Tony Gallagher Federal Defender 1.

Tony Gallagher Federal Defender 1

Professional Ethics for the Criminal Justice Act Lawyer

We are presented with examples of ethical dilemmas every day
Through this presentation, I would like to raise some ethical issues for discussion through film clips, cartoons and interactive discussion We will discuss several issues that come up in every criminal defense lawyer’s experience Volunteers and willing participants will be appreciated

Notes about this presentation
The Ethics Rules discussed during this talk are from: The ABA Code and Model Rules of Professional Responsibility and The North Carolina State Bar Rules of Professional Conduct (Title 27 of the North Carolina Administrative Code)

Notes about this presentation
Film clips and cartoons are used for educational purposes under the ‘fair use’ exception to the copyright laws of the United States, and are not displayed for any other reason.

Duties of Appointed Counsel
Professional Conduct. Attorneys appointed pursuant to the CJA shall conform to the highest standards of professional conduct, including but not limited to the provisions of the North Carolina State Bar Rules of Professional Conduct and the American Bar Association's Model Rules of Professional Conduct.

Duties of Appointed Counsel
Such attorneys shall also conform to the highest standards of the bar of all other states, districts or territories of which they may be members. from the CJA Plan for the EDNC

Oh, what the hell, I’ll just add another zero

CJA Representation One month after appointment your client comes to you and tells you he lied on the affidavit, i.e., that in fact he did and does have assets not listed on the affidavit, and he wants to give you some money because you’re doing such a good job on his case. Should you tell the Court?

CJA Representation Should you indicate to the Court that the defendant may now be able to pay, in whole or in part?

CJA Representation Immediately prior to trial you learn from the defendant’s sister that he has a savings account with $10,000 in it. Should you inform the Court?

One more thing What recourse do you have if you are subpoenaed by a federal Grand Jury regarding your client’s financial status?

CJA Plan for EDNC D. Eligibility for Representation.
1. Fact-finding. The determination of eligibility for representation under the CJA is a judicial function to be performed by a federal judge or magistrate judge after making appropriate inquiries concerning the person's financial condition.

CJA Plan for EDNC 2. Disclosure of Change in Eligibility. If, at any time after appointment, counsel obtains information that a client is financially able to make payment, in whole or in part, for legal or other services in connection with his or her representation, and the source of the attorney's information is not protected as a privileged communication, counsel shall advise the court.

“Is it fair? Is it true? Get a grip, Carlton. We’re a law firm!”

Liar, Liar Despite the view of an ethical colleague, Jim Carey demonstrates an interesting way that the client’s interests can be presented to the trial court

Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

“Remember when I said I was going to be honest with you
“Remember when I said I was going to be honest with you? That was a big fat lie.”

What do you do if your client changes her story and tells you that she will testify differently than you thought she would?

Does a lawyer “know” that a client is going to commit perjury?
an attorney must use extreme caution in deciding that a client intends to commit perjury nothing but a clear expression of intent to commit perjury should trigger action by counsel knowledge exists only when the client acknowledges the perjury to the attorney

When should the lawyer act?
only upon information which the attorney reasonably knows to be a fact and when combined with other facts in his knowledge would clearly establish the existence of a fraud on the tribunal

Federal Court: Judgment Call?
whether you “know” that your client planned to give false testimony is subject to a highly deferential review in the federal courts standard applied is Strickland v. Washington, 466 U.S. 688 (1984)

A Judgment Call? Nix v. Whiteside
A lawyer’s certainty that a change in his client’s recollection is a harbinger of intended perjury – as well as judicial review of such apparent certainty – should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls), details that he previously overlooked.

Various Approaches the narrative
try to dissuade the client, then threaten and/or attempt to withdraw refrain from calling the client limit examination to subjects about which the client will be truthful the NACDL approach

The North Carolina view: Comment to Rule 3.3
The general rule that an advocate must reveal the existence of perjury with respect to a material fact—even that of a client—applies to defense counsel in criminal cases, as well as in other instances.

However, the definition of the lawyer’s ethical duty in such a situation may be qualified by constitutional provisions for due process and the right to counsel in criminal cases.

These provisions have been construed to require that counsel present an accused as a witness if the accused wishes to testify, even if counsel knows the testimony will be false. The obligation of the advocate under these Rules is subordinate to such a constitutional requirement.

