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Ethics rules for defense attorneys

The boundaries of zealous advocacy

You are in court, getting ready to pitch your plea to the judge to allow your client to remain out of custody on her own recognizance pending the next court hearing. As you are getting ready to speak, your client turns to you in earshot of the judge and loudly reminds you to tell the judge about her current residence with her mother, in order to demonstrate her strong ties to the community. You know perfectly well that this is not true. Your client is homeless and living on the streets and therefore does in fact present a flight risk. The judge has heard your client's words and is now looking at you for guidance. What do you say?

It almost goes without saying: Criminal defense attorneys have an unquestionable duty to defend their clients to the fullest extent of the law -- to fight for their cause and to protect all of their clients' rights along the way. But there is a limit to zealous advocacy. The question is, how far is too far?

California Business and Professions Code 6068

California Business and Professions Code Section (BP) 6068 defines 15 "Duties as an attorney." Subsection (c) should be of particular interest to criminal defense attorneys: "To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense."

In Smith v. Superior Court (1968) 68 Cal.2d 547, 560, the court quoted from precedent, "[e]ven if a legal proposition is untenable, counsel may properly urge it in good faith; he may do so even though he may not expect to be successful, provided of course, that he does not resort to deceit or to willful obstruction of the orderly processes" (quoting Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 788).

However, all attorneys are bound by BP 6068(d), which describes one of the duties of an attorney as the duty "[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." Lest anyone take these rules lightly, BP 6103 states that violations of any of an attorney's duties as such attorney "constitute causes for disbarment or suspension."

Crossing the line

In re Young, (1989) 49 Cal.3d 257, an attorney arranged bail for his fugitive client under a false name that his client had given in order to avoid detection. (Id. at 262.) Aware of his client's fugitive status, the attorney did not reveal his client's true name to the bail bondsman or any other court officer. (Id.) The attorney was subsequently convicted of violating California Penal Code Section 32, accessory to a felony, a crime of moral turpitude. (Id. at 264.)

In reviewing the State Bar Court's findings and sanctions, the Young court affirmed that the attorney violated his duties under Business and Professions Code Section 6068. "An attorney's duty to maintain his client's confidences does not extend to affirmative acts which further a client's unlawful conduct." (Id. at 265.) The court conceded that the attorney did not have a duty to reveal his client's violation of California Penal Code Section 148.9 in giving the officer a false name; but he did have a duty to refrain from perpetuating his client's unlawful conduct by arranging his bail under the false name. (Id.)

Also note that an attorney may not knowingly offer false witnesses. ( People v. Davis (1957) 48 Cal.2d 241, 257; In re Branch (1969) 70 Cal.2d 200.) An attorney's duty to represent his or her client to the fullest extent of the law does not include a duty to offer false testimony. Attempting to benefit a client though perjured testimony may result in severe discipline as well as criminal prosecution under California Penal Code Section 127. (Branch, supra, 70 Cal.2d at 210-11.)

California rules of professional conduct

In addition to the California Business and Professions Code, all attorneys are ethically bound by the California Rules of Professional Conduct (CRPC). Rule 5-200, Trial Conduct states: In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

Attorneys should also be familiar with Rule 3-210, Advising the Violation of Law. This rule states: A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal.

The legal and ethical limits of zealous representation are matters of common sense to most attorneys. A working knowledge of the rules governing defense representation will allow criminal defense attorneys to effectively protect the rights of their clients, while also protecting themselves.


Patrick, Esq., is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at wendy.patrick@sddt.com.

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