9 Defense Attorneys

Introduction The defense attorney is often treated with scorn – why? Portrayal of defense lawyers in the media is often negative The defense lawyer advises, represents and acts for the defendant What makes a good defense attorney?

The History of Criminal Defense The history of criminal defense can be traced back to ancient Rome By the 4th century advocates were essentially lawyers The profession disappeared after the Dark Ages, but the efforts of the church and state led to its resurgence

The History of Criminal Defense Growth of the Criminal Defense Bar Criminal defense attorneys gained prominence around the 1730s Few trained lawyers in American colonies at that time Indigent defense was nonexistent During the 19th century, most attorneys trained in apprenticeships 1771, Blackstone’s Commentaries on the Laws of England provided a source for the study of law and legal principles

The History of Criminal Defense The number of lawyers grew after the American Revolution due to: Increased formalization of law and the legal process created a demand for professionals The rather lax standards for becoming a lawyer Prompted the beginning of law schools

The History of Criminal Defense By the 1960s, concerns with civil rights, poverty and other social problems made a legal career highly desirable High profile Supreme Court cases also fueled growth in the legal profession Law school admission became selective and schools introduced strict entrance requirements

Types of Defense Attorneys Criminal defense attorneys fall into two general categories: Privately-retained attorneys Attorneys who represent indigent defendants Gideon v. Wainwright requires counsel be provided for all criminal defendants

Types of Defense Attorneys Privately Retained Counsel Retaining an attorney for criminal defense is expensive Legal fees in a felony case may exceed $25,000 The result is that many defendants cannot afford to hire their own attorneys

Types of Defense Attorneys Do You Get What You Pay For? Is a privately-retained attorney more effective than a public defender who represents an indigent defendant? Research indicates wealthier offenders end up better off on the whole than poor offenders But for the most part, public counsel and privately-retained attorneys achieve the same results Guilty pleas, trial verdicts and case dismissals

Types of Defense Attorneys Indigent Defense Systems Three main indigent defense systems in operation in the United States: Assigned Counsel Contract Model Public Defender Systems vary state by state One or more of the defense systems may be in operation and can be organized at different levels of government

Types of Defense Attorneys Who qualifies for these services? Most states rely on statutory definitions to determine indigent status Who foots the bill? Most indigent defense services are completely paid by the state Some states fund their programs at the county level The norm is for taxpayers to pay Some authorities lament the state of the system (e.g. the American Bar Association)

Types of Defense Attorneys Assigned Counsel Selected to represent indigent clients in either: Ad hoc assigned counsel systems – judges choose a defense attorney on a case by case basis Coordinated assigned counsel systems – rely on a coordinate to choose the attorney Most often used in rural areas Counsel are paid according to set rates

Types of Defense Attorneys Contract Model The state, county or other jurisdictional authority contracts with private attorneys Two main types of contracts for defense services: In a fixed-price contract the firm agrees to accept an unspecified number of cases for a single, annual flat fee In a fixed-fee contract the defense firm contracts to provide defense representation in a fixed number of cases for a fixed fee per case

Types of Defense Attorneys Public Defender The first public defender program opened in Los Angeles in 1913 The system relies on full-or part-time attorneys who represent indigent defendants When there is a conflict of interest, a contract or assigned counsel is available to assist Sometimes called a “mixed system”

On the Job The Defense Craft Flemming’s study revealed a concern with the “efficiency” to waive preliminary hearings Defense attorneys adopt a “professional” stance Defense attorneys seek to “minimize regrets” A concern with efficiency can run counter to a concern with professionalism and minimizing regrets

On the Job Insider Justice The Myth of the Zealous Advocate Nardulli’s study sought to determine if “regular” defense attorneys were: “manipulators of the process” “cop-out artists” “creators and protectors of routine” The Myth of the Zealous Advocate Blumberg study asserts defense attorneys are “double agents”

On the Job Uphoff describes a defense attorney as a “beleaguered dealer” Struggling against difficulty e.g. the demands of a high caseload, or being confronted with a client who is financially strapped Also found many defendants want to plead guilty Defense attorneys may be doing their best within the institutional constraints they face

Defense Attorneys, Their Clients, and the Public Defense Attorneys’ Perceptions of Their Clients A belief that“public clients” are less trusting than private clients Court-appointed lawyers represent the Criminal Justice system rather than the client’s interest There is a different dynamic between defendants and a privately-retained attorney compared to a public defender

Defense Attorneys, Their Clients, and the Public Defendant’s Perceptions of Their Attorneys What is known can be placed in roughly two categories: The attorney-client relationship is important The client’s ability to assume an active role within the relationship is key

Defense Attorneys, Their Clients, and the Public The trust defendants display toward their attorneys Defendants with limited understanding of the legal process reported less faith in their attorney Public Perceptions of Defense Attorneys Advertising media have portrayed attorneys in a scornful manner

Defense Attorneys, Their Clients, and the Public The ABA survey results indicate the public has both positive and negative perceptions Placed one notch above the media and far below the medical profession Figure 9-2 Public Confidence in Lawyers Relative to Other Professions

Defense Attorneys, Their Clients, and the Public Attorneys’ Satisfaction with Their Work No amount of survey research can capture the satisfaction of a job well done Ethical Dilemmas for the Defense

Defense Attorneys, Their Clients, and the Public A confession in confidence Client perjury Defense receipt of physical evidence Problems with the defendant’s prior record

Defense Ethics Professional Organizations Discuss professional organizations for defense attorneys for two reasons: Professional associations maintain codes of ethics for their members Certain professional associations license attorneys When attorneys fail to follow the rules, they risk losing their authority to practice law

Defense Ethics Bar Associations The ABA’s Model Code of Professional Responsibility was first adopted in 1908 Membership in a state bar association entails adhering by the state’s ethical codes and principles

Defense Ethics NACDL NLADA National Association of Criminal Defense Lawyers Seeks to foster integrity, independence, and expertise in the criminal defense profession NLADA National Legal Aid and Defender Association

Defense Ethics Main focus is on defense attorneys who provide aid to indigent defendants Sets forth important guidelines for the provision of defense services to ensure indigent defendants receive effective representation

Defense Ethics Canons of the Code of Conduct for Federal Public Defender Employee Canon 1. A federal public defender employee should uphold the integrity and independence of the office.

Defense Ethics Canon 2. A federal public defender employee should avoid impropriety and the appearance of impropriety in all activities. Canon 3. A federal public defender employee should adhere to appropriate standards in performing the duties of the office.

Defense Ethics Canon 4. A federal public defender employee may engage in activities to improve the law, the legal system, and the administration of justice. Canon 5. A federal public defender employee should regulate extra-official activities to minimize the risk of conflict with official duties.

Defense Ethics Canon 6. A federal public defender employee should regularly file reports of compensation received for all extra-official activities. Canon 7. A federal public defender employee should refrain from inappropriate political activities.