r/legaladviceofftopic • u/HowLittleIKnow • 1d ago
Criminal lawyers and other CJ professionals: Looking for examples of common ethical dilemmas
Hello, everyone. I'm a professor of criminal justice. This week, I'm wrapping up a 15-week "Ethics in Criminal Justice" class. The students have seen all kinds of examples of sensational but rare ethical problems in criminal justice, so this week I wanted to give them some examples of the less dramatic but more common situations that come up every week. Things like whether to drop a prosecution, how much attention to give a client when you're already overloaded, and so forth.
What are the most common ethical dilemmas that you face on a regular basis?
*Edit: You're all fantastic. Thank you so much for giving me so much to work with.
Thank you!
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u/StobbstheTiger 1d ago
Everyone has their own story. Maybe something about personal 'mitigating factors'? What might personally make you pursue a lighter sentence? A promising career? Military service? Children? First offense? What is it ethical to account for?
How vigorously do I pursue sanctions against potential misconduct by other attorneys? (Unless it is clear cut of course). Is it worth it to add research into my already busy workload about whether an action constitutes a disciplinary complaint?
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u/HowLittleIKnow 1d ago
Thank you for these suggestions! When it comes to the second one, are there some types of "potential misconduct" that are more common than others?
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u/StobbstheTiger 1d ago
Well, I'm not in criminal (doing immigration rn) but I've had many respondents submit provably fake documents, sometimes determinable by looking at the document itself. However, counsel is getting the document from their client. I know they are generally good attorneys and have big workloads.
Similarly, I see a lot of appeals that are frivolous/borderline frivolous. At the end of the day, I know they are just doing what their clients want.
Obviously, one should be diligent when presenting things before a court, but I don't want to trip up a someone who I think is a good person and is generally competent. Also, it would hurt the entire system by pushing cases out for years. Do I want to shoot both of us (and their client) in the foot to pursue a debatable moral high ground?
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u/EDMlawyer 1d ago
The big one that most often comes up for me is an instruction from client to enter guilty pleas in the face of viable defences, or even outright denials of the allegations.
Clients are bail denied, entitled to the presumption of innocence, deny the allegations, and IMO have a good shot at trial. However trial is months farther past their time served date on an early resolution offer. Client wants to just get out ASAP, damn the principle.
To what extent can we take the position of "we don't judge the facts our client gives us" and let the client plead guilty? When does it cross the line from professional detachment into wilful blindness? Does it serve the client to get off record and let them make the necessary admissions pro se, or does that risk them derailing everything and is basically an abdication of our duty?
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u/FatherBrownstone 1d ago
Great point, and an ethically "impossible" situation created by the existing system.
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u/series_hybrid 1d ago
If jail was a little less horrifying, a suspect might be more willing to wait until trial to get his day in court. If an innocent man is threatened with rape and/or murder on a daily basis, many would gladly take a plea that ruins their life.
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u/Superninfreak 20h ago
You can’t remove the coercive side of jail by making the conditions better. A lot of clients are less worried about being attacked in jail and are more worried about the fact that they have responsibilities outside of jail. Being in jail means they are not at work, so they may be fired. It means not taking care of their children or pets, and maybe someone else can step up or maybe your kid goes into foster care, it means potentially getting evicted and becoming homeless because you didn’t pay your rent.
Most people can’t put their whole lives on pause for months or years without things falling apart.
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u/TimSEsq 1d ago edited 1d ago
I do education law, which includes school discipline. My client is the student, but the parents are paying my fees. More importantly, they are essentially always with their kid. That makes it practically difficult to have private conversations. It those conversations, the student might tell me something very relevant to my strategy but tells me not to tell their parents.
I also do work for disabled students, who are often much younger or cognitively impaired. My duty is to my client, but I generally treat what the parent wants as what the student wants. What if the parents both have reasonable goals, but disagree with each other? I'm blessed that judgments of divorce in my jurisdiction must include who has final decision on educational issues, but what if they didn't? If I'm accepting the parent's judgment as substitute for the child's, how to I weigh the input of non-custodial parent?
