U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Ethical Concerns of a Criminal Defense Attorney (From Morality and the Law, P 41-49, 2001, Roslyn Muraskin and Matthew Muraskin, eds. -- See NCJ-193090)

NCJ Number
Matthew Muraskin
Date Published
9 pages
This chapter identifies and discusses the typical ethical concerns that confront a criminal defense attorney.
The discussion focuses on the Code of Professional Responsibility of the American Bar Association as it applies to the work of a criminal defense attorney. Lawyers must protect the confidences and secrets of their clients, because such conduct relates to their fitness to engage in their professions. With regard to mandatory prohibitions, a lawyer can now be sanctioned for sexually harassing a client, although apparently in the context of sexual intimacy, the American Bar Association's model code does not specifically bar a sexual relationship between lawyer and client. There is an emerging opinion that disavows such sexual relationships. Within the criminal justice system the roles of the defense lawyer and the prosecutor are clear. These adversaries have an obligation imposed upon them by their codes of professional responsibility to protect the criminal justice process. Proper conduct for a lawyer goes far beyond prohibiting acts which violate the law. It encompasses relationships with the client, the court, and others. In establishing the lawyer-client relationship, the lawyer is ethically bound to ensure that he/she is capable of handling the matter and that the fee for services to be rendered is reasonable. A contingent fee in a criminal case is forbidden because of policy concerns of "corrupting justice" and the practical concern that a criminal case does not produce a basis on which the fee can be paid. Further, the U.S. Supreme Court has held that absent a searching inquiry on the part of a trial judge, a lawyer should not represent more than one defendant charged with the same crime. This is because of a defense attorney's obligation of singular loyalty to a client. Although anticipated client perjury is often discussed by academics, no clear answer as to what the client's lawyer should do has yet emerged. Another concern of the criminal lawyer is what to do if he/she believes a witness he/she is about to cross-examine has testified truthfully. This is typically resolved under the reasoning that the truth cannot be fully known to the attorney or the court apart from a thorough testing of a witness' testimony. Even though the criminal defense attorney must be familiar with and seek to conform to the specific code of conduct for the profession, interpretations of and compliance with this code will depend upon moral principles learned over the lawyer's lifetime. 14 references