Professional Responsibility for Criminal Defense Attorneys

ERIC D. PLACKE OFFICE OF THE FEDERAL PUBLIC DEFENDER

MIDDLE DISTRICT OF NORTH CAROLINA

March 2015

Professional Responsibility

Competence

Communication

Conflicts

Control

Confidentiality

Candor & Fairness

Professional Responsibility

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Professional Responsibility

Competence

The Ethical Duty of Competence

Legal Malpractice

Ineffective Assistance of Counsel

Professional Responsibility

The Ethical Duty of Competence“A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the legal representation.”

N.C. Rule 1.1 (emphasis added)

Professional Responsibility

At your very first meeting, your client tells you they robbed the bank, and they just want to plead guilty and do their time. What is your ethical obligation with respect to investigation?

Professional Responsibility

The Ethical Duty of Competence

“Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. . . . The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.”

ABA Standard 4-4.1(a)(emphasis added)

Professional Responsibility

Legal Malpractice

“An attorney is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence … .”

Belk v. Cheshire, 159 N.C. App. 325, 328, 583 S.E.2d 700, 703 (2003).

Professional Responsibility

Legal Malpractice

“The burden of proof required to show proximate cause in an action for legal malpractice arising in the context of a criminal proceeding is, for public policy reasons, necessarily a high one.”

Belk, 159 N.C. App. at 331-32, 583 S.E.2d at 705-06.

Professional Responsibility

Ineffective Assistance of Counsel

Attorney’s representation fell below “an objective standard of reasonableness.”

“Reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668 (1984).

Professional Responsibility

Communication

“Shall”

“Promptly”

“Reasonable”

N.C. Rule 1.4

Professional Responsibility

You fully reviewed the discovery and summarized it for your client, but they want copies of all 900 pages, and want to watch all 7 hours of video recordings. What is your ethical obligation?

Professional Responsibility

Communication

2013 Formal Ethics Opinion 2 (January 24, 2014)

2013 Formal Ethics Opinion 2 (October 24, 2014)

Professional Responsibility

Conflicts

Conflicts Between Clients

Other Conflicts

Professional Responsibility

Conflicts Between Clients

Concurrent “directly adverse” or “materially limited” N.C. Rule 1.7

Successive

“same or substantially related matter” “materially adverse” interests N.C. Rule 1.9

Imputed?

Professional Responsibility

Other Conflicts

“Political, financial, business, property or personal interests” of defense counsel. ABA Standard 4-3.5(a)

Sexual Relationships. N.C. Rule 1.19

Imputed?

Professional Responsibility

You determine that representing two potential clients would present a concurrent conflict of interest. What are your ethical obligations, and options?

What do you do if you have already been appointed to represent both clients?

Professional Responsibility

Response to Conflicts

Consent

Decline

Withdraw

Professional Responsibility

Control

General Guidance

Client Decisions

Counsel Decisions

Professional Responsibility

General Guidance

“Abide by a client’s decision’s concerning the objectives of representation.”

“Consult with the client as to the means by which they are to be pursued.”

N.C. Rule 1.2(a)

Professional Responsibility

Client Decisions?

Professional Responsibility

Client Decisions

Plea

Professional Responsibility

Client Decisions

Plea Jury Trial

Professional Responsibility

Client Decisions

Plea Jury Trial Testify

Professional Responsibility

Client Decisions

Plea Jury Trial Testify Appeal

Professional Responsibility

After a great deal of hard work and tough negotiating, you convinced the government to dismiss both 18 USC 924(c) counts in a drug case, in exchange for an appeal waiver. Your client received the mandatory minimum on the single drug conspiracy count. Now your client wants to appeal. What do you do?

Professional Responsibility

“An attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client’s unequivocal instruction to file a timely notice of appeal, even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement.”

United States v. Poindexter, 492 F.3d 263, 265 (4th Cir. 2007)(emphasis added).

Professional Responsibility

Counsel Decisions?

Professional Responsibility

Counsel DecisionsMotions

Professional Responsibility

Counsel DecisionsMotions Accept or Strike Jurors

Professional Responsibility

Counsel DecisionsMotions Accept or Strike Jurors Cross Examination

Professional Responsibility

Counsel DecisionsMotions Accept or Strike Jurors Cross Examination Evidence

Professional Responsibility

Counsel DecisionsMotions Accept or Strike Jurors Cross Examination EvidenceWitnesses

Professional Responsibility

Counsel DecisionsMotions Accept or Strike Jurors Cross Examination EvidenceWitnessesMistrial

Professional Responsibility

Confidentiality

General Rule

Exceptions

North Carolina v. ABA

Professional Responsibility

Confidentiality – General Rule

“A lawyer shall not reveal information acquired during the professional relationship unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

N.C. Rule 1.6(a).

