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					     ISLANDS IN THE SUN

(Surviving in Dangerous Ethical Waters)




               Chris Townley
               Townley & Lindsay, LLC
               P. O. Box 278
               Rossville, GA 30741
               (706) 861-6003
                                  ISLANDS IN THE SUN

                           (Surviving in Dangerous Ethical Waters)

                                          INDEX

Competence

       (a) Too many cases………………………………………………………….4

Scope of Representation

       (a) No chance at trial………………………………………………………...4

       (b) Client insists on testifying……………………………………………….4

       (c) Waiving a jury trial………………………………………………………4

       (d) Protecting a third party…………………………………………………..4

       (e) Questions about ongoing criminal activity……………………………….5

Communication

       (a) Ridiculous plea offers……………………………………………………5

       (b) Orders prohibiting disclosure to the client……………………………….5

Confidentiality

       (a) Serious physical threats………………………………………………….6

       (b) Revelation of plan to steal……………………………………………….6

       (c) Client is a fugitive………………………………………………………..6

Conflict of Interest

       (a) Cross-examining former client…………………………………………...7

       (b) Wavier by former client…………………………………………………..7

Imputed Disqualification

       (a) Two public defenders representing co-defendants………………………..7

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Terminating Representation

       (a) Returning the file………………………………………………………….8

Meretorious Contentions

       (a) Case authority directly in opposition………………………………………8

       (b) Motions for harassment…………………………………………………...8

Trial Publicity

       (a) Talking to the media……………………………………………………….8

Truthfulness in Statements to Others

       (a) Correcting witness’ misunderstandings……………………………………9

Dealing with Unrepresented Persons

       (a) Giving advice………………………………………………………………9

Misconduct

       (a) False subpoenas……………………………………………………………9




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                                     COMPETENCE – RULE 1.1

          I have too many cases and not enough time. This job is impossible. What can I do

short of quitting?

          Competency requires thoroughness and preparation. Rule 1.1 – Comment [5] and Rule

1.3 – Comment [1].

          Seek to withdraw to the extent necessary to bring the workload down to a manageable

level while trying to limit prejudice to your clients. If permission is refused by the Court,

continue with the representation as best you can. A.B.A. Formal Opinion #06-441. Rule 6.2

                      SCOPE OF REPRESENTATION – RULE 1.2

          (a) My client is insisting on going to trial, we have no prayer to win, and the Judge

is going to punish him harder. Do I have to try this case and look like an idiot?

          You must abide by the client’s decision. Rule 1.2(a).

          (b) The case is going great, the jury loves me, and the only way I can lose is if my

client testifies. Of course, he wants to testify because he thinks he is smarter than I am.

          It is the client’s case. He decides. Rule 1.2(a).

          (c) The Judge smiled. My client is now convinced the Judge likes her. I tell my

client that the Judge is smiling only because he is thinking of the pleasure of giving her the

maximum sentence. Since a lawyer assumes responsibility for technical and legal tactical

issues, do I have to abide my client’s foolishness and waive a jury trial?

          Whether to have a jury trial is a fundamental decision that belongs to the client. Rule

1.2(a).

          (d) The meth. really belonged to my client’s girlfriend who is the co-defendant. She

is going to testify and claim the drugs were not hers. My client wants to win at trial, but he

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loves his girlfriend “more than the moon and the stars in the sky.” Even after you explain

that she will throw him under the bus to save herself, my client insists that I not argue that

the meth. was hers and that I not even cross-examine her. Do I have to follow his

instructions?

       An attorney should defer to the client regarding concern for third persons who might be

adversely affected. Rule 1.2 – Comment [1].

       (e) My client was arrested for felony marijuana. Nevertheless, he needs money and

is continuing his marijuana grow in his basement. He asked me about the legal

consequences if he gets caught. He also wants to know what the police check when they are

suspicious of marijuana being grown in a house. Can I answer his questions?

       A lawyer is required to give an honest opinion about the actual consequences that appear

likely from a client’s conduct. However, a lawyer can not knowingly assist by recommending

the means by which a crime might be committed. Rule 1.2 – Comments [6] and [7].

                                   COMMUNICATION – RULE 1.4

       (a) The District Attorney made a ridiculous plea offer. Do I have to waste my time

going to see the client in jail?

       A lawyer should promptly inform the client of a plea offer unless the client has already

made it clear that the proposal will be unacceptable. Even then, the lawyer should keep the

client advised as to the status of the case. Rule 1.4 – Comment [1A].

       (b) The Judge required the District Attorney to give me the witnesses’ home

addresses but ordered me not to provide the addresses to anyone else. My client is

outraged and insists that he is entitled to know where they live because he will have a better

idea how they are connected. I think my client is right and his knowledge could help my

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preparation. Since I have an obligation of communication to my client, may I give him the

information?

       Rule 3.4(c) overrides and the attorney must comply with the orders that prohibit

disclosure of information to the client.

                                CONFIDENTIALITY – RULE 1.6

       (a) Even though we just won a jury trial, my client is furious. My client says that

before the sun sets, he is going to get a gun, go to the District Attorney’s house who tried to

send him to prison, and kill the liar. He is serious. What do I do?

