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National Association of Criminal Defense Lawyers adopted Ethics Opinion 12-02
NACDL's Ethics Committee provides formal ethics advice on relevant issues as circumstances require. Current formal ethics opinions are available below.
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.
Does a criminal defense lawyer have an ethical duty to advise the trial court during a proceeding if the defense lawyer determines that the trial judge did something or failed to do something which could cause error?
Should a criminal defense layer disclose to the Internal Revenue Service, as required by 26 U.S.C. § 6050I, Form 8300, information revealing the identity of a client who pays a cash fee in excess of $10,000?
What, if anything, must a lawyer advise a client paying in excess of $10,000 in cash of the requirements of 26 U.S.C. § 6050I, which requires the lawyer to file a Form 8300?
The question presented is whether it is ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks on convictions under 28 U.S.C. § 2255 in the absence of an express exclusion for claims based on ineffective assistance of counsel.
May we comply with a requirement to submit confidential attorney-client communications for review by a “Privilege Team” composed of law enforcement and intelligence officers without judicial oversight, and the provisions barring us from communicating on certain topics with our clients, whether or not those topics are directly related to our representation, consistent with our ethical obligations?
Whether the federal defender staff lawyers’ obligations to preserve client confidences and other confidential, privileged materials pursuant to Model Rules of Professional Conduct, Rule 1.6 is violated when a third party, the Administrative Office of the United States Courts (AO), takes over and manages the technology systems of the federal defender office, including specifically federal defender e-mail, case management programs, and statistical systems, that contain confidential and privileged information.
The duties of defense counsel and prosecution as to the representation of defendants being resentenced following changes from the U.S. Sentencing Commission retroactively reducing the base offense level for federal crack cocaine convictions, effective March 3, 2008.
Whether it violates Alabama Rule of Professional Conduct 3.7(a) for a sole practitioner to tape record a statement from a witness without having a third person present. The prosecutor seeks a hearing to disqualify counsel because the prosecutor intends to call defense counsel as a witness about the statement, apparently no matter what the statement says or whether there is a bona fide issue of voluntariness of the statement.
Whether a serious threat of violence by the client against the lawyer is a waiver of confidentiality, creation of a personal conflict of interest, and justification for the attorney’s withdrawal.
Whether a conflict of interest has been created by public defenders being legally required disclosure to the court and the prosecutor of the client’s stated intent to choke the prosecutor to death in court and then commit suicide, communicated to them by appellate counsel within the same public defender’s office. The case is back before the trial court, and the inquiring lawyers are counsel of record.
Given the restrictions placed on civilian defense counsel, what are a criminal defense attorney’s duties to the client before a Military Commission at Guantanamo Bay under Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 F.R. 57833 (Nov. 16, 2001), and its implementing instructions issued April 30, 2003?
Whether the practice of requiring defendants to check in with their lawyers weekly violates the criminal defense lawyer’s duties of confidentiality and client loyalty and the attorney-client privilege. And, when asked the next time, how should the lawyer respond?
