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Ethics and the Criminal Defense Attorney

A common question posed to criminal defense lawyers is, "How can you represent those people?" The standard response is that our Constitution provides that every person has the right to a competent defense, that people are presumed innocent until proved guilty, and that zealous advocacy to uphold the rights of the accused is an essential part of our system of justice. But this is not a context where everybody will agree on what is ethical, or what is right.

Situation 1: You are hired to represent a sixteen-year-old who is accused of sexually abusing a young child. Your client has confessed to you, and you believe that the confession is truthful. Yet the police investigation, and the conduct of the victim's mother, have so tainted the child's account that even the local police chief is skeptical of the charge, and there is a substantial chance that you could bring a successful motion to exclude the victim's statements (and thereby defeat the charge).

Situation 2: You are the defense attorney in "Anatomy of a Murder", and your client is faced with a homicide charge. Without letting your client tell you what happened, you explain the state of the law, and the defenses which are available to him. You then say that you'll come by the next morning to get his version of what happened. When you come back, his story is consistent with one of the defenses you detailed the night before.

Situation 3: You have hired an expert witness to assist with your defense. Your state's rules of discovery require that you provide to the prosecutor a copy of any report prepared by your expert in relation to the incident. Version (a): You ask that your expert not prepare a report, so that the discovery rule is not implicated. Version (b): You ask that your expert stamp any report as "draft", as you believe it is implicit in the rule that you would only have to provide a final report. Version (c): The expert prepares a report on his own initiative, perhaps despite your instruction. You ask the expert to reclassify the report as a "draft" until you have a chance to review it (but with the intention of transforming the report into a document which you believe will not subject to the discovery rules).

Situation 4: You have an item of evidence which you do not intend to produce at trial, unless the prosecutor raises specific issues during the course of trial. You rationalize that as you do not intend to produce the item at trial, you do not have to disclose its existence on your exhibit list. The prosecutor raises the issues, and you petition the court to allow you to introduce the previously undisclosed evidence. Version (a): The possibility of the prosecutor raising the issues at trial was remote. Version (b): The possibility of the prosecutor raising the issues at trial was substantial.

In criminal practice, situations can arise when your legal duties conflict with your personal sense of right and wrong, in which case it may be "unethical" (in a legal sense) to do what you personally believe to be the right thing. Situations can arise where your conduct, or that of the prosecutor, is technically "ethical", but is designed to circumvent rules which require notice or discovery. There may be situations where what you do is both moral and ethical, but will be nonetheless be deplored by the prosecutor. There may be situations where an ethical lapse (or series of lapses) by a prosecutor makes you wonder why you work so hard to stay within the bounds of professional ethics. And there may be situations where you bend the rules so much that, by the end, even you wonder if your own actions were ethical - and even if you don't ever personally bend the rules to the point of breaking, given enough time you will see that occur in the practice of other lawyers. And there will always be some lawyers who simply choose to ignore or break the rules.

There can also be a real price to ethical practice for an individual client, where bending or breaking the rules may in fact increase the client's chances of acquittal. At the same time, a single ethical breach detected (or suspected) by the prosecutor may worsen the position of your future clients. But then, I suspect that most of those attorneys who are inclined to breach the rules of ethics for an individual client's gain are not particularly concerned with the longer-term.

Many attorneys take a skeptical view of ethics. The presentation of my ethics class in law school often seemed to take the form of "This is the rule, and this is how you ethically and lawfully circumvent it." And sometimes it seems that attorneys pay little to no price, and perhaps profit quite handsomely, from their ethical breaches. The sleaziest lawyer I ever met managed to practice into his eighties, before he was finally disbarred for (of all things) looting his own brother's estate.

When you describe the benefits of an ethical practice, the description sometimes sounds like a series of platitudes. Yes, it's great to have the trust and respect of your peers, to have the judges take you at your word (and perhaps say "hello" when they encounter you in public, rather than averting their eyes or scowling). But what about "that attorney" in town who breaks all of the rules, is hated by the judges, distrusted by his peers, and nonetheless makes ten times as much money as you do? The benefits of ethical behavior are often long-term benefits, and if you are in the practice of law to chase dollars it may sometimes appear that unethical practice is more profitable, or that you will "lose money" by acting ethically.

If following the ethical path was also usually the easiest path to success, or usually the fastest path to profits, the need for codes of professional conduct, and sanctions for violations of those codes, would be sharply diminished. At the same time, few attorneys would dispute that if all lawyers acted in a manner consistent with the rules of ethical practice, legal practice would on the whole be both easier and more enjoyable.

So what type of lawyer do you want to be, and what type of culture of law do you wish to foster? (You don't answer that question in words - you answer it with your conduct.)

- Aaron Larson