The Duty Owed to the Guilty and Innocent Alike

The Sixth Amendment of the United States Constitution requires that "in all criminal prosecutions," the accused shall have "the assistance of counsel for his defense." That means anyone charged with a crime is constitutionally entitled to have an attorney defend them against the charges.

Many people charged with crimes are innocent. Many are guilty of heinous acts that offend the mind and turn the stomach. Nevertheless, the requirement that a person accused of a crime be represented by an attorney is unaffected. There is no "unless they're actually guilty clause" or "unless they're accused of something really nasty exception" to the Sixth Amendment.

Meanwhile, attorneys hired by or appointed to the accused - like all attorneys - are bound by the ethical rules of our profession. Those rules vary from state to state, but for the most part, they are very similar. And they all include a requirement that each attorney provide the best representation to their clients that they possibly can.

For example, the ethical rules for Kentucky attorneys require diligence. In the words of the Kentucky Supreme Court, that means:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.

Granted, attorneys aren't required to pursue any and all strategy imaginable to defend their client. They do retain some professional discretion as to strategy and tactics, may disagree with their clients, and must treat the court and other attorneys with respect. But the underlying requirement of diligence is a strong and important one - each person represented by counsel is owed a vigorous representation of their interests.

For those accused of a crime, avoiding conviction or minimizing the sentence they might receive upon a finding of guilt is their primary interest. To that end, criminal defense attorneys should pursue all "lawful and ethical measures" to reach a favorable result for their clients. Again, this is regardless of the details of the charges or the possibility that their client is actually guilty.

These constitutional and ethical requirements are the linchpins of our adversarial criminal justice system. That's why this post, by former Supreme Court clerk Carrie Severino, is so heinous and wrongheaded. In it, she attempts to smear potential Supreme Court appointee Jane Kelly. Kelly is a former public defender who now serves as a judge on the United States Court of Appeals for the Eighth Circuit, one level below the Supreme Court in the federal judiciary.

As Severino points out, in a faux-clinical way, Kelly once represented a convicted felon named Casey Frederiksen. As she was bound to do, Kelly defended Frederiksen and worked to get him a lighter sentence than the maximum allowed for his crimes. But Severino says these facts are "less convenient" than others that favor Kelly's nomination, insinuating that Kelly doing her job as a defense attorney should work against her.

There is no inconvenience in the fact that Kelly, by all accounts, vigorously represented her client to her best ability. That is what good lawyers do, even when they have bad clients. Unless Ms. Severino knows of legal or ethical violations committed by Kelly during the course of her representation of Frederiksen, her criticisms read like a cynical, political effort to unfairly smear a fellow member of the bar.

That, unlike anything Kelly is accused of doing, is unbecoming of an attorney.

Client, Help Thyself

Attorney Scott Greenfield writes on his blog today about something most lawyers have experienced: clients who are their own worst enemies. He shares, via another blog post, the common problems of clients who don't produce important information on time (or ever) and consequently make their lawyer's job much, much more difficult than it already is.

This goes to one of my basic life rules, that nothing is a problem. Until it is.  Lawyers are janitors, cleaning up the mess people leave behind when things go bad.  When things are peachy, who needs a lawyer?  Break a law and don’t get caught? This law stuff is easy. But get caught and suddenly it turns really, really hard. Go figure.
Given the pervasiveness of law in people’s lives, and the rarity with which people are actually forced to confront legal problems, mostly because things somehow manage to work out or they just don’t get caught, is it any wonder that people don’t take the law seriously?  And if the law isn’t serious, then neither are lawyers. N’est pas?

It is my practice to remind clients - sternly - that it is THEIR case we're embarking on, not mine, so their direct and prompt participation is required. That mandate doesn't always compel them at crunch time, though. I have experienced my own fair share of clients who don't respond to emails, or phone calls, or letters, or requests of any sort whatsoever.

In my line of work, which is mostly representing plaintiffs in lawsuits against other people, companies, or the government, the case cannot proceed without my client's full participation. They're on the offense. It's their fight. Defense attorneys can attack the pleadings alone, cutting away at the allegations and factual claims  of plaintiffs without producing a single document. Plaintiffs need to have all their ducks in a row from the outset.

If a plaintiff survives the initial stages of filing a suit, they then have to start producing names, documents, and any other background info they have. Without that, the case can't proceed at all. Then they have to prepare for their deposition, and suffer through it. And then, assuming their case survives summary judgment, they have to get ready for trial, which requires more than a few minutes of discussion.

Filing a lawsuit is a big deal. It's a major life event. Clients can't just blow it off and assume their lawyer has everything taken care of. They don't have to micromanage the lawyer's every move in litigation, but clients do have to be engaged and responsive to lawyer requests. Every case depends on it!