BDQ s 5 B s. March 29,

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August Arnold
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1 BDQ s 5 B s Judge Rodney Webb used to refer to the Biblical Beatitudes MAF had Commander in Guard that used the 5 B s With apologizes to both, Bruce s 5 ethical B s: 1. Bucks 2. Behave 3. Be Prepared & Be Prompt 4. Bluntness 5. Booze and Babes and Boys March 29,

apologizes to both, Bruce s 5 ethical B s: 1. Bucks 2. Behave 3.

2 Resources In addition to the Rules, would recommend criminal defense attorneys consult: ABA Standards for Criminal Justice, Prosecution Function and Defense Function (3 rd Edition) ABA publication entitled Ethical Problems Facing the Criminal Defense Lawyer, Practical Answers to Tough Questions John Wesley Hall, Professional Responsibility in Criminal Defense Practice (3d Edition 2005) March 29,

entitled Ethical Problems Facing the Criminal Defense Lawyer, Practical Answers to Tough Questions

3 #1. Bucks: Money, Retainers, Ethics Minnesota: Bench and Bar article February 2009: Nonrefundable Retainers and other Oxymorons (see attachments) Minnesota Opinion No. 15 adopted in 1991; now repealed (January 2006); replaced by Rule 1.5 (b) and 1.15 (c) Minn. R. P. C. If general retainer, engagement fee, or availability agreements, may be ok and fee earned upon receipt But fee must be reasonable March 29,

15 adopted in 1991; now repealed (January 2006); replaced by Rule 1.5 (b) and 1.15 (c) Minn. R. P. C.

4 What about North Dakota? Discussed in Gavel Article in handout by Brent Edison [see attachment]; & see Rule 1.5 entitled Fees Read opening Paragraph and conclusion Query: Can nonrefundable retainer be used? And not placed in trust? What do you do with unearned fee if client discharges you before case is over? Should this ever be done without agreement in writing? Should attorney accept cash? Can attorney launder money? March 29,

And not placed in trust? What do you do with unearned fee if client discharges you before case is over?

5 2. Behave! Could be used for all ethical rules but focus here is attorney civility Many rules address this but Rule 3.4 most on point: Fairness to Opposing Party and Counsel Many references in ABA standards as well Don t Badmouth other attorneys; in fact recommend close personal and working relationships with most Give prospective clients honest advice e.g. standard sentencing practices for minor matters General Attorney conduct: -don t fight over nonsense e.g. most discovery disputes (make motions) -reasonable continuance requests -Don t make request for attorney fees for reasonable position taken by opponent March 29,

personal and working relationships with most Give prospective clients honest advice e.g. standard sentencing practices for minor matters General Attorney conduct: -don t fight over nonsense e.

6 3. Be Prepared and Be Prompt General client communication for criminal defense bar is Poor! SEE Rules 1.3 re Diligence and 1.4 re Communication All rights and procedures most defense attorneys explain All plea discussions are required to be conveyed; Rule 1.4; ABA Defense Function Standard Recommend in writing; confirm plea agreements w/ prosecutors Every scrap of paper rule Recommend client notebook (include collateral conseq.) Dual track representation March 29,

4 re Communication All rights and procedures most defense attorneys explain All plea discussions are required to be

7 #4. Bluntness : Candor to the Tribunal and Client Criminal Practice Dilemma: Can t knowingly use perjury BUT can attorney influence client facts to create defense? Anatomy of a Murder book and movie popularized the Lecture in which defendant is never asked if committed the crime; instead defense attorney outlines law and the asks for facts which gives client an opportunity to fit facts to a defense Client perjury issues called trilemma by Professor Freedman: represent client zealously; keep client s confidences; and maintain candor to court See attached Lecture and Newsweek Article: Don t ask, Don t tell. Compare with ABA defense function standard March 29,

for facts which gives client an opportunity to fit facts to a defense Client perjury issues called trilemma by Professor Freedman: represent client zealously; keep

8 ABA Defense Standard Interviewing the Client (a) As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client s responses (b) 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 free rein to take action which would be precluded by counsel s knowing of such facts. March 29,

In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client s

9 #5. Booze and Babes and Boys Stressful occupation (Class 1978 mortality rate) Alcohol and Drugs problem for some; Must address Also bigger problem than we acknowledge is inappropriate relations with our clients Called legal professions dirty little secret In re Marriage of Kantar, 581 NE2d 12 (Ill. App. Ct. 1991) March 29,

acknowledge is inappropriate relations with our clients Called legal professions

10 Dirty Little Secret Most likely if divorce attorney; second most likely if Criminal defense attorney See article: Sex and the Criminal Defense Lawyer: the Ethical limits of Intimacy in the Lawyer- Client Relationship [ABA book mentioned on slide #2] Article discusses pre-existing relationships, relationships (with consent) during attorney client relationship; and post representation relationships First two not recommended for obvious reasons March 29,

mentioned on slide #2] Article discusses pre-existing relationships, relationships (with consent) during attorney

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