Ethics and Professionalism in Criminal Law

I. AVOIDING CONFLICTS IN REPRESENTATION

A.Current clients

The ethical standards regarding conflicts of interest with respect to current clients are contained in Supreme Court Rule 4-1.7, which provides:

Conflict of Interest: Current Clients

 (a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

 (1) the representation of one client will be directly adverse to another client; or

 (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

 (b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:

 (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

 (2) the representation is not prohibited by law;

 (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

 (4) each affected client gives informed consent, confirmed in writing.

 The Comments to Rule 4-1.7 suggest a four step procedure for analyzing conflict issues.  First, identify the client.  Second, determine whether a conflict exists.  Third, if a conflict does exist, determine whether it is one which can be waived, or consented to, by the client(s).  Fourth, if the conflict is consentable, obtain informed consent of all effected clients, confirmed in writing.

Identification of the client is a relatively simple, although sometimes overlooked, task.  The client is the person the lawyer is representing, not the person paying the fee.[1]  Even when the client is a minor or has diminished mental capacity, the lawyer is required “as far as reasonably possible” to maintain a normal attorney-client relationship, including duties of loyalty and confidentiality.  Only after counsel reasonably believes that the client (1) has diminished capacity, (2) is at risk of substantial physical, financial or other harm unless action is taken, and (3) cannot adequately act in his or her own interest, may the lawyer take reasonably necessary protective action, “including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a next friend, guardian ad litem, conservator or guardian.”  Mo. Sup. Court Rule 4-1.14.  Even in those circumstances, the lawyer may only disclose client confidences “to the extent reasonably necessary to protect the client’s interests.” Id.

Determination of the existence of a conflict includes consideration of both directly adverse relationships and those relationships which, although not directly adverse, entail a significant risk that counsel’s ability to represent a client will be materially limited by other responsibilities or interests.  The “directly adverse” prohibition prevents counsel not only from representing adverse parties in a single proceeding, but also from acting as an advocate against a person in one matter when the lawyer represents the person in another matter, even if the matters are wholly unrelated.

The prohibition against directly adverse relationships prevents simultaneous representation of the State and the defendant and, not surprisingly, of a State’s witness and the defendant. Gordon v. State, 684 S.W.2d 888 (Mo. App. 1985).  Situations involving material limitations, or potential conflicts, arise most often in with respect to representation of multiple defendants in a single proceeding.  The “representation of multiple defendants is not per se a violation of the Sixth Amendment's guarantees of effective assistance of counsel.”   Henderson v. State, 734 S.W.2d 254, 257 (Mo. App. 1987); Hopson v. State, 728 S.W.2d 276, 277 (Mo. App.1987).  The Comments to Rule 4-1.7, however, note that the “potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.”  This sentiment is echoed by Missouri case law:

The ethical pitfalls inherent to joint representation of codefendants in criminal cases demand the utmost prudence by attorneys accepting such employment. Where the facts show a departure from “prevailing professional norms” in multiple defendant cases, there is a sufficient showing that the conflict of interest actually affected the adequacy of the representation.

 Henderson v. State, 734 S.W.2d 254, 257-58; (Mo. App. 1987); State v. Chandler, 698 S.W.2d 844, 849 (Mo. banc 1985).

If a conflict exists, it may be waived only if the lawyer believes that the lawyer will be able to provide competent and diligent representation to each affected client, and the representation does not involve the assertion of a claim by one client against another in the same litigation or proceeding.  For reasons set forth above, these standards will rarely be met in the context of representation of multiple defendants in a single case.  A variety of issues, including limited ability to cross-examine a co-defendant because of confidential information, inability to cast blame upon a co-defendant in closing argument, differing opportunities for plea bargains, differing strategic advantages to less than all the defendants proceedings to trial, and differing criminal histories may all prevent counsel from taking any one course of action that would be in the best interests of all clients.

Consent to wavier of a conflict must be “informed consent” which is confirmed in writing.  “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Rule 4-1.0(e).  Surprisingly, the written confirmation need not be signed by the client, Rule 4-1.0(b), although that would surely be the better practice.

B.Prohibited Transactions

Rule 4-1.8 prohibits several specific transactions as conflicts of interest.  Those of particular interest to criminal practitioners are as follows:

….

 (f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

 (1) the client gives informed consent;

 (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

 (3) information relating to representation of a client is protected as required by Rule 4-1.6.

 (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

 ….

 (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

 (k) While lawyers are associated in a firm, a prohibition in the foregoing Rule 4-1.8(a) to (i) that applies to any one of them shall apply to all of them.

 Subsection (f)(1) requires informed consent before a third party may pay a client’s fee.  The rule does not required that the consent be in writing, and the risks to the client are minimal so long as the requirements of subsection (f)(2 & 3) are satisfied, regarding lack of interference with the attorney-client relationship and protection of confidences.  Although not addressed by the rules, the prudent practitioner may choose to obtain a signed acknowledgment of those requirements from the person providing the funds, and that representation was undertaken in reliance on the funds, which are not refundable absent termination of representation or other circumstances which would entitle the client to a refund. 

