Transcript Professional Ethics for the Criminal Defense Lawyer

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
perjury
nothing but a clear expression of intent to
commit perjury should trigger action by
counsel
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
instances.
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
CONSUMER WARNING:
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
Information
(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
representation,
 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
necessary:
 (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
...
 Let’s
if your client is a little shady
see 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 postconviction proceeding
I have to
say . . .
I’m not
a big fan
of cloud
computing!
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
 Just
as 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
document
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
representation
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
Others.
Rule 1.6 Confidentiality of Information
Rule 4.3 Dealing With Unrepresented
Person
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;
and
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.
Nuts
 Richard
 Ethical
Dreyfus, Barbara Streisand
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
rules?
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
witness
 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
do not express personal
opinion as to the justness of your
cause, the credibility of witnesses
or the guilt or innocence of the
accused
 (3)
General Rules for
Opening Statements
do not assert personal
knowledge of a fact in issue
and
 (5) do not allude to a matter
trial counsel does not
reasonably believe to be
relevant
 (4)
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
friend!
 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
yourself.”
 Will
the more astute client know
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
statement
Plea Dilemma
 Repeatedly
innocence
 Now
professes
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
consent.
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
necessary
 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 attorneyclient 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
over.
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
rest.”
“This is what happens when ethical
standards are artificially set too high.”
Questions?