If I lose mine honour, I lose myself.
The ordinary administration of criminal and civil justice ... contributes, more than any other circumstance,
to impressing upon the minds of the people affection, esteem, and reverence towards the government.
"It is pretty hard to find a group less concerned with serving society and
more concerned with serving themselves than the lawyers."
23 Va. L. Rev. 38, 42 (1936)
Model Rule 8.3(a) “imposes a mandatory reporting obligation on every lawyer with respect to
other lawyers’ violations of the professional rules. Probably no other professional
requirement is as widely ignored by lawyers subject to it.”
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels.
For it is against scoundrels that oppressive laws are first aimed, and oppression
must be stopped at the beginning if it is to be stopped at all."
What use is an honest lawyer when what you need is a dishonest one?
To the world, you may be one person, but to one person you may be the world.
You are the pilot, not the passenger.
"It's sort of an obsession with me to do the best I can for a client. My clients aren't blameless.
Many of them are crooks. Probably a lot of them are guilty. That's not for me to determine.
That's for a jury to determine."
"The business of the advocate, simply stated, is to win if possible without violating the law."
"Techniques without ideals is a menace; ideals without technique are a mess."
Sans morale, la politesse ne sert que de cache-misere. -
Without ethics, politeness only serves as a cover up.
"Power is no blessing in itself, except when it is used to protect the innocent."
"To know what is right and not to do it is cowardice."
"It takes less time to do a thing right than it does to explain why you did it wrong."
Daniel Webster: You seem to have an excellent acquaintance with the law, sir.
The Devil: Sir, that is no fault of mine.
Where I come from, we have always gotten the pick of the Bar.
Stephen Vincent Benet - The Devil and Daniel Webster
"This above all: to thine own self be true,
And it must follow, as night the day,
Thou cans't not then be false to any man."
The supreme quality of the advocate as a human being
is unquestionably integrity.
"The good lawyer is not the man who has an eye to every side and angle of the contingency and
qualifies all his qualifications, but the one who throws himself on your part
so heartily that he can get you out of a scrape."
I do solemnly swear that I will support the Constitution of the United States, and of this State;
that I will honestly demean myself in the practice of the law,
and will discharge my duties to my clients to the best of my ability.
The Ethical Dimension of Lawyering in Criminal Cases
Cautionary Note: This web page does not pretend to provide exhaustive treatment of Legal Ethics. The page is under continuing construction. There are gaps. Imperfect as it may be, CCJA believes that the page, in its current form, does provide useful food for thought by those who prosecute and defend criminal cases. Rather than keep the page under wraps, CCJA has decided to make it available to all defenders, prosecutors, and students of the law.
When all is said and done, a trial advocate is judged not only by the results obtained, but by other important factors such as the client's satisfaction, the credibility (ethos) achieved with jurors, and the professional reputation borne among colleagues at the bar and presiding trial court judges. Your strategy , tactics, techniques, and overall conduct as a litigator are all governed by ethical rules that define the parameters of what you can legitimately do in furthering your client's interests in the criminal justice process. On this page we will analyze and discuss some of the salient and significant rules of professional responsibility as they pertain to the prosecution and defense of criminal cases.
Nature and Sources of Ethical Standards - List of Each State's RPC and AEO
Every state has its own statutes and rules governing professional responsibility of lawyers, including prosecutors and defenders. Check for your state's Rules of Professional Conduct (RPC) compiled in April 2010, the vast majority of which will be some version of the ABA's MRPC, and Advisory Ethics Opinions (AEO) compiled in April 2010, in the following list:
- District of Columbia: RPC; AEO;
- Idaho: RPC;( no AEO online access);
- Illinois: RPC; AEO (members only);
- Kansas: RPC; AEO (online searchable ethics opinions only for members of the KS bar);
- Maryland: RPC; AEO (members only);
- South Carolina: RPC (Section 407); AEO Members Only ;
- South Dakota: RPC; AEO Members Only;
- Wyoming: RPC; AEO (Note that, from what I can determine, the Wyoming bar does not appear to publish advisory ethics opinions, but does publish disciplinary actions on the state bar web site.)
The ABA/BNA Lawyer's Manual of Professional Conduct can be accessed through Westlaw's ABA-BNA database. Westlaw also indexes ABA Ethics Opinions in the ABA-ETHOP database. The ABA Model Rules of Professional Conduct (MRPC), e.g., Rule 3.4, can be viewed on the ABA-AMRPC database.[Note: I think that the basic format of the MRPC with some variation has been adopted in all states except California.] Lexis subscribers can obtain formal and informal ABA Ethics Opinions in the FOPIN and INFOP files of the Ethics Library. (1), (2) The NDAA also provides a smattering of condensed state ethics opinions concerning the conduct of prosecutors. (1) As we know, the Sixth Amendment provides that the accused shall have the right to counsel. Every state has its own statutes and rules governing the professional responsibility that a lawyer has to the client. See above. The ABA Center for Professional Responsibility provides source material to guide lawyers in performing their role. This NLADA site provides a good informational source on the right to counsel. For insight into the problem of finding effective lawyers to defend poor people accused of crime, see Backus & Marcus, The Right to Counsel in Criminal Cases: A National Crisis, 57 Hastings L. J. 1031 (2006).
Means By Which Ethical Standards Are Enforced
[The following description of the disciplinary process is reprinted with kind permission of the author, Professor Katerina Lewinbuk.] "Below is a very brief overview of the development of attorney grievance claims filed with a specifically-designated state licensing board. Although some steps of the procedure differ from state to state, handling attorney grievance cases usually involves three possible phases: classification, investigation and/or litigation that are generally described below. The description below is based on Texas procedure.
During the first stage, the Chief Disciplinary Counsel’s office receives a written claim that alleges professional misconduct by the attorney. Claims can be brought by clients, or by anyone with knowledge of the misconduct. The claim is reviewed by an assigned officer to determine if it has merit. If the officer decides the claim does not entail a possible rule violation, the matter is classified as an “inquiry” and dismissed. The matter is then closed, barring a reversal by the Board of Disciplinary Appeals. However, if it is determined that a possible violation took place, the claim is classified as “complaint” and the investigation begins.
During the investigation, the accused lawyer receives a copy of the complaint and is asked to provide a written response. This is the first opportunity the attorney has to explain in detail his analysis of the situation. The disciplinary counsel then conducts an investigation into the matter in order to determine whether just cause exists or whether to recommend dismissal of the complaint. The disciplinary counsel compiles a record, including the complainant’s statements, the respondent attorney’s answer, and any documentation associated with the complaint. At the conclusion of the investigation, the disciplinary counsel makes her determination. If the disciplinary counsel finds “just cause,” the respondent attorney is asked to chose whether to have the case heard in court or by the grievance committee. If the disciplinary counsel believes that there is no “just cause,” she recommends dismissal to the grievance committee. The grievance committee may dismiss or may refuse to dismiss and vote to proceed with a prosecution.
If the respondent attorney chooses to have his case heard by the grievance committee, the disciplinary hearing is in a way similar to a trial but is closed to the public. At the hearing, the Disciplinary Counsel has the burden of proving that the attorney violated the specified rule or rules by a preponderance of the evidence. The attorney has the rights to procedural due process, counsel, proper notice, to be heard and introduce evidence, as well as to cross-examine adverse witnesses. If the panel’s determination supports a finding of professional misconduct, it may issue the accused attorney a sanction or combination of sanctions including attorney’s fees and restitution. After the hearing, the grievance committee will render its written decision on whether to dismiss the complaint or to impose sanctions against the attorney.
If the decision is to sanction or otherwise discipline the attorney, he is entitled to review of the decision by the state’s highest court. Furthermore, a few states including Texas allow the respondent attorney to elect to have the matter either heard in district court, with or without a jury, or before an Evidentiary Panel of the local district Grievance Committee. Failure for the attorney to elect one will result in the matter being heard before an evidentiary panel."
Differing Roles of Prosecutors and Defenders in the U.S.A.
Nearly all men can stand adversity,
but if you want to test a man's character, give him power.
Public prosecutors are relatively new to the Anglo-Saxon world. When crime and tort were the same proceeding and two possible remedies could result from one trial, it made sense that the plaintiff was also a prosecutor. Thus, private prosecution was the norm of the day. In America, we departed radically from the English system by setting up a system of public prosecutors, suggested in part by the French civil system which used a procureur du roi.
What standards must the prosecutor follow? Is the morality of the prosecutor different from that of the defender? Wouldn't the citizenry like to think of its prosecutors as some of the most decent members of our society? Prosecutors promote that image. Here is a collection of quotes, some self-laudatory, re the nobility of the public prosecutor's role in the American system of justice. Ruling case law tells us that prosecutors cannot suppress material evidence or take advantage of ineffective defense counsel. See Brady v. Maryland, 373 U.S. 83 (1963); Giles v. Maryland, 386 U.S. 66 (1967); Giglio v. United States, 405 U.S. 150 (1972); United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999); Banks v. Dretke, 540 U.S. 668 (2004). See Fisher, Stanley, The Prosecutor's Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England, 68 Fordham L. Rev. 1379 (2000). However, in Connick v. Thompson, 563 U.S. __, 131 S.Ct. 1350 (2011) the USSC held that the New Orleans DA's Office could not be liable for failure to train its prosecutors in their duty to disclose exculpatory evidence. Prosecutors should not make a witness they know to be truthful look like a liar. Prosecutors are not supposed to function based on ulterior motives that are unrelated to the crime committed. One problem that some prosecutors have had is getting into bed with their informants and cooperating co-conspirator witnesses. See Judge Richard Posner's opinion in United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) involving scandalous misconduct by federal prosecutors in Illinois, and read Judge Stephen Trott's article, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L. J. 1381 (1996). See also United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). Selective discriminatory prosecution is not allowed. (1 - 42 pages discussing prosecutorial misconduct) This case, State v. Skakel, 888 A.2d 985 (Conn. 2006), contains a plethora of goldmine quotes re the limits of prosecutorial zeal. The National District Attorneys Association publishes Doing Justice: A Prosecutor's Guide to Ethics and Civil Liability (2nd ed. 2007) $40. There is a difference in purpose and role between the prosecution and the defense. Consider the words of Justice Byron White, dissenting in part and concurring in part, in United States v. Wade, 388 U.S. 218 (1967):
"Law enforcement officers have the obligation to convict the guilty and to make sure
they do not convict the innocent. They must be dedicated to making the criminal trial
a procedure for the ascertainment of the true facts surrounding the commission of the crime.
