Ethics and Professional Responsibility
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Ethics are written rules by which all lawyers should live by. The sources for ethical rules for criminal defense lawyers, prosecutors and judges come from many sources. In a common law system these ethical rules may come about through case law, statute, or through promulgation of rules of conduct by the controlling bar association.
Failure to uphold ethical rules may result in disbarment, suspension, censure, or some other disciplinary measure.
Ethics should be differentiated from standards. A lawyer must abide by ethical rules. Standards are, on the other hand, aspirational.
Ethics for Criminal Defense Lawyers
It is important for the defense lawyer to act in a professional manner at all times when dealing with the judge and the prosecutor. The defense lawyer has a duty to provide effective representation to the defendant at all times. Unscrupulous or unethical behavior damages the reputation and credibility of the defense lawyer. As the representative of the defendant such acts also damage the reputation and credibility of the defendant.
Lawyers Duties to Client
The defense lawyer has several basic duties to his client and his role as a defense lawyer.
- The defense lawyer serves as the defendant's counselor and advocate and should strive to render effective, quality, representation.
- The defense lawyer should strive to avoid conflicts of interest. This commonly will arise in cases involving joint representation of criminal defendants.
- The defense lawyer should seek to reform and improve the administration of criminal justice and seek to correct inadequacies or injustices in substantive or procedural law.
- The defense lawyer should act with reasonable diligence and promptness when representing the defendant.
- The defense lawyers should maintain as confidential all communications with the client.
- The defense lawyer should conduct a prompt investigation into the facts relevant to the case and the penalty in the event of conviction, including securing information in the possession of the prosecution and law enforcement authorities.
Lawyers Duties to Court
The defense lawyer's duty to represent the defendant's interests is balanced by his duty to act in an ethical and professional manner.
- The defense lawyer must not intentionally misrepresent matters of facts or law to the court. For example, if a defendant admits his guilt to the defense lawyer, the defense lawyer may not permit him to testify that he did not commit the crime.
- The defense lawyer does not have to follow any instructions from the defendant that would be illegal or unethical.
- The defense lawyer has a duty to disclose any relevant laws or rulings to the court that are directly adverse to the defendant and that have not been disclosed by the prosecutor.
- The defense lawyer must avoid conflicts of interests with the defendant and all other parties involved in the case. This may mean the defense lawyer cannot represent co-defendants if their defenses will be adverse to one another.
Ethics for Prosecutors
Prior to the 19th century, most prosecution was conducted privately by the victim. However, starting in the 19th century and beginning with the rise of urban centers, prosecutors took over the role of prosecution. Today, private prosecution remains in several jurisdictions but does not occur frequently. Today the prosecutor stands in the shoes of both the victim and the state. She is responsible for seeing that the criminal defense system produces fair and measured results.
In the common law system the prosecutor wields great power and has, to some extent, control over investigatory bodies and police departments. In some civil law systems, such as China for instance, a stronger divide exists between prosecution, investigatory, and police functions.
In either case, the prosecution wields great power because she alone may decide whether to pursue criminal charges against a defendant.
- Probable Cause - A prosecutor is in effect, an extension of the state's power to detain an individual when probable cause exists to believe they have committed a crime. Therefore, a prosecutor should terminate a prosecution when it becomes clear that probable cause does not exist to pursue the case further.
- Illegal Evidence - A prosecutor should not use evidence obtained illegally at trial.
- Exculpatory Material - A prosecutor who acquires evidence that the defendant did not commit the crime should be required to provide that information to the defendant. In the United States, this material is called Brady Material.
- Misconduct at Trial - A prosecutor should refrain from making improper remarks before, during, and after trial. Examples of improper remarks include:
- Personally vouching for the credibility of witnesses
- Appealing to race, nationality, gender or any other bias
- Referencing facts not in evidence
- Appealing to vengeance or sympathy
- Other bad acts already excluded from evivdence
- Defendant's exercise of right to silence during interrogation.
Ethics for Judges
- A judge should uphold independence and impartiality of judicial proceedings.
- A judge shall avoid conflicts of interest or the appearance of conflicts of interest.