            Subsection (g) highlights one of the difficulties of representing multiple defendants.  Prosecutors may be inclined to plead or try the entire case, and there is a substantial risk that the defendants may have differing interests and motivations in the plea process.  A conflict of interest is virtually certain to arise when substantially different offers are made to the various defendants.

            The prohibition on sexual relationships should come as no surprise, although such relationships were not prohibited until a 2007 amendment to the Rules.  While permitted by the Rule, sound judgment would counsel against undertaking representation in a serious criminal matter with someone with whom counsel had a pre-existing sexual relationship.

C. Duties to Former Clients

            Upon termination of the attorney-client relationship, a lawyer has continuing duties with respect to confidentiality and conflicts.  In general, the confidentially duty continues as though the representation continued, unless the information has become generally known.  A lawyer may not represent another client in a substantially related in which that person’s interests are materially adverse to the former client unless the former client gives informed consent, confirmed in writing.  Rule 4-1.9.

D. Duties to Prospective Clients

            Pursuant to Rule 4-1.18, a “person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”  Information obtained during the discussion is privileged, and a lawyer may not represent a person with interests materially adverse to the prospective client in a related matter.  The conflict only applies, however, if the lawyer received information from the prospective client that could be significantly harmful to that person.  Moreover, even if a lawyer received disqualifying information, representation is permissible if:

 (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

 (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and the disqualified lawyer is timely screened from any participation in the matter.

 II. WHEN YOU SUSPECT THE CLIENT MAY BE LYING

Although the Supreme Court has held that there is no constitutional right to testify falsely or commit perjury in one’s defense, Nix v. Whiteside, 475 U.S. 157, 173 (1986), it has not defined an attorney’s correct ethical response to a client’s suggestion that he might commit perjury.  Id. at 177 (Brennan, J., concurring).  Several Missouri Rules touch upon that subject.

            A client does have a right to testify on his own behalf, United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir. 1984); Allen v. State, 518 S.W.2d 170, 172 (Mo. App. 1974), and, pursuant to Rule 4-1.2, a lawyer must abide by a client’s decision, after consultation with counsel, whether the client will testify.  Under Rule 4-3.3 a lawyer “shall not knowingly . . . offer evidence that the lawyer knows to be false . . . . A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”  Thus, a lawyer is prohibited from presenting testimony the lawyer knows to be false but, with respect to the testimony of a criminal defendant, the lawyer may not refuse to present testimony which the lawyer only “reasonably believes” is false.  Where the lawyer “comes to know” that testimony is false, “the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”  Id.

The Comments to Rule 4-3.3 acknowledge that “a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client,” but caution that the lawyer “cannot ignore an obvious falsehood,” and that knowledge can be inferred from the circumstances.  The Eighth Circuit appears to take a more narrow view.  It has reminded counsel that they “must remember that they are not triers of fact, but advocates. In most cases a client's credibility will be a question for the jury,” and “a clear expression of intent to commit perjury is required before an attorney can reveal client confidences.”  United States v. Long, 857 F.2d 436, 445 (8th Cir. 1988).


 III. DUTY TO THE CLIENT VS. DUTY TO THE COURT

            Apart from the above-described obligations regarding a client’s right to testify, a lawyer’s obligation to zealously represent the client is generally balanced with the lawyer’s obligations to the tribunal.  An attorney’s obligation to provide a fair and accurate factual statement in an appellate brief, for example, is not modified by the attorney’s obligation to the client.  Thurman v. State, 859 S.W.2d 250 (Mo. App. 1993).  The lawyer himself may not make false statements of fact or law to the Court, and may not fail to disclose legal authority known to be directly adverse to the position of the client and not disclosed by opposing counsel.   Rule 4-3.3(a).  The lawyer may assert or controvert an issue unless there is a non-frivolous basis for doing so, although the lawyer retains the right to defend any criminal proceeding “as to require that every element of the case be established.”  Rule 4-3.1. 

IV. WITNESS CONTACT

Counsel are required to be truthful in dealing with all third persons.  Rule 4-4.1.  A lawyer may not communicate with a witness the lawyer knows to be represented by counsel in connection with the matter to be discussed, absent consent of that counsel.  Rule 4-4.2.   Counsel may not imply the he is disinterested in talking with an unrepresented witness, and is obligated to make reasonable efforts to correct the misunderstanding if it appears that the witness misunderstands the lawyer’s role.  The lawyer should not give legal advice to an unrepresented witness, other than advice to secure counsel if it appears that the interests of the witness are likely in conflict with the client.  Rule 4-4.4.   Finally, lawyers are prohibited from using means that have no purpose other than to embarrass, delay or burden a person.  Rule 4-4.4.  While certainly not required by the Rules, prudence dictates tape or video recording all interviews with witness, not only for the purpose of preserving evidence but also, with respect to potentially hostile witness, to avoid potential allegations of witness tampering.

Restrictions on accepting compensation from persons other than the client are discussed with respect to Prohibited Transactions in section B, infra.

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