Ethical Issues in Criminal Defense: There s a Rule for That!

Transcription

1 Ethical Issues in Criminal Defense: There s a Rule for That! 1) This presentation includes pictures that are being presented for educational purposes only under the fair use exception to U.S. Copyright laws. 2) Ethical issues are fact sensitive. When you are not sure ask for help! 1

2 PREVIEW Monroe Freedman s Three Questions Getting the client: money issues Hot Docs Crossing the Truthful Witness Defendant Perjury Providing the Defense? Press issue Common Pitfalls 2

3 Professional Responsibility of The Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev (1966) Monroe s Questions: 1966 Is it proper to cross examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth? Is it proper to put a witness on the stand when you know he will commit perjury? Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him or enable him to commit perjury? 3

4 The Reaction: Mr. Freedman notes that when the substance of this paper was.presented to a Criminal Trial Institute attended by forty five members of the District of Columbia Bar several judges (none of whom had either heard the lecture or read it) complained to the Committee on Admissions and Grievances of the District of Columbia, urging [Mr. Freedman s] disbarment or suspension. Only after four months of proceedings, including a hearing, two meetings, and a de novo review by eleven federal district court judges, did the committee announce its decision to proceed no further in the matter. Id. at n.1. U.S. v. Wade 388 U.S. 218, (1967) Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. Canons of Ethics to Model Rules The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in Before the adoption of the Model Rules, the ABA model was the 1969 Model Code of Professional Responsibility. Preceding the Model Code were the 1908 Canons of Professional Ethics (last amended in 1963). Pennsylvania Rules of Professional Conduct, promulgated by the Supreme Court

5 A 20 year old college student named Timothy, and his friend Graham, who is 17, come to your office for an appointment. Timothy is in trouble for setting up a fake social media page and impersonating a popular female student at his school. Timothy says that the page started out as a joke, but then people started believing that he was actually the girl, Sarah. People started sending him messages, pictures, and offers. Again, thinking it was a joke, he started chatting with some of the people sending him messages and pictures, and signed up for some of the offers that Sarah, received. Sarah and her parents found out about the page, and have hired a lawyer and contacted law enforcement. Timothy is being investigated for, among other things, fraud and identity theft. Do you demand that your client tell you the whole story? Do you want the truth? Getting the Client and Getting PAID $$$ You inform Timothy of your customary retainer fee in criminal cases of $10,000, and the 15% bonus your fee calls for if you effectively settle the case for him within a year, or negotiate a successful bargain. Timothy quickly agrees, and you inform him that will send an engagement letter his way in a couple of days. Later that week Timothy comes in and hands you a wad of what turns out to be $100 dollar bills and a signed copy of the engagement letter. You could be imagining it, but the bills, like Timothy, smell vaguely herbal. 5

6 Any Problems? Contingent Fees Disallowed Pennsylvania RPC Rule 1.5 d) A lawyer shall not enter into an arrangement for, charge, or collect: (2) a contingent fee for representing a defendant in a criminal case. You wonder how Timothy came into such a large amount of cash. Can you accept the money up front as a retainer fee without asking further questions? 6

7 CASH: Do You Take it? Cash transactions over $10,000 received in the course of a lawyer s practice are subject to reporting to the IRS under 26 U.S.C.A 6050I. File IRS Form 8300 advise the client that this will be done. Provide witnessed receipts. If you receive $10,000 or less in cash, you may voluntarily file Form 8300 if the transaction appears to be suspicious. A transaction is suspicious if it appears that a person is trying to cause you not to file Form 8300 or is trying to cause you to file a false or incomplete Form 8300, or if there is a sign of possible illegal activity. Accepting fees from a criminal defendant is not money laundering but does create a risk of being required to disgorge the fees later. 7

8 The question of whether the attorney is criminally responsible for taking fees which the attorney knows or reasonably should know are the proceeds of crime requires the prosecution to prove that the attorney acted as an accessory after the fact, obstructed justice, concealed evidence, or that he or she knowingly received stolen money or property. Hall at 231. John Wesley Hall, Professional Responsibility in Criminal Defense Practice More Money Issues $$$$ You put the retainer fee into your desk drawer until the fee is earned. A week later you are having lunch with your friend, and former client, disbarred attorney, Simon. Over coffee, Simon asks you if his nephew Timothy has called you yet. You pick up the lunch check, throw down a $100 dollar bill and say thanks for the vote of confidence, I appreciate you thinking of me and recommending me to your family. Please feel free to do so in the future! 8

