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Ethical Issues for Defense Attorneys and Persecutors Research Paper

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Updated: May 4th, 2020

Criminal law obliges the state to enforce criminal justice in a society. It presupposes that most of the people will not commit a crime. If a crime is, nonetheless, committed, it is the duty of the state to investigate it, and punish the person who committed it. The duty of a persecutor is, therefore, to initiate a trial process against a person about whom there is a reason to believe that they have been involved in a crime.

Persecutors have the burden of proof, which means that they are obliged to provide factual evidence for their claims. It is also their concern that an innocent person is not convicted so they have to investigate the matter thoroughly and be unbiased (Rosenthal, 2008).

Defense attorney, on the other hand, has no obligation to present factual evidence. The only goal of the defense attorney is to defend the accused, and they have to do so even if they know that the accused is guilty. The defense attorney is allowed to confuse the witnesses, and try to point out any weaknesses in the persecutor’s case.

The rationale behind all that is that the final goal is not to have an innocent person convicted (Rosenthal, 2008). However, some author’s recognize that a defense attorney must not break the principle of honesty so as to protect the legal profession (Flowers, 2010, p. 650).

Ethical issues, for defense attorneys, most often arise when the two principles enter into a conflict. For example, it is obvious that even though the attorney is bound by the principle of confidentiality in general, they are not obliged to follow it when doing so causes them to become involved in criminal activities as well. Somewhere on that continuum, a defense attorney has to draw a line. As for persecutors, ethical dilemmas usually arise when personal values introduce bias in the effort to uncover truth.

The Attorney-Client privilege denotes a special relationship between the client and the attorney. This kind of relationship was introduced in Elizabethan England for three reasons. Firstly, lawyers can prepare a stronger case for the defense if they are informed about all the relevant facts.

Secondly, if there were no such relationship, the accused would hesitate to seek the advice from an attorney because they would be afraid that their involvement in the crime would be revealed. Thirdly, this kind of relationship is also useful in getting the accused to cooperate with the law enforcement officers. The basic building-block of this relationship is the confidentiality rule (The Attorney-Client Privilege).

Confidentiality rule is a principle that prevents a defense attorney from revealing information disclosed by the client for the sake of preparing the case for defense. Of course, this rule implies that there is no consent on the part of the client. If the client gives permission for doing so, the attorney is allowed to reveal the information (Rule 1.6: Confidentiality of Information). Lawyers’ ethical codex also allows for certain exceptions where it is possible to break the rule. It is permissible to disclose confidential information in following situations:

  1. If doing so would prevent death of an innocent person.
  2. If the lawyer is certain that revealing some of the information received by the client would prevent a substantial financial damage to another person, he is allowed to break the principle of confidentiality.
  3. A lawyer may also disclose confidential information if he or she is charged with a crime which the client was involved in.
  4. In case a lawyer thinks that it would be best to seek for other lawyers’ opinion in order to make a case, the information can be revealed to other lawyers who are then also obliged not to disclose it (Rule 1.6: Confidentiality of Information).

One great problem which prosecutors face is that sometimes they may introduce personal bias into their job. A persecutor’s role is, once again, to secure evidence in order to avoid convicting an innocent person. In a situation where, for some reason, a persecutor feels strong personal involvement in the case, the danger of breaking that rule arises.

For example, a member of a persecutor’s family may have been a victim of a similar case, or a persecutor simply has a strong intuitive feeling that the accused is guilty. There have been many cases where it was established that persecutor had been withholding evidence from the trial for similar reasons.

One such example is the case of Tracey Cline, a district attorney who was found guilty for withholding evidence and misinterpreting facts to the judge on two occasions. In one of the cases, a man named Derrick Allan was accused of a rape, and having already been sentenced to 12 years for a similar crime, he was widely believed to be guilty.

During the trial, it was found that the accused was innocent, and that the persecutor, Tracey Cline, had been withholding the evidence. Unfortunately, it took one more case in which the same thing occurred, to take away Cline’s license (The rise and fall of Tracey Cline).

Upon graduating from a law school, all prospective lawyers have to pass a bar exam, and after that they are sworn into the profession. All this is done in order to maintain the reputation of legal profession. Once a lawyer is accepted into the profession, together with the rights that they receive come certain obligations, which are codified in the codex of professional ethics. These rules and obligations are enforced in such a way that breaking any of the established principles results in being excluded from the profession.

Minor mistakes that result in a breach of the ethical principles, and which do not have far reaching consequences may be forgiven or fined in some other way, but serious offenses are always followed by the loss of the license. One must not forget that a lawyer’s reputation is sometimes even more important than their license because a license with bad reputation is worth little on the job market.

The nature of attorney-client relationship is such that the attorney is always in a position to better predict consequence of some actions, due to their training and experience. For the most part, clients are aware of this fact, and they usually agree with the attorney on the preferred course of action.

Nonetheless, problems arise when the opinions of the attorney and the client clash. In this situation, a lawyer faces a dilemma of whether to pursue the client’s interest or their will. The best thing to do, of course, is to give one’s best to explain the issue to the client, and persuade them to agree on the objectively most rational course of action.

However, when this yields no solution, the question becomes problematic, and demands accounting for many issues, but it can, nonetheless, be stated that it is best to comply with the client’s will. There are two basic reasons for this. Firstly, the client always has the right to cancel the attorney’s representation, and if they are really obstinate they will probably do so. Secondly, there is a possibility that the attorney’s plan might fail, and in that case, it would be very difficult to explain to the client that their idea would not be any better.


Flowers, R. (2010). The Role of the Defense Attorney: Not Just an Advocate. Ohio State Journal of Criminal Law, 7, 647-654.

Rosenthal, J. (2008). – Avvo.com. Avvo.com – Expert Advice When You Need It Most. Web.

| The Center for Professional Responsibility. (n.d.). American Bar Association. Web.

. (n.d.). Dartmouth College. Web.

The rise and fall of Tracey Cline – Twisted Truth – NewsObserver.com. (n.d.). News, Sports, Business, Politics – Raleigh, Durham, Chapel Hill | The News & Observer. Web.

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