To this extent, our so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the truth.
Our system assigns him a different mission. He must be and is interested in preventing
the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he
defend his client whether he is innocent or guilty.
The State has the obligation to present the evidence.
Defense counsel need present nothing, even if he knows what the truth is.
He need not furnish any witnesses to the police, or reveal any confidences of his client,
or furnish any other information to help the prosecution's case. If he can confuse a witness,
even a truthful one, or make him appear at a disadvantage, unsure or indecisive,
that will be his normal course. Our interest in not convicting the innocent permits counsel
to put the State to its proof, to put the State's case in the worst possible light, regardless of
what he thinks or knows to be the truth. Undoubtedly there are some limits which defense
counsel must observe; but more often than not, defense counsel will cross-examine
a prosecution witness, and impeach him if he can, even if he thinks the witness is telling
the truth, just as he will attempt to destroy a witness who he thinks is lying.
In this respect, as part of our modified adversary system and as part of the duty
imposed on the most honorable defense counsel, we countenance or require conduct
which in many instances has little, if any, relation to the search for the truth."
[For an example of a prosecutor who struck a foul blow by using these words of Justice White
in the voir dire selection of jurors to portray the defense counsel as a "shyster" and himself
as the "good guy," see Ohio v. Burks, 1997 WL 360844 (Ohio App. 10 Dist) 1997
(unpublished opinion); the same thing might potentially occur in jurisdictions that
allow reading from court opinions in argument; I have abiding faith that the vast
majority of prosecutors wouldn't stoop this low.]
This is another famous quote regarding the duty of prosecutors. It comes from Justice Sutherland in Berger v. United States, 295 U.S.78, 88 (1935):
[A prosecutor] may prosecute with earnestness and vigor - indeed, s/he should do so.
But, while s/he may strike hard blows, s/he is not at liberty to strike foul ones.
It is as much his/her duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about a just one."
(gender references modified)
- ABA Model Rules of Professional Conduct (MRPC) Rule 3.8: Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: ... (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. See Formal Opinion 09-454 (July 8, 2009) of the ABA Standing Committee on Ethics and Professional Responsibility imposing a higher ethical obligation on prosecutors to disclose evidence to defendants than is required by the Supreme Court's constitutional due process cases listed in the next ("chalkmarks") section, i.e., Rule 3.8(d) "requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial's outcome." The "evidence or information" includes that which tends to be exculpatory when viewed in light or other evidence or information known to the prosecutor as well as that which tends to exculpate the defendant when viewed independently. When considering whether evidence or information is favorable, the prosecutor is not allowed to limit her consideration only to those defenses that defense counsel has indicated might be raised. All legally cognizable defenses must be considered by the prosecutor. Favorable information that might lead to admissible evidence qualifies for compulsory disclosure even though the information itself is not admissible. Favorable information that is not admissible but that would be helpful to the defense in plea bargaining should also be disclosed. [Tip to Defenders: Attach a copy of the pdf Formal Opinion 09-454 to your Motion for Discovery.]
- Factors that keep prosecutors inside the chalkmarks: What makes prosecutors wary of using their office as an instrument of oppression? As a former federal and state prosecutor who holds most prosecutors in high esteem, it is my feeling that the two things that most prosecutors fear the most are (1) being singled out for reprimand in an appellate court opinion and (2) not being able to claim absolute immunity from civil liability for conduct on the job. See Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980) and Marrero v. City of Hialeah, 774 F2d 1177(11th Cir. 1985); People v. Pigage, 112 Cal. App.4th 1359 (Cal. App [4 Dist] 2003). The Supreme Court of the United States has provided errant prosecutors with cover from monetary damages for their screw ups that violate the civil rights of defendants. See Van de Kamp et al v. Goldstein, 555 U.S. 335 (2009) (1), a 42 USC Section 1983 civil rights suit against supervisory prosecutors (John Van de Camp is the ex-District Attorney for Los Angeles and ex-Attorney General for California.) for the acts of their subordinates in knowingly suppressing valuable impeachment evidence concerning an informant (snitch) at Goldstein's trial in violation of the Giglio case (Goldstein had won his habeas corpus case seeking overturn of his conviction for prosecutorial misconduct and subsequently filed this civil rights suit against Van de Kamp.); the USSC held that Goldstein's claims regarding the failure of to carry out their duty to train, supervise and manage trial court prosecutors in matters of courtroom honesty and fair dealing were intimately associated with the judicial phase of the criminal process and thus absolutely immune from Section 1983 suit. See also Imbler v. Pachtman, 424 U.S. 409 (1976) holding prosecutors absolutely immune under Section 1983 suits for acts "intimately associated with the judicial phase of the criminal process." but not necessarily so when prosecutors are engaged in investigative or administrative tasks. Keep an eye out for the upcoming USSC decision in Pottawattamie County v. McGhee, et al, which will decide whether a prosecutor is subject to personal civil damage suit liability under 42 U.S.C. 1983 for a wrongful conviction and incarceration where the prosecutor allegedly procured false testimony during the criminal investigation and then introduced that same false testimony against the criminal defendant at trial to obtain a conviction. [Note: Police labor under only qualified immunity during the investigation and trial; they can be held personally liable for falsifying evidence used at trial.] Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong, 80 Fordham L. Rev. 537 (2011);Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693 (1987). Public Exposure - Concerning public exposure, some appellate courts don't have the spine to identify the prosecutors whose corrupt conduct cause reversal of a conviction; for a prime example, take time to read the Pennsylvania court's opinion in Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). On rare occasions where the media take an active interest, things can get more serious for the wayward prosecutor, e..g, Google the name "Mike Nifong" and the phrase "Duke Lacrosse Players Case." See Stuart Taylor's book Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, Thomas Dunne Books (2007). See also Giannelli, Forensic Science: Scientific Evidence and Prosecutorial Misconduct in the Duke Lacrosse Rape Case, 45 Crim L. Bull. 665 (2009). and Mosteller, Robert, The Duke Lacrosse Case, Innocence, and False Identification: Fundamental Failure to Do Justice, 76 Fordham L. Rev 1337 (2007); the Durham Wonderland Blawg For an instance of a reportedly effective prosecutor who got publicly branded for malfeasance, Google "Kenneth Peasley, Pima County." (1) Also Google former Winnebago County Wisconsin DA Joseph Paulus. For a long list of cases of alleged prosecutorial misconduct, see Truth in Justice. Many of these acts of government procedural misconduct deprive the public of justice because they free people who were convicted by jurors on facts strongly implicative of guilt. Prosecutors should also keep in mind that their papers may someday be graded by eloquent authors with legal training and lots of money for research. Case in point - famed author John Grisham, turning to non-fiction, wrote a 2006 bestseller, The Innocent Man, (1) (2) (3) in which he discussed the conduct of Bill Peterson, Pontotoc County District Attorney for Ada, Oklahoma, in convicting two men of capital murder for which they were subsequently exonerated, though one missed execution by only five days. [Note: I highly recommend Grisham's book as superb reading for prosecutors, defenders and law students. Those who read Grisham's account of injustice might also want to look at Peterson's self-published web site in which he takes issue with The Innocent Man (1); Peterson, who resigned 1-1-08, sued (1- he lost) Grisham and others for libel.] What about misconduct that costs the taxpayers a fortune and lets the accused wiggle off the hook? In 2009 the DOJ asked to have the jury convictions of former Alaska Senator Ted Stevens set aside with prejudice to retrial because the DOJ lawyers improperly withheld exculpatory evidence. Great for Stevens who had been promptly convicted of numerous counts by jurors who heard what he had done, but shouldn't the Bush2 administration prosecutors, who apparently blew the case by unethical conduct, face disciplinary action by the DOJ, the court and/or the bar? When Obama's AG Eric Holder drug his feet on the matter (1), Federal Judge Emmet Sullivan stepped in and authorized a criminal contempt investigation of six prosecutors: DOJ's William Welch, Brenda Morris, Edward Sullivan, and Nicolas March, as well as Alaska AUSA's Joseph Bottini and James Goeke. See Sidebar for results of the investigation. [In a sad note, one of the prosecutors under investigation, Nicholas Marsh, 37, committed suicide in late September of 2010. (1)] Reportedly, the DOJ (taxpayers) will pay the legal bills of these prosecutors, up to $24,000 per month each. (1) Though Stevens lucked out in escaping a final conviction, fate had other ideas; the 86-year-old died in an Alaskan plane crash in August of 2010. One blawg took it upon itself to list the Worst Prosecutors of the Year 2007. If only such a list was composed by a more authoritative source with less hubris, e.g., the ABA Criminal Justice Section or the NACDL. Still, the idea of publicly exposing prosecutors who demean the profession would seem to have merit. For information re prosecutorial abuse and how to organize your community to restore honor to the office, see Law Mall, dormant since 2007. See also The Center for Public Integrity's prosecutorial misconduct site, dormant since 2003.Here's an article on "Prosecutorial Shaming" that supports the public naming of prosecutors who have acted unethically. At the same time, let's have a list of the Ten Best Prosecutors in every state. If you look across the country, you'll find many hundreds of heroic, unheralded prosecutors who go above and beyond the call of duty, e.g., Google "Mark Curry, Sacramento County."
- How far can prosecutors go in reducing charges? As part of plea-bargaining, do prosecutors have discretion in reducing a charged offense to another offense for which there is not probable cause? See Iowa Supreme Court Attorney Disciplinary Board v. Howe, 706 N.W.2d 360 (Iowa 2005).
