aFoundational defense obligation to client:
– Zealous advocacy
– Confidentiality
– Competence
– Proper allocation of authority
– Communication and Counseling
Foundational Defense Obligations to Client
– Rule 1.1 Competence: knowledge, skill, thoroughness, preparation
– Rule 1.2 Scope of representation & allocation of authority
– Rule 1.3 Diligence: zeal, promptness, follow-through
¬ Defender thinks that client is guilty but
o Lawyers also have a strict ethical responsibility to advocate zealously on behalf of their client. Zealous representation does not mean a lawyer should strive to “win” a case at all costs, if that means harming third parties and adversaries unnecessarily in the process. It means doing everything reasonable to help a client achieve the goals set forth at the outset of the representation.
♣ Persuade the prosecutor to let Alvarez out to participate in a drug treatment program
– Rule 1.4 Communication: inform & consult (means, limits of lawyer’s conduct, “informed decisions”
– Rule 1.6 Confidentiality
¬ He tells her Defender that he has been using opioids in jail
• Shall not reveal information “relating to the representation” except in listed exceptions
• Fundamental to the Atty-Client relationship (note 2)
• Broader than atty/client privilege : Covers all information relating to the representation – applies to all matters communicated in confidence (note 3)
• 1.6 (b) exceptions <permissive, not manadatory> a lawyer may reveal…
o Illinois’s version of 1.6
– Rule 2.1 Advisor
– Candor toward the Tribunal
¬ Defender lies to Prosecutor about prior criminal convictions of the client
¬ Defender has prepared the client for the questions relating to the plea hearing
• 3.3
• 3.3 (c)
– Ethical tension b/w duties owed to client of confidentiality/competence/zeal v. duty of candor owed to the court
• Trilemma
• Truth in courtroom argument: Abbe Smith
– Counselling & Interviewing
¬ Defender meets with Alvarez in jail –
• 1.1 – 1.6 and 2.1 all directly related to client interviewing & counselling
o Constitutional requirement: Must communicate plea offers & must provide accurate info (Lafler&Flye)
o Distinguish between objectives and means under Rule 1.2
o Clear cut objectives: plea, jury, testify
o Wide latitude in counseling and decision making
♣ Where to fall on the spectrum is largely governed by professional identity/ discretion abs view of what it means to be client-centered
o Conditions for good counseling as stated by Ellman
♣ Aware a decision must be made and are entitled to make it
♣ Know their choices and the extent/likelihood of costs and benefits of the choices
♣ Acting with as full understanding of own values and emotional needs as possible
♣ “The limits of allowable persuasion are fixed by the lawyer’s conscience” Tony Amsterdam
¬ Defender argues with the client forcefully to take the deal
– Put some etchics: demographics of those charged etc.
• Angelo Alvarez (probably Mexican etc.
Client autonomy refers to the client’s right to decide what her own interests are.
Zeal refers to the dedication with which the lawyer further the client’s interests
The model rules do not include a specific rule that enjoins the lawyer to zealous representation.
¬ Though, according to comment [1] to Rule 1.3 “a lawyer shall act with reasonable diligence and promptness in representing a client…a lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf”
Lawyer-client trust and confidence. Competent representation requires that a lawyer is fully informed of all the facts of the matter he is handling
¬ The ethic of lawyer-client trust and confidence emphasizes each individual client’s need for effective representation. In a free society the public interest is served when individual dignity is respected, autonomy is fostered and due process of law is enhanced through professional assistance.
¬ Unless the client gives informed consent, or disclosure is impliedly authorized to carry out the representation, Model Rule 1.6 (a) protects all information “relating to the representation” regardless of how or when the lawyer comes to know protects all information relating to the representation regardless of how or when the lawyer comes to know it.
¬ ABA 3.3 (a) 3 a lawyer is required to reveal a client’s confidences if necessary to prevent perjury or to correct materially false evidence that the lawyer has offered.
¬ Model rule 1.6 (b) (6) permits but does not require the lawyer to reveal confidences in order to comply with “other law or court order”. In short, if a lawyer is willing to face contempt of court for withholding her clients confidences despite a court order or law, she might be punished by court, but will not have committed a disciplinary violation. Judges sometimes di order lawyers to do things the lawyer believes are unethical.
(Come back to the book) The perjury trilemma: the lawyer’s ethical difficulty has been called a trilemma. It derives from 3 obligations. First, in order to give clients effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts. Second, in order to encourage clients to entrust their lawyers with embarrassing or harmful information, lawyers are under a duty of confidentiality with regard to information obtained in professional relationships. Third, lawyers are expected to be candid with the court. To resolve this trilemma, one of the three duties must give away.
¬ 2 models
o Trust and confidence b/w lawyer and client
o Intentional ignorance:the lawyer puts the client on notice that the lawyer woulkd prefer not to know certain kinds of facts and that the lawyer can be expected to pass on the judge or the other party information that the client would prefer to keep confidential.
Counseling clients
– 1.2 (d) forbids two kinds of conduct.
First, the lawyer shall not “counsel a client to engage” in criminal conduct. Simply to explain the consequences of a violation of law does not do that.
Second, the lawyer is forbidden to “assist a client…in conduct the lawyer knows is criminal”
8.4: a lawyer is forbidden to engage in conduct involving dishonesty, fraud, deceit or misrepresentation
Comment 9 to model rule 1.2: This prohibition however does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that the client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer party to the course of action.”
“Critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity”
These rules are not as stringent as they appear. All of them either explicitly or by implication, must be interpreted consistently with