ETHICS IN FEDERAL CRIMINAL CASES
˄
PROFESSIONAL RESPONSIBILITY
DAVID VANDERCOY
Ethics (Webster)
Rules of behavior based on ideas about what
is morally good or bad.
Some of the rules governing lawyers have a moral
basis; most do not.
1)
Trial Publicity
N.D. Ind. L. CR. R. 53-2
must not release facts or
opinions about the criminal case if
to be disseminated by public
communication
pose serious and imminent
threat to fair administration of
justice
N.D. Ind. L. CR. R. 53-2 (cont).
-
presumptions of imminent threat
opinions re: guilt or innocence or the
evidence
permitted statements
help apprehending suspect
warn public of dangers
scheduling
w/o comment or elaboration
- defendant denies; general nature
of defense
Gentile v. State Bar of Nevada, 501 U.S.1030
(1991)
Then Model Rule 3.6 prohibited attorneys
from making any extrajudicial statements
that would materially prejudice proceedings.
First Rule 1.1 – A lawyer shall provide
competent representation to a client.
Gentile
Lawyers
Political Speech is protected by 1st
Amendment
-
Words directed at public officials and
their conduct
-
Public vigilance is a restraint on abuse of
judicial power
Lawyers duties do not begin inside courtroom
door
defense attorney
- may take reasonable steps to reduce adverse
consequences of indictment
- including attempt to demonstrate innocence in
the court of public opinion
2) Allocating Authority between a client and
a lawyer
Faretta v. California, 422 U.S. 806 (1975)
Jones v. Barnes, 463 U.S. 745 (1983)
RS (Third) of Law Governing Lawyers
Tension
It’s the client’s case
vs.
The lawyer is the trained advocate
Client
-
-
whether to settle
how a defendant should plead
waive jury trial
whether a criminal defendant should
testify
whether to appeal (civil or criminal)
Client
-
whether to represent self - Faretta
Lawyer decides
-
which witnesses to call
to cross and how
which motions to file
accept/strike jurors
Lawyer must keep client reasonably informed and
consult concerning decisions to be made
by lawyer
RS (Third) of Law Governing Lawyers § 20
3) Role of Standby Counsel
Faretta – accused has right
to personally make his defense
- can terminate for deliberate disruption
- can appoint standby to assist accused
if and when accused requests help
Two Types
-
assist accused
v
serves on behalf of court “to protect
the integrity and continuity of the
proceedings”
McKaskle v. Wiggins, 465 U.S. 168 (1984)
-
-
Wiggins proceeding pro se
Standby counsel appointed
Wiggins requests Standby not be
allowed to interfere
then requested trial not proceed
unless Standby present
conferred with Standby in midst of
cross
McKaskle v. Wiggins, 465 U.S. 168 (1984) – cont.
-
Wiggins convicted
said Standby unfairly interfered
5th Cir. – Standby is “to be seen but not
heard”
S.Ct.
Faretta right protected when Defendant
had a fair chance to present his case in
his own way
T.Ct. can appoint standby counsel over
defendant’s objection
-
pro se defendant entitled to preserve actual
control over the case
-
counsel’s participation w/o defendant’s
consent should not be allowed to destroy
jury’s perception that defendant is
representing himself.
-
The appearance of a pro se defendant’s
self-representation will not be
undermined by counsel’s participation
outside the presence of the jury
Faretta rights vindicated outside presence of
jury if defendant allowed to address court
freely and disagreements between counsel
and pro se defendant resolved in defendant’s
favor.
Participation in presence of jury
excessive involvement by counsel will
destroy pro se appearance
HOWEVER:
Faretta rights not infringed when Standby
counsel assist pro se defendant in
overcoming routine procedural or
evidentiary obstacles such as introducing
evidence or objecting to testimony.
Constitution does not require judges to take
over for a pro se defendant that would
normally be attended to by trained counsel.
Participation by Standby counsel to
accomplish as much as permissible.
