Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina. Continue reading
Tag Archives: withdrawal
Although the big news today in the George Zimmerman/Trayvon Martin case is that Zimmerman has been charged with second-degree murder, I want to focus on something that happened earlier in the week: attorneys Craig Sonner and Hal Uhrig held a news conference to announce that they had lost contact with Zimmerman and no longer represented him.
As far as I can tell from media reports and from watching most of the full video (available here), Sonner said that “[a]s of the last couple days [Zimmerman] has not returned phone calls, text messages or emails. He’s gone on his own. I’m not sure what he’s doing or who he’s talking to. I cannot go forward speaking to the public about George Zimmerman and this case as representing him because I’ve lost contact with him.” Apparently they had last spoken to Zimmerman on Sunday, and they announced their withdrawal on Tuesday. In the interim, they said, Zimmerman had called the prosecutor’s office asking to speak to her, had called Sean Hannity and spoken to him, and had set up a website allowing supporters to make donations towards his expenses. Uhrig said that Zimmerman was “in our opinion . . . not doing well emotionally,” was “emotionally crippled,” was “probably suffering from post-traumatic stress syndrome” and “may not be in complete control of what’s going on.” Sommers described him as being in “hiding,” and Uhrig suggested that he was not in Florida, though he remained in the United States. They did say that they continued to believe in Zimmerman’s innocence.
A number of commentators have suggested that the lawyers’ statements at the press conference violated the rules of legal ethics. One even said that “[t]he clip [of the press conference] will be useful in legal ethics classes under the heading ‘HOW NEVER TO BEHAVE.’”
I don’t know anything about Florida’s Rules of Professional Conduct – the relevant portion of the Florida Bar’s website is down, but a version of the rules seems to be available here – and this isn’t a Florida legal blog. But it’s interesting to analyze the lawyers’ conduct under North Carolina’s rules.
First, did their conduct violate Rule 1.6, which provides that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by [specific circumstances not applicable here]”? This duty extends to former clients, Rule 1.9(c)(2), so the lawyers can’t argue that their withdrawal ended the duty. And it extends not just to information acquired from the client, but to “all information acquired during the representation, whatever the source.” Rule 1.6 cmt. 3. So the fact that the lawyers presumably learned about Zimmerman’s phone calls to the prosecutor and to Hannity from someone other than Zimmerman is irrelevant. And since the lawyers denied being in recent contact with Zimmerman, he can’t have authorized the disclosure. Therefore, nothing else appearing, their disclosure of that information during the press conference would violate the rule.
The argument that Sonner reportedly has made is that “[n]othing was discussed that wasn’t already in the media.” If that’s true, it may be a defense, either on the grounds that a lawyer cannot “reveal” what is already known, or on the grounds that a lawyer is impliedly authorized to “admit a fact that cannot properly be disputed.” Rule 1.6 cmt. 5. As far as I can tell, though, it isn’t true: the lawyers spent 45 minutes talking about the case and answering a barrage of media questions. They addressed their relationship with Zimmerman (including the fact that Sonner agreed to represent him pro bono up until charges were filed, and that Zimmerman had told Sonner that he would turn himself in if a warrant issued against him), recent actions by Zimmerman, and their opinion of Zimmerman’s mental state. Much of that doesn’t seem to have been previously known to or covered by the media. So the lawyers’ conduct appears to have violated Rule 1.6.
Second, did their conduct violate Rule 1.16, which governs the termination of representation? It appears that the withdrawal itself was proper, since Zimmerman apparently stopped communicating with his lawyers and started doing things, like contacting the prosecutor and the media, that the attorneys had advised him not to do. Zimmerman’s failure to communicate with the lawyers may have been a failure to fulfill an obligation to the lawyers, Rule 1.16(b)(6), and his efforts to contact the prosecutor and the media constituted taking action that the lawyers considered imprudent, Rule 1.16(b)(4), either of which provide grounds for withdrawal. However, upon withdrawal, a lawyer is required to “take all reasonable steps to mitigate the consequences to the client,” Rule 1.16 cmt. 9, and portraying Zimmerman as emotionally unstable and in “hiding” outside Florida arguably harmed Zimmerman’s position. The lawyers might have believed that an unexplained withdrawal would have hurt Zimmerman even more, so I don’t think this possible violation is a slam dunk, but one certainly could conclude that the lawyers’ actions were designed to protect their own reputations rather than to benefit Zimmerman, and if so, their conduct also violated Rule 1.16.
Finally, did their conduct violate Rule 3.6, which concerns publicity and media matters? The rule prohibits extrajudicial statements that a lawyer knows or should know will be disseminated in the media and that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” A comment to the rule states that it is “more likely than not” that such an effect will result from statements about “the character, credibility, [or] reputation . . . of a party.” Rule 3.6 cmt. 5. Whether or not the lawyers’ statements about Zimmerman can properly be said to concern his “character” or “credibility,” it’s reasonable to suggest that they will negatively influence potential jurors’ views of Zimmerman. The comments suggest that Zimmerman is out of control and emotionally unstable, which is exactly the image of Zimmerman that the prosecution can be expected to paint at trial.
So, what should the lawyers have said? Something like this: “We are no longer representing George Zimmerman. We’re sorry, but we can’t answer any more questions about this matter.” And then, silence.