Question for Defense Attorneys.?

A very astute and interesting question, and a puzzle that has remained perhaps the most perplexing and difficult ethical problem for the legal profession for many, many years.

In order to even begin analyzing the problem, you have to realize that it is near impossible for an attorney to ever "know" that a client is guilty - that is, unless the attorney was there, at the time that the crime was committed.

A defendant who informs his attorney that he is guilty might be mentally deranged, covering for another person, hoping to negotiate a plea bargain, or maybe confused about what constitutes a crime, or who may have actually committed it. It's not enough just to have your client confess to you.

In the famous novel Crime and Punishment, by Dostoevsky, the readers know that the protagonist, Raskalnikov, has killed 2 women - however, during the course of the book, other people confess to those crimes. In that circumstance, Raskalnikov's attorney could not have known what to believe about his client's guilt or innocence. In real life, a client's guilt or innocence is rarely known, and rarely black or white.

Interesting articles, one of which I'll link below, have analyzed how an attorney's ethical responsibilities are drawn into conflict by a case where the lawyer "knows" that his client is guilty. An attorney is bound by his legal ethics to protect confidential client communications (his client's admission of guilt surely qualifies here), and he must "act with commitment and dedication to the interests of his client". At the same time, the ethics of law require that an attorney always proceed with "candor" and honesty towards the court.

In the 1967 Supreme Court case "U.S. v. Wade" (not Roe's Wade), Justice White wrote "[Unlike prosecutors] defense counsel had no comparable obligation to ascertain or present the truth...[W]e also insist that he defend his client whether he is innocent or guilty." White goes on to make other interesting and relevant points - I commend that dissent to you as interesting further reading.

The short answer is that - if it were possible to actually KNOW of a client's guilt - most attorneys would be torn between the responsibilities that they owe to their clients (especially that confidentiality issue!) and their own moral compass (cue the jokes that lawyers have no moral compass).

This is a very difficult issue, and one that brilliant minds have debated for many years within the profession.

Check the article I've linked below for a longer discussion of some of the points that I've raised.

I hope this helps!

No. When a client speaks with his lawyer anything he says with regard to a past crime that he has committed is considered privileged. All lawyers are bound to never reveal any such communication. It is called the attorney-client communications privilege. You have the absolute right to confidentiality when speaking with your lawyer regarding past acts.

Criminal defense is an adversarial system. The DA's job is to get a conviction. Your defense attorney's job is to give you the best defense regardless of whether you did it or not.

However, if a client tells an attorney about a criminal act that he plans to commit in the future this is not privileged and the lawyer is required to report the planned crime to the police.

I am not a lawyer. Only licensed lawyers can give legal advise. The above should not be construed as legal advise.

Just because some one is not guilty doesn't mean that they haven't committed the deed. In your example of killing someone, it may have been a justifiable homicide. The lawyer has a duty to present the best defense possible. This is our main protection from unlawful prosecution. The attorney cannot let the person get on the stand and commit perjury, but the attorney can only defend his/her client when fully informed thus any information gleaned from the defendant cannot be used because of attorney/client privilege. Teh same is true of your medical records. This allows the free exchange of information to important indivual protectors.

Client-Attorney confidentiality, no he does not have to report it. It is his job to defend the person. He may ask to be relieved of his duties (but the Judge will either appoint another attorney or the defendent will have to hire a new one). In some cases, the Judge will make the attorney defend the client no matter what. There is a murderer in my area that has had like 9 attorneys at this point. Everyone knows he did it but he is crazy, so he keeps firing his counsel and asking for new ones. He cut up two teenagers and put their bodies in a storage unit.

If the lawyer finds evidence that his client did do it, he doesn't have to tell anyone. But he would have to recuse himself from defending the individual - the law prevents a lawyer from lying in a court of law, as well as suborning perjury. A lawyer couldn't legally or ethically go on defending the client if he found proof that the client was in fact guilty.

The attorney would not be able to testify against the individual because of attorney/client privilege, and there would be no way of disclosing the evidence found without discussing items covered by the privilege.

If a defendent confesses to his lawyer, that lawyer cannot put him on the stand to testify in his own defense. The defendant can, however, enter a plea of Not Guilty. The attorney is bound by attorney/client privilege not to reveal what the defendant tells him.

A lawyer cannot put on a defense he/she knows to be false, nor allow his/her client to lie on the stand. Most times, if a lawyer knows her client is guilty, the case won't be about whether the client did the act, but what mitigating circumstances or affirmative defenses might be brought in to explain/excuse the act (like self defense) or lessen the sentence.

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i am not an attorney. but i know how it works. no, there is "attorney-client" privilege. the attorney can choose not to represent him if he knows for sure that he is guilty, if the attorney is in private practice. if the attorney works for the state then he has to defend him, as innocent, even if he knows the guy did it, if that's what the defendant wants.

The lawyer cannot give any information to the prosecutor that could be detrimental to the defendant. That's the way the criminal defense system works. Sucks doesn't it???