“The Practice” of Criminal Law & Ethics 101

Letter to Romans: It’s worth clarifying that any defense lawyer, even Clancy’s, can know his client is guilty & still be ethically obligated to defend her. Yet, that obligation is NOT to obtain acquittal at any cost & certainly not to knowingly aid or abet a crime …

What’s often confusing to lawyers & regular folks alike is that the 6th Amendment right to counsel does NOT mean a lawyer agrees with the guilty client. The ABA Model Rules emphasize representation “does not constitute an endorsement” of the client’s actions let alone views. The defense lawyer’s job is to advocate for the unworthy as well as worthy to ensure the Justice system works for everyone. That means doing everything legally possible to make the prosecution prove its case beyond a reasonable doubt. Of course, there IS an ethical line that can’t be crossed by defense counsel, including, faking an alibi, knowingly presenting false evidence, encouraging perjury, or destroying evidence.

In light of the above, the ethical challenges presented by the Clancy trial are limited. The client ADMITTED killing her 3 children & by all accounts defense counsel was zealous in his advocacy on behalf of the accused. (Publicly accusing a holdout juror of “not following the law” without proof may be another matter.) Yet, an old episode of The Practice reminded me of the more compelling ethical Qs defense counsel may face when representing criminals, especially the serial variety. Exactly what is he ethically permitted & forbidden to do when a client’s guilt is known accidentally or even assumed from experience? Defense lawyer Bobby Donnell overheard a phone conversation revealing a drug lord client’s safe house was about to be raided by police. Thinking he was obligated to tip off the oft-guilty client, he did so. That led to 3 police officers being killed in ambush. Bobby was charged with reckless homicide. His defense was that it was his “legal’ duty to alert the drug lord, albeit “morally” wrong. The preliminary hearing judge reluctantly let him off on a gut feeling he didn’t KNOW his actions would have resulted in 3 deaths. I would have bound him over for trial & let the jury decide his state of mind based on the evidence presented.

Davd Soul