Reviewing the rules for lawyers
By A.J. Wagner
One of the questions I have been asked most often since starting law school is, “Why would a lawyer defend that creep?” It is a question born out of concern. A media outlet reports that a person has been caught red handed having committed a heinous crime. The next day it is reported that the wrongdoer has appeared in front of a judge, with an attorney, and pled, “Not guilty.” Inquiring minds ask, “Are you kidding? He was caught red handed! What’s his attorney thinking? What games are they playing? Why waste time and money on this guy? Of course, he’s guilty!”
These are legitimate questions that deserve a legitimate answer.
Take, for instance, the case of Jared Lee Loughner who shot U. S. Rep. Gabrielle Giffords in January of 2011. He was captured at the scene of the carnage he caused. He shot eighteen people, killing six, including a federal judge and a nine-year-old girl. The whole event was captured by security cameras. He had written several notes indicating his intent and there were numerous witnesses. He was charged, at first, with five criminal counts. Eventually, he faced forty-nine various criminal charges. With an attorney at his side, he pled, “Not guilty.”
Why would an attorney represent this guy? And why would she let him plead, “Not guilty,” when he is so obviously guilty?
Starting with the first question, I turn to the Preamble of the Ohio Rules of Professional Conduct. Although these are Ohio rules, these rules are fairly uniform across the country. So, Ohio’s Rules state, “As an officer of the court, a lawyer not only represents clients but has a special responsibility for the quality of justice.” The Rules also say, “Lawyers play a vital role in the preservation of society.” These rules require that a lawyer ensure access to the legal system and advance the administration of justice. Finally, the Rules require all lawyers to devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.
In short, it is the obligation of lawyers to represent people even when they are not socially acceptable. If every lawyer had the option of turning down unpopular cases, the unpopular person would never be able to get a fair review of his case and a fair trial. Of course, a lawyer cannot take a case if she doesn’t have the skills to handle the particular issues, if there is a conflict of interest or if she cannot devote the necessary time to the matter, but if the lawyer is able and available, she should not refuse the case.
As to the “Not guilty” plea, a lawyer cannot possibly know enough about the case the day, or the day after, she has been hired. Again, according to the Ohio Rules of Professional Conduct, “[A] lawyer should provide a client with an informed understanding of the client’s legal rights and obligations and explain their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client and consistent with requirements of honest dealings with others. As an evaluator, a lawyer examines a client’s legal affairs and reports about them to the client or to others.” That’s a lot of work that takes a considerable amount of time. Until a lawyer has had the chance to review all of the circumstances and all of the evidence she cannot advise her client fully. The “Not guilty” plea is really the only way to get the time needed to investigate the case.
In Loughner’s case, his attorney was able to get two psychological examinations that determined her client was seriously mentally ill and unable to understand what he faced in court. The judge ruled, at first, that Loughner was incompetent to stand trial. After a year of treatment and negotiation, Loughner was deemed competent and his attorney obtained an agreement that allowed her client to enter a “Guilty” plea in exchange for elimination of the death penalty.
Another lawyer rule: “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer. A lawyer also must act with commitment and dedication to the interests of the client.” Loughner’s attorney, Judy Clarke, a federal public defender in San Diego, where the case was heard, seems to have understood these rules and acted accordingly.
One more rule: “[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Mission accomplished?
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.