The Miami Herald
April 17, 2000

Attorneys walking a thin line

 BY AMY DRISCOLL AND ANDRES VIGLUCCI

 Should a federal court order Lazaro Gonzalez to return Elian to his father, the lawyers representing the boy's Miami family will be thrust into a tricky legal position.

 On one hand, the family's defense team -- numbering about a dozen -- has an obligation to strongly advocate for their client.

 But as officers of the court, legal ethics prohibit the lawyers from encouraging the boy's great-uncle to disobey a federal court order and break the law.

 ''Though a lawyer has substantial latitude in advising a client, it is clear that a lawyer cannot aid a client in committing a crime,'' said Anthony Alfieri, a University of Miami law professor and director of the Center for Ethics and Public
 Service.

 ''Noncompliance with a court order -- contempt of court, in other words -- is a criminal act. To advise the family to do anything less than comply with a federal court order would be unethical,'' he said.

 And it might not be Lazaro Gonzalez alone facing possible charges, the professor added. The family's lawyers could be in the jail cell beside him. Penalties in federal court for lawyers found in contempt of court include arrest, imprisonment and civil fines.

 ''If Lazaro Gonzalez wants to engage in an act of civil disobedience,'' Alfieri explained, ''the legal defense team is duty-bound to advise him that refusing to comply with a federal court order is less an act of civil disobedience than an act of contempt for the American legal process and the rule of law in American society.''

 Lawyers are officers of the court, which means they have an ethical obligation to follow the law and obey all court rules and procedures, said Kathy Kilpatrick, assistant director of lawyer regulation at The Florida Bar.

 Additionally, they are obligated to explain the consequences of their client's actions if the client disobeys the law, she said.

 ''We do have to lay out all the possible consequences of refusing to follow a court order,'' she said. ''We do not have to compel them to obey it, however.''

 Ethical violations substantiated by the Bar are turned over to the state Supreme Court for punishment. Sanctions can include reprimand, censure, suspension or dismissal from the Bar.

 Miami defense attorney Roy Kahn said the Miami family's lawyers may be close to the line separating effective advocacy from complicity in their client's violation of the order.

 ''If they're trying to put the clients in the best light, I don't consider it improper,'' Kahn said. ''But if the lawyers are out there promoting and assisting in their efforts not to comply, then they're involved in complicity. It's a gray area. Sometimes you
 have to defend your clients' actions to avoid a misinterpretation. But you have to be careful.''

 As attorney Bruce Zimet, a Fort Lauderdale defense lawyer and former federal prosecutor, said: ''Lawyers have to be careful they don't get caught up in the moral cause of the case.''

 The glare of international publicity also can blind a lawyer to his ethical obligations, Zimet noted. ''Everybody involved in this case seems to be a magnet for the TV cameras. I see all this posturing and I'm not sure who the client is. The uncle? The boy? You can't tell.''

 Legal experts also pointedly questioned the ethics of a legal team that would seek custody of Elian in state court even though a federal court had jurisdiction in the case.

 UM's Alfieri called the strategy a misuse of the legal system.

 ''The legal defense team's exploitation of the family court in seeking custody -- when the law of jurisdiction was well settled -- constituted an abuse of the legal process so great that in federal court it would have been deserving of sanctions,'' he said.