Question and Answer: Law, Ethics and Moral Obligation Pertaining To Legal Representation
By: Nicholas W. Utter, Esq
From time to time, I receive requests from students that I answer a few questions for a class they are taking. I make an effort to participate when asked. I find that a lot of the questions are similar to those I am asked when out at social functions, in the company of non-lawyers. It would seem that few outside of the practice of law, really understand what lawyers do, why lawyers do what they do, and why lawyers do things the way we do them. Often times, the answers are complicated, and give rise to more questions. As the questions are common ones, I thought it might be beneficial to share some of the questions I receive, and the answers I gave to them. I received the below questions some time ago, from a friend of mine. The questions and my responses are unedited. My hope is that someone will find value or knowledge in the information provided. At the very least, you will have a few answers to questions you probably have, about lawyers and legal representation.
Do you feel morally obligated to defend someone? I feel a moral obligation to provide effective and ethical representation. That relates to my role in the proceeding, not to any individual personally.
How can you represent someone if you know that they are guilty? This relates to what my role in a criminal proceeding is, in reality—as opposed to public perception of what my role is [I will refer to the question regarding my actual duties below for further explanation in that area]. Every citizen has an absolute right to have the State’s case publicly heard before a neutral panel of their peers. The State has an absolute obligation to obtain a conviction by proving, beyond a reasonable doubt, that the person charged committed the crime. The State is obligated to follow the law in how it obtains evidence and conducts its investigation. My role at times is to make sure the government follows its’ own laws in how it approaches prosecution. Rules govern what evidence I can put on as well. The system is designed to have both sides present their case and for the truth to come out, and be evaluated by the jury or judge. Most of the time, I do not actually know whether a person is guilty or not, because they do not tell their lawyers either. I typically focus my attention on what the State has in terms of evidence, and what the client has, by way of evidence or rebuttal proof, and I let the trial resolve the issue of guilt. To be frank, I do not care whether someone in fact is guilty, only God knows that. I care about whether the State has enough legal evidence to convince a trier of fact that they are guilty. That is what I focus on.
Sometimes my role is more in line with trying to impose what I believe is a just punishment. If a defendant has, for example, drug related problems underlying the offense, than I will encourage defendants to obtain counseling and assessments for these dependencies. My experience is that when a defendant is proactive in addressing underlying issues, the State is less inclined to incarcerate and a client can serve time on probation. We probably impact the sentencing side of things in most criminal cases, more so than the guilt side. If guilt is clear and the case against them solid, my role is more in line with trying to rehabilitate a client before sentencing, in favor of more lenient sentencing, as opposed to trying to case in search of a not guilty verdict. But sometimes, I just have to try the case and let the system sort out guilt and punishment.
What are the actual duties that you must fulfill for your client? Most every client has no idea what they are charged with, what the elements of the offense are, what the penalties for the offense are, and what options they have in terms of addressing the charges. So a large part of my client interaction initially involves informing them of these things, and then their rights regarding the prosecution. I also have to advise the client on any possible defenses they might have. Around 90 plus percent of cases are pled out. Meaning the client pleads guilty in exchange for an agreed upon punishment, which most of the time involves probation. I balance the likelihood of conviction and punishment, against what the plea offer is, and advise the client as to which course I believe their interests are best served. In terms of what agreements to take, and whether or not to testify at trial, the client has the ultimate say, after my counsel. In terms of trying the case, strategy and witnesses are up to the attorney. I am also responsible for conducting discovery and obtaining what evidence the State has of their guilt, and advising the client as to the admissibility of the evidence, and strength of the evidence.
What are your duties before the court? As an Officer of the Court, the Court expects me to keep my client appraised of Court Dates and expects me to explain to the client what they are charged with, and what their defenses are. If a plea is entered, my role is to make sure my client understands the plea and desires to enter the plea. If the case is tried, the Court expects me to present my case competently, ethically, and with admissible evidence. Ethically, I must respect the interests of justice, and we are not at liberty to make up evidence, or accommodate untruthful testimony. If the case is tried, I participate in picking the jury, ask the State’s witnesses questions about their testimony, and conduct argument in support of my client’s position. From the Court’s perspective, the attorney is standing before the Court in the stead of their client in all matters pertaining to Court administration.
Has there ever been a time where you felt that you should share certain information with the prosecution? I have shared information with the prosecution, after consulting with my client and receiving permission from my client to do so. At times, a case may involve co-defendants who are unfavorable to my client. In such cases, I might share information pertaining to the co-defendants. At times, my client may wish to help the prosecution against co-defendants. Thus, at times, while on opposite sides, the State and the defense counsel may have similar objectives.
