Ethics Advisory Committee

The Ethics Advisory Committee gives you advice and counsel, alerting you to pitfalls, conflicts of interest, and potential violations of the rules of ethics and your Sixth Amendment duties.

Please also see the formal ethics opinions of the Ethics Advisory Committee.

Mission Statement

The mission of the Ethics Advisory Committee is as follows:

  1. The Ethics Advisory Committee is a ready source of timely information and guidance for NACDL members with ethics issues relating to their representation of persons accused of crime.
  2. Criminal defense lawyers have ethical concerns not faced by other lawyers, so the needs for advice and consultation of NACDL members are unique.
    1. In confronting ethical issues, criminal defense lawyers have to consider the implications of the Sixth Amendment right to effective assistance of counsel, the governing state ethical rules, the law of criminal law and criminal procedure, and their personal moral code. Sometimes there may appear to be conflicting duties between ethical rules or between ethical rules and our constitutional duties to the client.
    2. The Ethics Advisory Committee provides NACDL members with a sounding board to whom they can seek to explain their rationale in anticipation of having to explain it to a court, the client, or the prosecutor, or to get guidance on how to resolve a seemingly intractable question or one they cannot confidently answer.
  3. The Ethics Advisory Committee provides confidential assistance to members regarding inquiries concerning ethics and professional responsibility.
  4. The Ethics Advisory Committee works with the Lawyers Assistance Strike Force to come to the aid of lawyers accused of professional misconduct in their representation of persons accused of crime.
  5. The Ethics Advisory Committee reviews submissions to The Champion and CLE materials to insure that NACDL members are getting consistent and correct advice on ethical matters.

Evaluating Ethical Issues

Sources of the law of legal ethics for criminal defense lawyers

There really are multiple sources for the “law of legal ethics.” A criminal defense lawyer should ask him or herself the following questions when dealing with an ethical problem:

  1. What does the Sixth Amendment require?
    1. Duty to client; conflict of interest
    2. Ineffective assistance of counsel
    3. Duty to system; does it conflict with duty to client? If so, which prevails and why?
  2. What do statute or court rules require or prohibit?
  3. What does the law of contempt prohibit?
  4. What do the ethics rules require or prohibit?
  5. What does the lawyer’s personal moral code permit or require?
    1. Does it conflict with the lawyer’s ethical or constitutional duty to the client?
    2. Does the client understand it? (The client has a right to know that the lawyer has a personal objection to handling certain types of cases or doing something that could benefit the client;e.g., the lawyer refuses to represent snitches in drug cases. Thus, the client has a right to independent representation, and that includes freedom from the lawyer’s personal concerns.)

Frequently Asked Ethical Questions

Multiple Representation Conflicts

The most common inquiries involve conflicts of interest involving current and former clients. There is a rebuttable presumption against representation of co-defendants, and any doubts should be resolved against multiple representation.

Ethics Rules on Conflicts of Interest

Approximately 45 states have adopted Rule 1.7 of the Rules of Professional Conduct (ABA, ©1983) [the 2002 edition has not yet been adopted in any state] which provides as follows:

Rule 1.7, Conflict of Interest: General Rule
  1. A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
    1. the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
    2. each client consents after consultation.
     
  2. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
    1. the lawyer reasonably believes the representation will not be adversely affected; and
    2. the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include an explanation of the implications of the common representation and the advantages and risks involved.

The ABA approved changes in 2002 that likely will be adopted by many states.

California’s rule on such conflicts is unique in its language, but it reaches the same results.

New York’s 2002 amended rule is a combina-tion of language from the Rules of Professional Conduct and the Code of Professional Responsibility (ABA, ©1969).

Representing Co-Defendants

There is a presumption against multiple representation of co-defendants, but it is not absolute because the courts have recognized that a unified defense may be in the best interest of all. Holloway v. Arkansas, 435 U.S. 475, 482-83 (1978). Defense attorneys and the court have a duty to inquire into the possibility of conflict in every case of multiple representation. ABA Standards, The Defense Function § 4-3.5; Fed. R. Crim. P. 44(c), and Notes of Advisory Committee. 

Cross-Examining Former Clients

Sometimes former clients are witnesses against current clients. If a privileged communication or confidential information would be useful in cross-examining the former client, it would appear that there would be a conflict of interest. Since conflict-free counsel would not have this information anyway, prosecutors and courts often respond that the lawyer need only keep the privileged information to him or herself and continue with the case.

Rule 1.9 of the Model Rules of Professional Conduct (ABA, © 1983) deals with conflicts of interest and former clients:

Rule 1.9, Conflict of interest: former client.  

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

  1. whose interests are materially adverse to that person; and
  2. about whom the lawyer had acquired information protected by Rules 1.6 and 1.9
  3. that is material to the matter; unless the former client consents after consultation.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

  1. use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
  2. reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

The ABA approved changes in 2002 that likely will be adopted by many states.