- Resources re prosecutorial ethics: See National Center for Prosecution Ethics, Earle & Case, The Prosecutorial Mandate: See That Justice Is Done, Judicature, Vol. 86, No. 2, pp. 69 (2002); Green, Beyond Training Prosecutors About Their Disclosure Obligation: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?, Cardozo Law Review, Vol. 31, page 2161 (2010); Bandes, Loyalty to One's Convictions: The Prosecutor and Tunnel Vision, 49 Howard Law Review 475 (2006); Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to Seek Justice ; Ethics and the Criminal Prosecutor.; Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev. 399 (2006); Lidge, Perp Walks and Prosecutorial Ethics, 7 Nev. Law J. 55 (2006); Levenson, High-Profile Prosecutors and High-Profile Conflicts, 39 Loyola L. A. Law Rev. 1237 (2006), Kirchmeier et al., Vigilante Justice: Prosecutor Misconduct in Capital Cases, 55 Wayne L. Rev. 1327 (2009). See also, Davis, Angela, Arbitrary Justice: The Power of the American Prosecutor, Oxford University Press (2007) a 248-page description of the discretionary power of the prosecutor, how it can lead to injustice, and how needed reforms could be implemented. See also Ethics in the CCJA Bibliography. and this bibliography of police and prosecutorial misconduct that contains news articles from popular media as well as cites to journals, books and reports. See the Hyde Amendment, 18 USC Section 3006A, a provision in the federal law allowing for the payment of reasonable attorney's fees and other litigation expenses when the federal judge finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust; the award is made under the procedures of Title 28, Section 2412. Regarding the issue of whether federal prosecutors are subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, the McDade Act, Title 28 USC Section 530B, provides that the government attorney shall be subject to the rules in the same manner as other attorneys in that state.
- Concerning defenders, how loyal is loyal? What are the bounds of loyalty that a lawyer owes the client? What are the attorney's ethical obligations of confidentiality? There are some limits in what information relating to representation of a client that a lawyer may reveal. See Rule 1.6 MRPC which establishes the basic rule that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is specifically permitted by the Rule 1.6 (b). The six instances in which 1.6 (b) permits a lawyer to reveal information relating to the representation of a client is discussed below under Candor with the Court - Tension with the Duty of Confidentiality to the Client.
- On the bounds of the confidentiality of information, Federal Judge Marvin Frankel issued a challenge that many criminal defense lawyers might find unsettling:
"We lawyers must alter our prime axiom - that we are combat mercenaries available
indifferently for any cause or purpose a client is ready to finance. We should all be what
I would term 'ministers of justice.' As such, we would have to reconsider and revise a
system of loyalty to clients that results too often in cover-ups, frauds, and injury to innocent
people. A favorite quotation in the legal profession is Lord Brougham's declaration than
an advocate 'knows but one person in all the world and that person is his client.' 'For him,'
Lord Brougham said 'the advocate would stand against the world.' Lord Brougham was wrong.
We should be less willing to fight the world and more concerned to save our own souls.
As ministers of justice, we should find ourselves more concerned than we now are
with the pursuit of truth."
Ethics 101 and common sense teaches us that we have to do our best for our clients. This includes protecting the confidentiality of attorney-client communications, being diligent in preparing the case, explaining the law to the client in layman's terms, and keeping the client informed of changes in the case status. We may even have to seek the help of co-counsel when we are overwhelmed by the complexity of a particular case. But what about the ethical tension that can arise from our corresponding duty as officers of the court not to deceive the court or to delay the adjudicatory process for tactical reasons?
The Perception About Criminal Defense Lawyers
It seems to me that the public's perception of the integrity and public service orientation of the legal profession is at low ebb. Much of the public despises lawyers as hucksters who advertise their wares and suffer from and addictive craving for filthy lucre, i.e., what we lawyers call "billable hours." At the bottom of the fish tank are those who represent the crooks, and even worse those who represent crooks whose legal bills must be paid by taxpayers. If it is true that the general public and other members of the Bar view criminal defenders as bottom-feeders, what message do we send to bright young law students concerning the value of devoting part of their legal lives to defending poor people accused, sometimes wrongfully, of crime by a government that should never be trusted absolutely?
Is the disconnect between the public and the criminal defense bar causally connected to the fact that the role of the defender is not always about a search for the truth? The job of a defense lawyer does not require that the absolute truth be assiduously pursued. Of course, the absolute truth remains a constant and doesn't depend on anyone for its existence. In court, the lawyer who fails to seek the truth has a bearing because revelation of the truth to the jury depends in large part on the lawyers' decisions.
[Note: I regret to say that a lifetime of observation has given me cause to believe that the reputation of the criminal defense bar suffers in part because our criminal justice system bestows most rewards and the most media attention on the ego-driven practitioners. Zen Buddhism detests self-glorification, but the lawyers who float to the top of the criminal bar are often loud-mouth braggadocios. Perhaps it's just the nature of criminal practice that self-promotion and incurable hubris rather than competence are touchstones of success in criminal practice.]
Criminal Contempt - The Judge's Power to Control and Punish Lawyer Misconduct
Judges in every jurisdiction are vested with contempt power (1) to enforce their orders and regulate conduct of lawyers and witnesses. The power to deal with a contumacious (stubbornly disobedient) lawyer conduct includes the power to punish the misbehaving offender by fine or incarceration. Contempt that is based on disrespectful misbehavior is called criminal contempt (1 - Michigan benchbook checklist for contempt hearings). The punishment is for the wrongdoing. Where is the line drawn between zealous advocacy and contemptuous disruptive insolence? When you openly defy or insult the court in the courtroom, shouldn't you expect to be held in contempt or at least be warned. You can also face criminal contempt for certain out-of-court misconduct. [Note: Civil contempt involves the assessment of a continuing fine or incarceration to force an individual to comply with a lawful court order. The individual may rid himself of civil contempt simply by complying with the court's order.]
+ For a discussion of the difference between zealous critical advocacy and contumacious conduct See Rychlak, Ronald, Direct Criminal Contempt and the Trial Attorney: Constitutional Limitations on the Contempt Power, 14 Am.J. Trial Advoc. 243 (1990).
Values as the Moral Lode Star - The Conflict Between Individual Moral Codes and the Duty to Render Effective Representation
A criminal lawyer is like a brain surgeon. The surgeon is concerned with techniques -
not the goodness or badness of the man on the table. The patient is incidental.
The stuff about a lawyer wanting to save an innocent man from the electric chair is bunk.
He's worrying about technique. The same as the surgeon is concerned with where to put
the knife without severing an artery. The satisfaction comes from doing the job well -
not from saving the man from the electric chair.
(IMO, the best trial advocate of the 20th century.)
Each of us is guided by a personal moral code. The trial lawyer who is known as trustworthy and affable reflects certain core values related to character. It's these values that help certain lawyers progress in the profession. Aside from personal values, what other traits seem common to successful trial lawyers? They get along with others, including juries, judges, courtroom staff, and even counsel for the opposition. Their personal appearance is pleasant. Successful advocates often display positive personality traits such as adaptability, energy, sense of humor, sociability, curiosity, industry, vitality, kindness, and ambition. They like people and are able to manage anger, conflict, and mood. Most often, they have a positive view of self and robust emotional health. Without exception, they are communicators - storytellers.
We can understand the values and traits of successful practitioners and develop our own self-awareness, we may be able to expand our own potential for professional success and personal happiness.
- Positive Values/Virtues (1)/Ideals/Character Traits (1) Here's a list of human values, virtues, ideals, strengths, and traits that many persons consider to be positive in the sense that they are worthy of praise. [These are distinct from positive physical attributes such as good looks or beauty in stature, health, fitness, etc] Values and virtues may reflect themselves in case themes, e.g., good avenging evil, respect for the rights of others in the same manner one would expect his own rights to be respected, evenhanded due process of law even for the least amongst us, injustice being uprooted, fairness to all, hard work and determination reaping well deserved rewards, faith bring redemption and renewal, just and proportionate punishment as deserved, etc., : + Accepting of Personal Responsibility + Affable + Benevolent + Brave + Charitable + Civil (Goodwill, Civility, Benevolent, Mutually Respectful) + Cleanly + Compassionate + Courageous (Brave, Willing to Endure Pain for Principle) + Courteous + Decisive + Determined + Dignified + Educated + Allowing Equality of Opportunity + Ernest +Fair Dealing (Evenhandedness) + Faithful + Family-Oriented + Forbearing + Forgiving + Fortitudinous + Freedom Loving + Friendly + Fulfilled + Protector of Free Enterprise+ Generous + Gentle + Good + Helpful + Heroic + Hopeful + Hardy + Hardworking +Humble + Intelligent + Just + Kind (Kindhearted) + Lighthearted + Likeable + Loving + Loyal + Magnanimous + Modest + Noble + Open-Minded + Passionate Believer Tempered by Reason + Resourceful + Patient + Persevering + Pious + Pleasant + Prudent + Respectful + Responsible + Restrained + Reverent + Pious + Protectful + Self-Confident + Self-Controlled + Sincere + Spiritual + Steadfast + Straightforward + Good Character + Talented + Temperate + Tenacious + Toilful + Tolerant + Traditional Positive Feelings About Children + Valorous + Wise
- Values as Described by Six Religions For many people, religion offers anchoring guidance in in how one should act. I have posted quotes from six religions, each quote focusing on a separate value. Meaning no disrespect to agnostics, atheists, and members of other faiths, I pose the question, "Is it possible, using moral guideposts, for a criminal defense lawyer to be an effective trial advocate and a decent person?"
Those into whom all desires enter as waters enter into the sea -
which though ever being filled is ever motionless -
they attain peace, not those who cling to their desires.
Those who abandon all selfish craving and act free from longing
without any sense of egoism or possession,
they attain to peace.
In this condition, one abides in the Divine.
No one, having attained this is ever bewildered.
Established in this state at the end of one's life, one attains final liberation in God.
May I, through whatever good I have attempted, become one
who works for the complete alleviation of the sufferings of all beings.
May I be medicine for the sick; may I be their physician
and attend to them until their disease no longer recurs.
May I be an inexhaustible storehouse for the poor;
and may I always be the first in being ready to serve them in various ways.
May I be a protector for the unprotected, a guide for travelers on the way,
a boat, a bridge, a means of crossing for those who seek the other shore.
For all creatures, may I be a light for those who need a light,
a bed for those who need a bed, and a servant for those who need a servant.
Happy is a person who finds wisdom and also gets understanding.
In her right hand is the length of days; in her left hand riches and honor.
