§ 28.10 Effective Assistance: The Role of Ethical Canons

• Jurisdiction: North Carolina

§ 28.10 Effective Assistance: The Role of Ethical Canons²⁴⁸

Violation of an ethical canon by a defense lawyer does not constitute a per se violation of the Sixth Amendment. The lesson of Strickland v. Washington²⁴⁹ is that "[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable [representation], but they are only guides."

But what if a defendant argues that his lawyer provided ineffective assistance, and the basis of his claim is that counsel obeyed ethical canons? Put another way, is a lawyer immunized from a Sixth Amendment "verdict" of inadequate representation if he acts in conformity with recognized ethical rules? The issue arose in Nix v. Whiteside.²⁵⁰

In Whiteside, W was prosecuted for stabbing L to death. In conversations with R (his lawyer), W claimed that he killed L in self-defense because he believed that L was pulling a gun out from under a bed. No weapon was found on or around L, and witnesses observed no gun. Furthermore, W admitted to R that he had not actually seen the weapon. R explained that this was not fatal to W's self-defense claim, as long as he reasonably believed that the victim was armed. A week before trial, however, W told R for the first time that he saw something metallic at the time of the incident. He explained: "There was a gun. If I don't say I saw a gun, I'm dead."

R explained to W that such testimony would constitute perjury. He warned his client that if he persisted in his wish to testify in this manner, it was R's duty to advise the court of W's plan, that he "probably would be allowed to attempt to impeach that particular testimony," and that he would seek to withdraw from the case. R's warnings apparently worked: although W testified at trial, he did not make the false claim.

Whiteside involves a comparatively easy perjury scenario. First, R had good reason to believe, based on W's prior admissions, that W's testimony would be perjurious. The case does not raise the question of whether R's forceful actions would have been constitutionally justified if he had merely suspected perjury. Second, R knew of the planned perjury before trial; the case does not raise the issue of "what a lawyer must, should, or may do after his client has given [surprise] testimony that the lawyer does not believe."²⁵¹ Third, W testified truthfully. The case does not dispose of the problem of whether a lawyer acts properly if he convinces his client...