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MCLE Self Study
The Ethics of Criminal Defense
By Glen T. Jonas

       Edited by Peg Healy
        Category: Special Credit--Legal Ethics
        Three major ethical dilemmas confront criminal defense attorneys. An analysis of the dilemmas and the corresponding ethical rules reveals that in many instances there is no objective solution. Often the applicable ethics rules are not only contradictory but in conflict with a client's constitutional rights. By periodically reviewing the problems and proposed solutions, we increase the likelihood that our final decision will be grounded in a genuine effort to respond in an ethical manner.
        The California Rules of Professional Conduct and the American Bar Association Model Rules of Professional Conduct were created both to protect the public by regulating the conduct of attorneys through discipline and to promote respect and confidence in the legal system. See Cal Rules Prof Cond 1-100(A). These ethics rules provide attorneys with a road map to ethical conduct. Unfortunately, sooner or later a criminal defense attorney will confront a situation in which it is impossible to abide by all of the rules.
Client Perjury
        The basic aim of the criminal bar's most fundamental ethical rule, the duty of confidentiality, and the corresponding attorney-client privilege, is to promote full and open communication between client and attorney. See ABA Canon 4. A client cannot derive the full benefit of counsel unless the client is assured that his or her secrets will remain confidential and private. Yet when an attorney anticipates client perjury, this duty of confidentiality may conflict with the lawyer's ethical duties to avoid misleading the judge by any trick or false statement and to employ only means consistent with truth (see Cal Rules of Prof Cond 5-200; Bus & Prof C §6068; ABA Model Rules of Prof Cond rule 3.3).
        A client intent on committing perjury forces a conflict: The lawyer is required to know everything, to keep it in confidence, and also to reveal it to the court. This conflict is referred to as the "trilemma." Freedman, Lawyers' Ethics In An Adversary System (Bobbs-Merrill 1975), 28. The problem is unique to criminal defense because defendants have a constitutional right to testify in their own defense (Rock v Arkansas (1987) 483 US 44, 49), even over their attorneys' objections (People v Guzman (1988) 45 C3d 915, 944). Although the right to testify does not include the right to lie, that does not mean the defendant does not have the right to testify to the truth among the lies.
        Some recent California cases state that a defense attorney who anticipates perjury should first try to persuade the client to testify truthfully but may also notify the courts of the conflict, move to withdraw from representation, allow the client to testify in free narrative form, persuade the client not to testify, or remain silent in complicity with the client's false testimony. People v Johnson (1998) 62 CA4th 608; People v Jennings (1999) 70 CA4th 899, 907-908. As discussed below, all of these proposed actions have ethical drawbacks.
        Authors Terence F. MacCarthy and Carol A. Brook discussed the American Bar Association's one-time standard in "Anticipated Client Perjury," in Ethical Problems Facing the Criminal Defense Lawyer (ABA 1995), 155. First, the attorney should strongly advise the client against committing perjury. If that fails, the second option is for the attorney to attempt to withdraw. One problem is that in the motion to withdraw, the attorney cannot reveal the reason for the withdrawal without violating the client confidence, but if the attorney fails to state a reason to the court for the withdrawal, the attorney is signaling that the client is intent on committing perjury, which again violates the client confidence. See, e.g., Johnson, 62 CA4th at 618 n6 (court assumed that attorney's ethical conflict involved client's anticipated perjury). If the motion is granted, that merely leaves the problem for the next attorney. Assuming the motion to withdraw is denied, a third option has three suboptions: Does the attorney (1) put the client on the stand to testify in a narrative form, (2) only ask questions about truthful testimony, or (3) refuse to put the client on the stand?
        In the free narrative form, which has been expressly approved by several California courts, including Johnson, the defense attorney does not ask the defendant any questions during the defendant's testimony and does not refer to the defendant's testimony during closing argument. If the criminal defense attorney chooses the narrative approach, the jury may decide that something is amiss and the defense will be sabotaged. In so doing, the criminal defense attorney will risk revealing a confidence indirectly by not questioning the client and also fail to zealously represent the client. If the attorney only asks questions about what the attorney believes is the truthful part of the client's testimony, the attorney is, in effect, acting as judge and jury. How does he or she know the client is lying or going to commit perjury? If the attorney refuses to put the client on the stand, the attorney guarantees that the client's right to testify is violated. Needless to say, informing the court, directly or indirectly, that the defendant is going to commit perjury violates the ethical duty of confidentiality and will have a chilling effect on future clients' ability to be forthright with their attorneys.