The answer is not always simple. Of overarching concern in all ethical rules is the duty of loyalty to clients and former clients. See, e.g., Damron v. Herzog, 67 F.3d 211 (9th Cir. 1995). Moreover, our system recognizes that the “appearance of impropriety” from Canon 9 of the former Code of Professional Responsibility is still inherent in the duty of loyalty under the Sixth Amendment, even in states adopting the Rules of Professional Conduct that do not have use that language. See, e.g., State in Interest of S.G., 348 N.J. Super. 77, 791 A2d 285 (N.J. Super. A.D. 2002);People v. Gaines, 277 A.D.2d 900, 716 N.Y.S.2d 207 (2000). The former client and the integrity of the system of justice both have the right to insist upon cross-examination by conflict-free counsel so no one, particularly the former client, will ever even think that privileged information was compromised.

Thus, the appearance of impropriety is thus treated the same as the reality of impropriety, and seldom is a showing of disclosure of a confidence required to disqualify counsel. It is NACDL’s view that criminal defense counsel should never cross-examine a former client because of the rule against the “appearance of impropriety.”

Sometimes potential clients meet with criminal defense lawyers and the attorney-client relationship is not consummated. The attorney-client privilege and confidentiality attach to these conversation, but, even if the lawyer is not hired by the prospective client, the lawyer can be conflicted out of representation of another. If the prospective client initially denied everything to the first lawyer, and then became a witness for the government, NACDL believes that the criminal defense lawyer can represent a person against whom the witness later testifies as long as the initial denial is not the subject of questioning. In that limited situation, there is no use of a privileged communication against the witness because nothing privileged was told to the lawyer.

Defense Counsel's Duty

Defense counsel is the first to have the opportunity and duty to evaluate a conflict. If defense counsel sees a conflict, he or she has a duty handle it and seek to be relieved from the representa-tion that creates the conflict. This could require counsel to get out of the entire case. “An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’” Holloway,435 U.S. at 485. As officers of the court, attorney representations to the court concerning conflicts “‘are virtually made under oath.’” Id. at 486. Accordingly, the trial court must rely on the good faith and judgment of the defense lawyer in determining whether there is a conflict of interest. Id. at 487-88.

Protection of Confidentiality and the Attorney-Client Privilege

When defense counsel discloses a conflict or the court inquires into a conflict, defense counsel must not disclose any privileged or confidential information, and the trial court cannot compel counsel to breach a confidence just to establish the conflict. Holloway, 435 U.S. at 487-88.

Protection of Confidentiality and the Attorney-Client Privilege

Defense counsel has the duty to protect confidentiality and the attorney-client privilege. Defense counsel should assert confidentiality and the privilege for the client because the client does not know how to do so. Confidentiality and privilege are a part of the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment privilege against self-incrimination.

Confidentiality and privilege serve different purposes and have different scope. Confidentiality is an ethical and moral requirement that lawyers shall maintain the privacy of client secrets and matters. The attorney-client privilege is an evidentiary privilege in the courtroom. Thus, confidentiality is broader and far more encompassing than the attorney-client privilege. Confidentiality prevents lawyers from talking about clients to others or even amongst themselves, except to the extent necessary (and thus impliedly authorized), e.g., to consult with a private investigator or police, lay, or expert witness, to disclose to the prosecutor in furtherance of plea bargaining, or to seek advice from other criminal defense lawyers about how to handle a particular situation.

Breaches of confidentiality have resulted in civil liability, discipline, and even disbarment in egregious cases. The attorney-client privilege is founded on the principle that full disclosure between lawyer and client is necessary to the proper functioning of a lawyer and, thus, the entire system of justice. Upjohn Co. v. United States,449 U.S. 383, 389 (1981).

Candor to the Court and Others

Lawyers are often disciplined and held in contempt for making false representations to the court for such things as false summaries of facts in pleadings, false reasons for continuances, and the like. With the limited exception of handling client perjury or cross-examining the truthful witness (both below), lawyers must be candid with undisputable facts.

A lawyer’s word has to mean something. When you give it, keep it. All of us have to earn and keep a reputation of honesty in our dealings with court and opposing (including co-defendant’s) counsel. It serves us as individuals, as lawyers, our future clients, and our profession.

“An honest man’s word is as good as his bond.”
— Cervantes, Don Quixote de la Mancha, Pt. II, book IV,
ch. 34, at 674 (1615)

Client's False Name

The client’s use of a false name, knowingly participated in by defense counsel, has resulted in defense lawyers being disciplined. State v. Casby, 348 N.W.2d 736 (Minn. 1984) (lawyer convicted of misdemeanor for false statement to court), disciplinary proceeding, Matter of Discipline of Casby, 355 N.W.2d 704 (Minn. 1984). Defense counsel has a duty to get the client to reveal his or her true name or permit defense counsel to correct it. If the client refuses, defense counsel should then seek to be relieved.

