1 Panel Discussion Ethical Issues Confronting Criminal Defense Attorneys Willie J. Epps, Jr., Shook, Hardy & Bacon, Kansas City, Missouri
2 Ethical Issues Arising in Federal Criminal Defense Multi-Track Criminal Defense Seminar August 25, 2012 SAX Chicago Hotel
3 Communication Issues My attorney hasn t come to visit me in 6 months!!! 2
4 Communication Issues My attorney won t write to me and she won t listen. 3
5 Communication Issues We have only reviewed discovery once. He s not working on my case. 4
6 Communication Issues Your honor, what s going on with my case??? My attorney is worthless and racist. 5
7 Model Rules of Professional Conduct 6 ABA Model Rule 1.4: Communication Promptly inform client of any decision or circumstance with respect to which the client s informed consent is required. Reasonably consult with the client about the means by which the client s objectives are to be accomplished. Keep the client reasonably informed about the status of the matter.
8 Model Rules of Professional Conduct ABA Model Rule 1.4: Communication Promptly comply with reasonable requests for information. Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 7
9 Model Rules of Professional Conduct ABA Model Rule 1.5: Fees A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. 8
10 Fees Client fires CJA attorney twice: once during sentencing and then on appeal. After Court of Appeals affirms, client attempts to pay attorney $20,000 to seek additional relief. Can attorney take the case? 9
11 Control and Direction of the Case Client wants girlfriend to testify at trial. CJA attorney thinks it s a bad idea. Who wins? 10
12 Control and Direction of the Case Client wants to go to trial and risk getting the 20-year maximum upon conviction. CJA attorney thinks defendant should take the 6- year deal and move on. Who wins? 11
13 Control and Direction of the Case ABA Criminal Justice Standard What pleas to enter; Whether to accept a plea agreement; Whether to waive jury trial; Whether to testify in his or her own behalf; and Whether to appeal. 12
14 Control and Direction of the Case ABA Criminal Justice Standard Strategic and tactical decisions should be made by defense counsel after consultation with the client. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and what evidence should be introduced. 13
15 Control and Direction of the Case Client wants to argue insufficient evidence on appeal, plus improper evidence and 4 other frivolous issues. CJA attorney thinks it s a bad idea. Who wins? 14
16 Counsel on Appeal 15 ABA Criminal Justice Standard Appellate counsel has the ultimate authority to decide which arguments to make on appeal. When counsel decides not to argue all of the issues that client desires to be argued, counsel should inform client of his or her pro se briefing rights. Appellate counsel should not seek to withdraw from a case solely on the basis that the appeal lacks merit.
17 Rocky Relationship Client wants to file 2255 Client wants copy of entire file 16
18 Challenges to the Effectiveness of Counsel ABA Criminal Justice Standard Defense counsel whose conduct of a criminal case is drawn into question is entitled to testify concerning the matters charged and is not precluded from disclosing the truth concerning the accusation to the extent defense counsel reasonably believes necessary, even though this involves revealing matters which were given in confidence. 17
19 Client Wants Copy of Casefile Who owns the file? Is government discovery a part of client s file? Who pays for the copies? What about agreement with U.S. Attorney s Office not to distribute discovery to client? What has the 8 th Circuit said about client s right to the file? 18
20 Online Resources 19 ABA Center for Professional Responsibility nal_responsibility/resources/professionalism. html - comprehensive library of on-line ethics resources. nal_responsibility/resources/links_of_interest. html - state-by-state listing of links to professional responsibility ethics opinions.
21 Follow-up Questions or Comments Willie J. Epps, Jr. Shook, Hardy & Bacon, L.L.P Grand Boulevard Kansas City, Missouri (816)