Atlanta s John Marshall Law School D-477 Criminal Law Ethics Syllabus & Course Outline Spring 2014 Associate Professor Michael Mears 1422 West Peachtree Street NW Atlanta, Georgia 30309 404 872-3593, ext. 272 Email: mmears@johnmarshall.edu 1 P a g e
CRIMINAL LAW ETHICS FIRST ASSIGNMENT First Assignment Ethics and the Attorney Freedman, Monroe, Lawyer s Ethics, Chapter One, pages 1 14 Georgia Rules of Professional Conduct: Rules 1.1-1.3; 2.1-2.3; 3.1-3.9; 4.1-4.4; 6.1-6-4 2 P a g e
Required Texts: Textbook: Freedman, Monroe, Understanding Lawyers Ethics (Lexis/Nexis 4 th Ed. 2010) ISBN: 978-1-4224-7022-0 Cassidy, Michael, Prosecutorial Ethics, (Thomson/West Publishing, 2005 Ed.) ISBN: 978-0-3141-5026-4 Office Hours I will be available Tuesday from 1:00 p.m. 3:00 p.m. and Wednesday from 1:00 a.m. 3:00 a.m. I will also make myself available to answer quick questions before and after each class. My email address is mmears@johnmarshall.edu and my office telephone number is 404.872.3593, ext. 272. Please do not hesitate to stop by my office during office hours or to email me at any time you have any questions or problems. Taping and Electronic Devices You are not permitted to audiotape or otherwise record a class without the express permission in writing of the Dean or the Associate Dean for Academic Affairs. Please refer to Section 711 of the Academic Code. Please turn off all cell phones, pagers, and any other noisemaking devices before entering the classroom. Classroom/Attendance The course meets in a room to be announced on Tuesday and Thursday mornings from 8:30 a.m. until 10:00 a. m. It is a standard of our profession that lawyers who do not show up on time for court appearances and other appointments cannot serve their clients. Therefore, punctual and regular attendance is a requirement of this course. Attendance is mandated by Atlanta s John Marshall s Academic Code. See Article Six, Section 601, Atlanta s John Marshall Law School Academic Code which states that a 3 P a g e
student who is counted absent for more than twenty percent (20%) of the class hours in any course will automatically receive W/F as a grade for the course. I will use a seating chart in order to facilitate meaningful classroom participation. At the beginning of the first class session I will ask you to print your name legibly on the seating chart for this class and to stay in that seat for the remainder of the semester. I feel that regular class attendance is an important attribute for any successful student. Your absence from this class is not expected and therefore those students who are absent from class without a medical excuse will have one point deducted from their final exam grade for each absence. Regular attendance is a part of your training as an attorney and classroom participation is a part of your successful completion of the academic requirements of this course. Class Participation and Course Philosophy I will periodically assign problems to be used as catalysts for classroom discussions. I will be using the actual federal and state cases involving ethical and professional issues involving attorneys. I will also periodically assign other outside reading material which is not discussed in your textbook. You will be expected to read the excerpted text of the cases as presented in the textbook and to read any additional cases which are assigned to you. It is my intention to on at least one occasion to use practicing attorneys to make presentation to the class concerning issues in which they have knowledge concerning fellow attorneys who have encountered ethical and professional issues. You should remember that a lawyer who, without a good explanation, fails to show up in court or who shows up unprepared may be fined, disciplined, sued, or even jailed. Such conduct is unacceptable in the profession, and it is unacceptable in this class. Good class discussions are intellectually stimulating and can be a source of learning and enjoyment. Class participation, through the Socratic Method, is strongly encouraged. If you do not understand a point discussed in class, please do not hesitate to ask a question. 4 P a g e
