1. CHAPTER 9
Discretion and Dilemmas in
the Legal Profession
Lecture slides prepared by Lisa J. Taylor

2. Defense Attorneys
• Defense attorneys are often in the position of
defending clients they know are guilty
• A lawyer is supposed to assist clients without
regard for personal preference or interest
• People with unpopular causes and individuals
who are obviously guilty still deserve counsel
• It is the ethical duty of an attorney to provide
such counsel

3. Responsibility to the Client
Attorneys cannot abandon their clients unless:
• the legal action is for harassment or malicious
purposes,
• continued employment will result in violation of a
disciplinary rule,
• discharged by a client, or
• a mental or physical condition renders effective
counsel impossible.

4. Conflicts of Interest
Attorneys must not represent clients
whose interests conflict with those of the
attorney.
Attorneys must not represent two clients
with opposing interests.
If a heavy caseload compels an attorney to advise his
or her client to accept a plea bargain instead of going
to trial, has the attorney violated prohibitions against
conflict of interest?

5. Plea Bargaining
• Is considered by most to be efficient and
probably inevitable, if not exactly “right”
• Makes sense if the goals of the system are
crime control or bureaucratic efficiency
• Is harder to justify if the goals of the system
are due process and protection of individual
rights

6. Zealous Defense
Defense counsel must zealously defend client, but not
commit unethical acts to do so. Counsel may not:
•engage in motions or actions to intentionally and maliciously harm others,
•knowingly advance unwarranted claims or defenses,
•conceal or fail to disclose that which he or she is required by law to
reveal,
•knowingly use perjured testimony or false evidence,
•knowingly make a false statement of law or fact,
•participate in the creation or preservation of evidence when he or she
knows or it is obvious that the evidence is false,
•counsel the client in conduct that is illegal, or
•engage in other illegal conduct.
Aggressive advocacy sometimes involves the use of ethically
questionable tactics.

7. Jury Consultants
• preparing witnesses
• assisting with mock trials
• developing desirable juror profiles
• conducting phone surveys on public attitudes
about a case
• analyzing “shadow juries”
• giving advice on effective posture, clothing
choice, and tone of voice

8. Confidentiality
Attorney–client privilege prevents compelling attorneys to
disclose confidential information about their clients.
Exceptions that permit revealing confidences include:
•When clients consent
•When required by law or a court
•To defend against an accusation of wrongful conduct
•To prevent clients from committing crime or fraud
•To prevent, mitigate, or rectify financial injury to another

9. Perjury
• By rule, an attorney cannot allow perjury by the
defendant.
• Passive role (do not refer to perjury)
• Active role (inform court)
• If perjury occurs before the attorney realizes the client’s
intent, the defense must not use or refer to the perjured
testimony.
If a defendant commits perjury but the attorney
does not know it is perjury, might this lead to a
“don’t ask, don’t tell” mentality?

10. Resolving Ethical Dilemmas for
Defense Attorneys
• The situational model weighs each
case on its particular factors
• The systems model considers the
guiding ethical rule to determine
rightness or wrongness of a behavior

11. Prosecutors
• Must seek justice, not convictions
• Have discretion to charge or not charge
defendants—one of the most important
decisions in the criminal justice process
• The decision to charge:
- May be influenced by politics
- Is especially sensitive in capital cases

12. • Mother of 2-year old Caylee Anthony.
• Caylee was reported missing by her
maternal grandmother on July 15, 2008.
• Caylee’s remains were found on December
11, 2008.
• Casey fabricated several stories about her
daughter’s disappearance, and was
ultimately charged in the case.
• Trial lasted 6 weeks (from May-July, 2011).
• Casey was found not guilty on murder
charge, but found guilty of providing false
information to police.
• Public outrage ensued – many thought the
jury misunderstood the meaning of
reasonable doubt.
Casey
Anthony
(2008)

13. Prosecutors’ Discretion to
Charge
• Legal sufficiency
• System efficiency
• Defendant rehabilitation
• Trial sufficiency

