Last year, I was indicted by a La Plata County grand jury for doing my job. The case against me was dismissed, and I was cleared by the Colorado Supreme Court Attorney Regulation Counsel. Going through the experience was stressful and frustrating because I knew my actions were appropriate. The cases and issues in this article will show that – while the criminal justice system is not perfect – it is strongly founded upon the rule of law.
A defense attorney’s role in the process is defined by his or her client’s interests. Defense attorneys have a duty to zealously represent their clients. This zealousness is, however, not absolute. An attorney cannot lie to the court or parties to get a better result for the client.
In the case In Re Caldwell, a defense attorney was suspended for a misrepresentation to the court. The attorney represented a client in two different drunken-driving cases, in two different jurisdictions. After the attorney pleaded the client to the first DUI in one jurisdiction, the attorney then went on to plead the client guilty to DUI in the second jurisdiction. At the second plea hearing, the attorney made a specific representation to the court that it was the client’s first DUI conviction. The Supreme Court suspended the attorney, finding he engaged in dishonesty, fraud, deceit or misrepresentation.
A defense attorney has a duty of loyalty to the client. It is not unusual for a defense attorney to have a conflict with a client about how to handle specific aspects of a case. A defense attorney must manage these conflicts to the benefit of the client. For example, in People vs. Albani, a defense attorney and his client disagreed about the client’s decision to go to trial. The defense attorney thought that the client should take the plea bargain. However, once the client made the informed decision to go to trial, the attorney had a duty to the client to honor that decision. In Albani, the defense attorney was sanctioned for discussing – outside his client’s presence – his negative personal opinion of his client, his client’s decision to go to trial and client confidences with the judge and the district attorney in chambers during the trial. The court suspended the attorney, finding he violated his duty of confidentiality and loyalty to the client.
While defense attorneys have duties of loyalty and confidentiality to a client, they cannot let a client make knowing misrepresentations to the court. In People vs. Shcuties, the defense attorney learned his client intended to present a fabricated alibi witness at trial and refused to call the witness. The court ruled the attorney acted correctly, and if the client was insistent on the fabrication, the attorney must move to withdraw.
A prosecutor’s duty is to seek justice. Thus, the ethical decisions reflect that emphasis. Prosecutors have higher ethical duties than other attorneys because they hold power as a representative of the state. There are specific rules of professional responsibility applicable only to prosecutors. Prosecutors cannot withhold evidence that negatively affects their case. In Re Attorney C, a prosecutor failed to disclose to the defense that the victim had changed his or her story before the preliminary hearing. The Colorado Supreme Court ruled that prosecutors must disclose evidence material to the outcome of a trial.
A prosecutor cannot make misrepresentations to further a case. In People vs. Paulter, a prosecutor was suspended for misrepresenting himself as a defense attorney in the course of negotiations with a person who was refusing to surrender to police. The court found his misconduct caused actual harm to the administration of justice.
In the early 1990s, the district attorney of La Plata County was sanctioned for trying to further a criminal investigation. In People vs. Reichman, the district attorney for this county used his position to file a fictitious criminal charge against a person who was working as an undercover police officer. The fake charge was filed to show the undercover police officer was not law enforcement and to protect the ongoing investigation. The Colorado Supreme Court made it clear that deception is never justified, no matter how lofty the motive.
What these cases illustrate is that the criminal justice system does not tolerate a “win at all costs” attitude. As a defense attorney, this is extremely important because we lack the inherent power of a prosecutor or judge. We cannot charge a person with a crime. We cannot sentence a person or rule on the admissibility of evidence. We count on ethics rules to ensure that our clients are treated fairly.
A defense attorney’s interest in the rights of the individual is just as important as a prosecutor’s interest in the goals of the state. As Chief Justice John Roberts recently stated in his dissenting opinion in Kaley vs. United States: “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers – one at a time.”
Brian Schowalter is a defense attorney in Durango who practices in state and federal court. He can be reached at brianschowalter@durangoattorneys.com.
