Updated: Mar 16, 2019
I am always surprised to see how many people do not properly understand the role of a defense attorney in our criminal justice system. On one extreme are individuals who believe that a defense attorney has no morals and will use every trick in her arsenal to get her guilty client off the hook. On the other extreme are people, including many criminal defendants, who believe that the defense attorneys are part of a corrupt criminal system and work hand-in-hand with the judges, the police, and the prosecutors behind a veil of secrecy to screw the criminal defendants. Having practiced criminal law for almost two decades, both as a prosecutor and a defense attorney, I have yet to see a defense attorney whose behavior would justify such extreme views about defense lawyers. Below are the American Bar Association standards of professional conduct I strive to meet every day, as do the vast majority of the defense attorneys I work with. Of course, there are always outliers (and yes, liars) in every profession. Even a cursory review of these standards will help the reader appreciate the difficult challenges and complex tasks a defense attorney must undertake in her cherished role as the last champion of her client’s freedom. Standard 4-1.2 Functions and Duties of Defense Counsel (a) Defense counsel is essential to the administration of criminal justice. A court properly constituted to hear a criminal case should be viewed as an entity consisting of the court (including judge, jury, and other court personnel), counsel for the prosecution, and counsel for the defense. (b) Defense counsel have the difficult task of serving both as officers of the court and as loyal and zealous advocates for their clients. The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity. (c) Defense counsel should know and abide by the standards of professional conduct as expressed in applicable law and ethical codes and opinions in the applicable jurisdiction. Defense counsel should seek out supervisory advice when available, and defense counsel organizations as well as others should provide ethical guidance when the proper course of conduct seems unclear. Defense counsel who disagrees with a governing ethical rule should seek its change if appropriate, and directly challenge it if necessary, but should comply with it unless relieved by court order. (d) Defense counsel is the client’s professional representative, not the client’s alter-ego. Defense counsel should act zealously within the bounds of the law and standards on behalf of their clients, but have no duty to, and may not, execute any directive of the client which violates the law or such standards. In representing a client, defense counsel may engage in a good faith challenge to the validity of such laws or standards if done openly. (e) Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, counsel should stimulate and support efforts for remedial action. Defense counsel should provide services to the community, including involvement in public service and Bar activities, public education, community service activities, and Bar leadership positions. A public defense organization should support such activities, and the office’s budget should include funding and paid release time for such activities. (f) Defense counsel should be knowledgeable about, and consider, alternatives to prosecution or conviction that may be applicable in individual cases, and communicate them to the client. Defense counsel should be available to assist other groups in the community in addressing problems that lead to, or result from, criminal activity or perceived flaws in the criminal justice system. (g) Because the death penalty differs from other criminal penalties, defense counsel in a capital case should make extraordinary efforts on behalf of the accused and, more specifically, review and comply with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
Standard 4-1.3 Continuing Duties of Defense Counsel Some duties of defense counsel run throughout the period of representation, and even beyond. Defense counsel should consider the impact of these duties at all stages of a criminal representation and on all decisions and actions that arise in the course of performing the defense function.
These duties include: (a) a duty of confidentiality regarding information relevant to the client’s representation which duty continues after the representation ends; (b) a duty of loyalty toward the client; (c) a duty of candor toward the court and others, tempered by the duties of confidentiality and loyalty; (d) a duty to communicate and keep the client informed and advised of significant developments and potential options and outcomes; (e) a duty to be well-informed regarding the legal options and developments that can affect a client’s interests during a criminal representation; (f) a duty to continually evaluate the impact that each decision or action may have at later stages, including trial, sentencing, and post-conviction review; (g) a duty to be open to possible negotiated dispositions of the matter, including the possible benefits and disadvantages of cooperating with the prosecution; (h) a duty to consider the collateral consequences of decisions and actions, including but not limited to the collateral consequences of conviction.
Standard 4-1.4 Defense Counsel’s Tempered Duty of Candor (a) In light of criminal defense counsel’s constitutionally recognized role in the criminal process, defense counsel’s duty of candor may be tempered by competing ethical and constitutional obligations. Defense counsel must act zealously within the bounds of the law and applicable rules to protect the client’s confidences and the unique liberty interests that are at stake in criminal prosecution. (b) Defense counsel should not knowingly make a false statement of fact or law or offer false evidence, to a court, lawyer, witnesses, or third party. It is not a false statement for defense counsel to suggest inferences that may reasonably be drawn from the evidence. In addition, while acting to accommodate legitimate confidentiality, privilege, or other defense concerns, defense counsel should correct a defense representation of material fact or law that defense counsel knows is, or later learns was, false.
(c) Defense counsel should disclose to a court legal authority in the controlling jurisdiction known to defense counsel to be directly adverse to the position of the client and not disclosed by others.