9 RPC Rule 1.15(b)(c) A lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer s own property. RPC Rule 7.2(c) (c) A lawyer shall not give anything of value to a person for recommending the lawyer s services, except that a lawyer may pay: (1) the reasonable cost of advertisements or written communications permitted by this Rule; (2) the usual charges of a lawyer referral service or other legal service organization; and (3) for a law practice in accordance with Rule Hot Docs and Contraband Later that day you open the desk drawer with Timothy s retainer fee within it, and you peel off some bills. You notice that something at the center of the money roll feels bulky. You unroll the bills and find a small jump drive. You plug it into your computer to check it out. It contains pages and pages of inappropriate photos and screenshots of social media conversations relating to the victim. 9

10 Views on Hot Docs When a lawyer has evidence which belongs to the client, that evidence does not become privileged under the attorney client privilege or the right to counsel just because the lawyer has it. The evidence may then be compelled from the lawyer by subpoena or even search warrant unless barred by the attorney client privilege for a specific reason or the privilege against self incrimination is otherwise applicable. Hall at (internal citations omitted). If a lawyer comes into possession of physical evidence of potential value in a criminal case, the lawyer must protect the evidence or it could be considered tampering or contempt, or lead to a partial waiver of the attorney client privilege as to how the condition of the evidence changed. Id. at 802, citing People v. Meredith, 29 Cal.3d 682, 175 Cal. Rptr. 612, 631 P.2d 46 (1981). Restatement Third, Law Governing Lawyers Section 119 (1) With respect to physical evidence of a crime, a lawyer may, when reasonably necessary for the purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence; but (2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer s possession of the evidence or turn the evidence over to them. Discussing the Law with Your Client Is it ethical to provide the elements of the defense prior to learning the facts? Monroe s hypo: the penknife Anatomy of a Murder hypo 10

11 Digression: What if your innocent client wants to plead? Defendant s Testimony Preparing for Trial: Defendant s Testimony While preparing for trial, Timothy changes his story and tells you the following: The whole thing was done on Graham s computer. He paid me to take the rap. Graham is only 17, it won t mess him up so bad in the long run. I have been thinking about telling the truth for a while, but I was kind of nervous about it because Graham is involved in some shady stuff, but I don t want to go to jail. I want to testify and I know I can be good. I know you can destroy Graham on cross I have lots of dirt about him. 11

12 Defendant s Testimony cont d. The forensic examination of Timothy s computer was inconclusive and this is what you had been relying on for your defense. However, you offer to try to investigate by interviewing Graham and attempting to procure Graham s computer to examine it. Timothy objects and refuses to pay for the investigator s services. You and your client are at odds on the strategy of blaming Graham and you would like to resign from the case but trial is in a couple of days and you are not sure what the court would permit. RPC Rule 3.3 (a)(3) -- A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence before a tribunal or in an ancillary proceeding conducted pursuant to a tribunal's adjudicative authority, such as a deposition, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Discussion: Are you under an obligation to withdraw from the case if you can t agree on strategy and you think the defendant will lie? 12

13 .Do you withdraw from the representation? RPC 1.16(b) except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client There is a clear consensus among prosecutors and defense attorneys that the likelihood of conviction is increased enormously when the defendant does not take the stand. Consequently, the attorney who prevents his client from testifying only because the client has confided his guilt to him is violating that confidence by acting upon the information in a way that will seriously prejudice his client s interests. Freedman at Try to dissuade the client from testifying, and if he or she insists withdraw: if you believe that you have a creditable defense without the client s testimony and good appellate issues, then it is most likely in the client s best interest and you and the client have a breakdown in communication that cannot be repaired, perhaps providing a basis to withdraw. 13

14 The narrative approach: put the client on the stand and ask him questions relating to his background and other truthful information. When it comes to the actual testimony about the crime, ask him if there is any information that he would like to tell the jury. The government puts Graham on the stand, and he tells his version of the story, implicating your client. His testimony is plausible, but his nervousness is making him appear less than credible. It is your turn to cross examine. 14

15 One must conclude that the attorney is obligated to attack, if he can, the reliability or credibility of an opposing witness whom he knows to be truthful. The contrary result would inevitably impair the perfect freedom of consultation by client with attorney, which is essential to the administration of justice. Freedman at Speaking to the Press After the jury is charged, you leave the courthouse to return to your office. You re rattled, uncomfortable, and worried. The press descends on you and asks you how you think the case went: You blurt out: My client is innocent and the evidence has proven that. ABA Model Rule 3.6(a) - A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. 15

16 FAQS And trouble spots Communication and Diligence Engagement Letters Get it all down: fees invoicing who will work on the case methods of communication any extra costs file retention Termination of representation 16

17 Rule 1.15 Keep it separate. The duty to give notice of the receipt of any funds or other property. The duty to maintain appropriate records of any property held on behalf of another. The duty to render an accounting The duty to promptly deliver Technology Risks Duty of competence with respect to technology Think about communicating with clients in terms of confidentiality of your s, conversations, etc. Disclosing documents inadvertently Storing your documents: are they safe? Data Breaches 17