PART 2 - CHAPTER 6 Legal Representation for the Accused

• Jurisdiction: United States

Chapter 6 Legal Representation for the Accused

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Compare and contrast the adversarial and the inquisitorial systems of law.
■ Discuss the Sixth Amendment right to counsel and the ways in which it has been implemented.
■ Explain the role of defense attorneys and the ethical rules that govern their activities.
■ Discuss the differences between attorney-client privilege and the duty of confidentiality.

INTRODUCTION

In the previous chapters, we focused on the activities of law enforcement officers and prosecutors' offices as they relate to investigating criminal activities, as well as identifying, detaining, and arresting suspected perpetrators. We also discussed the lawyers and paralegals who prosecute people accused of committing violations of the criminal code. Now we turn our attention to the lawyers and paralegals who defend the people against whom those prosecutors have brought charges in our criminal courts.

A. ADVERSARIAL VERSUS INQUISITORIAL LEGAL SYSTEMS

To fully understand the importance of defense attorneys in the U.S. legal system, it is necessary to understand the differences between adversarial and inquisitorial legal systems. The U.S. legal system is such a basic part of our popular culture that most readers have no knowledge of how our adversarial system differs from the inquisitorial systems used in many other nations around the world.

In the adversary system, judges are focused on keeping the trial going smoothly and do not ensure that all potential witnesses are called to the stand or that the lawyers ask all the questions that should be asked.

In contrast, judges in the inquisitorial system take an active role in determining who should be called as witnesses and ask their own questions of the witnesses. Whereas the primary criticism of the inquisitorial system is that it puts too much power in the hands of judges, thereby creating an imbalance of power between the individual and the government; the adversarial system is criticized for making the outcome too dependent upon the skills and dedication of the attorneys.

DISCUSSION QUESTION

1. Would you rather live in a country that uses the adversarial system or the inquisitorial system? Why?

B. THE RIGHT TO COUNSEL

1. SOURCE OF THE RIGHT

Because attorneys play such a key role in our adversary system, the Sixth Amendment was ratified to establish a right to counsel in criminal cases. It states that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . the assistance of counsel for his defense."

2. SCOPE OF THE RIGHT

The broad language of the amendment raises many important questions:

■ What constitutes "assistance of counsel"?
■ Does it really apply to "all" criminal prosecutions, or is it limited to some subset of more serious charges?
■ At what stage in a criminal prosecution does this right begin to apply? Does it apply to appeals?
■ Does it require the government to provide you with an attorney if you cannot afford one on your own, or is it simply a provision to prevent the government from consulting the attorney you hired with your own money?
■ Does the assistance of counsel have to be effective? If so, how should courts determine if the assistance was effective?

In various cases involving the Sixth Amendment right to counsel, the U.S. Supreme Court has answered some of these question by ruling that:

■ The right to counsel applies to anyone facing possible incarceration if he or she is convicted of federal, state, or local criminal charges, as well as to minors involved in juvenile proceedings.¹
■ As soon as a defendant retains a private attorney, that attorney can begin immediate representation of the defendant. When the government is providing an attorney for an indigent defendant, however, the right to counsel attaches at the initial appearance before a judicial officer. This first time in court is when the judge or the magistrate informs the defendant of the charge in the complaint and of various rights in further proceedings, in addition to determining the conditions for pretrial release.²
■ While the right to have assistance from a private attorney extends through as many appeals as the defendant is qualified to make, the right to assistance of an appointed counsel applies only to the first level of appeal.³
■ In order to have one's conviction reversed on the basis of ineffective assistance of counsel, a defendant must prove both that the defendant's attorney made major errors and that the errors were serious enough to have deprived the defendant of a fair trial.⁴

3. IMPLEMENTATION OF THE RIGHT

Although a defendant has a right to have attorney representation in a criminal proceeding in which a sentence of incarceration may be imposed, in most cases it is up to the defendant to find and pay for the services of a private attorney.⁵ In situations in which defendants, facing possible jail time, cannot afford to pay for the services of a defense attorney, they typically are able to get representation from a public defender's office or an assigned counsel program, which will be discussed next.

a. Public Defenders' Office

In metropolitan areas, there is usually a separate, publicly funded public defenders' office that is primarily staffed by attorneys who represent low-income individuals charged with criminal offenses. The attorneys who work in these offices are usually full-time, salaried employees. In rural areas, public defenders are often part-time employees who also maintain their own legal practices.