Client's Priors

A lawyer’s knowing participation in misleading the court about the client’s priors warrants professional discipline.Cincinnati Bar Assn. v. Nienaber, 80 Ohio St. 3d 534, 687 N.E.2d 678 (1997). This commonly arises in DWI/DUI and misdemeanor cases. If the court asks defense counsel about priors, defense counsel can only state that he or she is relying on the presentence report. If the presentence report is incorrect, defense counsel does not have a duty to correct it, unless the client was the source of the incorrect information. If the court directly asks defense counsel directly about priors, defense counsel must be truthful.

Client's Perjury

The NACDL Ethics Advisory Committee issued Formal Opinion 92-2, approved by the NACDL Board of Directors in November 1992, to deal with the question of client perjury.

Oftentimes, a criminal defense lawyer must pursue a theory of the case that seems like it is false, but the lawyer just does not know. When criminal defense lawyer a takes on the role of fact finder, it “perverts the structure of our adversary system.” United States v. Long, 857 F.2d 436, 445 (8th Cir. 1988). A lawyer has the privilege to believe the client and disbelieve the accused, even in the face of evidence of the client’s crime. Harrington v. United States, 267 F. 97, 101 (8th Cir.1920).

Cross-examining the truthful witness

Our duty as advocates requires that we cross-examine witnesses that we believe are truthful but partly mistaken to show that they are not believable at all. For example, a witness saw an event, but they are mistaken as to some other fact (e.g., time of day, color of an object). If consistent with the defense theory of that case, nothing prohibits impeachment to show that the witness should not be credited by the finder of fact.

Protection of confidentiality and the attorney-client privilege

Defense counsel has the duty to protect confidentiality and the attorney-client privilege. Defense counsel should assert confidentiality and the privilege for the client because the client does not know how to do so. Confidentiality and privilege are a part of the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment privilege against self-incrimination.

Confidentiality and privilege serve different purposes and have different scope. Confidentiality is an ethical and moral requirement that lawyers shall maintain the privacy of client secrets and matters. The attorney-client privilege is an evidentiary privilege in the courtroom. Thus, confidentiality is broader and far more encompassing than the attorney-client privilege. Confidentiality prevents lawyers from talking about clients to others or even amongst themselves, except to the extent necessary (and thus impliedly authorized), e.g., to consult with a private investigator or expert witness, to disclose to the prosecutor in furtherance of plea bargaining, or to seek advice from other criminal defense lawyers about how to handle a particular situation.

Breaches of confidentiality have resulted in civil liability, discipline, and even disbarment in egregious cases. The attorney-client privilege is founded on the principle that full disclosure between lawyer and client is necessary to the proper functioning of a lawyer and, thus, the system of justice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

Handling physical evidence

The law of defense counsel’s handling physical evidence is relatively well-settled, and the rules are as follows:

  1. The physical evidence in the hands of defense counsel is not privileged from disclosure by confidentiality or the attorney-client privilege.
  2. The fact of delivery of the evidence to the lawyer from the defendant or that the attorney was the source of the evidence, however, remains privileged and cannot be mentioned before the fact finder at trial unless waived or the defense handling of the evidence affects is verity.
  3. Defense counsel may keep the physical evidence for analysis for a reasonable period before turning it over to the police if its verity will not be altered and if it will not hinder the apprehension, conviction, or punishment of another person. (For example, removal of the client’s fingerprints constitutes the crime of tampering with evidence and usually also makes the lawyer an accessory after the fact.)
  4. If the attorney reasonably believes that the evidence will not be destroyed, the lawyer may return it to the source, explaining the laws of concealment and destruction. If the attorney has reasonable grounds to believe that the evidence might be destroyed, or if the client consents, the lawyer may turn the physical evidence over to the prosecution.
  5. The attorney-client privilege does not bar testimony about the original location and condition of the evidence. It does bar testimony that the was involved in turning it over to the prosecution.
  6. It is not required that the attorney withdraw from representation for the sole reason that the lawyer received incriminating evidence and had to turn it over to the authorities if defense counsel stipulates to chain of custody. (The stipulation cannot disclose to the finder of fact that the defense was in the chain of custody for fear that an adverse inference of self-incrimination will be drawn from it.)
  7. If there ever is any doubt as to what to do, consult with other criminal defense lawyers for their opinion as how to proceed, keeping in mind confidentiality. Another lawyer can be used as an intermediary to deliver evidence under a pledge of confidentiality to protect the identity of the lawyer who had possession of the evidence.

