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Future of Defense Advocacy

NCJ Number
University of Pennsylvania Law Review Volume: 136 Issue: 6 Dated: (June 1988) Pages: 1903-1911
C J Ogletree
Date Published
9 pages
As a profession, lawyers seem to be held in low regard, and criminal defense lawyers finish lowest in unofficial respectability ranking.
Recent actions by the executive, legislative, and judicial branches have reinforced this negative image. For example, prosecutors have attempted to penetrate the sanctity of the attorney-client relationship by issuing subpoenas to lawyers in unprecedented numbers. Such activity calls into question the integrity of criminal defense counsel. The executive branch also has demonstrated its willingness to question the integrity of criminal defense lawyers as evidenced by the President's Commission on Organized Crime findings that mislead the public by suggesting that corruption is rampant and widespread among criminal lawyers. Congress has contributed by expanding the powers of prosecutors to intrude into the attorney-client relationship, as evidenced in provisions of the Comprehensive Crime Control Act of 1984. In addition, judges too frequently place a seal of approval on the use of intrusive prosecutorial strategies such as subpoenas and post hoc approval of the use of informants to participate in client-attorney strategy sessions. Despite these widespread problems, the defense bar has not fashioned a unified or consistent response. A comprehensive plan for regulating investigations is needed. The criminal justice system must assume that defense lawyers represent their clients zealously within the bounds of the law. External enforcement rules are needed to regulate prosecutorial discretion in seeking to subpoena lawyers, forfeit attorney's fees, or employ informants or wiretaps. Finally, prosecutors should face heightened burden of proof when requesting use of searches, subpoenas, informants, or wiretaps. 40 footnotes.