1 / 61

Professional Ethics for the Delaware Conflicts Attorney

This presentation explores the principles of professional ethics for Delaware conflict attorneys, focusing on common ethical pitfalls and best practices to stay out of hot water. It covers areas such as competence, diligence, communication, improper vouching, and obligations to clients pursuing post-conviction relief.

curtishoward
Télécharger la présentation

Professional Ethics for the Delaware Conflicts Attorney

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Professional Ethics for the Delaware Conflicts Attorney

  2. Delaware Ethics Guidance • The Principles of Professionalism for Delaware Lawyers • The Delaware Lawyer’s Rules of Professional Conduct • Delaware Lawyer’s Rules of Disciplinary Procedure • The ABA Code and Model Rules of Professional Responsibility

  3. Scope of Presentation • PART 1 - Common Ethical Pitfalls for Defense Attorneys arising Pre-Trial and at Trial • Competence • Diligence • Communication • Improper vouching by the prosecution • Client is lying

  4. Scope of Presentation • Part 2 - Ethical Issues related to claims of Ineffective Assistance of Counsel • Obligations to a Former Client who is pursuing Postconviction Relief • Obligations to a Current Client who is pursuing Postconviction Relief

  5. Common Pitfalls - Pre-Trial & Trial How to stay out of the hot water…

  6. Competence • Rule 1.1 requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

  7. Diligence • Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client.

  8. Communication In pertinent part, Rule 1.4 requires a lawyer: • Promptly inform the client of any decision or circumstance which requires the client’s informed consent; • Reasonably consult with the client about the means by which the client’s objectives are to be accomplished • Keep the client reasonably informed about the matter; and • Promptly comply with reasonable requests for information.

  9. Duty to raise appropriate, timely objections

  10. Defense Counsel’s Responsibility at Trial In Trump v. State, the Delaware Supreme Court commented, “[t]he defense bar is not free from fault. Despite separate admonitions by this Court, some members of the defense bar still fail to assert timely objections to … prosecutorial misconduct. Such failures hinder the trial judge’s ability to address the alleged misconduct during the trial and ultimately limit a defendant’s chance of succeeding on appeal because counsel’s failure to object leaves this Court with the more restricted plain error standard of review.…

  11. Defense Counsel’s Responsibility Continued … To provide effective assistance to the defendant, defense counsel in such cases must be alert to avoid waiver and should weigh more heavily the wisdom of objecting rather than a tactical decision to remain silent. Trump v. State, 753 A.2d 963, 969-70 (Del. 2000).

  12. Improper Closing Statements

  13. General Rules • A prosecutor may not comment on the defendant’s decision not to testify or his courtroom demeanor • A prosecutor should not disparage another party or opposing counsel • A prosecutor may not burden shift • A prosecutor should avoid appealing to passion or prejudice

  14. Rule 3.4 Fairness to Opposing party and counsel A lawyer shall not: (e) In trial, allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence, assert personal knowledge of facts in issue… orstate a personal opinion as to the justness of a cause, the credibility of a witness…or the guilt or innocence of an accused.

  15. “Improper vouching occurs when the prosecutor implies some personal superior knowledge, beyond that logically inferred from the evidence at trial, that the witness testified truthfully.” White v. State, 816 A.2d 776, 789 (Del. 2003).

  16. The Delaware Supreme Court’s General Rule • “As a general rule, prosecutors may not express their personal opinions or beliefs about the credibility of witnesses or about the truth of testimony.” Clayton v. State, 765 A.2d 940, 942 (Del. 2001).

  17. Eg. Whittle v. State (2013) • “Prosecutors generally cannot vouch for the credibility of a witness by stating or implying personal knowledge that the witness’ testimony is correct or truthful.” Whittle v. State, 77 A.2d 239, 243 (citingClayton v. State, 765 A.2d 940, 942 (Del. 2001)).

  18. Other Examples • Prosecutor who commented “falsely reported rapes do not go to trial” was vouching. Hardy v. State, 962 A.2d 244 (Del. 2008) • Prosecutor’s description of the witness’s testimony as a “lie” expressed an impermissible personal opinion. Brokenborough v. State, 522 A.2d 851 (Del. 1987); Hughes v. State, 437 A.2d 559 (Del. 1981). • Prosecutor vouched when he referred to police officer as “ a sworn officer of the law” and then remarked, at length, why a police officer would not lie. Miller v. State, Del. Supr., No. 434, 1998, 2000 WL 313484, Harnett, J. (Feb. 16, 2000)(ORDER), reh’g denied (April 14, 2000)(ORDER).

  19. Duty to follow your client’s direction - Rule 1.2(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued…

  20. What happens when the client is crashing the bus?

  21. Rule 1.2 states that in a criminal case the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to the plea to be entered, whether to waive jury trial and whether the client will testify.

  22. Additionally, although the authority to manage the day-to-day conduct of the trial generally rests with the attorney and counsel is not required to obtain the defendant’s consent to every tactical decision, Rule 1.2 requires the attorney to consult with the defendant regarding “important decisions,” including questions of over arching defense strategy. Taylor v. State, 28 A.3d 399, 405-406 (Del. 2011)(citations omitted).

