Counseling Chapter 7 Homework Finally Public Defender System Ensures Continuity And

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Chapter 7

Defense Attorneys

LEARNING OBJECTIVES

After reading this chapter, students should be able to:

1. Interpret the four major legal issues surrounding the right to counsel.

2. Discuss how the courtroom work group affects how defense attorneys represent

their clients.

4. Compare and contrast the three systems of providing indigents with court–

appointed attorneys.

6. Analyze the importance of legal ethics to the defense of criminal defendants.

LESSON PLAN

Correlated to PowerPoints

I. The Right to Counsel

Learning Objective 1: Interpret the four major legal issues surrounding the right

to counsel.

A. In a landmark decision, the U.S. Supreme Court held that, based on the Sixth

Amendment right to counsel, indigent defendants charged with a felony are

entitled to the services of a lawyer paid for by the government. Later, the

Sixth Amendment right to counsel was extended to juvenile court

proceedings as well.

B. In the wake of the Gideon decision, the Court wrestled with issues involving

C. Nonfelony Criminal Prosecutions

i. The Gideon ruling was limited to state felony prosecutions. Later, the

justices ruled that a defendant is guaranteed the right to legal counsel,

D. Stages of the Criminal Process

i. The Gideon ruling spawned another important question: When in the

criminal process does the right to counsel begin (and end)?

ii. The Supreme Court adopted a “critical stages” test, under which a

defendant is entitled to legal representation at every stage of prosecution

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“where substantial rights of the accused may be affected,” requiring the

“guiding hand of counsel” (Mempa v. Rhay, 1967).

iii. As a general rule, defendants have a Sixth Amendment right to the

assistance of counsel once any adversarial proceedings have begun

v. The Court also held that defendants have a right to competent advice

from a lawyer on whether to accept an offer to plead guilty in exchange

E. Ineffective Assistance of Counsel

i. The Supreme Court has recognized the effective assistance of counsel as

essential to the Sixth Amendment guarantee (McMann v. Richardson,

1970).

ii. The Court’s most significant holding came in 1984 in Strickland v.

Washington, in which an “objective standard of reasonableness” was set

forth as the proper criterion to be applied in making a determination of

F. Self-Representation

i. Defendants have a constitutional right to self-representation. Defendants

who want to represent themselves must show the trial judge that they

have the ability to conduct the trial.

ii. The trial judge may appoint standby counsel when defendants choose to

represent themselves (McKaskle v. Wiggins, 1984).

iii. The Court held that a mentally ill defendant, who is nonetheless

Class Discussion/Activity 1

What is the test for proving a claim of ineffective assistance of counsel? Should

it be less rigorous? More rigorous?

Media Tool

Read a current article on indigent defense at the American Bar Association

(ABA) website:

See Assignments 1 and 2

II. Defense Attorneys and Courtroom Work Groups

Learning Objective 2: Discuss how the courtroom work group affects how

defense attorneys represent their clients.

A. Lawyers are expected to be advocates for their clients’ cases, arguing for

legal innocence. But the zealous advocacy of a client’s case is not the same

thing as winning at all costs.

B. As a member of the legal profession, a lawyer’s advocacy of a client’s case is

C. Assessing how well lawyers represent their clients is difficult because of

different ways of assessing the work performed.

D. Many defense attorneys define winning in terms of securing probation, or

with other members of the courtroom work group.

E. Whereas the adversary system stresses the combative role of the defense

attorney, the day-to-day activities of the courtroom work group stress

cooperation.

F. Another qualification to bear in mind is that cooperative attorneys do not

bargain every case; they also take cases to trial. If the defense attorney thinks

H. Rewards and Sanctions

i. Defense attorneys who maintain a cooperative stance toward judges,

prosecutors, and clerks can expect to reap some rewards.

ii. The court community can also apply sanctions to defense attorneys who

violate the norms. Sanctions against defense attorneys are seldom

invoked, but when they are, they can have far-reaching effects.

I. Variations in Cooperation

i. Defense attorneys are the least powerful members of the courtroom work

group. Based on this criterion, Skolnick put attorneys into three

categories.

ii. One category consisted of defense attorneys who handled few criminal

cases. Because these attorneys did not know the ropes, they were

unpredictable, and often caused administrative problems.

