Ethics of Books by Prosecutors and Defense Attorneys

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Both the prosecutor and a defense attorney who worked on the Jodi Arias murder trial have written books about the high-profile case. Local attorney Lynda Shely, who trains lawyers on ethics, will discuss the ethics of books being written about a case by lawyers who worked on that case.

TED SIMONS: Both the prosecutor and defense attorney who worked on the Jodi Arias murder trial have written books about the high-profile case. Here to talk about the propriety of such endeavors is Lynda Shely, a lawyer who specializes in attorney ethics. Welcome to "Arizona Horizon."

LYNDA SHELY: Thank you for having me.

TED SIMONS: Thank you for being here. We do appreciate this. Attorneys writing tell-all cases, books of cases that they're involved in. What are your thoughts on that?

LYNDA SHELY: Well, as somebody who advises lawyers so that they don't violate any of the rules, we have very specific ethics rules that govern our behavior. In order to write a tell-all book, the very first thing would have to be client permission. Because even if a lawyer appears in court, even if a lawyer appears on TV representing a client, they still need client consent and a lot of lawyers don't understand that concept. They think well, if I was in court representing a client, of course it is not privileged so I can tell everybody about it. But that's not how our ethical duty of confidentiality works.

TED SIMONS: As far as the prosecuting attorney, the wisdom, judiciousness of writing such a book.

LYNDA SHELY: Whomever a lawyer is, prosecutors have a client, too. They represent the state. And, so, they would still need to ask permission of their client, and that would not be just whoever their boss is, but an actual client, that they would need to ask permission before they can do a tell-all.

TED SIMONS: The fact that the case is I believe at the attorney general's office on appeal, is the prosecutor's office, is it easier to say it is okay for him the prosecutor, Deputy Maricopa County Prosecutor Juan Martinez, to write this book, or because it is on appeal it makes it even worse?

LYNDA SHELY: Well, I would always start with a -- and I don't know any of the specifics of the two alleged authors in this case, but I assume that they had client permission to disclose whatever they did. And they also would need to be very careful about what they disclose in a book because that would be considered an extra judicial statement, which is just a long way of saying, yeah, people read that and they might serve on a jury, that would be a problem.

TED SIMONS: When the blurb says new details and stories revealed, that troubles you?

LYNDA SHELY: If the case were to come back to a trial court -- it is on appeal now, if it were to go back down to a trial level where there could be another jury, that would be a problem.

TED SIMONS: You mentioned confidentiality, attorney/client privilege. How does that play into here? Because it doesn't sound like it is playing too strong if these are quote, unquote, tell-all books.

LYNDA SHELY: Well, and it is actually a common misunderstanding by lawyers that confidentiality is an ethical concept. It is one of the rules that we have to abide by as lawyers. And it actually covers everything I know about a client. It even covers the client's name. So, if you were to come to me and ask for advice about something, even if I were to represent you in court, if I appear in court for you, that's not privileged, whatever I would say to the court, because the judge heard it and there could be reporters there. But that doesn't mean that you gave me permission to go out and talk to my friends about it or to tweet about it or to discuss it with anybody else for my own benefit.

TED SIMONS: That own benefit is a major factor there, is it not?

LYNDA SHELY: Only if the client were to give me permission. If you were to tell me, Linda, I don't care if you tell people that you represent me, then I could, but if I don't have your permission, I can't.

TED SIMONS: As far as, as long as the defense attorney is no longer on the case, it doesn't matter. Prosecuting attorney, no longer likely on the case, to you it still doesn't really matter, does it?

LYNDA SHELY: It's not just to me, but to our rules. My duty of confidentiality, a lawyer's duty of confidentiality continues forever, even after the representation.

TED SIMONS: And you say a lot of the time attorneys don't get that, do they?

LYNDA SHELY: A lot of the time they don't understand that the duty, the ethical duty is so broad, even that if I appear in court with you, that's not privileged under attorney client privilege. -- I can't go out and talk about it unless you tell me it is okay.

TED SIMONS: Do these kinds of cases, ethics, do they reach the point of some kind of sanction, some kind of investigation? Have we gotten that far? Should we be that far?

LYNDA SHELY: You know, I have no idea whether something has been submitted to the state bar of Arizona. The state bar of Arizona is the arm. It is a quasi-governmental body that prosecutes lawyers, investigates and prosecutes lawyers for violations of the ethics rules that we have to abide by. And the ethical rules are actually established by the Arizona Supreme Court. I don't know whether anything has been reported there, but if there is a violation of the rules, and if the prosecutors find, the bar council find there is a violation, yes, lawyers could be disciplined.

TED SIMONS: To be clear, there are rules on this.

LYNDA SHELY: There are several rules on this. Yes.

TED SIMONS: Okay. Well, interesting stuff. Good to have you here. Thank you for joining us. We appreciate it.

LYNDA SHELY: Thank you.

VIDEO: We want to hear from you. Submit your questions, comments, and concerns via email at [email protected].

Lynda Shely : Local attorney

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