Examination and Grades There will be one examination, which will count 50% of each student s ultimate course grade, except as further explained below. Each student s class participation, including class presentations will count 50% of the student s final grade. The examination will be closed book. Students will not be allowed to rely on outside materials in taking their examinations. My policy, which is consistent with that of Atlanta s John Marshall s Academic Code, is to grade all examinations without knowing the identity of the authors of the examinations. Nevertheless, I reserve the right after the examinations are graded anonymously and recorded, to consider class participation in assigning final grades. In this regard, adequate preparation and participation will not affect the final grade (adequate preparation is a basic requirement of the course), but extraordinary class participation may raise a student s examination grade by as much as one third of a letter grade. In other words, if the examination grade suggests a grade of B, the student with extraordinary class participation may receive a grade of B+ for the course. I do not anticipate needing to lower anyone s final grade based on class participation, but I reserve the right to do so should particularly dismal participation demand it. In this regard, should poor preparation and participation dictate such a change in grade, a grade of B could be lowered to a B-. Also, pursuant to Atlanta s John Marshall s Academic Code, a grade of A and a grade of F will not be raised on the basis of class participation. Likewise a grade of D- will not be lowered based on poor class participation. See Article Five, Section 504(e), Atlanta s John Marshall Law School Academic Code. Announcements of scheduling or assignment changes will be posted on the West Education Network (TWEN), accessible at www.lawschool.westlaw.com, or sent by e- 5 P a g e
mail. Please check the TWEN site and your email daily, as you will be responsible for all announcements, assignments, or materials posted there. The grading system to be used in this course will apply the following criteria: Grade Percentage Grade Value Grade Point Value Definition Meaning of Applied Grade A 94-100 4.00 Excellent Considerable evidence of original thinking; A - 93-90 3.67 demonstrated outstanding capacity to analyze and synthesize; outstanding grasp of subject matter; evidence of extensive knowledge base. B+ B 89-85 84-81 3.33 3.0 Good Evidence of grasp of subject matter, some evidence of critical capacity and analytical ability; reasonable B- 80-78 2.67 understanding of relevant issues; evidence of familiarity with the course material and cases. C+ C 77-75 74-70 2.33 2.0 Satisfactory Evidence of some understanding of the course material and case law; ability C- 64-69 1.67 to develop solutions to analysis issues; D 59-50 1.33 Marginal Pass Evidence of minimally acceptable familiarity with subject matter and case law, critical and analytical skills. Ability to read, analysis and synthesize issues is minimal F 0 Inadequate Insufficient evidence of understanding of the subject matter; weakness in critical and analytical skills; limited or irrelevant use of the literature. INC 0 Incomplete 6 P a g e
W Neutral Withdrew and no after deadline credit obtained 7 P a g e
Course Description Criminal Law Ethics focuses on the criminal lawyer s ethical and professional obligations to the client, the court, his adversaries, and society. Using the Model Rules of Professional Responsibility, students will use exercises and role play to explore how the lawyer successfully balances competing interests confronted in the practice of criminal law. This course building on the required Professional Responsibility course by focusing on those rules most applicable to the criminal law practitioner and how they are applied in the context of a criminal law practice. Course Objectives This course is designed to provide law students with an opportunity to develop an understanding of the