Her ways are the ways of pleasantness, and all her paths are peace.
She is a Tree of Life to those who grasp her, and whoever holds her is happy.
Do not forsake her, and she will serve you; love her and she will protect you.
Hug her to you, and she will exalt you, embrace her and she will bring you humor.
Through wisdom is a house built, and by understanding it is established.
Whoever finds wisdom finds life and obtains favor from the Lord.
Love is always patient and kind.
Love is never jealous;
love is not boastful or conceited.
It is never rude and never seeks its own advantage,
it does not take offense or store up grievance.
Love does not rejoice at wrongdoing, but finds its joy in truth.
It is always ready to make allowances, to trust,
to hope, and to endure whatever comes.
O Great Spirit, whose voice I hear in the wind
and whose breath gives life to all the world, hear me.
I am small and weak. I need your strength and wisdom.
Let me walk in beauty, and let my eye ever behold the red and purple sunset.
Make my hands respect the things you have made
and my ears grow sharp to hear your voice.
Make me wise so that I may understand the things you have taught my people.
Let me learn the lesson you have hidden in every leaf and rock.
I seek strength not to be greater than my brother or sister
but to fight my greatest enemy, myself.
Make me always ready to come to you with clean hands and straight eyes.
So when life fades as the fading sunset, my spirit may come to you without shame.
In the name of God the compassionate, the merciful.
Your Lord has not forsaken you, nor is He displeased with you.
And surely the last shall be better for you than the first.
You shall be gratified with what your Lord will give you.
Did he not find you an orphan and give you shelter?
Did he not find you lost and guide you?
Did he not find you poor and enrich you?
Therefore, do not wrong the orphan, nor chide away the beggar,
but proclaim the blessing of your Lord.
Society's Duty to Provide Defense Services to Indigents Charged With Serious Offenses
It has been said, "Money is the defining element in American criminal justice." In 1920, Reginald Smith wrote a book entitled Justice and the Poor. In it, Smith wrote:
The administration of American justice is not impartial. The rich and the poor do not
stand on an equality before the law. The traditional method of providing justice
has operated to close the doors of the courts to the poor and has caused
a gross denial of justice in all parts of the country to millions of persons.
In modern times, our Supreme Court has recognized that the Sixth Amendment right to presence and assistance of counsel is the linchpin of the adversary system. Although we have had the Sixth Amendment since 1791, it wasn't until well into the twentieth century that the court recognized the right of indigent persons accused of a crime to have counsel appointed at taxpayer expense. In 1938, in Johnson v. Zerbst, 304 U.S. 458, the Supreme Court held that indigent defendants who were charged in federal court with felonies were entitled to appointed counsel. In the earlier case of Powell v. Alabama, 287 U.S. 45 (1932), the court had held that the absence of counsel in state capital cases would deprive the indigent of due process. But it wasn't until 1963, 172 years after ratification of the Sixth Amendment, that the right to counsel in ordinary felonies was made binding on the states in the landmark Gideon v. Wainright, 372 U.S. 335 (1963). See also Alabama v. Shelton, 535 U.S. 654 (2002), Douglas v. California, 372 U.S. 353 (1963), Bill of Rights.
Roughly 80% of represented criminal defendants have their lawyers supplied at taxpayer expense. When we consider delivery of defense services to indigents three issues continually emerge: 1. the sufficiency of funding of defender programs, 2. the mounting caseloads of indigent accuseds, and 3. the adequacy of lawyering service delivered to the indigent accused.
Defenders Duty to Provide Competent and Diligent Services to Indigents Accused of Crime
Formal Opinion 06-441 (May 13, 2006) of the ABA Standing Committee on Ethics and Professional Responsibility makes its clear that excessive caseload does not diminish the defender's duty to provide effective assistance to the indigent client. The ABA Model Rules of Professional Conduct (MRPC) provide no exception for lawyers who represent indigent persons charged with crimes. All lawyers, including those representing indigent criminal defendants, are obligated under the rules to provide competent representation, see Model Rule 1.1, abide by client certain client decisions, see Model Rule 1.3, and communicate with the client concerning the subject of the representation, see Model Rule 1.4. Lawyers are also obligated to adequately investigate, analyze, and prepare cases; act promptly on behalf of clients; and communicate effectively in handling cases. See Continuing Duties below.
Recognizing and Resolving Ethical Dilemmas
Declining the Representation
The same moral values that guide us in our daily lives may interfere with our role as defenders. The defense attorney is more likely than the prosecutor to face a conflict of values when the time arrives to determine whether to undertake the representation. We usually avoid judging the client by simply assuming an amoral attitude, being careful not to prejudge the morality or immorality of the client or the level, if any, of his alleged participation in the offense. There may, however, be instances when you simply can't find it within yourself to undertake the responsibility for defending a particular accused person. If this happens, you may decline the representation. If you decide not to take the case, communicate your decision in a courteous and professional manner. Be sure to document the communication. See Initial Client Interview for suggestions as to how to decline representation. It's been said that criminal defense lawyers are operators of toll bridges across which accused persons in search of justice must pass. Should a private defender be free to restrict the practice to clientele and causes whose interests s/he desires to advance? Is it fine for criminal defense lawyer to open the bridge only to clients with lots of money. For example, should a defender be allowed to restrict his/her practice to wealthy persons accused of "white-collar" crime so that a few chosen rich clients, e.g. Dennis Kozlowski of Tyco, Martha Stewart, the late Kenneth Lay and Jeffrey Skilling of Enron, Bernie Ebbers of World Com, Bernard (Ponzi-King) Madoff, seeking to avoid conviction or to obtain a slap-on-the-wrist sanction, receive very high quality legal service? Is this "many are turned away, but a few are served well" based philosophy consistent with "equal justice under law."
Reading the Model Rules of Professional Conduct for Lists of No-No's and Thou-Shalt-Not's
Limitation of space precludes me from listing all the no-no's or thou-shalt-not prohibitions that you need to follow to conduct yourself professionally. Most of them are logical, e.g., don't have a sexual relationship with your client (unless a consensual sexual relationship between the you and the client(s) existed when the representation started) - Rule 1.8(j), don't contract during the representation with your client to obtain the literary or media rights to his/her story - Rule 1.8(d), don't provide financial assistance to your client during the representation - Rule 1.8(e). Read them for yourself in the MRPC or, better yet, your own state's Rule of Professional Conduct. (These state RPC's are listed with hyperlinks at the beginning of this web page. As of early 2009, I believe that California may the only state that hasn't adopted some version of the ABA's MRPC. Still, you'll find CA's own RPC in my list of states above.)
Avoiding Disputes Over Fees
The ideal client is a rich man who is scared.
We've all heard about billing abuses by lawyers. It's entirely natural that a prospective client may view the necessity of having to engage a lawyer with the same trepidation that is felt when when taking their car to a mechanic. They expect to be screwed. A few prospective clients may have made an effort to educate themselves in understanding and negotiating fees before arriving at your office. But most are relatively unsophisticated regarding fees and fee structures. Fees must be reasonable and not excessive. The calculus of whether a fee is reasonable is based on a variety of factor and not simply on how much time you expended in the client's behalf. is It may be useful in cases where there is a question about the reasonableness of a fee to know something about the salaries that lawyers in that area of the state make. A web site keeps track of salaries and bonuses that big civil firms pay their associates in various cities of the country. The ABA Model Rules of Professional Conduct (MRPC) in Rule 1.5 indicates that reasonableness depends on the following factors: (1) the time and labor involved, including the novelty and difficulty of the issues involved and the skill required to perform the legal service properly; (2) the apparent likelihood that the acceptance of the employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount of money involved and the results obtained; (5) time limits imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, ability and reputation of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent [Note: Contingent fees are not allowed in criminal cases.] Take a look at this comparison between the ABA Model Rules regarding fees and comparable California rules and statutes; it provides some useful insight into the issue of proper fees.
Unlike civil lawyers who typically bill and collect fees after performance of the legal services, in most criminal cases, budding defenders soon learn to obtain full payment of the fee prior to disposition of the case. Experience teaches that, whatever the result, clients accused of crime are unlikely to pay balances that exist after final disposition of the case.
The most common form of fee in criminal cases at the trial level is a flat fee, perhaps also providing for additional payment on a per diem basis for each day in trial. In some case, you may chose to bill by the hour and bill regularly, e.g., monthly, against an advance payment. If you bill by the hour, you may chose to include costs of support in your hourly rate. Some lawyers chose to unbundle their bill and include separate billings for the attorney's hourly services and the hourly cost of administrative services.
If you withdraw from a case, you are typically entitled to keep that portion of the fee that you has earned.
