1. 9
Defense Attorneys

2. 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?

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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)

12. 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

13. 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

14. 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”

15. 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

16. 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”

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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.

29. 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.

30. 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.

31. 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.