§21.3 - Criminal Defense Ethics Under The Rules of Professional Conduct

• Jurisdiction: Washington

§21.3 CRIMINAL DEFENSE ETHICS UNDER THE RULES OF PROFESSIONAL CONDUCT

The RPCs do not include a dedicated rule for criminal defense ethics comparable to RPC 3.8 for prosecutors. Nevertheless, criminal defense ethics are featured throughout the RPCs, both expressly and by practical implication. Several of these rules directly or indirectly advance the concept of the defense lawyer as "single-minded counsel for the accused." People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 883, cert, denied, 368 U.S. 866 (1961); cf. Antrobus v. State, 253 Ind. 420, 254 N.E.2d 873, 878 (1970). This section will explore several important examples of how the RPCs define criminal defense ethics. Again, constitutional rules and norms, particularly regarding claims of ineffective assistance of counsel, interrelate with many of these disciplinary rules.

(1) Frivolous claims and defenses

RPC 3.1 is one of the main rules to address criminal defense practice expressly. This rule provides that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law or fact for doing so that is not frivolous." The rule, however, limits its application with respect to criminal defense lawyers: "A lawyer for the defendant in a criminal proceeding... may nevertheless so defend the proceeding as to require that every element of the case be established." Id. This limitation responds to the requirement that in a criminal case, the prosecution must rebut the presumption of innocence with proof beyond a reasonable doubt. RPC 3.1 cmt. 3; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The limitation does not authorize criminal defense lawyers to make false representations or to present false evidence. RPC 3.3(a). But under RPC 3.1, a defense lawyer ethically may challenge the prosecution's case for reasonable doubt, even when the defense lawyer knows her or his client is guilty. Indeed, because the decision of whether to go to trial in a criminal case is reserved to the defendant, the defense lawyer may be ethically obliged to challenge the prosecution's case, even with a guilty client.

(2) Objectives of representation

RPC 1.2(a) allocates decision-making authority between the client and the lawyer. Under this rule, the client determines the objectives of representation, and the lawyer shall consult with the client regarding the means for pursuing the client's objectives. Although this decision-

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making framework applies to any lawyer-client relationship, this rule expressly identifies several decisions unique to criminal matters that are categorically reserved to the client: (1) what plea to enter; (2) whether to waive a jury; and (3) whether the client will testify at trial. These defined objectives track constitutional case law giving a defendant the right to control these "fundamental" decisions. See generally State v. Humphries 181 Wn.2d 708, 336 P.3d 1121 (2014)

The fact that these decisions belong to the client does not mean the defense lawyer should act like a potted plant when these decisions are on the table. On the contrary, defense counsel must competently and diligently investigate, RPC 1.1, 1.3; communicate with the client about these decisions, RPC 1.4; and provide candid advice based on the lawyer's independent professional judgment, RPC 2.1. For example, the Washington Supreme Court suspended a lawyer for 60 days who failed to communicate a plea offer to a client and did not communicate the sentencing range the client faced or the risks of going to trial. In re Disciplinary Proceeding Against Longacre, 155 Wn.2d 723, 122 P.3d 710 (2005). The U.S. Supreme Court also has identified constitutional dimensions to a defense lawyer's failure to advise a client of a plea offer, Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); incompetent advice to reject a plea offer, see Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); and failure to advise the client about immigration consequences to a plea offer, see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

But the fundamental decisions of whether to plead guilty, proceed to trial, or testify at trial belong the client, no matter how risky or foolish the defense lawyer believes the client's decision to be. Experienced defense lawyers, for instance, often face the prospect of a client testifying at trial against counsel's emphatic advice. But if the client rejects the lawyer's advice, the client's right to testify overrides the lawyer's independent judgment. See State v. Robinson, 138 Wn.2d 753...