That there is a place for ethics in the practice of law is evident, although these ethics have often been "legalized" as part of various disciplinary schemes or as a result of the respect for a fair trial. Ethics in the practice of defence are thus an interesting case of legal pluralism, mixing the law, professional standards and more timeless notions about the "right." At the very least, defending imposes certain standards of diligence. The innocent may be convicted because of sloppy defence work. This is an awesome responsibility, a responsibility for peoples' lives.
The other scenario, one in which the guilty gets away free because of problematic defence work, is also a significant concern. You will probably hear it at some point, someone telling you that they could not be a criminal defence lawyer because they "could not defend a murderer." This may of course in many cases be a petitio principi: the point is you will not actually know for sure that the person you are defending is guilty. Even their confession to you might in certain cases be treated with some suspicion. But what if you know, at least in the sense of being intimately convinced, that the accused is guilty? Of course, there may be a personal issue involved if you find that repugnant, but what are actually your duties as a lawyer and who do you owe them to? The fact that a person is guilty of course does not deprive them of the right to a fair trial, whose goal is also to ascertain in society and the victims' interests exactly what he is guilty of, and includes sentencing. Still, real questions are bound to arise if the defence is asked, for example, to conduct a defence at odds with what she knows about the accused. The adversarial system traditionally emphasizes a very high fidelity to the interests of one's client, but this is no entitlement to lie or, worse, cover up a crime. The lawyer also has duties to the courts and perhaps even to victims and society at large. One issue that has garnered considerable attention in the last decade is the extent to which defence lawyers should be able to adopt aggressive cross-examination tactics in sexual assault cases.
In this session we will cover the question of professional standards and responsibility in criminal trials, including as they manifest themselves in popular culture. We will look at Canadian cases in which the issue has been examined.
Class preparation:
Viney, Melissa. “How can you defend someone you know is guilty?”, The Guardian (7 January 2006).
Michael Asimow, When the Lawyer Knows the Client is Guilty:Legal Ethics, and Popular Culture, March 2006
Tatum, Jeremy. “Navigating the Fine Line of Criminal Advocacy: Using Truthful Evidence to Discredit Truthful Testimony” (2012) 2 WJ Legal Stud ix (28 pages).
Gallant, Jacques. “Guilty plea judged to be a ‘fraud on the court’”, Toronto Star (25 April 2014).
Cooper, Austin. “The Ken Murray Case: Defence Counsel’s Dilemma” (2009) 47 Criminal Law Quarterly.
Laufenberg, Scott D. “Representing Repugnant Clients Every Lawyer’s Choice?”, GPSolo Maganize (November 2005).
"Cultural Competence for Lawyers in Nova Scotia," The Society Record (2012), pp. 26-29.
Bibliography:
Smith, Abbe. “Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer.” Am. Crim. L. Rev. 53 (2016): 255.
Voyvodic, Rose. “Lawyers Meet the Social Context: Understanding Cultural Competence.” Can. B. Rev. 84 (2005): 563.
Cunningham, Clark D. “Lawyer as Translator Representation as Text: Towards an Ethnography of Legal Discourse.” Cornell Law Review 77 (1992 1991): 1298.
Oleson, J C. “Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution” (2006) 63 Wash & Lee L Rev 147.
Freedman, Monroe H. “Professional responsibility of the criminal defense lawyer: The three hardest questions” (1965) 64 Mich L Rev 1469.
Tatum, Jeremy. “Navigating the Fine Line of Criminal Advocacy: Using Truthful Evidence to Discredit Truthful Testimony” (2012) 2:2 Western Journal of Legal Studies, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617354>.
Holland, Brooks. “Anticipatory Self-Defense Claims as a Lens for Reexamining Zealous Advocacy and Anti-Bias Disciplinary Norms” (2016), online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2888638>.
Craig, Elaine. “The Ethical Obligations of Defence Counsel in Sexual Assault Cases”(2014) 51” (2015) 2 Osgoode Hall LJ 427.
Asimow, Michael & Richard Weisberg. “When the Lawyer Knows the Client Is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature” (2008) 18 S Cal Interdisc LJ 229.
