Tony Gallagher Federal Defender. Professional Ethics for the Criminal Justice Act Lawyer.

Tony GallagherFederal Defender

Professional Ethics for the Professional Ethics for the Criminal Justice Act LawyerCriminal Justice Act Lawyer

We are presented with examples of ethical dilemmas every day

Through this presentation, I would like to raise some ethical issues for discussion through film clips, cartoons and interactive discussion

We will discussWe will discuss several issues that come up in every criminal defense lawyer’s experience

Volunteers and willing participants will be appreciated

Notes about this presentationNotes about this presentation

The Ethics Rules discussed The Ethics Rules discussed during this talk are from:during this talk are from:

The ABA Code and Model Rules The ABA Code and Model Rules of Professional Responsibility andof Professional Responsibility and

The North Carolina State Bar The North Carolina State Bar Rules of Professional Conduct Rules of Professional Conduct (Title 27 of the North Carolina (Title 27 of the North Carolina Administrative Code)Administrative Code)

Notes about this presentationNotes about this presentation

Film clips and cartoons are Film clips and cartoons are used for educational purposes used for educational purposes under the ‘fair use’ exception under the ‘fair use’ exception to the copyright laws of the to the copyright laws of the United States, and are not United States, and are not displayed for any other displayed for any other reason.reason.

Duties of Appointed CounselDuties of Appointed Counsel Professional ConductProfessional Conduct. Attorneys . Attorneys

appointed pursuant to the CJA appointed pursuant to the CJA shall conform to the highest shall conform to the highest standards of professional conduct, standards of professional conduct, including but not limited to the including but not limited to the provisions of the North Carolina provisions of the North Carolina State Bar Rules of Professional State Bar Rules of Professional Conduct and the American Bar Conduct and the American Bar Association's Model Rules of Association's Model Rules of Professional Conduct.Professional Conduct.

Such attorneys shall also Such attorneys shall also conform to the highest conform to the highest standards of the bar of all standards of the bar of all other states, districts or other states, districts or territories of which they territories of which they may be members.may be members.

from the CJA Plan for the EDNCfrom the CJA Plan for the EDNC

Duties of Appointed CounselDuties of Appointed Counsel

Oh, what the hell, I’ll just add another zero

CJA RepresentationCJA Representation

One month after appointment One month after appointment your client comes to you and tells your client comes to you and tells you he lied on the affidavit, i.e., you he lied on the affidavit, i.e., that in fact he did and does have that in fact he did and does have assets not listed on the affidavit, assets not listed on the affidavit, and he wants to give you some and he wants to give you some money because you’re doing such money because you’re doing such a good job on his case. Should a good job on his case. Should you tell the Court?you tell the Court?


Should you indicate to the Should you indicate to the Court that the defendant may Court that the defendant may now be able to pay, in whole now be able to pay, in whole or in part?or in part?


Immediately prior to trial you Immediately prior to trial you learn from the defendant’s learn from the defendant’s sister that he has a savings sister that he has a savings account with $10,000 in it. account with $10,000 in it. Should you inform the Court?Should you inform the Court?

One more thing . . . .One more thing . . . .

What recourse do you What recourse do you have if you are have if you are subpoenaed by a federal subpoenaed by a federal Grand Jury regarding your Grand Jury regarding your client’s financial status?client’s financial status?

CJA Plan for EDNCCJA Plan for EDNC

D. Eligibility for Representation.D. Eligibility for Representation. 1. Fact-finding.1. Fact-finding. The determination of The determination of

eligibility for representation under eligibility for representation under the CJA is a judicial function to be the CJA is a judicial function to be performed by a federal judge or performed by a federal judge or magistrate judge after making magistrate judge after making appropriate inquiries concerning the appropriate inquiries concerning the person's financial condition.person's financial condition.

CJA Plan for EDNCCJA Plan for EDNC 2. 2. Disclosure of Change in EligibilityDisclosure of Change in Eligibility. If, . If,

at any time after appointment, counsel at any time after appointment, counsel obtains information that a client is obtains information that a client is financially able to make payment, in financially able to make payment, in whole or in part, for legal or other whole or in part, for legal or other services in connection with his or her services in connection with his or her representation, and the source of the representation, and the source of the attorney's information is not protected attorney's information is not protected as a privileged communication, as a privileged communication, counsel shall advise the court.counsel shall advise the court.

“Is it fair? Is it true? Get a grip, Carlton. We’re a law firm!”