The North Carolina View
If you rely upon “actual knowledge” or “proof beyond a reasonable doubt” before you decide you “know” a client intends to commit perjury, you probably have not violated North Carolina Rule 3.3

CONSUMER WARNING: The NACDL clearly warns that no ethics opinion can guarantee a “safe harbor in difficult cases”. In close cases lawyers should proceed carefully, with full knowledge of the applicable ethical rules, and ideally with the advice of counsel

“I thought it was legal --- I wrote it on a legal pad.”

Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, except as stated in paragraph (b).

(b) A lawyer may reveal (emphasis added) such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) 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 respond to allegations in any proceeding concerning the lawyer's representation of the client.

Rule 1.2 Scope of Representation
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.2 Scope of Representation
(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

The Firm What if your client is a little shady . . .
Let’s see how Tom Cruise handles the situation

Practice Pointers Don’t do it alone Make a record of everything
Whatever happens, remember that your client may be the first to raise the question in a post-conviction proceeding

I have to say . . . I’m not a big fan of cloud computing!

A 21st Century ethical problem
Metadata is data about data. It describes how, when, and by whom a document was created. Distributing documents containing metadata may violate Rule 1.6 if it violates a client’s confidentiality.

ABA Ethics Opinion (August 5, 2006) states that "The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party."

The North Carolina View
Comment 17 and 18, Rule 1.6 – A lawyer must act competently to safeguard information acquired during the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.

Ethical duty re: Metadata
An attorney has an ethical duty to exercise reasonable care when transmitting electronic documents to ensure that he or she does not disclose his or her client’s secrets and confidences

Just as a sending lawyer has an ethical obligation to reasonably protect the confidences of a client, the receiving lawyer also has an ethical obligation to refrain from mining an electronic document

The unauthorized mining of metadata by an attorney to uncover confidential information would be a violation of the Rules of Professional Conduct.

far in preparing his witness?
The Verdict Does James Mason go too far in preparing his witness?

Competence and Claims Rule 1.1 requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation Rule 3.1 demands good faith argument. In a criminal case, the lawyer may defend in such a manner as to require that every element of the case be established

Rule 3.3 Candor Toward the Tribunal
[a lawyer shall not] (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

“I’ve arranged your options according to their legality.”

Three Rules Rule 4.1 Truthfulness in Statement to Others.
Rule 1.6 Confidentiality of Information Rule 4.3 Dealing With Unrepresented Person

Dealing with the unrepresented
One hour before trial is scheduled to begin, you learn that one of your witnesses will inculpate herself on the stand. Do you have an obligation to inform the witness of her peril? If it only becomes clear during the witness’ testimony that she is about to inculpate herself, who, if anyone, should act and what should be done?

Rule In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not: (a) give legal advice to the person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client; and

(b) state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Respect Rights Of Third Persons
Rule 4.4 (a) In representing a client, a lawyer shall not use methods of obtaining evidence that violate the legal rights of such a person.

Rule 3.4 Fairness to Opposing Parties and Counsel
A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law

Anatomy of a Murder Jimmy Stewart introduces his new client, Ben Gazzara, to the classic defenses for murder

Communication – Rule 1.4 a) A lawyer shall: . . .
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Explaining Matters The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.

Explaining Matters In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others.

Nuts Richard Dreyfus, Barbara Streisand Ethical and practical lessons?

Client With Diminished Capacity
Rule 1.14: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Does it matter that she’s ‘nuts’?
The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

N.C. Comment to Rule 1.4 Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14.

A Few Good Men What can you do in Opening Statement?
Compare Kevin Bacon’s opening with the opening statement by Tom Cruise Does either lawyer breach any ethical rules?

Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not . . . (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence

Rule 3.4 Fairness to Opposing Party and Counsel
. . . assert personal knowledge of facts in issue except when testifying as a witness or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused

General Rules for Opening Statements
(1) avoid appealing to passion or prejudice (2) do not disparage another party or opposing counsel

(3) do not express personal opinion as to the justness of your cause, the credibility of witnesses or the guilt or innocence of the accused

(4) do not assert personal knowledge of a fact in issue and (5) do not allude to a matter trial counsel does not reasonably believe to be relevant

Its translated from French, so where it says
‘Harvard Business School’ it may mean ‘jail.’

Do you have a duty to correct misleading or false information?

Misleading Information
At the time of sentencing, the prosecuting attorney informs the Court that the defendant has no prior record. If you are aware, based on the client interview, that the Defendant does have a record, must you inform the Court?

Misleading Information
What if the Judge asks you whether your client has a criminal history? If the defendant made the actual misrepresentation about her prior record to the Court, could or should you correct it?