        Some commentators recommend that defense counsel allow the adversarial process to work, and put the client on the stand unimpeded, with client confidences intact. Arguably, it provides effective assistance of counsel while preserving the client's Fifth Amendment privilege. "Anticipated Client Perjury," 160. The reasoning is as follows: We know witnesses are not always truthful in their testimony, otherwise there would be little need for cross-examination. In fact, the criminal defendant's right to testify under oath is an express repudiation of the common law rule that originally forbade testimony from parties and interested witnesses. Ferguson v Georgia (1961) 365 US 570, 577 & n6. So, let our adversarial system work through the problem. The jury will find its way.
        However, this advice appears contrary to the ruling in Nix v Whiteside (1986) 475 US 157, in which the U.S. Supreme Court found that the criminal defendant's right to effective assistance of counsel was not violated by a defense attorney's action of advising his client that if the client committed perjury while testifying at trial he would inform the court or would withdraw from representation. The Court reasoned that a defendant does not have the right to testify falsely, and, if a defendant insists on testifying falsely, he or she must face the consequences, including withdrawal of counsel. The Court stated that the ABA Model Rules of Professional Conduct "do not merely authorize disclosure by defense counsel of client perjury; they require such disclosure." 475 US at 168. The ABA rule forbids a lawyer from failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. While acknowledging the special situation of a criminal defendant, the comments nevertheless support revealing client perjury to the tribunal. ABA Model Rules of Prof Cond rule 3.3 and Comments 9, 10.
        Violating an ethics rule in the name of the Constitution is admirable; some might even say heroic. Violating California Penal Code section 127 by suborning perjury and exposing yourself to a potential four years in state prison in the name of the Constitution is foolish; some might even say stupid.
        In the end, since there is no right answer, the criminal defense attorney is left to make a decision based on a subjective point of view. A little advice: Your reputation for honesty and your credibility is your currency in trade as a criminal defense attorney. Lose that and you are of no use to your clients.
Delivery of Physical Evidence
        Another problematic situation that may confront a criminal defense attorney is when the substance of the confidential communication with the client takes the form of physical evidence delivered to the attorney. If an attorney comes into possession of physical evidence relevant to a potential criminal case, the verity of the physical evidence must be preserved and protected while in the attorney's possession. People v Meredith (1981) 29 C3d 682. Failure to preserve the evidence could lead to charges against the attorney for tampering with evidence. See Pen C §135 (tampering with documentary evidence).
        Recall that an attorney has a duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Bus & Prof C §6068(e). I doubt that a prison sentence for tampering with evidence to preserve a client's secret was the type of "peril" contemplated by the authors of section 6068(e). If the physical evidence is contraband such as drugs, the defense attorney risks criminal charges for mere possession. Although there are potential defenses to such a charge, the attorney should avoid taking possession of contraband because it is a no-win situation in which the attorney risks self-incrimination as well as incriminating the client.
        Although the fact that physical evidence was delivered by the client to the lawyer is protected by the attorney-client privilege, the physical evidence itself is not protected by the privilege. Meredith, 29 C3d at 686. It has been suggested that, after examining physical evidence, defense counsel should deliver it to the prosecution without revealing the source of the evidence. State v Olwell (Wash 1964) 394 P2d 681, 684-685. This allows the prosecution to recover the evidence and at the same time preserves the client's privilege. Alternatively, if the attorney turns over evidence to the prosecutor, the attorney can stipulate to the chain of custody both to preserve client confidences and also to prevent himself or herself from being called as a witness and forced to withdraw from representation of the client. See Meredith, 29 C3d at 695 (suggesting that stipulation is appropriate to avoid revealing that evidence came from the defendant). Once the attorney has possession of the physical evidence, the attorney cannot return the physical evidence to the client if the attorney has reason to believe the evidence will be destroyed.
