1.7 Professional Responsibility and Ethical Considerations

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

1.7 PROFESSIONAL RESPONSIBILITY AND ETHICAL CONSIDERATIONS

1.701 In General. The Supreme Court of Virginia, pursuant to its rule-making authority, adopted the Virginia Rules of Professional Conduct to govern the professional and ethical conduct of Virginia attorneys. ¹⁶¹ The following discussion briefly outlines the major ethical standards that apply to the criminal defense lawyer.

1.702 Lawyer's Duty to Provide Legal Service. A lawyer should not seek to avoid appointment by a tribunal except for good cause, such as that the appointment would likely result in a violation of the Rules or in an unreasonable financial burden or the client or the client's cause "is so repugnant to the lawyer as to be likely to impair the [attorney-client] relationship." ¹⁶² A court-appointed lawyer has the same obligations to the client as retained counsel, including the duties of loyalty and confidentiality. ¹⁶³ A lawyer should render at least two percent of his or her time to pro bono legal services. ¹⁶⁴

1.703 Competency to Handle Case. A lawyer must provide competent legal representation. "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." ¹⁶⁵ A lawyer should not agree to handle the defense of any client in a case in which he or she is not competent to ensure the defendant's rights. If the practice of criminal law is not the lawyer's usual work, he or she should make sure before accepting a client or being appointed that he or she is competent to handle the case. Although defending criminal cases is a professional responsibility, the defendant's rights should not be jeopardized by an incompetent lawyer handling the case.

1.704 Representing the Interests of the Client. "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope,

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meaning, or application of the law." ¹⁶⁶ When a lawyer knows that a client expects assistance not permitted by the Rules or other law, the lawyer must consult with the client about the relevant limitations on the lawyer's conduct.

"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good...