U.S. v. Wade, 388 U.S. 218 Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. 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

So we are off the hook right?
Not so Fast, my friend!

You cannot suborn perjury.
You must be clear with your client at the initial meeting: “I cannot divulge what you tell me but I am not allowed to let you perjure yourself.”

Will the more astute client know how to “play this angle”?
Probably.

Fully explain the options and let them make the decision.
As advocates, it is our place in the system to give them the benefit of the doubt. However, we are not fulfilling our responsibility if we let them contradict a prior recorded statement

Plea Dilemma Repeatedly professes innocence Now wants to take deal

What if your client files a 2255?
In July 2010, the ABA issued a formal opinion addressing the issue of whether a criminal defense attorney may provide confidential information concerning a former client to the prosecution to help establish a defense to the former client’s claim of ineffective assistance of counsel.

Although such a claim ordinarily waives the attorney-client privilege, lawyers should strive to protect information relating to the representation of a client under ABA Model Rule 1.6. Accordingly, lawyers should only make disclosures in a court-supervised setting.

As the opinion acknowledges, the vast majority of claims of ineffective assistance of counsel are dismissed without taking evidence and without a determination regarding the reasonableness of the lawyer’s representation.

The opinion emphasizes the importance of maintaining the confidentiality of client communications and reinforces that attorneys should be reluctant to reveal any client communications in response to an ineffective assistance claim unless there is a court-supervised proceeding or the former client provides informed consent.

What is North Carolina’s view?
North Carolina General Statute number 15A-1415(e) provides that where a defendant alleges ineffective assistance as a ground for the illegality of his conviction or sentence,

. . . the defendant "shall be deemed to waive the attorney-client privilege with respect to both oral or written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness."

Rule 1.6(b)(6) – A lawyer may reveal information protected from to the extent the lawyer reasonably believes necessary to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

Hicks v. United States 2010 WL 5441679 (S.D.W.Va.)
Decided under West Virginia Ethics Rules “the Fourth Circuit is likely to approve only a narrow implied waiver of the attorney-client privilege, combined with the potential availability of a protective order to insure that privileged information is used only for the purpose of litigating the federal habeas corpus claim.”

It’s either one or the other”
“Come on, come on – It’s either one or the other”

Let your conscience be your guide
In the Preamble to the North Carolina Rules, Comment 10 provides, in part “ a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service.”

Ethical customs that are not in the North Carolina Court rules
1. Reputation is everything to a lawyer (and probably as a person). Never sacrifice your personal integrity for the desire to “win at all costs.” You should bring your personal integrity with you to every representation, but you should assure that it is still intact when the representation is over.

2. Never do anything that will not benefit your client. If you do not have a reason to trust someone DON’T.

3. Unless you are comfortable with it on tomorrow’s front page, do not put it in evidence or say it to the witness, the Court, your opponent or the jury -- and especially to the press.

4. Never try to “push the envelope” with potential defense witnesses, prosecution witnesses or your client. Nevertheless, establish from the outset that you will do everything within the bounds of the law and the ethical rules to protect your client’s rights, put the Government to its proof and to establish the ‘rightness’ of your client’s position.

5. As Mark Twain said -- “Always do what is right. This will gratify some people and astonish the rest.”

“This is what happens when ethical standards are artificially set too high.”

If there is time, give Donnie’s story, if not go to last slide
Before we conclude here today, I ask your indulgence to let me share another story – this one a little more personal than the John Adams tale I told earlier this hour. Nearly 30 years ago, I was appointed to represent a young man charged with some pretty serious drug and gun crimes. Though the ultimate result was not exactly as we had hoped, we did achieve some important legal and factual victories along the way. Donnie went to prison – but not for as long as the prosecutors wanted. During the time I represented Donnie, we established a close personal relationship beyond that of attorney/client. Although we came from quite different backgrounds, we discovered we shared a common experience – we had both served in the military in the early seventies. After he went to the penitentiary, Donnie became an accomplished calligrapher, selling beautifully inscribed quotations and poems to supplement his meager prison income. He sent me one of his first works – the rephrasing of an antiauthoritarian saying that was popular among those who served during the Viet Nam conflict. I believe that as the saying has been paraphrased by Donnie, it captures who public defenders are. Its hanging on the wall in my office: We the willing, lead by the knowing, are doing the impossible, for the ungrateful. We have done so much, for so long, with so little, we are now qualified, to anything with nothing. [click to slide #21 – Questions] Questions? 103

Tony Gallagher Federal Defender 1.

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