In addition to having full- and part-time attorneys, these offices employ paralegals, clerical staff, and investigators. Attorneys and paralegals in these offices specialize in criminal law and can easily consult with experienced colleagues when appropriate to do so.

Federal defenders are the federal equivalent of state public defenders. They are the primary representatives for defendants who are unable to afford private counsel in prosecutions initiated by the U.S. Attorney's Office. Like their state counterparts, federal defender offices in urban areas are staffed by full-time attorneys.

b. Assigned Counsel System

As an alternative to using a public defender system, some smaller communities use an assigned counsel system, in which judges assign local attorneys in private practice to defend people who are accused of a crime who are unable to pay to have a lawyer defend them. In these assigned counsel appointments, the attorney may either receive a set fee paid by the local government or take the case on a pro bono basis.⁶

The Criminal Justice Act (CJA)⁷ authorizes U.S. district court judges to appoint attorneys to represent low-income clients when there is no federal defender's office or when the federal defender has a conflict of interest. CJA panel attorneys are criminal defense lawyers in private practice who are appointed to represent indigent defendants in federal cases for a fixed hourly fee.

DISCUSSION QUESTION

2. List what you think the pros and cons are of each type of defense attorney. Which type would you want to have defend you if you could not afford to hire a private attorney? Why?

APPLICATION EXERCISE
1. What type of system is used in the state courts in the area in which you currently reside for providing representation to persons accused of a crime who cannot afford to hire an attorney? What steps does an indigent defendant have to take to get an attorney to represent him or her? Where did you find this information?

2. Obtain a copy of the financial affidavit used in your local court system to determine whether a defendant qualifies for a court-appointed defense attorney. Fill in the form as you would if you were the one applying for representation.

4. ATTORNEY'S DECISION TO DECLINE TO REPRESENT A CLIENT

a. Conflict of Interest

The American Bar Association (ABA)'s Model Rules 1.6 and 1.7 prohibit an attorney from representing a client who has conflicting interests with either a current or former client of either the particular attorney or other attorneys in the same office.

Before a case is accepted, the attorney's office runs a conflicts check on the client to ensure that there is no conflict of interest in representing the client. The staff member conducts this check by verifying whether the client is an adverse party in another case handled by the attorney or if the attorney represents one of the witnesses against the client. The person conducting the check may manually review a list of clients or use a software application designed for this purpose. In general, a conflict for one lawyer in the firm creates a conflict for other attorneys. Attorneys shifting from defense to prosecution or vice versa must refrain from accepting representation that jeopardizes confidences learned in their prior employment.

Likewise, paralegals must be careful to avoid their own conflicts of interest. Paralegals are ethically required to disclose to their employers any preexisting client or personal relationship that may conflict with the interests of the employer or prospective clients.⁸ The National Federation of Paralegal Associations offers the following advice for preventing conflicts of interest:

■ "On your first day of employment (if it has not been done during the interview process), ask the supervising attorney or other appropriate person for a list of legal cases or matters that the firm or employer is handling. Review that list to identify the names of clients, parties in litigation, acquaintances, friends, or family members that you recognize.
■ "Compare your list of all legal cases or matters on which you have worked against the new employer's list. If you work in litigation, also review the names of attorneys representing the various parties.
■ "Advise the employer of any matters in which you suspect you may have a conflict of interest. Provide only enough information about the matter for the employer (or a firm or

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