Professional Ethics for the Criminal Defense Lawyer by jennyyingdi

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									 Tony Gallagher
Federal Defender
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? 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
   nothing but a clear expression of intent to
    commit perjury should trigger action by
   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
         The North Carolina view:
          Comment to Rule 3.3
   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.
        The North Carolina view:
         Comment to Rule 3.3
   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
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
 (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
 except as stated in paragraph (b).
    Rule 1.6 Confidentiality of Information
 (b) A lawyer may reveal (emphasis
  added) such information to the extent
  the lawyer reasonably believes
 (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
    Rule 1.6 Confidentiality of Information

(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’ssee 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

 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 06-442 (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
    Ethical duty re: Metadata
 Justas 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
   Ethical duty re: Metadata

 The unauthorized mining of
 metadata by an attorney to
 uncover confidential
 information would be a
 violation of the Rules of
 Professional Conduct.
         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
   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
   Rule 1.6 Confidentiality of Information
   Rule 4.3 Dealing With Unrepresented
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?
Dealing with the unrepresented
   Rule 4.3 -- 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;
Dealing with the unrepresented
   (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.

 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
  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
 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
         General Rules for
        Opening Statements

 (3)do not express personal
 opinion as to the justness of your
 cause, the credibility of witnesses
 or the guilt or innocence of the
         General Rules for
        Opening Statements
 (4)  do not assert personal
  knowledge of a fact in issue
 (5) do not allude to a matter
  trial counsel does not
  reasonably believe to be
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
 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
    the more astute client know
 Will
 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
          Plea Dilemma

 Repeatedly   professes

 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.
What if your client files a 2255?
   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.
What if your client files a 2255?
   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.
What if your client files a 2255?
   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
    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,
    What is North Carolina’s view?
   . . . 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."
 What is North Carolina’s view?
 Rule 1.6(b)(6) – A lawyer may reveal
  information protected from to the
  extent the lawyer reasonably believes
 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.”
    “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
 Ethical customs that are not in
 the North Carolina Court rules
2. Never do anything that will not
   benefit your client. If you do not
   have a reason to trust someone .
   . . DON’T.
 Ethical customs that are not in
 the North Carolina Court rules
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.
 Ethical customs that are not in
 the North Carolina Court rules
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.
Ethical customs that are not in
the North Carolina Court rules

5. As Mark Twain said --
  “Always do what is right.
  This will gratify some
  people and astonish the
 “This is what happens when ethical
standards are artificially set too high.”

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