        In the Meredith case the defendant told his defense attorney that a wallet taken from a murder and robbery victim was burned in a barrel behind his house. The defense attorney had his investigator locate and retrieve the wallet. The defense attorney examined the wallet and turned it over to a detective. At trial the defendant's new attorney unsuccessfully sought an in limine ruling excluding testimony regarding the wallet, based on the attorney-client privilege. The California Supreme Court ruled that whenever defense counsel removes or alters evidence, the statutory privilege does not bar testimony regarding the original location or condition of the evidence in question. The attorney-client privilege protects observations made as a consequence of protected communications. However, if defense counsel removes or alters physical evidence, the attorney prevents the prosecution from observing the evidence in its original condition or location. If the attorney-client privilege were extended in a case in which defense counsel removes evidence, then defense counsel would have a strong motive to obtain the evidence before the police, in effect to destroy critical information. 29 C3d at 695.
        The defense attorney is left with a tactical choice. If the attorney removes the evidence for examination and testing, the original location and condition of the evidence loses the protection of the privilege. If defense counsel leaves the evidence where it is discovered, his or her observations derived from privileged communications remain protected. The decision must be made on a case-by-case basis.
Disclosure of Prior Convictions
        As we all know, a client's prior criminal record can have dramatic impact at sentencing. A prior conviction sometimes is more important than the underlying offense, especially in a potential three strikes case. If an attorney misrepresents the client's prior criminal record to a judge or prosecutor, the attorney is violating an ethical duty not to mislead the court (Cal Rules of Prof Cond 5-200(B)). However, answering the court's question regarding the defendant's prior record may also implicate the attorney's duty of confidentiality to the client, the client's Fifth Amendment right against self-incrimination, and the client's right to effective assistance of counsel.
        Assuming no waiver of the privilege against self-incrimination, the client has the right to refuse to answer questions regarding a prior criminal record. If the client is the source of the attorney's information regarding the prior criminal record, then it is a confidential communication. Thus, it would appear that if the court is able to force an attorney to disclose the prior criminal record, clients will be dissuaded from divulging confidential information. But if a client is reluctant to disclose a prior criminal conviction to his or her own attorney, how can the client attain fully informed legal advice? Obviously, information regarding prior convictions is crucial to an attorney competently representing a client to anticipate consequences for sentencing and potential impeachment.
        If the attorney's knowledge of the client's past record comes as a result of information independent of the client's communications, many would argue that the attorney is obliged to disclose the prior conviction in response to a direct inquiry by the court because the knowledge is not protected by the attorney-client privilege or the ethical duty of confidentiality. That position overlooks the client's constitutional right to effective assistance of counsel.
        The criminal defense attorney's job is defined by the Fifth and Sixth Amendments of the federal Constitution. The defense attorney's job is to defend clients zealously and competently. It is not the criminal defense attorney's job to investigate on behalf of the court, the probation department, or the prosecution. A direct inquiry by the court to defense counsel regarding the existence of a prior criminal record is arguably an improper inquiry that subverts the criminal justice system. (After all, it wouldn't be proper for the court to ask if your client had admitted guilt to you.) If we can agree that the direct inquiry by the court to defense counsel is improper, then how should defense counsel respond?
        If an attorney withdraws or refuses to answer, the attorney signals to the court that the client does have a prior record. When the court, in effect, attempts to violate the client's constitutional rights and undermines the criminal justice system, some might argue that a certain license is extended to rationalize the situation in the following manner: "I don't 'know' my client's history. I wasn't there. I haven't seen a rap sheet, and clients often misunderstand their own record. Since I don't really know his prior record, I will respond, 'Not to my knowledge, Your Honor.' " An attorney responding in that manner is in effect misleading the court, violating the ethical rules, and risking his or her bar card in the name of the Constitution. Some will applaud, while others shake their heads in disgust. But there is no right answer, and the dilemma was not of the defense attorney's creation.
        Innocent people have lost their freedom and their lives because judges, prosecutors, and defense attorneys did not understand their role in the system. A judge's role is to uphold the law in an objective manner, swayed by neither passion nor prejudice. The job of the police is to enforce the law while protecting and serving the public. The prosecutor's job is to seek truth and justice for all, including the defendant, and to avoid the prosecution of innocent people (People ex rel Younger v Superior Court (1978) 86 CA3d 180, 192). The defense attorney's job is to be a competent advocate for the defendant, to defend zealously in an effort to shield and protect the client. When faced with an ethical dilemma, ask for advice, research the law, and ask yourself, "What is my job?"
Glen T. Jonas, a partner with Jonas & Driscoll in Los Angeles, practices in the area of criminal defense.

Article updated: January 2004

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