Ethical Justice
Chapter Ten: Ethical
Issues for Criminal
Defense Attorneys
Ethical Issues for
Criminal Defense Attorneys
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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:
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The right to counsel;
The presumption of innocence; and
Ethical issues that occur prior to and during trial.
The Right to Counsel
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Criminal defendants have a constitutionally guaranteed
right to legal representation.
 This is guaranteed by the 6th Amendment to the United States
Constitution.
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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.
The Right to Counsel
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There are four primary types of criminal defense
attorneys in the United States:
1. Legal aid attorneys
 Those who volunteer to represent or assist indigent
criminal defendants, usually part of a non-profit
organization.
2. Public defenders
 Attorneys funded by the county, state, or federal
government to provide representation to indigent
defendants, as required by the U.S. Constitution.
The Right to Counsel
3. Appointed counsel
 Private defense attorneys appointed by the court to
represent indigent defendants, often at a fixed or
hourly rate.
4. Private attorneys
 Represent those criminal defendants who can afford
to pay for their own attorney, and don’t qualify as
indigent. This involves a contract for a flat fee or an
hourly rate.
The Right to Counsel
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Regardless of their employment situation, the criminal
defense attorney serves as an advocate for the
criminal defendant. They must:
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Shepherd the defendant through the legal process;
Inform them of their rights and scrupulously protect
them;
And represent their will in the courtroom.
The Presumption of Innocence
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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.
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The state must prove a defendant’s 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.
Ethical Issues with Clients
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Avoiding Conflicts of Interest
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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:
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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 prosecutor’s office
Representation of one co-defendant against the interests of
another
Ethical Issues with Clients
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Confidentiality and the Attorney-Client Privilege
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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.
Ethical Issues with Clients
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The attorney-client privilege is a legal entitlement
intended to facilitate truthful communication and fully
informed advocacy by a defendant’s 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.
Ethical Issues with Clients
Improper Sexual Relations and “Couch Fees”
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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.
Pre-Trial Ethical Issues
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Pre-trial ethical issues include the following:
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Reading the case file;
Competence and qualifications;
Resources and caseload; and
Plea deals
Ethical Issues at Trial
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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.