J. An Assessment

i. Some studies argue that defense attorneys’ ties to the court community

mean that defendants’ best interests are not represented. Both Sudnow

and Blumberg portray defense attorneys as ideological, and as economic

captives of the court, rather than aggressive advocates.

ii. Other studies have concluded that defendants’ best interests are not

eroded when their attorneys adopt a cooperative posture within the

courtroom community.

iii. The studies by Skolnick (1967), Neubauer (1974a), and Mather (1974b)

concluded that attorneys who work within the system are better able to

develop a realistic approach to their work, based on experience and

knowledge of how their clients will fare.

iv. Little evidence exists, then, that defense lawyers have been co-opted by

Class Discussion/Activity 2

Should defendants have the right to self-representation?

Class Discussion/Activity 3

In what ways does the courtroom work group affect how a defense attorney

represents a client?

What If Scenario

What if you are a public defense who is assigned to a new courthouse where you

experience a great deal of animosity from the courthouse work group? How

would you resolve the difficulties related to working with this group of people?

III. The Criminal Bar

Learning Objective 3: Explain why most lawyers do not represent criminal

defendants.

A. Diversity and Stratification of the Legal Profession

i. Law is a diverse profession based partially on the law school attended

and the place of work (Mather & Levin, 2012; Wilkins, 2012).

ii. The most important differentiation within the legal profession involves

which clients are served. Some lawyers represent large organizations

while others represent mainly individuals.

iii. Lawyers tend to operate in one of these two spheres of the profession.

The corporate client sector involves large corporate, general corporate,

regulatory, and political lawyers. The personal client sector is divided

into personal business and personal plight lawyers.

iv. Most of the attorneys who appear in criminal court are drawn from the

B. Environment of Practice

i. It is no accident that in many large cities a distinct criminal bar exists.

Low status, difficulty in securing clients, and low fees are three factors

that affect the availability of lawyers to represent those accused of

violating the law. Most lawyers view criminal cases as unsavory.

ii. Attorneys working in the personal–client sector of the legal profession

seldom have a regular clientele. A lawyer’s reputation is important in

several ways. For example, defendants want a specific attorney to

lawyer provided good representation in the past.

iii. In securing clients, some defense attorneys rely on police officers, bail

agents, and court clerks to give their names to defendants who need

counsel (Wice, 1978).

iv. Obtaining clients is only half the problem facing private attorneys who

represent criminal clients. The second half is getting paid. The myth that

criminal lawyers receive fabulous salaries is mostly untrue.

Class Discussion/Activity 4

Discuss the reasons why most attorneys do not work in the criminal justice field.

Follow that discussion with reasons, then, why some attorneys do work in the

criminal justice field. What would motivate an attorney to stay in a field despite

the issues found in criminal defense?

What If Scenario

If you were a defense attorney and given a choice of defending a known drug

dealer who would pay you large amount of cash for your service (enough you

could pay off your mortgage, for example) or defending pro bono (free legal

service) a poor African-American man who had been falsely accused of bank

robbery, what would you do and why?

Write a two-page paper arguing for or against legal advertising, particularly those

Media Tool

Read the Forbes article titled New Techniques in Ambulance Chasing:

ads that solicit potential clients to sue big corporations on television.

IV. Providing Indigents with Attorneys

Learning Objective 4: Compare and contrast the three systems of providing

indigents with court-appointed attorneys.

A. Although the Supreme Court has essentially mandated the development of

indigent-defense systems, it has left the financing and type of delivery system

up to states and counties.

B. As with other aspects of the American dual court system, the characteristics

of defense systems for the indigent vary considerably, with some state

governments funding virtually all indigent criminal defense services, other

C. How best to provide legal representation for the poor has been a long-

standing issue for the courts and the legal profession. In the United States, the

three primary methods are: assigned counsel; contract systems; and public

C. Assigned Counsel

i. Assigned counsel systems involve the appointment by the court of private

attorneys from a list of available attorneys.

ii. Critics contend that the assigned counsel system results in the least-

qualified lawyers being appointed to defend indigents (Buller, 2015;

Iyengar, 2007).