Attorneys fee questions in criminal cases

  1. Attorneys fees must be reasonable, and fee agreements should be in writing.
  2. Depending upon the jurisdiction, nonrefundable retainers are not per se unlawful, provided the fee agreement sets out why and what part of the fee is unrefundable and whether part of it is refundable and under what conditions. A nonrefundable retainer may become unreasonable if the client discharges the lawyer before the full amount can reasonably be considered earned, depending upon the experience and reputation of the lawyer, what was at stake in the case, and what was done for the client.
  3. Fee agreements, including a minimum fee, cannot interfere with the client’s absolute right to discharge the lawyer at any time and for any reason. The lawyer is still entitled to compensation on an hourly or quantum meruit basis even if the full amount has not been earned.
  4. To be safe, large fees should be placed into the trust account and drawn against as earned. If the client fires the lawyer, there will be funds to repay the unearned portion to the client.
  5. “Cash transactions” in excess of $10,000 per year (i.e., cash, money orders, cashier’s checks (if any are less than $10,000), bank drafts, or traveler’s checks; but not preprinted checks on the payor’s own account or wire transfers (all wire transfers go through the Federal Reserve and are reported to the IRS)) must be reported to the IRS on Form 8300 within 15 days of reaching $10,000.01 per year.
  6. Lawyers who facilitate the investment of proceeds of crime can be guilty of money laundering. While “receipt and deposit” of criminally derived property technically constitutes a crime under 18 U.S.C. §§ 1956 & 1957, the U.S. Attorney’s Manual advises not to pursue cases against lawyers unless there is “an effort to conceal or disguise the proceeds,” the proceeds are used to “promote further unlawful activity,” or the receipt “is designed to avoid a transaction reporting requirement.” U.S.Atty.Man. § 9-105.330(4).
  7. Contingent fee agreements in criminal cases are unethical. While not the original rationale for the rule, NACDL believes that contingent fee agreements for fees would inherently cause ineffective assistance claims when the client gets a result he or she does not like.
  8. Similarly, civil cases tied to the outcome of criminal cases are unethical for the same reason—they interfere with objective decision-making in handling the criminal case. All too often, lawyers make decisions on what will get them paid and not what is in the client’s best interest, and criminal cases simply cannot be conducted that way.
  9. For the same reason, publication and media rights to the client’s cases must be avoided because they interfere with objective decision-making in the handling of a criminal case.

Asserting the rights of the mentally incompetent

In representing those with mental disability, a lawyer has a duty, “as far as reasonably possible, [to] maintain a normal client-lawyer relationship with the client.” Rule 1.14(a) of the Rules of Professional Conduct. Thus, it is the lawyer’s duty to assert mental incompetence as a defense to the charge or to going to trial if the lawyer has a question as to the client’s competence either at the time of the alleged crime or the client’s ability to assist at trial.

If the client is capable of making a rational determination of what defense to pursue and whether to pursue a mental disease or defect defense, the lawyer must abide by the client’s wishes and waive the defense. For example, a client who appears to be sane and rational can legitimately waive a viable insanity defense to a crime, and they often will because they do not want to be perceived as “crazy.” The lawyer, however, should get the circumstances of the waiver on the record (in such a way as to not prejudice the accused with the judge) because it is a practical certainty that the lawyer’s judgment will be challenged in the future.

Representing death volunteers

Representing death volunteers is difficult for any criminal defense lawyer -- it requires us to act contrary to our instinct of protecting the client from the government.

Some criminal defense lawyers refuse for personal reasons to participate in the government’s machinery of death. If they seek to be relieved by the court, they should be without question.

Some lawyers can participate in the client’s self-determination, even if it amounts to state-assisted suicide. If the lawyer elects to continue on with the case, he or she must be able to assert the client’s interest in waiving appeals or clemency.

For a discussion of these complex ethical issues, see Richard C. Dieter, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo. J. Legal Ethics 799 (1990); Welsh S. White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853 (1987).

Disclaimer

The opions expressed herein do not constitute legal advice, and are provided only to assist defense counsel in independently evaluating issues regarding professional responsibility and ethics. Any written or oral communications between NACDL members and members of the Ethics Advisory Committee are not protected by attorney-client privilege, and the Ethics Advisory Committee does not provide legal advice. Its role is to assist NACDL members in evaluating issues regarding professional responsibility and ethics, in order to aid members in effectively handling such issues. Any NACDL members consulting the Ethics Advisory Committee and/or its members are solely responsible for conducting an independant analysis of issues on which they seek input from the Ethics Advisory Committee. Views expressed herein or by Ethics Advisory Committee members are advisory only. Because state disciplinary authorities and/or courts are the final arbiters of what constitutes unethical conduct, no information provided by the Ethics Advisory Committee, either in writing or orally, can bind any disciplinary authority or court regarding such matters. Neither the NACDL nor members of the Ethics Advisory Committee assume any legal liability or responsibility for any advice or options that may be provided.

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