Liar, LiarLiar, Liar

Despite the view of an Despite the view of an ethical colleague, Jim ethical colleague, Jim Carey demonstrates an Carey demonstrates an interesting way that the interesting way that the client’s interests can be client’s interests can be presented to the trial courtpresented to the trial court

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly: (1) make a false statement of

material fact or law to a tribunal; (2) fail to disclose a material fact to a

tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

“Remember when I said I was going to be honest with you? That was a big

fat lie.”

What do you do if your What do you do if your client changes her client changes her story and tells you that story and tells you that she will testify she will testify differently than you differently than you thought she would?thought she would?

Does a lawyer “know” that a client is going to commit perjury?

an attorney must use extreme caution in deciding that a client intends to commit perjury

nothing but a clear expression of intent to commit perjury should trigger action by counsel

knowledge exists only when the client acknowledges the perjury to the attorney

When should the lawyer act?When should the lawyer act?

only upon information which the attorney reasonably knows to be a fact and

when combined with other facts in his knowledge would clearly establish the existence of a fraud on the tribunal

Federal Court: Judgment Call?Federal Court: Judgment Call?

whether you “know” that your client planned to give false testimony is subject to a highly deferential review in the federal courts

standard applied is Strickland v. Washington, 466 U.S. 688 (1984)

A Judgment Call?A Judgment Call? Nix v. Whiteside A lawyer’s certainty that a change in

his client’s recollection is a harbinger of intended perjury – as well as judicial review of such apparent certainty – should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls), details that he previously overlooked.

Various ApproachesVarious Approaches

the narrative try to dissuade the client, then

threaten and/or attempt to withdraw refrain from calling the client limit examination to subjects about

which the client will be truthful the NACDL approach

The North Carolina view:The North Carolina view:Comment to Rule 3.3Comment to Rule 3.3

The general rule that an advocate The general rule that an advocate must reveal the existence of perjury must reveal the existence of perjury with respect to a material fact—even with respect to a material fact—even that of a client—applies to defense that of a client—applies to defense counsel in criminal cases, as well as counsel in criminal cases, as well as in other instances. in other instances.


However, the definition of the However, the definition of the lawyer’s ethical duty in such a lawyer’s ethical duty in such a situation may be qualified by situation may be qualified by constitutional provisions for due constitutional provisions for due process and the right to counsel in process and the right to counsel in criminal cases.criminal cases.


These provisions have been These provisions have been construed to require that counsel construed to require that counsel present an accused as a witness if present an accused as a witness if the accused wishes to testify, even if the accused wishes to testify, even if counsel knows the testimony will be counsel knows the testimony will be false.false.

The obligation of the advocate under The obligation of the advocate under these Rules is subordinate to such a these Rules is subordinate to such a constitutional requirement.constitutional requirement.

The North Carolina ViewThe North Carolina View

If you rely upon “actual knowledge” or “proof beyond a reasonable doubt” before you decide you “know” a client intends to commit perjury, you probably have not violated North Carolina Rule 3.3

CONSUMER WARNING:CONSUMER WARNING:The NACDL clearly warns The NACDL clearly warns that no ethics opinion can that no ethics opinion can guarantee a “safe harbor in guarantee a “safe harbor in difficult cases”. In close difficult cases”. In close cases lawyers should cases lawyers should proceed carefully, with full proceed carefully, with full knowledge of the applicable knowledge of the applicable ethical rules, and ideally ethical rules, and ideally with the advice of counselwith the advice of counsel

“I thought it was legal --- I wrote it on a legal pad.”

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation,

except as stated in paragraph (b).


(b) A lawyer may reveal (emphasis added) such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or


(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,

to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved,

or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Rule 1.2 Scope of Representation

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.2 Scope of Representation

(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

The FirmThe Firm

What if your client is a little What if your client is a little shady . . .shady . . .

Let’s see how Tom Cruise Let’s see how Tom Cruise handles the situationhandles the situation

Practice PointersPractice Pointers

Don’t do it aloneDon’t do it alone Make a record of Make a record of everythingeverything Whatever happens, Whatever happens,

remember that your client remember that your client may be the first to raise the may be the first to raise the question in a post-conviction question in a post-conviction proceedingproceeding

I have to say . . .

I’m not

a big fan

of cloud

computing!

A 21A 21stst Century ethical problem Century ethical problem

Metadata is data about data. It Metadata is data about data. It describes how, when, and by describes how, when, and by whom a document was created.whom a document was created.

