Ethical Justice Chapter Ten: Ethical Issues for Criminal Defense Attorneys

Ethical Issues for Criminal Defense Attorneys  This chapter considers the major ethical issues and question peculiar to criminal defense attorneys as they represent their clients.  The following ethical issues are considered:  The right to counsel;  The presumption of innocence; and  Ethical issues that occur prior to and during trial.

The Right to Counsel  Criminal defendants have a constitutionally guaranteed right to legal representation.  This is guaranteed by the 6 th Amendment to the United States Constitution.  When a criminal defendant cannot afford a legal representative, the state must provide one for them to ensure that they are receiving impartial legal advice.  Criminal defense attorneys must be capable of, and willing to, represent anyone accused of a crime.

The Right to Counsel  There are four primary types of criminal defense attorneys in the United States: 1.Legal aid attorneys  Those who volunteer to represent or assist indigent criminal defendants, usually part of a non-profit organization. 2.Public defenders  Attorneys funded by the county, state, or federal government to provide representation to indigent defendants, as required by the U.S. Constitution.

The Right to Counsel 3.Appointed counsel  Private defense attorneys appointed by the court to represent indigent defendants, often at a fixed or hourly rate. 4.Private attorneys  Represent those criminal defendants who can afford to pay for their own attorney, and don’t qualify as indigent. This involves a contract for a flat fee or an hourly rate.

The Right to Counsel  Regardless of their employment situation, the criminal defense attorney serves as an advocate for the criminal defendant. They must:  Shepherd the defendant through the legal process;  Inform them of their rights and scrupulously protect them;  And represent their will in the courtroom.

The Presumption of Innocence  A fundamental virtue of the criminal justice system in the United States is that all criminal defendants are presumed innocent. The presumption of innocence places the burden of proving criminal guilt entirely on the government.  The state must prove a defendant’s guilt beyond a reasonable doubt  The defense has a lower evidentiary threshold and must only provide the existence of a reasonable doubt to obtain an acquittal.

Ethical Issues with Clients  Avoiding Conflicts of Interest  A conflict of interest occurs when a person or an agency has competing or incongruent loyalties, because of their need to satisfy multiple roles, duties, or obligations. Examples include:  Situations in which the defense attorney has important knowledge relating to the facts and evidence underlying the charges against their client, and is going to be called as a witness  When the defense attorney is implicated in criminal activity, either in relation to the charges against the client or by the same prosecutor’s office  Representation of one co-defendant against the interests of another

Ethical Issues with Clients  Confidentiality and the Attorney-Client Privilege  The principle of confidentiality is a fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.

Ethical Issues with Clients  The attorney-client privilege is a legal entitlement intended to facilitate truthful communication and fully informed advocacy by a defendant’s legal advisors.  The privilege extends to work-product – notes, observations, thoughts or research produced by the attorney, and such material is protected from discovery processes.  If the client provides their attorney with physical evidence, or information regarding how to find or retrieve it, that communication is protected under the privilege.  If the client asks the attorney to put them on the stand and makes it clear that they intend to lie, the attorney has an obligation to prevent it.

Ethical Issues with Clients  Improper Sexual Relations and “Couch Fees”  Unless the attorney has a prior sexual relationship with an individual, it is generally considered unethical to initiate or otherwise engage in a sexual relationship with a client.  This prohibits a couch fee – a lawyer cannot solicit or accept sexual relations as payment of fees or condition the representation of a client or prospective client or the quality of such representation on the client having sex with the lawyer.

Pre-Trial Ethical Issues  Pre-trial ethical issues include the following:  Reading the case file;  Competence and qualifications;  Resources and caseload; and  Plea deals

Ethical Issues at Trial  In the courtroom, criminal defense attorneys have an obligation to conduct themselves in professional and honorable fashion. This includes avoiding misconduct.  The ethical defense attorney also has an obligation to avoid ineffective assistance of counsel – referring to conduct that undermines the proper functioning of the adversarial process to the extent that the trial cannot be relied on as having produced a just result.  Ineffective assistance of counsel can result in reversible error – an error that is so harmful to justice that it requires some or all of the elements of a conviction to be overturned; these reversals are submitted for reconsideration by the court, if not retrial.