Conflicts of Interest
The Model Rules of Professional Conduct or some variation of it will typically govern the lawyer's ethical duty in cases of conflict of interest. Notice that the MRPC rules, unlike the conflict of interest cases, are written in terms of the risk of conflict and not in terms of a requirement that the conflict be shown to adversely affect the lawyer's representation. See Rule 1.7 - Conflict of Interest: Current Clients; Rule 1.8 - Conflict of Interest: Current Clients: Specific Rules; Rule 1.9 - Duties to Former Clients; Rule 1.10 - Imputation of Conflicts of Interest: General Rule (amended in 2009); Rule 1.11 - Special Conflicts of Interest for Former and Current Government Officers and Employees. See also (1). Potential conflicts of interest occur when the defender's obligation to a particular client conflicts with the defender's self-interest or the interest of another client. The legal effect of of a conflict of interest has been the subject of numerous cases. Here are the major pronouncements of the USSC: The landmark conflict of interest case is Cuyler v. Sullivan, 446 U.S. 475 (1978) a federal post-conviction habeas corpus attack on the conviction. Sullivan dealt with the convicted defendant's right to have his conviction set aside based on a claim of retained counsels' conflict of interest. Sullivan appears to hold that the trial court is required to inquire whether a conflict exists when one of two things happens, i.e., either the defense counsel notifies the court of a conflict by objection or the trial court knows or reasonably should know that a particular conflict exists. Otherwise the trial court is not required to initiate an inquiry into the issue of possible conflicts. Sullivan also held that if the defense does not object to proceeding at trial because of a conflict, the defendant's conviction will not be reversed unless it can be proven that there was a conflict of interest and that if actually adversely affected the lawyer's representation. See Mickens below. See also Glasser v. United States, 315 U.S. 60 (1942) the earliest conflict case recognizing that the Sixth Amendment right to assistance of counsel protects the accused against his defense lawyer's conflict of interest. In Glasser, the defendant objected to the trial court appointing his lawyer to jointly represent his co-defendant. In Wood v. Georgia, 450 U.S. 261 (1981), another conflict of interest case, the USSC discusses the motives of the lawyer employed by the two defendants' employer, the owner of an adult theater and bookstore; the USSC found that the possibility of conflict of interest (divided loyalties) was sufficiently apparent at the time of the employee's probation revocation hearing to impose upon the trial court the duty to inquire further re the possible conflict. If the court had determined that an actual conflict of interest existed at the time of the revocation and there was no valid wavier of the right to independent counsel, defendant's would be entitled to a new revocation hearing untainted by a lawyer with conflicting interests. The importance of the lawyer objecting to forced representation that involves a conflict of interest was underscored by Holloway v. Arkansas, 435 U.S. 475 (1978). Holloway was a case where the trial court ignored the court-appointed defense lawyer's representations of a conflict of interest and denied the three indigent defendants' motions for separate counsel, forcing the unwilling defender to represent the multiple defendants. Holloway established that if the defender objects to the representation on the ground of a conflict of interest, the trial court is duty bound to conduct an inquiry into the potential or actual conflict. Failure or refusal of the trial court to conduct such an inquiry results in automatic reversal of the accused's conviction, prejudice being presumed regardless of whether it was independently shown. Of course, the Holloway automatic reversal rule does not apply if the trial court does conduct a hearing and determines that there is no conflict. Flanagan v. United States, 465 U.S. 259 (1984) held that the trial court's pretrial disqualification of defense counsel in a criminal prosecution is not immediately appealable. In Flanagan, the trial court had disqualified a law firm from multiple representation of four Philadelphia cops charged with civil rights offenses.; Burger v. Kemp, 483 U.S. 776 (1987) was a post-conviction habeas corpus action in which the law partner of the defendant's lawyer was appointed to represent the co-defendant and the defendant's lawyer assisted his partner in the representation. The defendants were tried separately and the strategy was mutual fingerpointing with each accusing the other of being the heavy. The USSC held on these facts that there was no conflict of interest. Wheat v. United States, 486 U.S. 153 (1988) established that the trial courts have broad latitude in determining to accept an accused's waiver of actual or potential conflicts of interest). Mickens v. Taylor, 535 U.S. 162 (2002), was a death penalty murder while in the commission of sodomy case that involved the lawyer for Mickens having also been the lawyer for the victim in a weapons and assault case pending at the time of the killing. The lawyer did not disclose to the trial court that he had represented the victim. The issue was what a defendant must show in order to demonstrate a Sixth Amendment right to effective assistance of counsel violation where the trial court fails to inquire into potential conflict of interest about which it knew or should have known, there being no conflict objection by defense counsel to the representation.The USSC held that it is necessary in such cases that the defendant claiming conflict establish that the conflict of interest adversely affected his counsel's performance. This burden of proof requires the defendant to establish that there was an actual conflict of interest and also prove that the conflict adversely affected his lawyer's performance. (1 - Broad list of conflicts of interest) Note that Rule 44(c)(1) & (2) Fed. R. Crim. Proc. provides that in cases of joint representation, i.e., when two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13 and the defendants are represented by the same counsel, or counsel who are associated in law practice, the court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel.
Communicating with Represented Persons About the Subject Matter or the Representation
In Formal Opinion 95-396, the ABA Standing Committee on Ethics and Professional Responsibility stated that Rule 4.2 of the Model Rules of Professional Conduct (MRPC) prohibits a lawyer from knowingly communicating with a represented person about the subject matter of representation without the consent of that person's lawyer. This prohibition applies to the conduct of lawyers in civil and criminal matters and covers any person known to be represented by a lawyer with respect to the matter to be discussed.
Is it ethically permissible for you as a lawyer to electronically or telephonically record conversations of another party? In Formal Opinion 01-442, issued on June 24, 2001, on the subject Electronic Recordings by Lawyers Without the Knowledge of All Participants, the ABA Standing Committee on Ethics and Professional Responsibility stated that a lawyer who electronically records a conversation without the knowledge of the other party or parties does not necessarily violate the Model Rules of Professional Conduct (MRPC); Formal Opinion 337 (1974) was withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded. The Committee was divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agrees that it is inadvisable to do so. For what its worth, the National Association of Criminal Defense Lawyers has some sort of committee that has also chimed in with an opinion about criminal defense lawyers recording conversations. (1 - NACDL's partial answer) If so, do you have to disclose to the other party to the conversation that it is being recorded? The community of journalists have created a database of laws from the various states regarding the right to tape or electronically record conversations. This compilation does not tell us whether a lawyer is permitted under the rules regarding professional conduct to record conversations, witness interviews, discussions with opposing counsel, etc., without permission of the party being recorded. See also Bast, Conflict of Law and Surreptitious Taping of Telephone Conversations, 54 N.Y.L. Sch. L. Rev. 147 (2009/10) indicating that ten states , e.g., CA, CT, FL, IL, MA, MD, MT, NH, PA, and WA, permit a party to a phone conversation to record it only upon consent of all the parties to the conversation. For lawyers in my home state of Texas: In Opinion No 575, November 2006, the Professional Ethics Committee of the State Bar of Texas issued Opinion 575 which can be summarized as follows: "The Texas Disciplinary Rules of Professional Conduct do not prohibit a Texas lawyer from making an undisclosed recording of the lawyer's telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person. Opinions 392 and 514 are overruled." Texas is usually not out in front on anything, except death penalties. So check your state's current Ethics Opinions for recent developments re recording telephone conversations; see above for a hyperlink to Ethics Opinions of each state. (1)
Fraud or Deception in Investigation
The rules of professional conduct in most jurisdictions prevent lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Eileen Libby's article in Vol. 94, page 28 of the ABA Journal (February 2008), When the Truth Can Wait explains that there are times (but not many) when a lawyer may ethically engage in deception. Among the cases cited by Libby are In re Gatti, 8 P.3d 966 (Ore. 2000); In re Paulter, 47 P.3d 1175 (Colo.2002); Apple Corps Ltd. v. International Collectors Society, 15 F. Supp. 2d 456 (U.S.D.C.- NJ - 1998); Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983).
Candor with the Court - Tension with the Duty of Confidentiality to the Client
In the practice of criminal law, there is a significant tension between simultaneously satisfying the lawyer's duty of truthful candor and confidentiality, i.e., the keeping of secrets divulged by the client in the course of the representation. The defender can face a very difficult personal dilemma in deciding whether to sacrifice the truth or confidentiality. Would you tell the trial judge something, albeit the truth, that would gut your client's position? What if the judge asks you a question during the trial that calls for your personal opinion of your client's culpability? If you think the client is guilty, do you answer candidly? Read Nix v. Whiteside, 475 U.S. 157 (1986) in which the court made it clear that the Sixth Amendment right to counsel does not require defense counsel to participate in presenting perjured testimony of the client. (1) Rule 1.6 of the ABA Model Rules of Professional Conduct (MRPC) deals with the situations in which a lawyer is ethically permitted to reveal information pertinent to the representation of the client. The basic rule of 1.6 has it that the lawyer shall not reveal information relating to the representation of 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 Rule 1.6 (b). One finds the following six situations in 1.6 (b) in which a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary (1) to prevent reasonably certain death or substantial bodily injury, (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services, (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services, (4) to secure legal advice about the lawyer's compliance with the MRPC, (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to allegations in any proceeding concerning the lawyer's representation of the client, or (6) to comply with other law or a court order.
Confidentiality of Information Supplied by the Client
Defenders have an ethical duty to keep confidential any information entrusted to them by the client. Of course, the client may authorize disclosure of such information, e.g., where the defender uses such information in negotiating with the prosecutor for a favorable settlement.
- When the Client Shows Up At Your Office With Fruits or Instrumentalities of Crime: What happens when the client shows up in your office with the gun or knife used to commit the crime? Or maybe it's stolen jewelry, two kilos of cocaine, or some other type of contraband. This is the client classic situation sometimes faced by criminal defense lawyers. Can you look at the item? Examine it? What do you do when your client wants you, for safekeeping, to take possession of an instrumentality or fruit of a crime? It's obvious that there are potential conflicts between your duty to maintain the confidences of the client that arise out of the attorney-client relationship, See Rule 1.6 of the Model Rules of Professional Conduct (MRPC), and fairness to the opposition arising out of the duty not to obstruct the opposing party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, See Rule 3.4 of the Model Rules of Professional Conduct. The commentary following Rule 3.4 says: "Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. ... In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances." Documents used in perpetration of crime appear to be treated similarly as other objects particularly when they are clear evidence of a plan or scheme. A sound argument can be made that the duty to turn the object over to the authorities only arises if you, the defender, take actual possession of it. Thus, if the client shows you the item or directs you to the place where the item is located, you may simply view it and, with no more conduct, maintain a viable attorney-client privilege with no duty of disclosure. But if you take the object into you possession, you are going to have to turn it over to the authorities. See In re Ryder, 381 F.2d 713 (4th Cir. 1967) in which the court faced a situation where a defense lawyer placed into a safe deposit box a money bag of possible loot and a sawed-off shotgun given to him by a client suspected of federal bank robbery; the appeals court affirmed the lawyer's temporary suspension from federal practice. If you've taken physical possession of the object, it may be permissible to retain it temporarily for purposes of testing and physical examination. [Note: If you are faced with the dilemma of retaining physical evidence that connects your client to the crime, be sure to read Rodney Uphoff's The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance? 62 Hastings L. J. 1177 (2011) which proposes that, despite the prevailing decisions indicating that the item be turned over to authorities, the better practice is to return the evidence to the source from whom counsel received it, as recommended by Standard 4-4.6 of the ABA Standards for Prosecution and Defense Functions.