14. • Willingham was asleep when his
daughter woke him up and said his house
was on fire. Willingham said he was
unable to get his 3 daughters out of the
house, and they were killed in the fire.
• Investigators initially indicated the fire
was arson, and Willingham was arrested,
convicted, and eventually placed on
death row.
• It was later discovered that the original
evidence was faulty and not based on
fact.
• Another investigator determined that the
fire was caused by a candle or space
heater – but Willingham was executed
anyway.
Cameron
Todd
Willingham
(1991)

15. • Problems related to part-time
prosecutors
• Problems related to a prosecutor’s
political aspirations
• Problems related to asset forfeiture
laws
Conflicts of Interest

16. • Franklin County (Columbus),OH
prosecutor.
• Ran for Ohio Attorney General while
also investigating Tom Noe’s failed
state rare coin funds and government
corruption case in Ohio.
• Questions arose about whether he
could carry out his duties impartially,
as prosecutor, while also running for
state office.
• O’Brien was running on the
Republican ticket, while also
investigating and perhaps prosecuting
Republicans for potential ethics
violations.
Ron
O’Brien
Franklin
County
Prosecutor
(2006)

17. Media Relations
• No out-of-court statements should be given
that would materially prejudice a proceeding
• Statements regarding the general nature of
the charge and information that is public
record are permissible

18. Expert Witnesses
• May provide testimony based on principles
generally accepted in the scientific community
• Benefit from a halo effect when their expertise in
one area results in their receiving deference in
other areas
• Lose credibility after gaining a reputation as a
“hired gun” by always appearing on one side of
an issue.

19. CSI and the Courts
Popular television programs suggest that scientific methods are
infallible in solving crimes.
But serious questions arise over laboratory management practices,
the veracity of technician testimony, and the very nature of the
“sciences” involved:
• Hair analysis: a highly suspect field
• Arson investigation: recent findings conflict with established beliefs
• Ballistics testing: lead comparison analysis debunked
• DNA testing: an evidentiary minefield
• Fingerprint analysis: estimated to yield false positives in up to one
quarter of all comparisons
• Bite mark comparisons: cannot be reliably measured

20. Joyce
Gilchrist
(2001)
• Former forensic chemist.
• Participated in over 3K criminal trials
over 21 years while working with the
Oklahoma City PD.
• Her evidence and testimony led to 23
people being sentenced to death—11
of whom have been executed.
• She was dismissed for falsifying
evidence.
• Gilchrist alleges she was dismissed
for reporting sexual misconduct.
• Multiple cases she testified on
continue to work their way through the
court system.

21. Thinking
Point
In early August of 2010, the North Carolina
State Bureau of Investigation was proven to
have misrepresented or completely hidden test
results for approximately 230 cases which
involved blood work. It is believed that an
internal audit laid the groundwork to establish
faulty, unethical procedures by many of their
lab analysts. Corrupt law enforcement,
attorneys, and judges have been discussed.
What, if anything, differentiates the lab
analysts?
Can such unethical behaviors be prevented?

22. Judicial Discretion
Occurs in two major areas:
• Interpretation of the law
• Sentencing
Interpretation of the law includes:
• Ruling on admissibility of evidence
• Ruling on objections during trial
• Writing critical jury instructions

23. Discretion: Exclusionary Rule
Interpretation of the law may necessitate invoking the
exclusionary rule.
A fair society cannot accept a conviction based on tainted
evidence.
Thus, illegally obtained evidence cannot be used (is
excluded) at trial.
This serves to discourage police from breaking the law in a
misguided effort to enforce the law.
Some exceptions are allowed, including:
 Public safety
 Good faith
 Inevitable discovery

24. Discretion: Sentencing
Sentencing raises unique ethical issues.
Is there a single acceptable punishment for a certain type of
offense or offender?
Does justice depend on community opinion of the crime, the
criminal, and the proposed punishment?
Sentencing inconsistencies occur between individual judges
in the same community.
Controversy and recent court decisions regarding
Sentencing Guidelines illustrates importance of judicial role
in preserving due process.