Legal Ethics Practical Ethical Issues

Legal Ethics

Practical Ethical Issues Facing a Criminal Defense Attorney as Defined in the Massachusetts Rules of Professional Conduct

In the Preamble to the Massachusetts Rules of Professional Conduct, a lawyer's primary responsibilities are identified as a representative of the client, an officer of the legal system, and a public citizen with a special charge for maintaining the quality of justice. The relationship between these three basic roles is, as the Preamble goes on to note, usually harmonious (par. 6). These three distinct responsibilities, however, can come into conflict during the course of providing a zealous legal defense for a client charged with the commission of a crime. Many of the practical ethical issues that a criminal defense attorney will almost certainly face over the course of their professional practice arise from just such a conflict.

One of the most basic ethical issues that can arise is the conflict of interest that can and almost always does, in some fashion, arise when multiple defendants are represented by the same lawyer during the same criminal proceeding (Rule 1.7). Not only is the lawyer's role as the representative of their client split, but the quality of justice is often best served when independent counsel is retained by each defendant charge with a crime. In this scenario, as with all cases of criminal defense tat come to trial, each client must be presumed innocent. Proving this innocence, or rather casting reasonable doubt on a defendant's guilt, becomes the necessary goal of the client's representative, i.e. The lawyer. The best way to do this, especially when there are multiple suspects/defendants, is often to cast suspicion on one defendant in order to remove it from another. Multiple representation, quite obviously, cannot allow this to occur, as it serves the legal interest of only one client, and is a clear violation of the lawyer's duties.

At the same time, there are many cases where multiple representation has proven the most effective way to provide defense for all clients, as this defense becomes more unified and coherent. The basic ethical dilemma that presents itself to the lawyer, then, is whether recommending individual counsel for each defendant is truly in their best interests. There is no question that a lawyer may better serve an individual client than several at a time, but when such individual representation may expose one, several, or all of the defendants to adverse legal conditions, multiple representation must be given serious consideration. The presumed innocence of all defendants must be zealously protected and fought for, and at times representing several clients in the same matter is the best way to provide quality representation and an effective utilization of the legal system. Understanding the limited scenarios when this is the case requires a careful application of both personal and professional ethical principles.

Another major ethical conflict that arises from the separate duties of representing the client and maintaining the quality of justice involves determining diminished capacity in a client, and taking the appropriate action. A psychological exam, or even better a medical history, can of course establish diminished capacity, and this greatly simplifies the issue for the client's lawyer. Still, as both the client's representative and a public citizen, the lawyer must maintain a zealous advocacy for their client's rights and protections given their diminished capacity. Determining the client's best interests in such cases, as well as deciding how they might best assist in their own defense, become compelling ethical concerns. The best interests of the public and the client might not correlate, and the balance often shifts in favor of the public.

An even more difficult dilemma exists when there is no history of diminished capacity, but the behavior and/or attitude of the client suggests that he or she is unable to effectively assist in their own defense. This can often result out of severe depression, making clients unresponsive and non-committal to any course of legal action. This requires the lawyer to determine at what point a client is simply exercising their basic human (and legally protected) freedom to defend themselves how they wish, and when they have crossed the line into being unable to defend themselves properly. An error in judgment here can cause a massive miscarriage in the lawyer's duties to the client, and/or a greatly diminished quality of justice in the particular instance. Providing a fully zealous defense might, in some very limited cases, not be in the client's best interests.

There is one over-riding ethical concern in the practice of criminal defense that is most prevalent in the minds of the public and of new practitioners, and though the frequency of this worry diminishes over time it remains very real. This is, of course, providing a "not guilty" defense for a guilty client. The Rules of Professional Conduct allow for a lawyer to terminate his or her representation of a client only under certain specified instances spelled out in Rule 1.16, among which are:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent

It is, of course, well established that the known -- either proved or acknowledged -- guilt of a client is grounds for a lawyer to end representation. But the rule as written is far more complicated in situations where the lawyer does not know, but has a compelling assumption, that their client is guilty.