sources of laws and ethical obligations that govern legal the practice of law within the criminal justice system. The student s will be expected to develop an understanding of the application of the rules of professional and ethical conduct and this developmental understanding will be assessed by in-class discussion and written assignment and testing at the conclusion of the course. Criminal Law Ethics is a course designed to provide the students with the knowledge of the applicable model rules of professional responsibility and applicable state and federal court rules. The students will be expected to develop the ability to describe accurately the model rules and the comments covering those model rules. Students will also be expected to identify and apply ethical responses to specific ethical and professional issues which might arise within the legal practice of the criminal justice system. 8 P a g e
Students will be expected to read and become familiar with the American Bar Association s Model Rules of Professional Conduct and the American Bar Association s Standards Relating to the Administration of Criminal Justice: the Prosecution Function & the Defense Function. Students will be expected to develop the ability to recognize issues and apply the appropriate standards and ethical rules to those issues. Specifically the students will be asked to develop abilities to identify and apply the appropriate rules and standards to the following areas of the criminal justice system: The Attorney-Client Relationship Attorney Fees Client Communications and the Attorney Client Privileges Attorney Competence and Training Requirements The Attorney s Role as a Counselor The Attorney s Role as an Advocate Conflicts of Interest: Between Attorneys and Third Parties Between Attorneys and Clients Between Clients Between Attorneys and Former Clients 9 P a g e
Course Outline The following outline will guide you through the proposed use of the assigned texts and the additional reading material. I reserve the right to adjust the course schedule based upon the actual pace of the class and the development of issues which might be relevant to particularized subjects. I will use the TWEN site to post class power points and individual class outlines in order to assist the students in keep apace of the material for which they are responsible. Class One: Ethics and the Attorney Freedman, Monroe, Lawyer s Ethics, Chapter One, pages 1 14 Georgia Rules of Professional Conduct: Rules 1.1-1.3; 2.1-2.3; 3.1-3.9; 4.1-4.4; 6.1-6-4 Class Two: The Adversarial System Freedman, Monroe, Lawyers Ethics, Chapter Two, pages 15 43. Read: Muhammad v. State, 282 Ga. 247 (2007) Class Three: The Attorney-Client Relationship Freedman, Monroe, Lawyers Ethics, Chapter Three, pages 45-66 Cassidy, Michael, Prosecutorial Ethics, Chapter One, pages 1 12 Read: Georgia Code of Professional Responsibility Rule 1.2; Georgia Code of Professional Responsibility Rule 1.16 Read: Huddleston v. State, 259 Ga. 45 (1989) Read: ABA Model Rule 4.2 Communicating Person Represented by Counsel; ABA Model Rule 4.3 Dealing with Unrepresented Person; 10 P a g e
Read: In re Stewart, 275 Ga. 199 (2002) Class Four: Representing the Criminally Accused Client Freedman, Monroe, Lawyers Ethics, Chapter Four, pages 67 105 (Stop at Section 4.10); Chapter Eleven, pages 329 354. Read: Mears, Michael, Representing the Unpopular Client After September 11 th, Georgia Bar Journal, Volume 7, Number 5, (April 2002). Class Five The Criminal Defense Attorney and Zealous Advocacy Freedman, Monroe, Lawyers Ethics, Chapter Four, pages 100-126 Read: Evaluation of the Summary Contempt Power of the Court: Balancing the Attorney's Role as an Advocate and the Court's Need for Order, 19 U. Haw. L. Rev. 145, 173 (Spring 1997). Read: Georgia Rules of Professional Responsibility Rules 3.1 3.6 Read: ABA Model Rules, Rule 8.4 Misconduct Class Six The Prosecuting Attorney and the Duty to Do Justice Freedman, Monroe, Lawyers Ethics, Chapter 10, pages 311 320 Read: American Bar Association Standards for Criminal Justice: Prosecution Function (3 rd Ed. 1992), Standard 3-1.1; Standard 3-1.2 Read: Georgia Rules of Professional Responsibility Rule 3.8 Read: Adams v. State, 202 Miss. 68 (1947); Howard v. State, 318 Ga. App. 329 (2012) 11 P a g e
