David L. Bibb, former assistant district attorney in Manhattan, decided in 2005 that two convicted murderers who had moved for a rehearing were innocent. Bibb tried and failed to convince his supervisor who told him he had to oppose the motion. Bibb could have refused or quit.
But David L. Bibb did not select one of those options because he needed his job, and did not want two men incarcerated for extra time because of the decision he took. Claiming that it was his duty to seek justice and that his client was the people of New York, Mr. Bibb presented such a weak opposition and provided so much help to the defense that the convictions were thrown out.
Today, a New York State ethics panel exonerated Bibb in finding that no basis exists for the imposition of discipline.
According to the Va. Rules of Professional Conduct, Preamble, ¶2, "As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system." Id. Rule 1.3 cmt. , "A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf." If Bibb had been working as an Assistant Commonwealth Attorney in Virginia and did not feel that he could follow the direct order of a supervisor, I believe he would have had an ethical duty to decline it or resign.
This moral conflict between following instructions and obeying your conscience is like the “Saturday Night Massacre” of 1973: President Richard M. Nixon fired Elliot L. Richardson and William D. Ruckelshaus for refusing to sack special Watergate prosecutor Archibald M. Cox. Richardson and Ruckelshaus believed that Nixon terminating Cox to prevent him from subpoenaing White House tapes was ethically wrong, and they refused to participate.
Prosecutor Bibb, on the other hand, was secretly insubordinate for the selfish purpose of retaining his job.