Distributing documents Distributing documents containing metadata may containing metadata may violate Rule 1.6 if it violates a violate Rule 1.6 if it violates a client’s confidentiality. client’s confidentiality.

ABA Ethics Opinion 06-442 (August 5, ABA Ethics Opinion 06-442 (August 5, 2006) states that "The Model Rules of 2006) states that "The Model Rules of Professional Conduct do not contain Professional Conduct do not contain any specific prohibition against a any specific prohibition against a lawyer’s reviewing and using lawyer’s reviewing and using embedded information in electronic embedded information in electronic documents, whether received from documents, whether received from opposing counsel, an adverse party, opposing counsel, an adverse party, or an agent of an adverse party."or an agent of an adverse party."

The North Carolina ViewThe North Carolina View Comment 17 and 18, Rule 1.6 – A lawyer must act competently to A lawyer must act competently to

safeguard information acquired safeguard information acquired during the representation of a during the representation of a client against inadvertent or client against inadvertent or unauthorized disclosure by the unauthorized disclosure by the lawyer or other persons who are lawyer or other persons who are participating in the representation participating in the representation of the client or who are subject to of the client or who are subject to the lawyer’s supervision. the lawyer’s supervision.

Ethical duty re: MetadataEthical duty re: Metadata

An attorney has an ethical An attorney has an ethical duty to exercise reasonable duty to exercise reasonable care when transmitting care when transmitting electronic documents to electronic documents to ensure that he or she does ensure that he or she does not disclose his or her client’s not disclose his or her client’s secrets and confidencessecrets and confidences


Just as a sending lawyer has an Just as a sending lawyer has an ethical obligation to reasonably ethical obligation to reasonably protect the confidences of a protect the confidences of a client, the receiving lawyer client, the receiving lawyer also has an ethical obligation also has an ethical obligation to refrain from mining an to refrain from mining an electronic documentelectronic document


The unauthorized mining of The unauthorized mining of metadata by an attorney to metadata by an attorney to uncover confidential uncover confidential information would be a information would be a violation of the Rules of violation of the Rules of Professional Conduct.Professional Conduct.

The VerdictThe Verdict

Does James Mason go tooDoes James Mason go toofar in preparing his witness?far in preparing his witness?

Competence and ClaimsCompetence and Claims

Rule 1.1 requires the legal Rule 1.1 requires the legal knowledge, skill, thoroughness and knowledge, skill, thoroughness and preparation reasonably necessary for preparation reasonably necessary for the representationthe representation

Rule 3.1 demands good faith Rule 3.1 demands good faith argument. In a criminal case, the argument. In a criminal case, the lawyer may defend in such a manner lawyer may defend in such a manner as to require that every element of as to require that every element of the case be establishedthe case be established

Rule 3.3 Candor Toward the Tribunal

[a lawyer shall not] (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

. . . (c) A lawyer may refuse to offer

evidence that the lawyer reasonably believes is false.

“I’ve arranged your options according to their legality.”

Three RulesThree Rules

Rule 4.1 Truthfulness in Statement to Rule 4.1 Truthfulness in Statement to Others.Others.

Rule 1.6 Confidentiality of Rule 1.6 Confidentiality of InformationInformation

Rule 4.3 Dealing With Unrepresented Rule 4.3 Dealing With Unrepresented PersonPerson

One hour before trial is scheduled to One hour before trial is scheduled to begin, you learn that one of your begin, you learn that one of your witnesses will inculpate herself on witnesses will inculpate herself on the stand. Do you have an the stand. Do you have an obligation to inform the witness of obligation to inform the witness of her peril?her peril?

If it only becomes clear during the If it only becomes clear during the witness’ testimony that she is about witness’ testimony that she is about to inculpate herself, who, if anyone, to inculpate herself, who, if anyone, should act and what should be done?should act and what should be done?

Dealing with the unrepresentedDealing with the unrepresented


Rule 4.3 -- In dealing on behalf of a client Rule 4.3 -- In dealing on behalf of a client with a person who is not represented by with a person who is not represented by counsel, a lawyer shall not: counsel, a lawyer shall not:

(a) give legal advice to the person, other (a) give legal advice to the person, other than the advice to secure counsel, if the than the advice to secure counsel, if the lawyer knows or reasonably should know lawyer knows or reasonably should know that the interests of such person are or that the interests of such person are or have a reasonable possibility of being in have a reasonable possibility of being in conflict with the interests of the client; and conflict with the interests of the client; and


(b) state or imply that the lawyer is (b) state or imply that the lawyer is disinterested. When the lawyer disinterested. When the lawyer knows or reasonably should know knows or reasonably should know that the unrepresented person that the unrepresented person misunderstands the lawyer’s role in misunderstands the lawyer’s role in the matter, the lawyer shall make the matter, the lawyer shall make reasonable efforts to correct the reasonable efforts to correct the misunderstanding.misunderstanding.