Putting A Witness On the Stand Knowing the Witness Plans to Commit Perjury
If we assume that it is not per se unethical for an attorney to defend a client who is known to be guilty, are there limits on the means that the attorney should use in the case. For example, is it ethical for a defender to cross-examine a witness whom he knows will commit perjury? Is it ethical for a defender to give a client advice that may tempt the client to commit perjury? Every defense lawyer seeking guidance should read Professor Monroe Freedman's take on the ethics of the defender in An Ethical Manifesto for Public Defenders, 39 Val. U. L. Rev. 911 (2005)
Cross-Examining Truthful Opposing Witness
Is it the duty of the defender to cross-examine every prosecution witness for the purpose of impeaching the witness' credibility, even though the defender personally believes that the witness is telling the truth? For example, does the defender have a duty to destroy the credibility of the prosecutrix in a sexual assault case by showing, to the extent legally allowable, the complainant's prior sexual misconduct?
Suppressing Evidence Favorable to the Prosecution
Is it the duty of the defender to bring out only those facts which are useful and helpful to the client and to suppress damaging information that would be helpful to the prosecution?
See this 6 page District of Columbia ethics opinion re jury nullification arguments.
Sooner or later, each of us will have to deal with the rude, intimidating, and insulting lawyer for the opposition. Can you fight fire with water?
Continuing Obligations - Staying Abreast of the Law, Adequately Investigating and Preparing Your Case, Communicating Adequately with and On Behalf of Your Client, Controlling Your Workload, and Associating Other Counsel
As a defender you are charged with the following duties:
- Keeping abreast of the law, see Pretrial for information on legal research.
- Adequately investigating, analyzing and preparing your case, See Pretrial for information regarding investigation, analysis and preparation of the case.
- Acting promptly on behalf of your client.
- Communicating effectively with and on behalf of your client. Your periodic communication with your client is essential during the pretrial process. You'll have to keep the client up to date with periodic case status reports. See Interviewing Clients in Criminal Cases. This duty also applies to your communication with the opposition and the court. See Motions in Criminal Cases.
- Controlling your workload and caseload so that every matter can be handled competently. See Law Office Management
- Associating or conferring with more experienced counsel to educate yourself when you are not sufficiently experienced or knowledgeable about crucial issues.
Withdrawal from the Case
See Nix v. Whiteside, 475 U.S. 157 (1986). See also Rule 1:16 - Declining or Terminating Representation; Rule 3.3 - Candor Toward the Tribunal; Rule 4.1 - Truthfulness in Statements to Others; Rule 6.2 - Accepting Appointments ABA's Model Rules of Professional Conduct. and Standard 4-3.1: Establishment of Relationship; Standard 4-3.7 Advice and Service on Anticipated Unlawful Conduct of the ABA, Standards for Criminal Justice. Practice Tip: If you withdraw from the case and return the case file to the client, be certain to Bates stamp or otherwise number every page in the file and make yourself a copy.
Communicating with the Media
For most of us, no news is good news; for the media, good news is no news.
Logistics of Dealing with the Media - As a criminal defense lawyer, you are more likely to be involved in cases that attract media attention than your civil counterpart. The public has an unquenchable thirst for crime news. When you become involved as defense counsel in a high profile criminal case, chances are that you will be contacted by representatives of the media. You must be equipped to respond. Yet, despite the plethora of trial advocacy courses, traditional law school pedagogy teaches you nothing about how to deal with the media that will eventually come calling. In this day, you can't get away with a a simple "no comment" response, particularly if the other side is talking to the media. You'll have to learn to be comfortable talking to TV reporters and newspaper journalists. Even though your case attracts media attention, you probably won't be able to afford to hire a high-dollar public relations firm or a media consultant to help you devise a p.r. strategy and/or provide training and strategies for dealing with the media. If your client is well-heeled, you may want to consider hiring a p.r. firm to provide crisis and litigation support.
Chances are that your high-profile client is broke. If so, you'll get the job of spokesperson to the media. Whether you like it or not, you will be the public relations agent for the case. It will be up to you to minimize the impact of negative publicity on your client's prospects for a fair trial. You won't have an armory of communications techniques and messaging strategy to steer yourself through the media inquiry, but there are a few practical suggestions that may help smooth the way when you are faced with being interviewed by a reporter. Here are some tips for your consideration:
- Starting now, build rapport with reporters and journalists who have the courthouse beat. You may never have a high profile case, but if you practice criminal law long enough some of your cases will draw media attention. You can never assume that a reporter is your friend, but do what you can to avoid acrimonious reporting by always being cordial to reporters and journalists.
- Make the media opportunity count. Your goal in the interview is to get your message across. You want your message to resonate and stick with the audience. To do this, you must prepare for the interview and be ready to give voice to the message through "set talking points." Your set talking points are the points (There may be only one.) you want to get across to the interviewer and, hence, to the audience. To make your voice heard, your talking points must be clear. They must be brief.
- Assume that everything you say will be reported. Become familiar with the ethical standards of reporters. To get the view from the journalist's perspective, look at The First Amendment Handbook, published by the Reporters' Committee for a Free Press.
- Give short answers that will fit into a sound bit.
- Don't answer hypothetical questions.
- Don't say, "No comment." If you don't have a message, say something conciliatory, e.g., "I'd like to comment but I can't because (give a good reason, e.g., "the judge has issued a gag order").
- If you are asked a question and don't know the answer, admit it by saying something equivalent to "Your question is a good one. I don't have the answer, but I will find the answer and get back to you."
- If you are giving a TV interview, keep in mind that your body language must be consistent with your message. Our body language is usually spontaneous. So, be careful that your body language supports your words. Don't send mixed signals. Establish eye contact with the interviewer. Be serious, not stern. The best way to get ready for an interview is to do what politicians in the Executive Office do in preparation for testifying before Congress. Do a mock interview and videotape it. Practice answering tough questions that the reporter may ask. Review your body language and answers on the video.
- If you are being interviewed on TV by a reporter who is in your presence, focus on the reporter and do not look at the camera. If you are being interviewed via remote satellite hookup and the reporter is not present, maintain eye contact with the camera at all times. If there is a small TV monitor facing you, resist the temptation to glance at it to see how you look ; you may even ask the cameraman to turn the monitor off.
- If you are being interviewed on camera and need to pause, you may look down, but don't look up because it may appear to the viewer as though you are rolling your eyes.
- If you are in a TV studio for an interview, don't refuse makeup. It will make you look better.
- Check these sites for broadcast news tips: (1)
- If you are a typical defender representing a client who is without resources, you may be far better off trying to staunch publicity by means of a protective (gag) order governing the lawyers, parties, investigators, and witnesses. See these cases dealing with publicity, the right to a fair trial, and protective (gag) orders: Irvin v. Dowd, 366 U.S. 717 (1961); Murphy v. Florida, 421 U.S. 794 (1975); Patton v. Yount, 467 U.S. 1025 (1984); Mu'Min v. Virginia, 500 U.S. 415 (1991); Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965); Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Gannett Company Inc, v. DePasquale, 443 U.S. 368 (1979); Richmond Newspapers Inc v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 47 U.S. 596 (1982); Chandler v. Florida, 449 U.S. 560 (1981); Press Enterprise Co. v. Superior Court, , 478 U.S. 1 (1986); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) discussing statements to the media by defenders; El Vorcero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993); See CCJA Ethics; ABA Model Rules of Professional Conduct, Rules 3.6, 3.8; ABA Standards - Fair Trial & Free Press (1992); ABA Standards for Criminal Justice - Prosecution Function 3-1.4 - Public Statements; (1), (2 - 54 page article on the subject of pretrial publicity -2004) [Note: Keep track of online mention of your high publicity case with Google Alert.] [Note: The USSC cases lag behind changes in communication. Today, blogs or blawgs constitute primary sources of pretrial and trial information regarding high-profile cases; controlling pretrial publicity in the organized media, e.g., press and TV, will be much easier than controlling the thousands of would be pundits on the Internet.] [Suggestion: If you do issue a defense statement, keep it brief, e.g., "Mr. Smith is not guilty.(or By his plea of not guilty, Mr. Smith has started the process of justice.) We will ask for a trial. I am going to vigorously, enthusiastically, and successfully defend him against this charge."] See also Motion Practice - Gag Orders, Motions to Sequester the Jurors, etc.
Ethical Rules Regarding Contact Between Prosecutors and Defenders and the Media - If you are involved with a high profile case, the media (1) may be involved. Successful prosecutors and defenders seem to relish media attention. It's partly a matter of ego and love for the spotlight. It's also partly a matter of using free publicity to cultivate the audience of future clients and jurors. For publicly elected prosecutors, it's a chance to flex their muscles for the electorate. There are ethical constraints to contact with the media. Before you issue a press release, read the rules. Know the anatomy of a press release. Start by reading the references I have listed below, and note that prosecutors, perhaps because of their powerful authority as law enforcers, appear to be more ethically constrained by the rules in what they can communicate to the media than the defense. Be certain to consult the ethical rules of your own jurisdiction regarding contact with the media.
+ Regarding what a lawyer, whether prosecutor or defender, may say to the media, Rule 3.6 of the ABA Model Rules of Professional Conduct says this:
- "Rule 3.6 Trial Publicity: (a) A lawyer who is participating in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the person involved; (2) information contained in the public record; (3) than an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated b the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a)."
+ Regarding what a prosecutor may say to the media, the ABA Model Rules of Professional Conduct, Rules 3.8(e) and (g), 34.2 and 34.3 say this concerning special responsibilities of a prosecutor in releasing information to the media:
- "Rule 3.8 Special Responsibilities of a Prosecutor: The prosecutor in a criminal case shall: ... (e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 [Note: Rule 3.6 is stated above.] (g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
- "Rule 34.2 Bars on Information: The prosecutor should not release certain types of information and should be aware of the dangers of prejudice in making pretrial disclosure of the following: (a) Statements as to the character or reputation of an accused person or a prospective witness; (b) Admissions, confessions or the contents of a statement or alibi attributable to an accused person; (c) The performance or results of tests or the refusal of the accused to take a test; (d) Statements concerning the credibility or anticipated testimony of prospective witnesses; (e) The possibility of a plea of guilty to the offense charged or to a lesser offense or other disposition; and (f) Opinions concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial."
