Criminal defense lawyer roles and responsibilities

Criminal Defense Attorney

The Canons of Professional Ethics for Attorneys: no longer reflect the reality of the times (if they ever did)

Inadequate and self-contradictory."

Freedman, on the Canons of Professional Ethics, cited in Challenging Perspectives, Holdstein (Ed.)

The Canons of Professional Ethics for attorneys were adopted in 1908 as a kind of public relations device, to convince the American public of the presence of ethical standards within the legal profession. The Canons reflect this dubious origin and intent in their often vague, contradictory, and unenforceable nature. "The original 32 Canons of Professional Ethics were adopted by the American Bar Association in 1908. They were based principally on the Code of Ethics adopted by the Alabama State Bar Association in 1887, which in turn has been borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title of Professional Ethics, and from the fifty resolutions included in David Hoffman's a Course of Legal Study (2d ed. 1836)." (ABA, 1983) Indeed, the wording of the first Canon is to merely affirm the competence and integrity of the legal profession, reflecting the fact that the profession was under attack at the time (although one could argue the integrity of lawyers remain under attack today).

All of the Canons sound morally upstanding, in theory, and may, to a non-lawyer, seem like valid ethical guidelines. However, the Canons often fail to embrace the realities of the legal profession, especially of defense attorneys who must often defend unpopular clients. "The previous Canons were not an effective teaching instrument and failed to give guidance to young lawyers beyond the language of the Canons themselves. There was no organized interrelationship between the Canons and they often overlapped. They were not cast in language designed for disciplinary enforcement and many abounded with quaint expressions of the past." (ABA, 1983) Although professional ethical guidelines are certainly necessary for attorneys, it is better to have realistic ethical principles than ideals that may sound good to non-lawyers. For example, non-lawyers may not understand that it is necessary for even a client who may be guilty to have the best legal representation possible, and some apparent moral flexibility on the part of attorneys is an essential aspect of the adversarial system of justice, for the legal system to function in a fair and effective manner for the persons and the nation it is designed to serve. The previous Canons of Ethics can only be described, in the words of the current American Bar Association in 1983 as "generalizations designed for an earlier era," and were seldom obeyed, even then.

Many of the Canons could actually subvert the intention of attorneys to represent clients to their fullest extent. Consider the working Canon 28: "It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship, or trust make it his duty to do so." (Hurld, 2004) Yes, this would forbid ambulance chasing or advertisements asking a parent of a sick child if medical malpractice might be the cause of their child's infirmity, the sort of attorney advertising and grandstanding non-lawyers enjoy pointing to, when these laypersons explain why they despise attorneys.

Yet this prohibition would also forbid a defense attorney for making a client aware he or she had been slighted, if the client was ignorant of the law. A client might have been picked up for a petty drug offense, for example, and the lawyer designated to take the defendant's case might believe that the alleged perpetrator actually had a case against the state, because the defendant's constitutional rights had been violated. But the defendant might not know what his or her constitutional rights were, because the defendant is not a lawyer. It is thus part of the lawyer's duty as an advocate to encourage the client to bring a suit against the state, and indeed, the lawyer should do so as part of his or her duty in service of Canon 2, to make legal counsel available for all persons, not merely the well-educated or the elite. Finally, a divorce attorney may be aware that it is in the client's interest to be more legally aggressive, to gain a better settlement, even if the client's temporary, overwrought emotional state runs against this tendency.

The utter prohibition against active solicitation of clients would also bar much of public interest advocacy, such as lawyers who actively seek clients to challenge laws that they believe are against the public good, like anti-abortion legislation. Public advocacy work, which might be waged in name on behalf of a client who is not the most egregiously harmed person by the legislation in actual fact would further go against the grain of Canon 14: "lawsuits with clients should be resorted to only to prevent injustice, imposition or fraud." (Johnson, 1993) Although seeing consumers defrauded by misleading advertising may not actually be an injustice, to wage such legislation may still be in the public good.

The unstructured nature of the Canons does not "lend themselves to practical sanctions for violations; and... changing conditions in our legal system and urbanized society require new statements of professional principles." (Johnson, 1993) Although some of the statements, such as Canon 6, that a lawyer should represent his or her client in a competent fashion, or the prohibition against revealing the client's secrets, are commendable and are a part of current ethical standards of the American Bar Association today, this language's vague generality needs to be more clearly defined, so that there are comprehensible definitions of what competence entails, or even when a client is in fact a client -- what types of communications are privileged and cannot be recorded by the state? There must also be defined sanctions against lawyers who act incompetently, else how can lawyers truly understand what constitutes a definition of competence?