Respect Rights Of Third PersonsRespect Rights Of Third Persons

Rule 4.4 (a) In representing Rule 4.4 (a) In representing a client, a lawyer shall not . a client, a lawyer shall not . . . use methods of obtaining . . use methods of obtaining evidence that violate the evidence that violate the legal rights of such a legal rights of such a person.person.

Rule 3.4 Fairness to Opposing Rule 3.4 Fairness to Opposing Parties and CounselParties and Counsel

A lawyer shall not:

. . . (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law

Anatomy of a MurderAnatomy of a Murder

Jimmy Stewart introduces his Jimmy Stewart introduces his new client, Ben Gazzara, to the new client, Ben Gazzara, to the classic defenses for murderclassic defenses for murder

Communication – Rule 1.4Communication – Rule 1.4

a) A lawyer shall: . . .a) A lawyer shall: . . . (2) reasonably consult with the client (2) reasonably consult with the client

about the means by which the client’s about the means by which the client’s objectives are to be accomplished;objectives are to be accomplished;

(b) A lawyer shall explain a matter to (b) A lawyer shall explain a matter to the extent reasonably necessary to the extent reasonably necessary to permit the client to make informed permit the client to make informed decisions regarding the representation.decisions regarding the representation.

Explaining MattersExplaining Matters

The client should have sufficient The client should have sufficient information to participate information to participate intelligently in decisions concerning intelligently in decisions concerning the objectives of the representation the objectives of the representation and the means by which they are to and the means by which they are to be pursued, to the extent the client be pursued, to the extent the client is willing and able to do so.is willing and able to do so.

Explaining MattersExplaining Matters

In litigation a lawyer should explain In litigation a lawyer should explain the general strategy and prospects the general strategy and prospects of success and ordinarily should of success and ordinarily should consult the client on tactics that are consult the client on tactics that are likely to result in significant expense likely to result in significant expense or to injure or coerce others.or to injure or coerce others.

NutsNuts

Richard Dreyfus, Barbara StreisandRichard Dreyfus, Barbara Streisand

Ethical and practical lessons?Ethical and practical lessons?

Client With Diminished CapacityClient With Diminished Capacity Rule 1.14: Rule 1.14: (a) When a client’s capacity to make (a) When a client’s capacity to make

adequately considered decisions in adequately considered decisions in connection with a representation is connection with a representation is diminished, whether because of diminished, whether because of minority, mental impairment or for minority, mental impairment or for some other reason, the lawyer shall, some other reason, the lawyer shall, as far as reasonably possible, as far as reasonably possible, maintain a normal client-lawyer maintain a normal client-lawyer relationship with the client.relationship with the client.

Does it matter that she’s ‘nuts’?Does it matter that she’s ‘nuts’?

The fact that a client suffers a The fact that a client suffers a disability does not diminish the disability does not diminish the lawyer’s obligation to treat the client lawyer’s obligation to treat the client with attention and respect. Even if with attention and respect. Even if the person has a legal representative, the person has a legal representative, the lawyer should as far as possible the lawyer should as far as possible accord the represented person the accord the represented person the status of client, particularly in status of client, particularly in maintaining communication.maintaining communication.

N.C. Comment to Rule 1.4N.C. Comment to Rule 1.4

Ordinarily, the information to be Ordinarily, the information to be provided is that appropriate for a provided is that appropriate for a client who is a comprehending and client who is a comprehending and responsible adult. However, fully responsible adult. However, fully informing the client according to this informing the client according to this standard may be impracticable, for standard may be impracticable, for example, where the client is a child example, where the client is a child or suffers from diminished capacity. or suffers from diminished capacity. See Rule 1.14.See Rule 1.14.

A Few Good MenA Few Good Men

What can you do in Opening Statement?What can you do in Opening Statement?

Compare Kevin Bacon’s opening with Compare Kevin Bacon’s opening with the opening statement by Tom Cruise . . the opening statement by Tom Cruise . . . Does either lawyer breach any ethical . Does either lawyer breach any ethical rules? rules?

