Attorney ethics
Attorney ethics are essential principles guiding the conduct of legal professionals, particularly in the context of criminal law. Defense attorneys and prosecutors navigate complex ethical landscapes as they fulfill their distinct roles within the justice system. Prosecutors serve as representatives of the state, with a duty to act in the public interest and ensure justice, which includes protecting the rights of the accused and disclosing evidence that may exonerate defendants. They face stringent ethical constraints, particularly in their communications and actions during pretrial and trial phases.
In contrast, defense attorneys advocate zealously for their clients, with fewer restrictions on their conduct. However, they must still adhere to ethical standards that prevent conflicts of interest, prohibit contingent fee arrangements in criminal cases, and restrict the sale of media rights during representation. A significant ethical dilemma for defense attorneys is the handling of client perjury, where they must navigate the contradictory demands of upholding their client's rights while adhering to the truthfulness required in legal proceedings. Overall, the interplay of advocacy, ethical obligations, and the quest for justice defines the ethical terrain that attorneys operate within in criminal law.
Attorney ethics
SIGNIFICANCE: Defense attorneys and prosecutors largely control the presentation of evidence in criminal proceedings, as well as the conduct of plea bargaining. Thus, the ethics of how they perform these functions are critical to the criminal justice system.
Attorneys in criminal proceedings are both officers of the court and zealous advocates. These obligations may conflict, generating difficult ethical dilemmas that attorneys must resolve. As prosecutors and defense lawyers play distinct roles in the criminal justice system, ethical obligations differ between the two.
Ethical Obligations of Prosecutors
Prosecutors, as representatives of the state or the people, operate under specific ethical constraints. In general terms, a prosecutor must act to further the public interest. As a result, a prosecutor is not only an advocate but also an agent of justice. It is often said that the role of a prosecutor is to see that justice is done, not to obtain convictions. Thus, prosecutors are ethically bound to protect the rights of accused persons.
Even prior to pressing formal charges, prosecutors must make reasonable efforts to ensure that a suspect is appropriately advised of the right to counsel. The prosecutor must not seek to have an unrepresented suspect waive pretrial rights. While prosecutors have discretion about when and if to press charges, such power—usually nonreviewable by the courts—must be exercised with extreme care and fairness. In legal terms, prosecutors can bring charges only when there is probable cause to do so. Moreover, given that defense attorneys are not present at grand jury proceedings, prosecutors must present evidence in such proceedings without generating subjective bias against a defendant.
Once charges have been filed, prosecutors must operate under more rigorous ethical constraints than defense attorneys. Foremost among these constraints are constitutional, statutory, and ethical requirements mandating that prosecutors disclose to defendants all information or evidence that tends to negate a defendant’s guilt or mitigate an offense. This duty usually extends to sentencing. A failure to make appropriate disclosures may be grounds for the defendant to appeal a conviction.
While all attorneys must adhere to some limitations in extrajudicial statements about a case, prosecutors tend to be subject to the greatest scrutiny in this regard. It is unethical for prosecutors to make extrajudicial statements that will prejudice observers or heighten public condemnation of an accused.
Ethical Obligations of Defense Attorneys
Like prosecutors, defense attorneys are officers of the court. In contrast, however, the primary role of a defense counselor is to advocate zealously on behalf of a client. There tend to be fewer ethical constraints upon the performance of defense counselors than on that of prosecutors.
Nonetheless, several ethical issues are particularly applicable to criminal defense attorneys. While all lawyers, including prosecutors, must adhere to rules regarding conflicts of interest, it is nearly always unethical for an attorney to represent more than one criminal defendant in the same matter because the risks of conflicts between or among codefendants are so grave. Moreover, ethical rules prohibit attorneys from establishing contingent fee arrangements in criminal cases because of the corrupting influence that such fees could have on the administration of criminal justice. This rule, although well established, has sometimes been the subject of criticism.
Finally, ethical rules prohibit the sale of media or literary rights by a client to an attorney prior to the conclusion of the representation. The reason for this prohibition is that an attorney’s interest in generating publicity or going to trial in order to increase the value of such rights might conflict with a client’s interests in, for example, a speedy plea bargain.
Apart from these specific rules, two other ethical issues are of paramount importance when considering criminal defense counsel. First, defense attorneys have an obligation to zealously represent their clients, even those clients whom the attorney believes to be guilty. This principle has several justifications. A primary one is that defense attorneys have a role to play in administering justice and that role does not extend to the power to determine guilt or innocence—a power vested solely in judges and juries.
The Problem of Perjury
Perhaps the most celebrated ethical issue confronting criminal defense counsel is the so-called client perjury problem. This issue arises when a criminal defense attorney knows that a client intends to commit perjury or already has committed perjury. Criminal defense attorneys, like all attorneys, cannot knowingly offer false evidence and are obligated to correct the record when they later learn that a piece of evidence presented was false.
Some courts and jurisdictions have modified this principle in the criminal context in light of constitutional protections afforded an accused. What is or is not ethical in such circumstances varies and remains subject to vigorous debate. Some of the answers that have been proposed include having an attorney seek withdrawal from representation, mandating that an attorney refuse to elicit perjured testimony and, if necessary and if the client continues to insist on the perjury, disclose the proposed perjury to the court or to the prosecution, allowing a client to present perjured testimony in narrative form or permitting an attorney to elicit the testimony as an attorney normally would. Virtually all authorities agree, however, that as an initial matter, an attorney is ethically bound to try to dissuade a client from committing perjury.
Bibliography
ABA Standards for Criminal Justice: Prosecution and Defense Function. 3rd ed. Washington: American Bar Association, 2014. Print.
Freedman, Monroe H., and Abbe Smith. Understanding Lawyers’ Ethics. 5th ed. Durham: Carolina Academic Press, 2016. Print.
Gaffney, Nick. "What It Takes to Be an Ethical Lawyer Today." Law Practice Today, 9 Nov. 2022, www.lawpracticetoday.org/article/what-it-takes-to-be-an-ethical-lawyer-today/. Accessed 20 June 2024.
Hall, John Wesley, Jr. Professional Responsibility of the Criminal Lawyer. 2nd ed. Deerfield: Clark Boardman Callaghan, 1996. Print.
Robinson, Mike. "Rules of Professional Conduct for Lawyers." Clio, 22 May 2024, www.clio.com/blog/rules-of-professional-conduct-for-lawyers/. Accessed 20 June 2024.
Wolfram, Charles. Modern Legal Ethics. St. Paul: West, 1986. Print.