Ethical Justice

1
Ethical Justice

• Chapter Ten Ethical Issues for Criminal Defense
  Attorneys

2
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.

3
The Right to Counsel

• Criminal defendants have a constitutionally
  guaranteed right to legal representation.
• This is guaranteed by the 6th 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.

4
The Right to Counsel

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

5
The Right to Counsel

• Appointed counsel
• Private defense attorneys appointed by the court
  to represent indigent defendants, often at a
  fixed or hourly rate.
• Private attorneys
• Represent those criminal defendants who can
  afford to pay for their own attorney, and dont
  qualify as indigent. This involves a contract for
  a flat fee or an hourly rate.

6
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.

7
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 defendants 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.

8
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
  prosecutors office
• Representation of one co-defendant against the
  interests of another

9
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.

10
Ethical Issues with Clients

• The attorney-client privilege is a legal
  entitlement intended to facilitate truthful
  communication and fully informed advocacy by a
  defendants 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.

11
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.

12
Pre-Trial Ethical Issues

• Pre-trial ethical issues include the following
• Reading the case file
• Competence and qualifications
• Resources and caseload and
• Plea deals

13
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.