D. Contract Systems

i. Contract systems involve bidding by private attorneys to represent all

criminal defendants found indigent during the term of the contract, in

return for a fixed payment (Cohen, 2014; Priumu, 2016; Worden 1991;

1993).

ii. The primary advantage of contract systems is that they limit the costs

government must pay for indigent defense.

iii. Critics counter with two types of concerns. The first is that contract

programs will inevitably lead to a lower standard of representation

through the bidding system, which emphasizes cost over quality. The

second is that the private bar will no longer play an important role in

indigent defense (Spangenberg Group, 2000; Toone, 2015).

iv. Skepticism that contract systems actually save money is growing. In

E. Public Defender

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i. Public defender programs are public or private nonprofit organizations

with full- or part-time salaried staff who represent indigents in criminal

cases in a jurisdiction.

ii. Proponents of the public defender system cite several arguments in favor

of its adoption. One is that a lawyer paid to represent indigents on a

continuous basis will devote more attention to cases than a court-

appointed attorney who receives only minimal compensation.

iii. A second advantage often claimed for the public defender system is that

it provides more experienced, competent counsel.

iv. Finally, a public defender system ensures continuity and consistency in

the defense of the poor (Silverstein, 1965).

F. Assessing the Merits of Public Defenders

i. Critics contend that public defenders will not provide a vigorous defense

because they are tied too closely to the courtroom work group.

ii. Several studies have investigated this concern by comparing the adequacy

of representation provided by assigned counsel to that of public

defenders’ offices. The dominant conclusion is that there is not much

difference (Buller, 2015; Eisenstein, Flemming, & Nardulli, 1988;

similar case outcomes.

iii. The long-standing debate over the adequacy of court-appointed counsel is

beginning to give way to a new reality—large governmental expenses.

Class Discussion/Activity 5

What is the best system for representing indigent clients? To encourage

discussion, you may want to break students into three groups and have each

group advocate for one of the systems.

See Assignment 3

V. Lawyers and Clients

Learning Objective 5: Recognize possible tensions between lawyers and clients.

A. One of the most important tasks of defense attorneys is counseling.

B. Lawyers must fully and dispassionately evaluate the strengths and

weaknesses of the prosecutor’s case, assess the probable success of various

legal defenses, and weigh the likelihood of conviction or acquittal.

C. To be an effective advocate and counselor the lawyer must know all the facts

of a case. Statements made by a client to his or her attorney are considered

privileged communication, which the law protects from forced disclosure

without the client’s consent.

D. The attorney–client privilege extends not only to statements made by the

client but also to any work product developed in representing the client.

Based on trust and a full exchange of information, the attorney assumes the

difficult task of advocating a client’s case.

E. In civil litigation, the relationship between lawyer and client is often (but not

always) characterized by trust and full disclosure (Cox, 1993). In criminal

cases, however, the relationship is more likely to be marked by distrust and

hostility.

F. Lawyers’ Views on Their Clients

i. Getting along with clients is one of the most difficult tasks of public

defenders. Client disrespect irritates attorneys and sours their associations

ii. At times, defendants tell their attorneys implausible stories, invent alibis,

or withhold key information. Evasions and deceptions can affect tactical

and strategic decisions.

iii. Preparing the client for the possibility of conviction clashes with client’s

notions that the attorney should always win. Ultimately, it is the

defendant’s choice whether to accept the attorney’s advice to plead guilty

or to go to trial.

iv. Lawyers differ in their ability to influence their clients. Private attorneys

find their advice accepted more readily than court-appointed lawyers do.

G. Defendants’ Views on Their Lawyers

i. Many defendants view their lawyers, whether public or private, with

suspicion. This is particularly the case with court-appointed attorneys,

whom many defendants consider the same as any other government-paid

attorney. Many defendants view the public defender as no different from

the prosecutor.

ii. A partial explanation for a breakdown of trust between the client and

public defender involves the absence of one-to-one contact. Each

defendant sees several public defenders, all of whom are supposed to be

working for him or her.

What If Scenario

Imagine you are a lawyer representing an undocumented immigrant charged with

drug smuggling. You believe the police set him up. The prosecutor offered your

client a plea deal with a punishment of 2 years in prison instead of the normal 10

years for the amount he was accused of smuggling if convicted by a jury. The

evidence clearly did not reflect favorably on your client. Would you advise your

client to take the deal or insist on going to trial? The county where your client

would be tried has an anti-immigrant sentiment.

See Assignment 4

VI. Defense Attorney Ethics

Learning Objective 6: Analyze the importance of legal ethics to the defense of

criminal defendants.

A. All 50 U.S. states have adopted some variation of the American Bar

Association’s Model Rules of Professional Conduct. These rules impose

ethical obligations on lawyers to their clients, as well as to the courts, since

all attorneys are officers of the court.

B. Another key responsibility all lawyers owe to the court is to refrain from

making any statements outside of court which might prejudice any judicial

proceeding. This would include prosecutors and defense attorneys.

