AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE, THE DEFENSE FUNCTION

(2d ed. 1980)

4-1.1. The defense counsel, in protecting the rights of the defendant, may resist the wishes of the judge on some matters, and though such resistance should never lead to disrespectful behavior, defense counsel may appear unyielding and uncooperative at times. In so doing, defense counsel is not contradicting his or her duty to the administration of justice but is fulfilling a function within the adversary system. The adversary system requires defense counsel's presence and zealous professional advocacy just as it requires the presence and zealous advocacy of the prosecutor and the constant neutrality of the judge. Defense counsel should not be viewed as impeding the administration of justice simply because he or she challenges the prosecution, but as an indispensable part of its fulfillment.

The role of counsel for the accused is difficult because it is complex, involving multiple obligations. Toward the client the lawyer is a counselor and an advocate; toward the prosecutor the lawyer is a professional adversary; toward the court the lawyer is both advocate for the client and counselor to the court. The lawyer is obliged to counsel the client against any unlawful future conduct and to refuse to implement any illegal conduct. But included in defense counsel's obligations to the client is the responsibility of furthering the defendant's interest to the fullest extent that the law and the standards of professional conduct permit.

Advocacy is not for the timid, the meek, or the retiring. Our system of justice is inherently contentious, albeit bounded by the rules of professional ethics and decorum, and it demands that the lawyer be inclined toward vigorous advocacy. Nor can a lawyer be half-hearted in the application of his or her energies to a case. Once a case has been undertaken, a lawyer is obliged not to omit any essential honorable step in the defense, without regard to compensation or the nature of the appointment....

The "alter ego" concept of a defense lawyer, which regards the lawyer as a "mouthpiece" for the client, is fundamentally wrong, unethical, and destructive of the lawyer's image; more important to the accused, perhaps, this pernicious idea is destructive of the lawyer's usefulness. The lawyer's value to each client stems in large part from the lawyer's independent stance, as a professional representative rather than as an ordinary agent. What the lawyer can accomplish for any one client depends heavily on his or her reputation for professional integrity. Court and opposing counsel will treat the lawyer with the respect that facilitates furthering the client's interests only if the lawyer maintains proper professional detachment and conduct in accord with accepted professional standards.

It is fundamental that in relations with the court, defense counsel must be scrupulously candid and truthful in representations of any matter before the court. This is not only a basic ethical requirement, but it is essential if the lawyer is to be effective in the role of advocate, for if the lawyer's reputation for veracity is suspect, he or she will lack the confidence of the court when it is needed most to serve the client....

[The 1974 Approved Draft of this standard contained the following specific advice to defense lawyers concerning confidential communications.

He can [bring to bear on the problems of defense the skill, experience, and judgment he possess] only if he knows all that his client knows concerning the facts. The client is not competent to evaluate the relevance or significance of facts; hence the lawyer must insist on complete and candid disclosure. Secondly, he must be able to conduct the case free from interference. These two factors explain the rule of leading criminal defense lawyers that they have complete disclosure of all facts and entire control of the technical and legal aspects of the litigation.]

LAWYER-CLIENT RELATIONSHIP

4-3.1. Establishment of relationship.

(a) Defense counsel should seek to establish a relationship of trust and confidence with the accused. The lawyer should explain the necessity of full disclosure of all facts known to the client for an effective defense, and the lawyer should explain the obligation of confidentiality which makes privileged the accused's disclosures relating to the case....

4-3.2. Interviewing the client.

(a) As soon as practicable the lawyer should seek to determine all relevant facts known to the accused. In so doing, the lawyer should probe for all legally relevant information without seeking to influence the direction of the client's responses.

(b) It is unprofessional conduct for the lawyer to instruct the client or to intimate to him in any way that the client should not be candid in revealing facts so as to afford the lawyer free rein to take action which would be precluded by the lawyer's knowing of such facts.

4-3.7. Advice and service on anticipated unlawful conduct.

(a) It is a lawyer's duty to advise a client to comply with the law but the lawyer may advise concerning the meaning, scope and validity of a law.

(b) It is unprofessional conduct for a lawyer to counsel a client in or knowingly assist a client to engage in conduct which the lawyer knows to be illegal or fraudulent.

(c) It is unprofessional conduct for a lawyer to agree in advance of the commission of a crime that the lawyer will serve as counsel for the defendant, except as part of a bona fide effort to determine the validity, scope, meaning or application of the law, or where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.

(d) A lawyer may reveal the expressed intention of a client to commit a crime and the information necessary to prevent the crime; and the lawyer must do so if the contemplated crime is one which would seriously endanger the life or safety of any person or corrupt the processes of the courts and the lawyer believes such action on his or her part is necessary to prevent it.


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