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not . . . (e) in trial, allude to any

matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence

Rule 3.4 Fairness to Opposing Party and Counsel

. . . assert personal knowledge of facts in issue except when testifying as a witness

or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused

General Rules forGeneral Rules forOpening StatementsOpening Statements

(1) avoid appealing to (1) avoid appealing to passion or prejudice passion or prejudice

(2) do not disparage another (2) do not disparage another party or opposing counsel party or opposing counsel


(3) do not express (3) do not express personalpersonal opinion as to the justness of opinion as to the justness of your cause, the credibility of your cause, the credibility of witnesses or the guilt or witnesses or the guilt or innocence of the accused innocence of the accused


(4) do not assert (4) do not assert personalpersonal knowledge of a fact in knowledge of a fact in issue and issue and

(5) do not allude to a (5) do not allude to a matter trial counsel does matter trial counsel does not reasonably believe to not reasonably believe to be relevantbe relevant

Its translated from French, so where it says ‘Harvard Business School’ it may mean ‘jail.’

Do you have a duty to Do you have a duty to correct misleading or correct misleading or false information?false information?

Misleading InformationMisleading Information

At the time of sentencing, the At the time of sentencing, the prosecuting attorney informs the prosecuting attorney informs the Court that the defendant has no Court that the defendant has no prior record. If you are aware, prior record. If you are aware, based on the client interviewbased on the client interview, , that the Defendant that the Defendant doesdoes have a have a record, must you inform the record, must you inform the Court?Court?

Misleading InformationMisleading Information

What if the Judge asks you What if the Judge asks you whether your client has a whether your client has a criminal history?criminal history?

If the defendant made the actual If the defendant made the actual misrepresentation about her misrepresentation about her prior record to the Court, could prior record to the Court, could or should you correct it?or should you correct it?

U.S. v. WadeU.S. v. Wade, 388 U.S. 218, 388 U.S. 218

Law enforcement officers have the Law enforcement officers have the obligation to convict the guilty and to make obligation to convict the guilty and to make sure they do not convict the innocent.sure they do not convict the innocent.

But defense counsel has no comparable But defense counsel has no comparable obligation to ascertain or present the truthobligation to ascertain or present the truth. . Our system assigns him a different Our system assigns him a different mission. He must be and is interested in mission. He must be and is interested in preventing the conviction of the innocent, preventing the conviction of the innocent,

but, absent a voluntary plea of guilty, we but, absent a voluntary plea of guilty, we also insist that he defend his client whether also insist that he defend his client whether he is innocent or guiltyhe is innocent or guilty

So we are off the hook right? So we are off the hook right?

Not so Not so Fast, Fast, my my friend! friend!

You cannot suborn You cannot suborn perjury. perjury.

You must be clear with You must be clear with your client at the initial your client at the initial meeting:meeting:

“ “I cannot divulge what you I cannot divulge what you tell me but I am not tell me but I am not allowed to let you perjure allowed to let you perjure yourself.”yourself.”

Will the more astute client Will the more astute client know how to “play this know how to “play this angle”?angle”?

Probably. Probably.

Fully explain the options and Fully explain the options and let them make the decision.let them make the decision.

As advocates, it is our place in As advocates, it is our place in

the system to give them the the system to give them the benefit of the doubt. benefit of the doubt. However, we are not fulfilling However, we are not fulfilling our responsibility if we let our responsibility if we let them contradict a prior them contradict a prior recorded statementrecorded statement

Plea DilemmaPlea Dilemma

Repeatedly professes Repeatedly professes innocenceinnocence

Now wants to take dealNow wants to take deal

What if your client files a 2255?What if your client files a 2255?

In July 2010, the ABA issued a formal In July 2010, the ABA issued a formal opinion addressing the issue of opinion addressing the issue of whether a criminal defense attorney whether a criminal defense attorney may provide confidential information may provide confidential information concerning a former client to the concerning a former client to the prosecution to help establish a prosecution to help establish a defense to the former client’s claim defense to the former client’s claim of ineffective assistance of counsel. of ineffective assistance of counsel.


Although such a claim ordinarily Although such a claim ordinarily waives the attorney-client privilege, waives the attorney-client privilege, lawyers should strive to protect lawyers should strive to protect information relating to the information relating to the representation of a client under ABA representation of a client under ABA Model Rule 1.6. Accordingly, lawyers Model Rule 1.6. Accordingly, lawyers should only make disclosures in a should only make disclosures in a court-supervised setting. court-supervised setting.