- "Rule 34.3 Public Responses: Standards 34.1 and 34.2 do not preclude the prosecutor from making reasonable and fair responses to comments of defense counsel or others."
+ Regarding the prosecutor's duty to bring the police up to speed on the law of fair trial and free press and to encourage the police to protect the rights of the accused, the ABA Model Rules of Professional Conduct says the following in Rule 35.1
- "Rule 35.1 Law Enforcement Policy on Information: The prosecutor should inform local law enforcement agencies of the state, court, constitutional and case law provisions, as well as professional codes and standards regarding fair trial / free press issues, and should encourage them to adopt policies which will protect the rights of the individual and the ability of the prosecution to proceed."
NATIONAL PROSECUTION STANDARDS
+ The National District Attorneys Association's National Prosecution Standards says this about fair trial and prosecutorial comments to the media:
PROTECTION OF RIGHTS OF ACCUSED AND PUBLIC
- "33.1 Balancing Interests: The prosecutor should strive to protect both the rights of the individual accused of a crime and the right of the public to know in criminal cases."
- "33.2 Media Relations: The prosecutor should seek to maintain a relationship to the media that will facilitate the appropriate flow of information necessary to educate the public."
LIMITATIONS ON MEDIA COMMENTS - THE PROSECUTOR
- "34.1 Limits on Information: Prior to and during a criminal trial, the prosecutor should limit comments on pending matters to: (a) The accused's name, age, residence, employment, marital status, and citizenship; (b) The substance or text of the charge such as a complaint, indictment, information, and, where appropriate, the identity of the complainant; (c) The identity of the investigating and arresting agency and the length of the investigation; (d) The circumstances immediately surrounding the arrest, including the time and place of arrest, residence, pursuit, possession and use of weapons, and a description of items seized at the time of arrest or pursuant to a search warrant; and (e) Matters which are of public record, or disclosure of which would serve the public interest."
Civil Liability for Ineffective Assistance - Malpractice
When I last checked, malpractice insurance for lawyers was required only by the state of Oregon. Alaska, California, New Hampshire, New Mexico, Ohio, Pennsylvania and South Dakota require lawyers to reveal to clients whether they carry malpractice insurance. (1)(2) Arizona, Colorado, Delaware, Hawaii, Idaho, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, North Carolina, North Dakota, Rhode Island, Virginia, Washington, and West Virginia mandate that lawyers disclose on their annual registration whether they have malpractice insurance. Some states do not require attorneys to have legal malpractice insurance or notify their clients if they are uninsured. As of 2010, Texas (my home state) was considering a notice requirement to new clients. Malpractice insurance is not cheap. Most lawyers need malpractice insurance. However, criminal defense is not a high-risk field of practice for insurance carriers. See Heck v. Humphrey, 512 U.S. 477 (1994). See Cort Thomas, Criminal Malpractice: Avoiding the Chutes and Using the Ladders, 37 Am. J. Crim L. 331 (2009-2010) indicating that most jurisdictions require that a criminal malpractice plaintiff prove either legal innocence, factual innocence or both before s/he may bring a criminal malpractice claim. See also Kevin Bannardo, A Defense Bar: The "Proof of Innocence" Requirement in Criminal Malpractice Claims, 5 Ohio St. J. Crim. L. 341 (2007). Burnout Due to Stress - Rekindling the Inner Spirit
Today is the tomorrow I was so worried about yesterday.
What do you do when the inner fire goes out? Workplace burnout due to stress - it can have catastrophic consequences on the organization, productivity, and performance of you and your office support staff. Individuals under stress make suboptimal decisions. What causes us to loose our passion for the job? (1 - articles on achieving balance between professional and private life) How do we avoid burnout due to stress? How do we recover from it if it happens? You'll find some stress management techniques at this site, a few words of inspiration and motivation at this site and some tips on meditation at this one. If you are lethargic to the point of possible clinical depression, check out lawyers with depression and these articles (1 - Depression), (2- Mental health), (3 - site for TX lawyers and law students who suffer from mental problems or substance addiction). The JDBlissBlog provides advice on how to achieve career satisfaction and strike a fruitful balance between work and private life. [To get a bit of perspective on life, I like to visit this site for a 30 second reminder.] [Happiness boosters] [What other lawyers think about their lives - Pulse of the Legl Profession] [The Australian take on Why Lawyers Are Unhappy] Take care of yourself. Develop a healthy balanced lifestyle. Say "No" to activities that will overwhelm you. Quit smoking (1) and/or partaking of recreational drugs. We all know that proper diet and exercise are key components to a healthy physical existence. We can release tension with exercise, but we have to set aside time. Regular breaks from the daily grind help reduce stress. Get away from daily stresses with group sports, social events, and hobbies. Prayer (1 - Jesuit prayer site) can be helpful to some people, as can meditation (1) (2), e.g., for simple mediation, get comfortable, and close your eyes; breathe deeply and regularly; let your mind wander; imagine that you are somewhere pleasant, like a beautiful green meadow; and use all your senses (touch, taste, smell, hearing, sight) to imagine the scene. Visualization (1) can also be used to positively affect mood, e.g., picture some action that makes you feel happy, relaxed, or confident and concentrate on it. Make time for the spiritual part of life. If you don't embrace the idea of a personal savior who's keeping an eye on you and moving you up from coach to first-class if you're good, worship the universe. (1) We didn't know it existed until 400 years ago when Galileo looked up at the heavens with his tiny 8X telescope. And now we know it contains over a hundred billion galaxies, each with hundreds of billions of stars like our tiny sun. Smooth out on Carl Sagan (1- The Pale Blue Dot) and Stephen Hawking (1). Music (Email CCJA and we'll send you a link and password to an indexed collection of several hundred great songs on YouTube.) helps most people relax and feel good. (I listen to music on my computer while working on this web site simply by dialing into Pandora; leave it playing on one Windows tab while you work on another.) Humor does good things to the spirit. Don't they say, "Laughter is the best medicine." Work to resolve conflicts with other people. Ask for help from friends, family or professionals. Set realistic goals at home and at work. Try to look at change as a positive challenge, not a threat. Prepare to the best of your ability for events you know may be stressful, e.g., the contest of trial.
A few facts about prevalent mental illnesses:
- Depression - Many millions of people of all ages, backgrounds and nationalities suffer from depression. (1) Up to 20% of people experience symptoms of depression. Symptoms (1) of depression in adults include sadness, feelings of hopelessness and worthlessness, and difficulty in concentrating; other symptoms include loss of energy, aches and pains, a change in appetite with weight loss or gain, loss of enjoyment from things that were once pleasurable, insomnia or excessive sleep, decreased sex drive, and thoughts of death or suicide. The average age of the first onset of major depression is 25-29 Twice as many women suffer depression as men each year. The risk of depression grows for women after menopause. Men are less likely to pursue testing or treatment for depression, perhaps accounting for the fact that depressed men are four times more likely to commit suicide than women. Antidepressants allow one to cope by treating the symptoms but do not cure the root cause.
- Bipolar Disorder (also known as Manic Depression ) - This illness is characterized by alternating periods of mania (extreme optimism, hoigh energy) and depression ( pessimism, angry outbursts); more than 25% of manic depressives attempt suicide; manic depression can be treated with medication, e.g., lithium, or lifestyle changes. (1)
- Seasonal Affective Disorder (SAD) - Most victims of this illness suffer SAD in the winter, when sunlight is scarce and serotonin levels in the body drop.For winter sufferers, exposure to bright light is helpful.
I hope that every reader lives to see his grandchildren's children graduate from medical school. But each of us knows that death will eventually overtake us, no matter what we are doing. Sometimes its preceded by debilitating disease or some other incapacitating event. One question for the mature advocate to ask: What do I want to be doing when Father Time knocks on my door? If you have anything better to be doing when the end comes, consider getting to work on that.
Theologian Reinhold Niebuhr's "Serenity Prayer is popular among some: [God] grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.
And remember what Gilbert K. Chesterton said, "Angels can fly because they take themselves lightly."
Other Resources re Ethics in Prosecution and Defense
+ Prosecutors who register can consult the useful part of this web site: National Center for Prosecution Ethics. Unfortunately, the prosecutors don't want the rest of us to know what they consider ethical conduct. Even a former federal and state prosecutor (moi) can't get past the gates. + This is an excellent bibliography on the subject of legal ethics. + For finding your state's rules of ethics, even better than the Cornell bibliography of legal ethics resources is Cornell's Legal Ethics Library, where you can access your state's ethical rules, codes, and opinions, along with other information such as constraints on judicial conduct. Make a tax-free contribution to Cornell at the end of the year; it is a superb reference site and deserving of lawyer support for the free information it makes available. + Corporate Compliance: The Open Compliance and Ethics Group is dedicated to assisting corporations in avoiding criminality and civil liability by ensuring compliance with existing laws such as Sarbanes-Oxley. + Judicial Ethics: A good trial judge should be disinterested but not uninterested. Here are rules of court for various courts in various jurisdictions. Judges are required to follow their own set of ethical rules. If you encounter a renegade judge, it is wise to be familiar with your state's code of judicial conduct. Here's a useful site regarding ethics for judges. . + This is a good legal ethics web site with a feature that allows you to locate legal ethics resources in all states. + Take advantage of the opportunity to download a copy of this 166 page book covering the practice of law; it includes suggestions for dealing with ethical dilemmas; pay particular attention to Chapter Two, page 16 et seq. + Read a federal judge's take on Ethics and Professionalism and Louis D. Brandeis' The Opportunity in the Law. Here's a brief discussion of the Ethics of Trial Advocacy from the viewpoint of a practicing Arizona lawyer and a federal public defender's 50 pages of advice on Ethical Problems in Federal Criminal Defense, plus 5-pages re Ethical Issues in Representing Clients in Multi-Defendant Cases. Here's what a criminal justice professor thinks about ethics (1), (2) in the overall system. The Nebraska bar harbors a handy trove of 90+ practical little 2-page articles on the ethical problems faced by practitioners; the principal author is Dennis G. Carlson. Professor Melinkoff's 1973 book, The Conscience of a Lawyer , West ($124, but available for $10 from used book sellers) treats the dilemma of defending those we firmly believe to be culpable and blameworthy. (1) One of the best free articles dealing with the twin issues of why lawyers would want to defend guilty people and why society as a whole would want guilty people to be represented by lawyers is Professor John Kaplan's Defending Guilty People, 7 U. Bridgeport L. Rev. 223 (1986) in which he provides cogent reasons in affirmation of each issue while analogizing defenders to proctologists. See also Etienne, The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers, 95 J. Crim. L. & Criminology 101 (2005); Gershman, Prosecutorial Ethics and Victims' Rights: The Prosecutor's Duty of Neutrality, 9 Lewis & Clark L. Rev. 559 (2005); Bandes, Repression and Denial in Criminal Lawyering, 9 Buff. Crim. L. Rev. 339 (2006). + Some federal cxircuits (1) have published standards of ethical behavior. + As you might expect with the popularity of blawgs, a small cadre is blogging about legal ethics, e.g., (1), (2), (3 - conflicts of interest), ( 4 - Wesley Hall's ethics of defense and prosecution, with a list of current cases, is one of the best for lawyers involved in criminal cases).