C. The duties that defense attorneys owe to their clients include: zealously

representing the client’s interests within the bounds of the law; abiding by a

client’s decisions concerning the objectives of representation; avoiding

D. Lawyers are also professionals bound by ethical rules of the profession.

E. Confidentiality is another key component of legal ethics. Potential conflict of

interest is a key ethical issue facing lawyers.

See Assignments 5 and 6

Media Tool

Read the article The Real Problem with Law Schools:

KEY TERMS

assigned counsel system: Method of providing counsel for indigents through

appointment by the court of private attorneys from a list of available attorneys.

contract system: Method of providing counsel for indigents under which private

attorneys bid to represent all criminal defendants during the term of a contract for a fixed

payment.

indigents: Defendants who cannot afford to pay a lawyer and, therefore, are entitled to a

lawyer for free.

Model Rules of Professional Conduct: Rules established by the American Bar

Association imposing ethical obligations on lawyers to their clients and the courts.

privileged communication: Statements made by a client to his or her attorney. Provides

protection from forced disclosure without the client’s consent. Privilege communication

includes any work product developed in representing the client.

LECTURE NOTES

Gideon v. Wainwright is the landmark case that expanded the right to counsel under the

Sixth Amendment to the Constitution to indigent defendants in noncapital felony cases in

state criminal proceedings. The landmark case in recognition of juvenile offenders and

their right to counsel is recognized under In re Gault. It is important to discuss both cases

in-depth, and the reasons they are both landmark cases even today.

Following the Gideon decision, the Supreme Court addressed a number of issues related

to the right to counsel. Discuss these issues and the cases that resolved them. The cases

can be found in the Key Developments table in the chapter.

Defense attorneys must cooperate with courtroom work groups to do their job. Discuss

the various rewards and sanctions available to the courtroom to encourage cooperation.

There are three main methods for indigents to receive counsel. They include assigned

counsel, contract systems, and public defenders. It is important to discuss all three with

your class and ask students the pros and cons to each method. All three methods are

recognized as having both pros and cons, particularly the contract system method. Critics

large cities and has since spread to averagely populated cities in an effort to assist those

who could not otherwise afford counsel. Seventeen states have adopted state-wide

programs implementing the use of public defenders. This does not come without criticism

by community members. There are those who favor public defenders based on their

overall devotion, the time they dedicate to an indigent client, and provide more

experienced counsel.

Lawyers view their clients in different ways, and clients view their lawyers in varying

manners as well. The issues of honesty and trust are always a concern for each party, and

a general distrust exists between the two. Because of this, public attorneys are often seen

as not assisting their clients in the same way private attorneys would. Clients are often

left wondering whose side the assigned counsel is really on, and compare them to a

POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS

1. Students will have different opinions regarding the systems of providing indigents

2. Students opinions will differ. Discussion should include the problems associated with

3. According to Strickland v. Washington, counsel must have been so ineffective that it

4. Students should discuss the ways in which the courtroom work group can reward or

sanction the behavior of a defense attorney who follows or violates the norms of the

5. Reasons why attorneys do not work in the criminal arena should include low status,

struggling to get clients, and low pay. Discussion regarding why attorneys would

ASSIGNMENTS

1. “Defendants Right to Competent Advice in Plea Bargains”

2. “Training to Provide Effective Assistance of Counsel”

• Defender Services Office Training Division website

• Assignment: Have students identify the services provided for defense

attorneys on the Defender Services website. Do they think the training offered

is worthwhile or would attorneys do better to learn on the job?

3. “Michigan’s Crumbling Public Defense System Continues to Lock Up Innocent

People”

• American Civil Liberties Union (ACLU)

• Assignment: Write a reaction paper to the information found in the ACLU

blog. Include descriptions, comparisons, and contrasts among the three

different ways in which indigent defendants are provided with court-appointed

counsel. Which system do you think is best for defendants? Why? Which

system do you think is best for the courts? Why? Did this article affect the

opinion you may have held before reading it?

4. Describe the views of defense attorneys regarding their clients. Describe the views of

clients regarding their defense attorneys. What are the causes of some of the

difficulties defenses attorneys and their clients have with each other? What are some

possible solutions? Discuss these issues in your classroom.

5. “Prosecutors, Attorneys in Freddie Gray Case Due Back in Court This Week”

6. “Model Rules of Professional Conduct: Preamble and Scope”