As the opinion acknowledges, the As the opinion acknowledges, the vast majority of claims of ineffective vast majority of claims of ineffective assistance of counsel are dismissed assistance of counsel are dismissed without taking evidence and without without taking evidence and without a determination regarding the a determination regarding the reasonableness of the lawyer’s reasonableness of the lawyer’s representation. representation.


The opinion emphasizes the importance The opinion emphasizes the importance of maintaining the confidentiality of of maintaining the confidentiality of client communications and reinforces client communications and reinforces that attorneys should be reluctant to that attorneys should be reluctant to reveal any client communications in reveal any client communications in response to an ineffective assistance response to an ineffective assistance claim unless there is a court-supervised claim unless there is a court-supervised proceeding or the former client proceeding or the former client provides informed consent.provides informed consent.

What is North Carolina’s view?What is North Carolina’s view?

North Carolina General Statute North Carolina General Statute number 15A-1415(e) provides that number 15A-1415(e) provides that where a defendant alleges ineffective where a defendant alleges ineffective assistance as a ground for the assistance as a ground for the illegality of his conviction or illegality of his conviction or sentence, sentence,


. . . the defendant "shall be deemed to . . . the defendant "shall be deemed to waive the attorney-client privilege with waive the attorney-client privilege with respect to both oral or written respect to both oral or written communications between such counsel communications between such counsel and the defendant to the extent the and the defendant to the extent the defendant's prior counsel reasonably defendant's prior counsel reasonably believes such communications are believes such communications are necessary to defend against the necessary to defend against the allegations of ineffectiveness." allegations of ineffectiveness."


Rule 1.6(b)(6) – A lawyer may Rule 1.6(b)(6) – A lawyer may reveal information protected reveal information protected from to the extent the lawyer from to the extent the lawyer reasonably believes necessaryreasonably believes necessary

to . . . respond to allegations in to . . . respond to allegations in any proceeding concerning the any proceeding concerning the lawyer’s representation of the lawyer’s representation of the client;client;

Hicks v. United StatesHicks v. United States2010 WL 5441679 (S.D.W.Va.)2010 WL 5441679 (S.D.W.Va.)

Decided under West Virginia Ethics Decided under West Virginia Ethics RulesRules

““the Fourth Circuit is likely to approve the Fourth Circuit is likely to approve only a narrow implied waiver of the only a narrow implied waiver of the attorney-client privilege, combined with attorney-client privilege, combined with the potential availability of a protective the potential availability of a protective order to insure that privileged order to insure that privileged information is used only for the purpose information is used only for the purpose of litigating the federal habeas corpus of litigating the federal habeas corpus claim.”claim.”

“Come on, come on – It’s either one or the other”

Let your conscienceLet your consciencebe your guidebe your guide

In the Preamble to the North Carolina In the Preamble to the North Carolina Rules, Comment 10 provides, in part Rules, Comment 10 provides, in part

“ “ . . . a lawyer is also guided by . . . a lawyer is also guided by personal conscience and the personal conscience and the approbation of professional peers. A approbation of professional peers. A lawyer should strive to attain the lawyer should strive to attain the highest level of skill, to improve the highest level of skill, to improve the law and the legal profession, and to law and the legal profession, and to exemplify the legal profession’s ideals exemplify the legal profession’s ideals of public service.”of public service.”

Ethical customs that are not in the North Carolina Court rules

1. Reputation is everything to a lawyer (and probably as a person). Never sacrifice your personal integrity for the desire to “win at all costs.” You should bring your personal integrity with you to every representation, but you should assure that it is still intact when the representation is over.


2.Never do anything that will not benefit your client. If you do not have a reason to trust someone . . . DON’T.


3. Unless you are comfortable with it on tomorrow’s front page, do not put it in evidence or say it to the witness, the Court, your opponent or the jury -- and especially to the press.


4.Never try to “push the envelope” with potential defense witnesses, prosecution witnesses or your client. Nevertheless, establish from the outset that you will do everything within the bounds of the law and the ethical rules to protect your client’s rights, put the Government to its proof and to establish the ‘rightness’ of your client’s position.


5. As Mark Twain said -- “Always do what is right. This will gratify some people and astonish the rest.”

“This is what happens when ethical standards are artificially set too high.”

Questions?

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Tony Gallagher Federal Defender. Professional Ethics for the Criminal Justice Act Lawyer.

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