       A lawyer may reveal information which he reasonably believes is necessary to prevent

serious injury or death. Rule 1.6(b)

       (b) I am representing the client on a huge mortgage fraud scheme. The client has

the biggest deal still in process. Closing is next week. Since the client knows punishment is

coming in his other cases, the client decided one more scam will not make much difference

and he could have a big stash of money when he gets out of prison. Will I get in trouble if I

stop the fraud?

       A lawyer may reveal information to prevent substantial financial loss through criminal

conduct clearly in violation of the law if the loss has not yet occurred. Rule 1.6(b)

       (c) My client previously skipped bond and a bench warrant is outstanding. The

client showed up today in my office and wants me to work out a plea. The client told me

where he was living but refuses to turn himself in to the jail. What should I do?

       The attorney has no ethical duty to inform the authorities of the client’s whereabouts.

However, as an officer of the Court, the attorney should advise the client to surrender. If the



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client refuses, the attorney should move to withdraw to avoid assisting the client in criminal

conduct. Advisory Opinion No. 17.

                            CONFLICT OF INTEREST – RULE 1.9

       (a) I successfully represented a client a couple of years ago. I received the State’s

witness list on another case and my old client is listed. Can I cross-examine the old client?

       A lawyer can cross-examine the old client and use generally known information.

However, a lawyer can not use information acquired in the course of the lawyer – client

relationship to the client’s disadvantage. In such a situation, the lawyer should withdraw from

the current case. Rule 1.9 – Comment [11]

       (b) My old client is testifying for the State. However, my old client really wants to

help me out and is willing for me to use confidential information against him. Do I still

need to withdraw?

       The attorney can acquire a waiver from the old client only after full disclosure. Rule 1.9

[12]

                        IMPUTED DISQUALIFICATION – RULE 1.10

       Can public defenders in the same office represent co-defendants with antagonistic

defenses?

       Stay tuned. A Formal Advisory Opinion has received first publication. Modifications

are expected before finalization.

       If you are going to participate in dual representation, you need to be in a completely

separate physical location with separate secretaries and investigators. Files and computer files

on the client must be completely inaccessible to your co-counsel. In other words, you should act

like outside counsel is defending the co-defendant.

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            DECLINING OR TERMINATING REPRESENTATION – RULE 1.16

       My old client has requested the file for post-conviction relief. Because of the budget

crunch, we really don’t have the money to copy all of the files requested by the client. This

client’s file fills three banker boxes. What do I do?

       The file belongs to the client. The client is entitled to the file and can not be charged for

copying. If the attorney wants to keep a copy, the copy is for the attorney’s purposes and is at

the attorney’s expense. Rule 1.16(d); Formal Advisory Opinion No. 93-4; Formal Advisory

Opinion No. 87-5

                        MERETORIOUS CONTENTIONS – RULE 3.1

       (a) My client wants me to file a motion to suppress. A Supreme Court case is

directly against me. What do I do?

       Normally, the attorney should file the motion, argue the case, and point out the directly

adverse authority. Rule 3.3 [3] recognizes that an attorney may argue a motion in the face of

adverse authority. Rule 3.1 – Comments [1] and [2] acknowledge that the law is fluid and can

change.

       (b) My client wants me to file a motion and subpoena witnesses just to make the

witnesses miss more work and pay to prosecute him. Even though the motion will not

advance my client’s legal case, can I file the motion to keep the client off my back?

       If the motion is primarily for harassing another, the action is frivolous and should not be

filed. Rule 3.1 – Comment [2]

                                TRIAL PUBLICITY – RULE 3.6

       The news media wants to know my client’s side of the case. Should I talk to the

media?

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       A lawyer can talk to the media to protect the client from the substantial undue prejudicial

effect of recent publicity initiated by someone else. Rule 3.6(c). However, if the purpose of

talking to the media is to promote the lawyer to the detriment of the client, a conflict of interest

arises. Rule 1.7(a). Some clients want to fight back in the press. Others want as little press as

possible. Respect your client’s choice.

                TRUTHFULNESS IN STATEMENTS TO OTHERS – RULE 4.1

       You finish an interview with the key State’s witness who says, “See you in court on

February 11.” Trial is actually set for February 4. Are you required to notify the witness

of the correct date?

       An attorney has to be truthful. Rule 4.1. An attorney has no affirmative duty to provide

information and can remain silent. However, the attorney cannot use any deceit to steer the

witness towards the wrong date. Rule 8.4 (a)(4)

                 DEALING WITH UNREPRESENTED PERSONS – RULE 4.3

       The State’s star witness tells you that the witness does not want to go to court and

would go to Texas if she would not get in trouble. As you talk, you realize that the witness

subpoena has not been properly served. Should you tell her the subpoena is invalid?

       An attorney can not give advice to an unrepresented person. However, you can

encourage the witness to secure other counsel to give advice on the issue.

                                   MISCONDUCT – RULE 8.4

       I need to get some records. Can I issue a subpoena for the production of documents

at my office so that I can review them and decide if they might help at trial?




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       A subpoena is issued in the name of the court by the clerk when attendance is required in

court. A subpoena should only be issued to actual hearings and trials and not as a means to

acquire documents when no hearing or trial is set. Rule 8.4(a)(4). Advisory Opinion No. 40.




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