  23. Rule 1.2(d) says… (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

  24. Rule 3.4(b) Fairness to Opposing Parties and Counsel A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law OR (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence

  25. “Before we begin, I just want to change a few facts in my story.” Duty of Candor

  26. How do you reconcile the attorney-client privilege with your ethical obligations?

  27. Rule 1.6 Confidentiality of Information • (a) A lawyer shall notreveal information relating to representation of a client unless the client gives informed consent … or the disclosure is permitted by paragraph(b). • (b) A lawyer may reveal information … to the extent the lawyer reasonably believes necessary: • To prevent certain death or substantial bodily harm • To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services OR to prevent, mitigate, or rectify this injury where such fraud or crime has already occurred

  28. Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: • (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by a lawyer; • (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. .

  29. Rule 3.3 Candor Toward the Tribunal (b) A lawyer…who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraph (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

  30. Delaware Comment 6 to Rule 3.3 • [6] If the lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of the witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer KNOWS is false.

  31. Delaware Comment 8 to Rule 3.3 • [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

  32. Delaware Comment 9 to Rule 3.3 • [9] Although para. (a)(3) only prohibits a lawyer from offering false evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false…[However] Because of the special protections historically provided criminal defendants…this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes, but does not know, that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.

  33. What quality/quantity of information would have to exist in order for an attorney to “know” his client intended to offer “false testimony” in the context of Delaware Lawyers’ Rule of Professional Responsibility 3.3? 

  34. Shockley v. State The Delaware Supreme Court held the attorney must have knowledge “beyond a reasonable doubt” before he can conclude his client intends to commit perjury. Shockley v. State, 565 A.2d 1373 (Del. 1989).

  35. Delaware Comment 10 to Rule 3.3 • Remedial Measures [10] …[T]he advocates proper course is to remonstrate the client confidentially, advise the client of the lawyer’s duty of candor…and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. • If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted, or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the reveal [information subject to Rule 1.6]

  36. Possible Approaches Determine whether you know the statement to be false. If you are sure: • Explain your duty of candor to the Court and try to dissuade the client from offering the false evidence. If necessary, discuss your desire to withdraw. • Refrain from calling the client, unless it is a criminal case and they insist on testifying. • Limit your examination to subjects about which the client will be truthful. • If false evidence is offered, inform the Court.

  37. PART 2: ETHICAL ISSUES SURROUNDING INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS Obligations to a Former Client who is pursuing Post-Conviction Relief Obligations to a Current Client who is pursuing Post-Conviction Relief

  38. What are your obligations when your former client files a Motion for Post Conviction Relief alleging Ineffective Assistance of Counsel ?

  39. Sixth Amendment Duty of Loyalty • “Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty . . .” Strickland v. Washington, 466 U.S. 668, 688 (1984)

  40. Delaware Rule 1.6(a): Confidentiality of Information • A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

  41. Rule 1.16 Declining or Terminating Representation • (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as …surrendering papers…to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. • Comment 9: Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.

  42. Rule 1.9 Duties to Former Client • (c) A lawyer who has formerly represented a client in a matter … shall not thereafter: • (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or • (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

  43. The duty of confidentiality continues through post-conviction • This duty continues after the termination of the lawyer-client relationship. Delaware Rule 1.6, Comment 18. • The duty to retain client confidences survive the representation and even the client’s death. Swidler & Berlin v. U.S., 524 U.S. 399, 410 (1998).

  44. A LIMITED EXCEPTION to the duty of confidentiality • Rule 1.6(b)(5) – A lawyer may reveal information protected from to the extent the lawyer reasonably believes necessary to . . . respondto allegations in any proceeding concerning the lawyer’s representation of the client…

  45. The Disclosure itself is limited Although an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege, the information is still protected by Rule 1.6(a). Under Rule 1.6(b)(5), in the absence of informed consent, a lawyer may only disclose protected information if the lawyer “reasonably believes [it is] necessary” to do so in the lawyer’s self-defense. ABA Ethics Opinion 10-456 (Jul 14, 2010).

  46. Duty to Assert Privilege and Confidentiality Even if a defense lawyer believes that the ineffective assistance of counsel allegation triggers an exception to confidentiality, the lawyer must still “take steps to limit ‘access to information the tribunal or other persons having a need to know it’ and seek ‘appropriate protective orders and other arrangements…to the fullest extent possible.’”ABA Ethics Opinion 10-456 (Jul 14, 2010)(citing Comment 14) .

  47. What about when the AG’S Office asks to look at your file (or interview you) about an ineffective assistance claim?

  48. It is highly unlikelythat a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable. Accordingly, lawyers should only make disclosures in a court-supervised setting. ABA Ethics Opinion 10-456 (Jul 14, 2010) .

  49. Summary • Cooperate with successor counsel by providing all information and records – client release not needed • Maintain all privileges and confidences until ordered to divulge by court • Insure that privileges and confidences are protected by the court • Do not discuss the case with prosecutor outside of formal proceedings

More Related