Can you settle a bet for a lazy guy? I say it is a violation of the cannons of ethics for a lawyer to advise folks not to submit a breath sample upon DWI arrest because the lawyer is advising his client to break the law. My defense attorney friend says that it is not illegal to refuse. My response has been that if refusal to give a sample is not illegal how can consequences follow? Her response is that the refusal is not a criminal but an administrative issue. Doesn't that beg the question?

For more on that answer, see this month's State Bar Journal. That question is asked in the Journal and answered by a prosecutor (me) and a defense attorney (Gary Trichter) in an article called Party Talk.

I'm glad to see that this time the Texas Bar Journalsaw fit to run an opposing view on submitting a breath sample. If the argument turns on how one defines a violation of the law, I still cannot see how one can logically argue that refusal is not a violation. The law says a person, if asked for a breath/blood sample after a probable cause arrest for DWI, will provide the sample because his act of driving on the public roads is a consent. Whether the penalty for refusal is a DL suspension, a $10 fine or death the fact remains that absent a violation of law, the state may not impose a penalty. Even Mr. Trichter stops short of advising people not to submit a sample; he says one should give blood and not breath.

First, I agree with John (How could a reasonable person do otherwise). But, be careful with lawyers arguing what "illegal" means. Can a lawyer ethically urge commission of a tort or unlawful (I guess that means actionable) breech of contract. Could an ethical lawyer tell his Corporate client to poison the world because good environmental proceedures and compliance with the administrative and other laws cost less than fines and damages?


Here is the rule

Rule 1.02 Scope and Objectives of Representation

(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyerknows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law.
(d) When a lawyer has confidential information clearly establishing that a client is likelyto commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud.
(e) When a lawyer has confidential information clearly establishing that the lawyers client has committed a criminal or fraudulent act in the commission of which the lawyers services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action.

Criminal, Fraudulent and Prohibited Transactions
1. 7. A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a clients conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
2. 8. When a clients course of action has already begun and is continuing, the lawyersresponsibility is especially delicate. The lawyer may not reveal the clients wrongdoing, except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering the clients unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required. See Rule 1.15(a)(1)
3. 9. Paragraph (c) is violated when a lawyer accepts a general retainer for legal servicesto an enterprise known to be unlawful. Paragraph (c) does not, however, preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise.
4. 10. The last clause of paragraph (c) recognizes that determining the validity orinterpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.
11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts todissuade a client from committing a crime or fraud. If the services of the lawyer were used by the client in committing a crime or fraud paragraph (e) requires the lawyer to use reasonable efforts to persuade the client to take corrective action.

I think Trichters response looks unethical when compared to these provisions. I also think that giving advice to third parties that promotes your own ability to sell you own services is suspect.

Why is the advice not much more honest. "Dear stupid, if you are intoxicated you might not want to cooperate. In for a dime, in for a dollar. You shouldn't have been putting your fellow citizens at risk of death, how bad can violating your promises to society when you got that license to drive be? But, if you are not a thoughtless criminal, of course you should take the test and clear up the misunderstanding and set yourself free, with a free conscience to boot.

That is truthful candid advice that is ethical.

By saying that everyone should refuse the test Trichter presumes every person taken to the station is guilty. If a prosecutor or cop made the assumption he so blythly makes he would have the New York Times do a three part series on heartless Texas law, etc.


Of course, just my opinion.I certainly have an ax to grind just like the not so neutral DWI defense bar.