Professional Responsibility

Confidentiality – Exceptions“May” reveal, to extent “reasonably believes necessary,” to:(1) Comply with Rules of Professional Conduct, law or court order(2) Prevent the commission of a crime by client(3) Prevent reasonably certain death or bodily harm(4) Prevent, mitigate, or rectify consequences of client’s criminal or

fraudulent act that used the lawyer’s services (5) Secure legal advice about lawyer’s compliance with these Rules(6) Establish a claim or defense on behalf of the lawyer … or respond

to allegations concerning lawyer’s representation of client(7) Comply with rules of approved lawyers’ or judges’ assistance

program

N.C. Rule 1.6(b)

Professional Responsibility

Confidentiality: NC v. ABA

“May reveal . . . to the extent the lawyer reasonably believes necessary . . . to prevent the commission of a crime by the client.” N.C. Rule 1.6(b)(2).

“May reveal to the extent he or she reasonably believes necessary to prevent the client from committing a criminal act that defense counsel believes is likely to result in imminent death or substantial bodily harm.” ABA Standard 4-3.7(d)(emphasis added).

Professional Responsibility

The government has been ordered to respond to a 28 USC 2255 motion filed by your former client. The U.S. Attorney asks you to prepare an affidavit in response to the former client’s allegations of ineffective assistance of counsel. What do you do?

Professional Responsibility

Confidentiality: 2255s - ABA

A criminal defense attorney accused of ineffective assistance by a former client cannot share confidential information with prosecutors to help establish a defense to the former client’s claim of ineffective assistance of counsel unless the disclosure is made in a court-supervised setting.

ABA Formal Ethics Opinion 10-456

Professional Responsibility

Confidentiality: 2255s - NC

On January 27, 2012, the NC State Bar adopted 2011 FEO 16. Citing both NC Rule 1.6(b)(6) and N.C.G.S. 15A-1415(e), the NC State Bar declined to adopt the ABA position. Rather, 2011 FEO 16 provides that defense counsel can continue to respond to inquiries from prosecutors but also cautions that both inquiries and responses should be “narrowly tailored to address the specific facts underlying the specific claim. Simply put, the … claim … does not give the lawyer carte blanche to disclose all information contained in the former client’s file.”

Professional Responsibility

Candor & Fairness

Meritorious Claims & Contentions

False Evidence & The Lying Client

Mistakes by Others

Professional Responsibility

Meritorious Claims & Contentions

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous … a lawyer for the defendant in a criminal proceeding … may nevertheless so defend the proceeding as to require that every element of the case be established.”

N.C. Rule 3.1 (emphasis added).

Professional Responsibility

False Evidence

Evidence known to be false – “shall not offer”

Evidence reasonably believed to be false – “may refuse to offer”

N.C. Rule 3.3(a)(3)

Professional Responsibility

Your client wants to testify she did not rob the bank, even though she was caught just outside the bank with dye-stained bait bills in her hand, her favorite uncle, loyal husband and adoring children all reluctantly identify her in the surveillance video, and she confessed to the arresting officer and the FBI. What do you do?

Professional Responsibility

The Lying Client

“Unless the lawyers knows the testimony will be false, the lawyer must honor the client’s decision to testify.” N.C. Rule 3.3, Comment 9 (emphasis added).

“Persuade” first, but then what?

“Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel’s knowing of such facts.” ABA Standard 4-3.2(b)(emphasis added).

Professional Responsibility

Mistakes by Others

“[A] defense lawyer may remain silent while the prosecution presents an inaccurate driving record to the court provided the lawyer and client did not criminally or fraudulently misrepresent the driving record to the prosecutor or the court … .” 1998 FEO 5 (emphasis added)

Professional Responsibility

Mistakes by Others

“[A] defense lawyer may remain silent while the prosecution presents an inaccurate driving record to the court provided the lawyer and client did not criminally or fraudulently misrepresent the driving record to the prosecutor or the court … .” 1998 FEO 5 (emphasis added)

“[A] lawyer must notify the court when a clerk of court mistakenly dismisses a client’s charges.”2011 FEO 12 (emphasis added)

Professional Responsibility

Competence

Communication

Conflicts

Control

Confidentiality

Candor & Fairness

Professional Responsibility for Criminal Defense Attorneys

ERIC D. PLACKE OFFICE OF THE FEDERAL PUBLIC DEFENDER

MIDDLE DISTRICT OF NORTH CAROLINA

March 2015