The long goodbye: after the Innocence Movement, does the attorney-client relationship ever end?

• Author: Bazelon, Lara A.

Inspired by the Innocence Movement, the American Bar Association has placed an unprecedented new obligation on defense counsel in the form of an "Innocence Standard." This new rule imposes an affirmative "duty to act" upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent.

The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in wrongful conviction cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel's obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads.

In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?

This Article--the first scholarship to discuss the Innocence Standard--examines how the innocence movement's influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges, and juries; defense counsel's primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.

TABLE OF CONTENTS INTRODUCTION 683 I. THE NEW INNOCENCE STANDARD AND ITS RECONCEPTION OF THE ATTORNEY-CLIENT RELATIONSHIP 690 A. Established Legal and Ethical Parameters Governing the Attorney-Client Relationship in Criminal Cases 690 B. The New Innocence Standard 693 C. Impact of the Innocence Standard 694 II. LEGAL AND MORAL JUSTIFICATIONS FOR THE INNOCENCE STANDARD 699 A. The Innocence Movement 699 B. The Holistic Model of Representation 703 III. THE ETHICAL AND PRACTICAL DILEMMAS POSED BY THE INNOCENCE STANDARD 709 A. The Problem with Parity 709 B. Serving Two Masters 711 C. Self-Interest 716 D. Resources 720 IV. PROPOSED REVISIONS TO THE INNOCENCE STANDARD 723 A. Modifications to the Language of the Innocence Standard 724 B. Proposed Commentary 725 CONCLUSION 727 INTRODUCTION

The impact of the Innocence Movement on the criminal justice system has been profound, bringing into sharp relief gross injustices that previously had been all too easy to downplay or ignore. (1) Twice a week on average, an innocent person is set free, often after spending decades in prison. (2) These exonerations are extensively covered by the media, searing into the national consciousness powerful images of the prisoner's emotional reaction at the moment of freedom and an equally powerful narrative of the long road from hopeless, unmitigated suffering to sudden and complete redemption. (3)

The Innocence Movement--the law school clinics, non-profit organizations, religious institutions, and individual lawyers dedicated to the work of overturning wrongful convictions--has challenged the conventional wisdom underlying the basic tenets of our criminal justice system. (4) Exoneration after exoneration reveals bleak truths: that eyewitnesses who were one-hundred percent certain are often one-hundred percent wrong, (5) that defendants who confess may be innocent, (6) that police and prosecutors sometimes fail to play by the rules, (7) that defense attorneys sometimes fall down on the job, (8) and that, as a result, jurors reach the wrong conclusions. Between 1989 and 2015, more than 1,600 men and women were exonerated following years--often decades--of imprisonment for wrongful convictions. (9) And those are just the documented cases. In all likelihood, there are many more. (10)

It is not possible to absorb these facts without second-guessing the accuracy and fairness of the justice meted out in courtrooms across the United States. Gross miscarriages of justice occur, and they occur with some frequency. (11) Because of the Innocence Movement, the frequency of wrongful convictions is now public knowledge, (12) and important reforms designed to make the number vanishingly rare have been enacted. (13) Many are heralded and relatively non-controversial, such as the passage of laws designed to ease the burden on inmates seeking DNA testing, (14) the decision by some police departments to reform the way that line-ups and photo spread identifications are conducted to ensure greater accuracy, (15) and the establishment of post-conviction integrity units within prosecutors' offices to reexamine old cases in which there is some doubt about a defendant's guilt. (16)

There is a new reform, also propelled by the Innocence Movement, about which little is known, and which may have complex, real-world repercussions that have yet to be fully explored: the addition of an "Innocence Standard" to the American Bar Association's code of ethics for criminal defense attorneys. (17)

The code, known as the Defense Function Standards, exhorts defense attorneys to abide by the highest ethical standards in the defense of their clients. (18) While the American Bar Association's Defense Function Standards lack the force of law, their influence on ethical norms, jurisprudence, and legislation is readily apparent: they have been adopted by the vast majority of states and cited hundreds of times by the United States Supreme Court and lower federal and state courts. (19)

The new Innocence Standard, formally adopted in February of 2015, imposes an affirmative obligation on defense counsel "to act" upon learning of evidence that creates a "reasonable likelihood" that a former client may have been "wrongfully convicted or sentenced or was actually innocent." (20) In so doing, it offers a vision of what it means to be a criminal defense lawyer that is a stark departure from traditional practice. In this new paradigm, defense counsel is an advocate with an ethical obligation to the truth, whose ongoing responsibilities to uncover and present that truth have no clear boundaries or end point. (21) While the Innocence Standard has the laudable aim of exposing and correcting wrongful convictions, it also has the potential to create an ethical thicket for counsel, destabilizing the relationship between counsel and her current clients while imposing a heavy burden on an already understaffed and overworked defense bar.

The Innocence Standard mirrors the ethical obligations already imposed on prosecutors, (22) establishing parity between the two sides in this realm. Yet, prosecutors and defense attorneys play fundamentally different roles in our adversarial system. Prosecutors are ministers of justice who serve the truth at all costs, even if it means undermining an ongoing prosecution or seeking to vacate an old conviction. Defense counsel, on the other hand, must do everything possible within the bounds of the law to zealously represent their current clients, with no obligation to the truth or any duty to act affirmatively on behalf of someone they no longer represent. By expanding defense counsel's obligations to bring them more in line with those of prosecutors, the Innocence Standard may have blurred a line that should be drawn plainly in the sand.

Part I of this Article sets forth the parameters of the criminal defense attorney--client relationship as it has been traditionally defined, and discusses the ways the new Innocence Standard alters that definition. Part II discusses the historical and moral justifications for enacting this change: the emergence of the Innocence Movement, the steady flow of exonerations that point unambiguously to the gross failure of the system to fulfill its "truth-seeking" function, and a recognition, among many prominent practitioners of criminal defense, that a holistic model of representation is crucial to effective representation.

Part III argues that the Innocence Standard, while undeniably well-intentioned, unfortunately fails to address the ethical implications of its "duty to act" imperative. Left unaddressed are three major potential conflicts for counsel. First, how to "act" if the newly discovered information pointing to a former client's innocence may cause harm to a current client, second, how to "act" if the newly discovered evidence went undiscovered due to counsel's own failings during the representation of the former client, and third, how to "act" in the ways the Standard demands while carrying an excessive caseload that makes the competent representation of current clients nearly impossible.

Part IV proposes revisions to the Innocence Standard that address the ethical and practical dilemmas it implicitly raises while acknowledging that these suggestions do not provide a conclusive resolution to the question it poses: can defense counsel serve two masters, her current client and the truth? In this Article, I argue that the answer to that question is no. The Standard must be rewritten to make clear that a "duty to act" on behalf of a...