Most practitioners working within the United States criminal justice system must weigh heavy ethical and moral decisions in the day-to-day performance of their jobs. Most notable among these positions is that of the defense attorney. Although the prosecuting attorney must determine whether or not to proceed with formal charges, the defense attorney must zealously defend their clients regardless of their moral belief toward the crimes that they are accused. Moral and ethical internal debates for the defense attorney become most obvious when they believe or become aware that their client’s guilt. Regardless, all individuals are entitled to his or her day in court, with adequate legal counsel. The defense attorney is obligated to provide these individuals with the tools to defend themselves.
The United States Supreme Court’s decision in Gideon V. Wainwright (1963), established the constitutional right to legal counsel in all criminal cases. The Sixth Amendment of the Constitution guarantees that the accused shall have legal assistance for their defense. From 1932 until the decisions made in Gideon, the Supreme Court expanded upon what circumstances and specifically who were legally entitled to receive legal guidance in criminal cases.
To expand on the path that was followed to achieve this landmark decision, the court began by determining that all defendants in state capital cases were entitled to receive legal counsel in Powell V. Alabama (1932). This was later expanded to include all defendants in federal courts that were accused of felonies as well. The court’s final extension of these rights of the defendant for legal guidance came in Argersinger V. Hamlin (1979), where these rights were to include representation for misdemeanors. The right to counsel is not provided for in civil court proceedings.
In providing the accused legal defense, attorneys may be troubled by the possibility of having to defend an individual that is accused of a crime that becomes a moral issue with the attorney. Defending those accused of offenses such as child abuse or child molesters, may be troubling for a defense attorney. Additionally, working in the defense for those individuals that are repeat offenders must become the most difficult to deal with on a day-to-day basis. Although troubling, the defendant has a right to adequate legal counsel, as would anyone else accused of a lesser charge or first-time offenders. The specific type of crime or individual victim should not impact the right of the accused in being provided with representation in court. Being morally against the actions that one’s clients are being accused does not allow a lawyer to provide less zealous service to their client nor does it allow them to deign service altogether.
It is easy to understand that a defendant that is guilty of an offense, knowing that their defense lawyer cannot promote perjured, witness testimony or more importantly that from his or her own client, they will find it easy to lie. If the defense lawyer learns that testimony heard during the course of the trial that was favorable for the defendant, was perjured testimony, they must not reiterate this information during closing arguments. The rules of conduct for lawyers in these types of instances are varied depending on the court that the defendant is being tried. Additionally, there are not set rules or guildelines that entirely cover the behavior of the attorney for all given situations. For this reason, the defense attorney must internally determine the ethical and moral obligations he or she must uphold, not only to the defendant, but also to the courts and society as a whole.
Although the guidance for the behavior of the defense attorney is limited, much varied commentary exists. The problem may be avoided altogether by not asking the client of their guilt or innocence. Other lawyers may avoid these issues by not placing the accused on the stand and in effect not allowing them opportunity to perjure themselves. Additionally, the defense counsel may allow the defendant to be placed on the stand; however, they will avoid directly asking questions that they knowingly would result in perjured testimony, but still provide adequate defense of the accused. The principle of neutrality forces a separation of the attorneys’ moral or ethical beliefs from their job in defending their client.
Because of the possibility that the defendant may lose their rights as free individuals, the burden on the defense lawyer is great. Some commentators specify that because of the consequences faced by the accused, the defense lawyer must provide as zealous a defense as possible, setting aside any moral restraint they may hold in this service. They argue that the lawyer must hold the clients interest first beyond all else. Arguably, the lawyer-client relationship as a whole holds room for debate. Some feel that the lawyers’ job is to hear the defendants’ full story first and take the lead in defending them as zealously as possible. Others feel that they should only provide adequate legal counsel but leave the difficult decisions up to the accused to decide for themselves, in effect limiting their role to providing legal expertise only.
Lacking legal precedence, we may look to professional codes of conduct for some insight to these moral and ethical issues that face the defense attorney. Short of addressing this issue in the American Bar Association’s own code of conduct, it states only that, “The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment”.