Have you ever had a defendant that you represented get found guilty even though you knew they were innocent? I have not. I have had clients that have reluctantly requested to plead guilty because they felt probation would be better than spending a huge sum of money to try the case. I cannot say the person arrested was obviously innocent, but the cases were arguable. On the cases that are hard for the State to prove, the State makes more generous plea offers, so at times a client may want to get things over with as cheaply as possible. This happens probably more than most people know.
What do you believe is the best defense strategy to use to defend a client? I typically approach the case from a perspective of whether or not the State can prove their case, with the admissible evidence they have. If chances of guilt are high, than I usually look to a plea agreement and either an agreed upon disposition or a sentencing hearing. If the plea offer is no better than what I would get after a trial, and the client desires to go forward, then we will have a trial anyway—and they have that right. Each case is unique. Some cases are better defended by focusing on what the law says, instead of the conduct. That is to say, that the facts are not in dispute, but whether an offense was committed is in dispute. Other cases are defended based upon the facts as alleged—and in those cases we focus on defending the factual assertions. I typically obtain the facts through the client and the discovery process. I then evaluate whether any of the evidence was illegally obtained—and attack it if it was. Next I look at whether the facts alleged are subject to compromise and lastly, I look at whether the facts as alleged, constitute a criminal offense.
Do you believe that clients share all information with you since you represent their interests? No. People share with you what they want you to know. Some are more forthcoming than others. But most every person wants to sell you with their version of what happened or did not happen. This presents itself through omissions and minimizing, as opposed to outright lies. I think there is probably an element of the client wanting their lawyer to “like” them as well.
Are there any government acts that you feel could impact attorney client privilege? Not really from my perspective. But by the time I get a client, most of them have already said things to police that cause problems. If anything were to be changed, it would be in the initial police interview stage. Most of those charged do not really understand what their obligation is to the police, or even why they are being questioned. One of the biggest problems I run into is a client who may be largely innocent, but makes statements that are false that are aimed at minimizing their involvement or the identity of the person who committed the acts complained of. At the point it is discovered that they were less than fully truthful, the police come after them utilizing some pretty sophisticated interrogation techniques. Most of those charged are largely uneducated and have average to below average intelligence. The combination of these two things yields statements to law enforcement that can be arguably guilt ridden in front of a jury, and a lot of mostly innocent people have probably gone to jail because of it. By the time the lawyer gets them, the damage is done. I can’t put the client on the stand, because if the story changes on the stand, the client not only looks non-credible, but the client is also exposed to more criminal charges for false report or obstruction. As the client is not required to testify, this would probably be one area where I might share information with the prosecution in private, during plea discussions. But it makes it very difficult to allow one’s client to testify, knowing the story will change at trial from what the police heard.
What does attorney client privilege protect the individual from? The privilege belongs to the individual, not the attorney. It creates an environment where a client can trust discussing the most intimate details of their case, without worry that those details will be repeated. It allows the attorney to gain an understanding as to everything the client knows or has experienced, if the client is truthful, and allows the attorney to advise the client on what things are helpful to the case and what things are not.
Are there any steps that the attorney must take to maintain attorney client privilege? We do not have any formal steps to take. We have ethical rules that assist us in determining what we can say and to whom we can say things. We have rules about representing other parties who are adverse to our former clients. But from a practical standpoint, I keep some statements on hand written notes in files that never leave my office. Some things I do not write down. I do not allow any person other than the client to see the file. When I am done, the files stay in my office in a filing cabinet and are ultimately shredded after a number of years. I am careful about what is on my computer and what I send via my computer. All lawyers are under an obligation to report inadvertent discovery of privileged material to opposing counsel and a process exists for returning that material and not utilizing the material. The single biggest problem with privilege is for the attorney to make sure that they do not get so involved with a case that they turn themselves into a factual witness. That is, to move from the role of attorney to participant. This is more common in civil cases, but can happen in criminal cases. If the attorney becomes a witness (that is, the attorney has obtained facts or created facts relating to the offense, outside of those facts provided by other witnesses), then the attorney has a very big ethical problem between maintaining confidence and answering questions during a trial. The attorney can cite privilege, but the Court can override that and Order the attorney to testify. In terms of ongoing illegal activity, the attorney has ethical obligations to remove their involvement in the case, and in some cases, report the ongoing illegal activity.