Class Seven The Prosecutors Discretion in Deciding to Prosecute Freedman, Monroe, Lawyers Ethics, Chapter 10, pages 286 309 Cassidy, Michael, Prosecutorial Ethics, Chapter Two, pages 13 25 Read: American Bar Association Standards for Criminal Justice Prosecution Function: Standard 3-3.4 Read: State v. Bachan, 321 Ga. App. 712 (2013); State v. Perry, 261 Ga. App. 886 (2003) Class Eight The Attorney Client Privileges and Confidences Freedman, Monroe, Lawyers Ethics, Chapter 5, pages 127 150 Read: Georgia Code of Professional Responsibility Rule 1.6 Read: OCGA 24-5-501; OCGA 17-5-32; Bryant v. State, 282 Ga. 631 (2007); Waldrip v. Head, 272 Ga. 572 (2002); Spence v. Hamm, 226 Ga. App. 357 (1997) Class Nine The Attorney and Perjurious Testimony Freedman, Monroe, Lawyers Ethics, Chapter 6, pages 151 186 Read: Georgia Code of Professional Responsibility Rule 3.3 and Rule 3.4 (including comments); Read: American Bar Association Standards for Criminal Justice Prosecution Function: Standard 3-5.6 Read: Stephenson v. State, 206 Ga. App. 273 (1992); Ward v. State, 242 Ga. App. 246 (2000) 12 P a g e
Class Ten The Attorney s Role in Counseling Clients, Preparing Witnesses and Cross- Examination of Witnesses Freedman, Monroe, Lawyers Ethics, Chapter 7, pages 187 213 Cassidy, Michael, Prosecutorial Ethics, Chapter Four, pages 48 64 Read: American Bar Association Standards for Criminal Justice Prosecution Function: Standards 3-3.2, 3-3.3, 3-5.6, and 3-5.7 Read: Shelton v. State, 748 S.E.2ed 278 (2013); Schneider v. State, 267 Ga. App. 508 (2004). Class Eleven The Attorney s Relationship to the Court Freedman, Monroe, Lawyers Ethics, Chapter 8, pages 254 Cassidy, Michael, Prosecutorial Ethics, Chapter 7, page 108 (Section F) Read: American Bar Association Standards for Criminal Justice Prosecution Function: Standard 3-2.8 Read: Georgia Rules of Professional Responsibility Rule 3.3 Read; Georgia Cannons of Judicial Conduct Cannon 3; Uniform Superior Court Rules Rule 4.1; Read: Hargis v. State, 319 Ga. App. 432 (2012) Class Twelve The Attorney and Conflicts of Interest and the Appearance of Conflicts Freedman, Monroe, Lawyers Ethics, Chapter 9, pages 255 283 Read: American Bar Association Standards for Criminal Justice: Prosecution Function Standard 3-1.3 Read: Georgia Rules of Professional Responsibility Rules 1.7, 1.8, 1.9, and 1.10 Read: Turner v. State, 273 Ga. 340 (2001); Sallie v. State, 269 Ga. 446 (1998) 13 P a g e
Class Thirteen The Attorney and the Solicitation of Clients Freedman, Monroe, Lawyers Ethics, Chapter 11, pages 323 354 Read: Georgia Rules of Professional Responsibility Rules 7.1, 7.2. 7.3, 7.4, and 7.5. Read: In re Sinowski, 290 Ga. 303 (2011); In re Robbins, 276 Ga. 124 (2003) Class Fourteen The Prosecutors Duty of Ethical Conduct Freedman, Monroe, Lawyers Ethics, Chapter 10, pages 285 321 Cassidy, Michael, Prosecutorial Ethics, Chapter 8, pages 115 128 Read: Georgia Rules of Professional Responsibility Rule 3.6 (including comments) Read: O Neal v. State, 288 Ga. 219 (2010) There are various compilations of professional standards which include the two text chosen as guides for this course. You are urged to make yourself aware of these resources and to independently consult and use them as additional resources for your development of your knowledge of the subject matter of this course. Among the many resources available to you are: Selected Standards on Professional Responsibility, (Foundation Press), Selected Statutes, rules and Standards on the Legal Profession (West Publishing Co.); State of Georgia Performance Standards for Criminal Defense Representation in Indigent Criminal Cases (Georgia Public Defender Standards Council Publication); The Defense Attorney s Ethical Responses to Ineffective Assistance of Counsel Claims (Mears, Michael, State of Georgia Public Defender Standards Council Publication). 14 P a g e