Tanovich, David M. “‘Whack’ No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases” (2013) 45:3 Ottawa Law Review, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2726304>.
“‘I Am Incompetent!’ Lawyer Argues Unnecessarily.” Lowering the Bar, September 18, 2014.
Slayton, Philip. “Is there a new view on defence ethics?”, Canadian Lawyer Magazine (1 February 2016).
Berry, Sheila Martin. “Bad Lawyering-How Defense Attorneys Help Convict the Innocent” (2003) 30 N Ky L Rev 487.
Pollock-Byrne, Joycelyn M & Jocelyn M Pollock. Ethics in crime and justice: Dilemmas and decisions (Brooks/Cole Pacific Grove, CA, 1989).
Alfieri, Anthony V. “Race-ing Legal Ethics” (1996) 96:3 Columbia Law Review 800.
Alschuler, Albert W. “How to Win the Trial of the Century: The Ethics of Lord Brougham and the OJ Simpson Defense Team” (1997) 29 McGeorge L Rev 291.
Babcock, Barbara Allen. “Defending the Guilty” (1983) 32 Clev St L Rev 175.
Bandes, Susan. “Repression and denial in criminal lawyering” (2006) 9:2 Buffalo Criminal Law Review 339.
Braun, Richard L. “Ethics in Criminal Cases: A Response” (1966) 55 Geo LJ 1048.
Bress, David G. “Professional Ethics in Criminal Trials: A View of Defense Counsel’s Responsibility” (1966) 64:8 Michigan Law Review 1493.
Brown, Darryl K. “The decline of defense counsel and the rise of accuracy in criminal adjudication” (2005) California Law Review 1585.
Freedman, Monroe H. “Lawyers’ ethics in an adversary system” (1975).
Green, Bruce A. “Criminal neglect: Indigent defense from a legal ethics perspective” (2003) 52 Emory LJ 1169.
King, John D. “Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant” (2008) 58 Am UL Rev 207.
Lefstein, Norman. “The Criminal Defendant Who Proposes Perjury: Rethinking the Defense Lawyer’s Dilemma” (1977) 6 Hofstra L Rev 665.
Mitchell, John B. “The Ethics of the Criminal Defense Attorney: New Answers to Old Questions” (1980) Stanford Law Review 293.
Nilsen, Eva S. “The Criminal Defense Lawyer’s Reliance on Bias and Prejudice” (1994) 8 Geo J Legal Ethics 1.
Oleson, J C. “Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution” (2006) 63 Wash & Lee L Rev 147.
Schneyer, Ted. “Getting from ‘Is’ to ‘Ought’ in Legal Ethics: Mann’s Defending White-Collar Crime” (1986) 11:4 Law & Social Inquiry 903.
Simon, William H. “The Ethics of Criminal Defense” (1993) 91:7 Michigan Law Review 1703.
Slobogin, Christopher & Amy Mashburn. “The Criminal Defense Lawyer’s Fiduciary Duty to Clients with Mental Disability” (1999) 68 Fordham L Rev 1581.
Smith, Abbe. “Nice Work If You Can Get It: Ethical Jury Selection in Criminal Defense” (1998) 67 Fordham L Rev 523.
———. “Burdening the Least of Us: Race-Conscious Ethics in Criminal Defense” (1998) 77 Tex L Rev 1585.
———. “The Difference in Criminal Defense and the Difference It Makes” (2003) 11 Wash UJL & Pol’y 83.
———. “In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects” (2009) 13 U Pa JL & Soc Change 315.
Smith, Abbe & William Montross. “The Calling of Criminal Defense” (1998) 50 Mercer L Rev 443.
Suni, Ellen Yankiver. “Who Stole the Cookie from the Cookie Jar: The Law and Ethics of Shifting Blame in Criminal Cases” (1999) 68 Fordham L Rev 1643.
Turner, Jenia Iontcheva. “Legal Ethics in International Criminal Defense” (2009) 10 Chi J Int’l L 685.
Uphoff, Rodney J. “The role of the criminal defense lawyer in representing the mentally impaired defendant: Zealous advocate or officer of the court” (1988) Wis L Rev 65.
———. “The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach” (1995) 2 Clinical L Rev 73.