+ Those who subscribe to Westlaw can find the publication Criminal Defense Ethics: Law and Liability (2nd Edition) in the criminal law database at the identifier DEFETHICS.
+ Legal malpractice is the subject of this book: Mallen, Ronald and Smith, Jeffrey, Legal Malpractice, West (5th Ed. 2000). Criminal Justice Professor O'Connor's lecture on Legal Ethics is worth a look. + If you are appointed as hybrid or standby counsel to a pro se defendant, be sure to read Standard 4-3.: Obligations of Hybrid and Standby Counsel in the ABA, Standards for Criminal Justice. + These are helpful bibliographies of additional references regarding legal ethics in the context of defense and prosecution: (1 - University of San Francisco), (2 - University of Minnesota), (3 - University of South Carolina), (4 Prosecution - 5 Defense - 6 General - NYSDA), (7 - lexbe), (8- UKy)
+ Ethics in Capital Cases: See Hofstra Law Review, Volume 31, No. 4 (Summer 2003) which is devoted exclusively to death penalty practice and includes articles on: the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; Government's Responsibilities Under the Revised ABA Capital Defense Representation Guidelines; The Professional Obligation to Raise Frivolous Issues in Death Penalty Cases, and Predecessor Counsel's Ethical Duty to the Capital Defendant.
+ Ethics in Criminal Advocacy: See Fordham Law Review, Volume 68, No. 5 (April 2000) a symposium that is devoted to the ethics of criminal practice and includes articles on: The Prosecutor's Duty to Seek Exculpatory Evidence in Police Hands, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, Perjury and False Testimony, The Criminal Defense Lawyer's Fiduciary Duty to Clients with Mental Disability, The Law and Ethics of Shifting the Blame in Criminal Cases, and The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Dispute.
+ The MacCrate Report (2000) Preserving the Core Values of the American Legal Profession - The Place of Multidisciplinary Practice in the Law Governing Lawyers. + Philosopher John Rawl's A Theory of Justice, revised in 1999, a book about political philosophy and ethics, is worthy of a read if you hapeen to be of the intellectual bent. + Quotes About Lawyers: Lawyer jokes (1 ), (2), (3), (4), (5), (6), (7), (8), (9 - links), (10), (11), (12), (13 - links), (14), (15), (16), (17), (18), (19), (20 - bibliography) are endemic to American society. Many are funny ha-ha. But it's the humor about lawyers that is most revealing. Here are a few quotes about lawyers and lawyering that remind us that the lawyer and his/her role in society has been the subject of vilification, invective, and maledicta for many years. We lawyers smile, but is it because some of the expressed thoughts are close to the bone?
- Lawyer: n., One skilled in circumvention of the law. Ambrose Bierce
- Accomplice: n., One associated with another in a crime, having guilty knowledge and complicity, as an attorney who defends a criminal, knowing him to be guilty. This view of the attorney's position in the matter has not hitherto commanded the assent of attorneys, no one having offered them a fee for assenting. Ambrose Bierce
- What chance has the ignorant, uncultivated liar against the educated expert? What chance have I ...against a lawyer. Mark Twain
- Lawyers, stay away from 'em. They have ethics but no morals. Matlock
- The animals are not so stupid as is thought; they have no lawyers. H.L. Mencken
- The minute you read something you cannot understand, you can almost be sure it was drawn up by a lawyer. Will Rogers
- Why is there a secret singing when a lawyer cashes in? Why does a hearse horse snicker hauling a lawyer away? Carl Sandburg - The Lawyers Know Too Much
- Attorneys and rogues are vermin not easily rooted out of rich soil. Horace Walpole
- Doctors are like lawyers only lawyers just rob you, while doctors rob you and murder you as well. Anton Chekhov
- A rich client between two lawyers is like a fish between two cats. H. L. Mencken
- Most lawyers, I suppose, were children once. Charles Lamb
- Dice: n., small polka-dotted cubes of ivory, constructed like a lawyer to lie on any side, but commonly on the wrong one. Ambrose Bierce
- He saw a lawyer killing a viper on a dunghill, hard by his own stable, and the devil smiled, for it put him in mind of Cain and his brother Abel. Samuel Taylor Coleridge - The Devil's Thoughts
- Stay away from lawyers. They have ethics, no morals. Andy Griffith as "Matlock" - TV Series
- There's no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth. Unknown
- If you can look reality straight in the eye and deny its existence, you'll be a very effective criminal defense lawyer. Unknown
- Ambulance chasers? No, those guys from Swindle, Wheedle and Finagle aren't ambulance chasers. They're usually at the scene handing out business cards before the ambulance arrives. Unknown
- In the beginning God said,"Let there be Satan so the people don't blame everything on me. And let there be lawyers, so people don't blame everything on Satan." Unknown
- Some people are heterosexual, some are homosexual, some are bisexual, and some don't think about sex at all. They become lawyers. Unknown.
- The devil makes his Christmas pies out of lawyers' tongues. Unknown
- You may as well try to open an oyster without a knife as a lawyer's mouth without a fee. Unknown.
- Excuse me but I don't consider myself as a lawyer. I became a law professor when I learned that I couldn't talk without thinking. Unknown
- Pray tell, what's the difference between a lawyer and a bucket of dung? Unknown (A: the bucket)
- Two tigers were stalking through the jungles of Asia. Suddenly, the one to the rear reached out with his tongue, and licked the posterior of the tiger in front of him. The startled front tiger turned and said, "Cut it out." The rear tiger apologized.They continued onward. About five minutes later, it happened again. The front tiger turned, growling, "I said stop it." The rear tiger again apologized, and they continued onward. Another five minutes passed, and again the front tiger felt the unwanted tongue. The front tiger turned, giving the rear tiger a ferocious glare and angrily hissing, "What is it with you?" The rear tiger replied, "I'm sorry - I really didn't mean to offend you. But I ate a lawyer this morning, and I'm still trying to get the taste out of my mouth"
- A lawyer parked at the side of the road, and opened the door of his BMW. Suddenly, a speeding car appeared from nowhere, hitting the door and ripping it off of his car. The lawyer was outraged. When the police arrived at the scene, the lawyer whined, "Officer, look what that person did to my Beemer! You have to find him and arrest him!" "You lawyers are so materialistic, you make me sick," the officer snapped. "You're so upset about your stupid BMW, that you didn't even notice that your left arm was ripped off in the accident." "Oh my God....," gasped the lawyer, finally noticing the bloody stump where his arm had been. "My Rolex!"
- NEW REGULATIONS FOR THE HUNTING OF LAWERS
US Government Department of Fish and "WildLife"Sec. 1200
1. Any person with a valid hunting license may harvest attorneys.
2. Taking of attorneys with traps or deadfalls is permitted. The use of currency as bait is prohibited.
3. Killing of attorneys with a vehicle is prohibited. If accidentally struck, remove dead attorney
to roadside and proceed to nearest car wash.
4. It is unlawful to chase, herd, or harvest attorneys from a snow machine, helicopter, or aircraft.
5. It shall be unlawful to shout "whiplash", "ambulance", or "free Perrier" for the purpose of trapping attorneys.
6. It shall be unlawful to hunt attorneys within 100 yards of BMW dealerships.
7. It shall be unlawful to hunt attorneys within 200 yards of courtrooms, law libraries, whorehouses,
outhouses, health spas, gay bars, ambulances, or hospitals.
8. If an attorney is elected to government office, it shall be a felony to hunt, entrap, or possess it.
9. Stuffed or mounted attorneys must have a state health department inspection for rabies and vermin.
10. It shall be illegal for a hunter to disguise himself as a drug dealer, pimp, female legal clerk,
sheep, accident victim, bookie, or tax accountant for the purpose of hunting attorneys.
- The first thing we do, let's kill all the lawyers. [Note: This famous quote from Dick the Butcher, a rapist character in Shakespeare's Henry VI, Part 2, Act IV, Scene II, (1) is actually the Bard's tribute to the lawyers' importance in maintaining the rule of law in society - a role that prevents life from being chaotic. Shakespeare did not intend his words as an Elizabethan lawyer joke. Instead it's a statement of the villainous prerequisite for the imposition of tyranny. In the context of the play, Henry VI , anarchy and vicious street violence serve the purpose of Jack Cade, Dick the Butcher's mentor. Jack Cade was plotting anarchy and firing up his followers, including Dick.The rule of law would put a stopper on Cade's rebellion. And to squelch the law you get rid of those who protect it - judges, juries and, most importantly, lawyers. Cade wants all the power. He wants the people to worship him, and he also wants to punish all those who are able to read and hang anyone who is able to write his own name. So when Shakespeare has the villain Dick say "Let's kill all the lawyers," he's backing the rule of law over the rule of man. This quote is a tribute to the legal profession as a guardian of civilized society. (1 - an anti-tort reform speech by prominent plaintiff's lawyer Howard Nations amplifying this theme and carrying it forward) Does it remind you a bit of this line from the 1939 movie Jesse James: "If there is ever to be law and order in the West, the first thing we've got to do is take all lawyers out and shoot 'em down like dogs."?
May we all have happy days, saisfied minds, and little or no lower back pain.