Discretion and Dilemmas in the Legal Profession

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Discretion/Dilemmas
Beginning with defense attorneys, the author addresses the issue of defending a guilty client. The case is made that everyone deserves due process before being found guilty or not guilty, and that defense attorneys in this way are protecting the key elements of our system, not simply defending a client. “If they are not doing their job, we have no system of justice, and none of us is safe from wrongful prosecution and the awesome power of the state to investigate, prosecute, and punish.”
The defense attorney’s responsibility to the client includes paying proper attention to each client and case, regardless of how heavy a caseload one is trying to manage. The lawyer, once having accepted a case, may not leave it except in certain specific circumstances. Often, a case will be diverted to a specialty court such as a drug court, and the court may clearly prefer a certain outcome, but the attorney must remain engaged for the purpose of serving the client’s best interests. Attorneys must avoid cases that represent a conflict of interest, which includes avoiding representing co-defendants (since it may come to pass that one may provide testimony that affects the other).
The vast majority of criminal charges are resolved through plea bargain, due partly to the need to process large caseloads. (We looked at “bureaucratic efficiency” as a primary goal in the last chapter). Attorneys not only must try to arrange the best deal for the client, they must also keep the overall working relationship in mind, as there will be plenty of interaction with prosecutors and judges in the future.
Defense attorneys are expected to provide a “zealous” defense. This requirement can invite ethical challenges, such as using tactics like impeaching a truthful witness or presenting a questionable “expert” witness. The philosophies of utilitarianism and egoism support the use of a wide range of tactics in defense of the client. Ethical formalism and religion, though, likely limit the attorney to the “Model Rules.” Attorneys must keep all information provided by the client confidential, though this protection does not extend to physical evidence. An exception to the confidentiality rule exists for information indicating a crime or suicide is imminent. If a client cannot trust the attorney-client confidentiality then he may withhold certain information, thus preventing the attorney from doing his best job.
Moving on to prosecutors, we see that a great deal of the ethical challenges they face stem from the role that discretion plays. The prosecutor’s role is to seek justice, not necessarily a conviction. If evidence is discovered that suggests the defendant is not guilty, the prosecutor must share that information with the defense. When deciding whether to pursue charges (and which charges to file), political pressures, the severity of the crime, the evidence, and the wishes of the victim and/or police may influence the prosecutor. Since the Model Rules do not address decision-making, Aristotle’s “ethics of virtue” apply.
The prosecutor shares certain ethical duties with the defense, such as avoiding conflicts of interest, pursuing plea bargains effectively, and refraining from presenting questionable or false evidence. Another activity to avoid (but which must be tempting) is that of overcharging a defendant, for the purpose of having a better plea bargaining position.
When testimony is gained through the reduction in charges or the use of an informant, the prosecutor needs to be very wary of the testimony’s veracity. Also, if the case involves asset forfeiture, the prosecutor should consider that often a seizure of assets will harm the defendant’s family or other innocent people. The desire to seize valuable assets should not be an influencing factor when the prosecutor is considering filing charges.
The prosecutor must take care not to make improper statements to the media, especially pronouncing guilt. ABA Model Rule 3.6(b) specifies a number of topics that may not be discussed with the press (see text for list). Certainly, examining the Mike Nifong / Duke University case can be a valuable exercise in learning from another’s mistakes.
The chapter concludes with a look at the judges’ duties and their particular ethical dilemmas. The mere fact that most judges are elected raises immediate ethical issues, since these judges accept campaign contributions from attorneys that will be practicing before them. Like the prosecutor, the judge faces ethical challenges due to the presence of discretion. The judge will be called upon to rule on motions, accept or reject evidence, and to charge the jury. These decisions require ethically sound judgment. Another area of discretion involves sentencing. Even with the advent of determinate sentencing and legislated guidelines, there is room for the judge to add to or reduce the base sentence due to mitigating or aggravating circumstances.
The defense attorney’s responsibility to the client includes paying proper attention to each client and case, regardless of how heavy a caseload one is trying to manage. The lawyer, once having accepted a case, may not leave it except in certain specific circumstances. Often, a case will be diverted to a specialty court such as a drug court, and the court may clearly prefer a certain outcome, but the attorney must remain engaged for the purpose of serving the client’s best interests. Attorneys must avoid cases that represent a conflict of interest, which includes avoiding representing co-defendants (since it may come to pass that one may provide testimony that affects the other).
The vast majority of criminal charges are resolved through plea bargain, due partly to the need to process large caseloads. (We looked at “bureaucratic efficiency” as a primary goal in the last chapter). Attorneys not only must try to arrange the best deal for the client, they must also keep the overall working relationship in mind, as there will be plenty of interaction with prosecutors and judges in the future.
Defense attorneys are expected to provide a “zealous” defense. This requirement can invite ethical challenges, such as using tactics like impeaching a truthful witness or presenting a questionable “expert” witness. The philosophies of utilitarianism and egoism support the use of a wide range of tactics in defense of the client. Ethical formalism and religion, though, likely limit the attorney to the “Model Rules.” Attorneys must keep all information provided by the client confidential, though this protection does not extend to physical evidence. An exception to the confidentiality rule exists for information indicating a crime or suicide is imminent. If a client cannot trust the attorney-client confidentiality then he may withhold certain information, thus preventing the attorney from doing his best job.
Moving on to prosecutors, we see that a great deal of the ethical challenges they face stem from the role that discretion plays. The prosecutor’s role is to seek justice, not necessarily a conviction. If evidence is discovered that suggests the defendant is not guilty, the prosecutor must share that information with the defense. When deciding whether to pursue charges (and which charges to file), political pressures, the severity of the crime, the evidence, and the wishes of the victim and/or police may influence the prosecutor. Since the Model Rules do not address decision-making, Aristotle’s “ethics of virtue” apply.
The prosecutor shares certain ethical duties with the defense, such as avoiding conflicts of interest, pursuing plea bargains effectively, and refraining from presenting questionable or false evidence. Another activity to avoid (but which must be tempting) is that of overcharging a defendant, for the purpose of having a better plea bargaining position.
When testimony is gained through the reduction in charges or the use of an informant, the prosecutor needs to be very wary of the testimony’s veracity. Also, if the case involves asset forfeiture, the prosecutor should consider that often a seizure of assets will harm the defendant’s family or other innocent people. The desire to seize valuable assets should not be an influencing factor when the prosecutor is considering filing charges.
The prosecutor must take care not to make improper statements to the media, especially pronouncing guilt. ABA Model Rule 3.6(b) specifies a number of topics that may not be discussed with the press (see text for list). Certainly, examining the Mike Nifong / Duke University case can be a valuable exercise in learning from another’s mistakes.
The chapter concludes with a look at the judges’ duties and their particular ethical dilemmas. The mere fact that most judges are elected raises immediate ethical issues, since these judges accept campaign contributions from attorneys that will be practicing before them. Like the prosecutor, the judge faces ethical challenges due to the presence of discretion. The judge will be called upon to rule on motions, accept or reject evidence, and to charge the jury. These decisions require ethically sound judgment. Another area of discretion involves sentencing. Even with the advent of determinate sentencing and legislated guidelines, there is room for the judge to add to or reduce the base sentence due to mitigating or aggravating circumstances.