heard, in the hopes of getting all the facts. If the video evidence is misleading or incomplete, it’ll be the job of Slager’s lawyers to tell us that.

Slager’s lawyer didn’t just do his client a disservice by quitting and talking about it. He harmed our justice system itself.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net