4) Taking Possesson of Evidence
Lawyer should not be a repository for the
fruits/instrumentalities of crime
-
Defendant’s counsel may take evidence
for testing
-
If you interfere with State’s ability to find
- must turn over
-
Restore its evidentiary value
People v. Meredith, 631 P.2d 46 (Calif. 1981)
5) Dealing with persons other than clients
4.4
Unrepresented Persons
-
lawyer shall not state or imply that
lawyer is disinterested
-
if lawyer should know the
unrepresented person
misunderstands lawyer’s role, lawyer
should correct
4.1
Lawyer shall not knowingly make a
false statement of material fact to a
third person
Cases
Lawyer violates rule by “befriending” or
having a third person befriend witness by
subterfuge
- Philadelphia Bar, Assoc. Prof. Guidance Comm.
Opinion 2009-02
- In re Gatti, 8 P.3d 966 (Or. 2000)
- Brockler, 2016 BL 66525, (Ohio)
Deceitful subterfuge does not violate
-
Virginia State Bar, Opinion 1845 (2009)
(state bar counsel directed third person to engage
in covert investigation re: unauthorized practice of
law – a crime)
- Wisc, Rule 4.1(b) – Lawyer may advise or supervise
others with respect to lawful investigative activities.
- Oregon – rule change
Good Summary at
Pa. Eth. Op. 2014-300, 2014 WL 10383869
6) Candor to Court v. Confidentiality
Model Code – Confidentiality Trumped
Candor
Model Rules – Candor (Rule 3.3) Trumps
Confidentiality (1.6)
Confidentiality (1.6)
-
Lawyer shall not reveal info. related to rep’d
unless client gives informed consent
Lawyer may reveal
(1) to prevent death or substantial
bodily harm
...
(6) to comply with court order
Candor (3.3)
Lawyer shall not
make false statements
offer evidence lawyer knows is false
if lawyer has offered – remedial
measures including disclosure required
client has 5th Amendment right to
testify
witnesses do not
- If client lies to court, you are obligated to fix
- If you know a witness is going to lie, you
should not call
Disclosing/Not disclosing whereabouts of
fugitive client
or
Do you have any idea why your client isn’t
here?
San Diego Bar Legal Ethics Opinion 2011-1
Client’s mother called lawyer the night before
and said “Don’t expect to see client tomorrow,
he just left the house high as a kite.”
-
Privilege v. confidentiality
No false statements v. duty to disclose
answering questions v. complying with
order
S.D.Fla. case says disclosure required
1990 WL 446957 (July 15, 1990) in
limited circumstances
Majority contra
7) ATTORNEY/CLIENT PRIVILEGE
No privilege if
- client sought services to enable or aid
to commit, or plan to commit what
client knew, should have known was
a crime
(what lawyer knew not relevant to
attorney-client priv. issue
No privilege if (cont.)
- breach of duty by lawyer or client
- as to a communication relevant to an
issue concerning an attested
document to which lawyer is attesting
witness
- Joint clients – if communication made
by one to lawyer consulted in
common in action between clients
ATTORNEY-CLIENT privilege
protects conversations between attorney
and prospective clients jointly interviewed
No privilege in Joint Defense
agreements, each defendant represented
by own attorney, one defendant makes
statements to lawyer for other defendant.
8) Responding to Ineffectivness Claims
1.6 Confidentiality waived only to extent
necessary to respond to claims
Divide is whether disclosures must be
in a judicial setting
ABA Comm. on Ethics & Prof. Resp.
Formal opinion 10-456 – unlikely that
disclosure prior to a court supervised
response will be justifiable.
-
Disciplinary proceedings against
Thompson, 847 N.W.2d 793 (Wisc. 2014)
When client claims lawyer ineffective,
attorney-client privilege is waived;
lawyer response not confined to courtsupervised.
9) Who owns the file
- Indiana 1.16
Upon termination, lawyer shall …
surrender papers and property
-
Indiana recognizes “retaining lien”
the right to retain property until
professional fee is paid.
10) Withholding documents/information from
client
RS § 46
(d) On request, lawyer must allow client
to inspect/copy any document
relating to rep, unless substantial
grounds exist to refuse.
Discovery restrictions on dissemination
to criminal client can be imposed by rule,
court order, or agreement.
11) Representing the Mentally Impaired Client
-
Rule 1.14 Client with Diminished Capacity
-
ABA Criminal Justice Section Standards,
Mental Health
7-4.2
7-5.1
Responsibility for raising the issue
of incompetence to stand trial
Mental competence to plead guilty
or nolo contendere