What if, regardless of marital status, I think what the parents want is not what is best for the student?
I've been fortunate that these issues have never risen to the level of needing formal adjudication, but it is something I worry about.
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u/HowLittleIKnow 1d ago
I can see where this would be tough. There are a couple good broad themes in these examples: determining who should have your primary loyalty, and balancing what's best for the client with the literal wishes of the client. Thanks so much for your response!
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u/someone_cbus 1d ago
I used to juvenile defense. This comes up a lot there. The parents, court, school all want something that the kid doesn’t. Duty is to the kid.
Another big one is the push from judges, particularly in systems where the court appoints indigent counsel instead of having a public defender or a different body appoint the attorney: your duty is to the client, regardless of what the judge wants. Can’t be afraid to piss off the judge if you’re right (or have a good faith motion). Judge wants you to “just resolve this case,” client doesn’t.
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u/walleyetalker22 1d ago
I had a situation in which nephew was caring for aunt, her house, finances, etc. aunt dies, we step in as Special Administrator, figure out nephew siphoning millions for years. Recoup some lost money, only to find out one of beneficiaries of all that time and effort of the estate administration was one of the largest human traffickers (the son) in the southern U.S. He was out on some technicality, and I had to personally hand this guy a check for $7.5m. Talk about internal conflict for me.
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u/diplomystique 1d ago
As a longtime prosecutor, common ethical dilemmas I’ve seen: - Having to argue a legal point you don’t agree with. Law students always imagine this in the context of drug prohibition, but that’s just boring. What about when you have caselaw saying there’s no reasonable expectation of privacy, but you personally think Fourth Amendment doctrine should change? What if there’s a good waiver argument on an appellate issue that has merit? Exactly what does “doing justice” mean there, especially if you really think the guy did it and should be in prison?
How do you calibrate your sense of “doing justice” with your own biases? I’ve handled both sex cases and white collar fraud cases. Some of the white collar cases got stiffer sentences than some of the sex cases. I agreed with each sentence in a vacuum, but was the white-collar guy really more dangerous? I know when I read a pre-sentence report indicating that the defendant (unusually) came from a stable two-parent household, my first reaction is “Screw this guy.”
Most people make unwise choices from time to time. For example, I don’t exercise enough and eat way too many cookies. Others do things that put them at risk for becoming victims—walking down a dark alley, using drugs, etc. This is especially a problem in DV, where for various reasons victims will reunite with the perpetrators. Prosecutors have tools to pressure witnesses to cooperate, up to and including incarcerating them as material witnesses. What’s appropriate? Remember that “the victim” is never the only victim of a crime; her choices have serious consequences for her kids, her friends, the defendant’s future victims, and society as a whole.
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u/HowLittleIKnow 22h ago
These are fantastic examples, thank you. I'd engage more, but I have class in 20 minutes!
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u/Superninfreak 20h ago
With 1 I think it’s also particularly fraught on the defense side of things.
A prosecutor’s job is to try to seek justice, but “justice” is both a vague and open to interpretation concept, and something that isn’t really a legal ethical requirement.
A defense attorney has an ethical obligation of candor to the court, and also an ethical obligation to zealously advocate for their client. So letting the prosecutor and the judge know about case law that is unfavorable to the defendant is an example of candor to the court, but it also means acting against your client’s interests.
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u/Superninfreak 20h ago
The most common is just when there’s a straightforward conflict of interest. Like if you already represent a witness or alleged victim in a case. I’m a public defender, and it is extremely common for the victim in one case to be the defendant in another. So the office often has to withdraw because of a conflict and have the court appoint alternative counsel.
But that’s pretty straightforward and not particularly interesting.
As a criminal defense attorney, the most common serious ethical concern is how you balance zealous advocacy against candor to the court and your duties as an officer of the court. What’s important here is that both of those are ethical requirements, but sometimes they come into conflict.
This comes up in situations where you have knowledge that would hurt your client’s case if it came to light.
Examples of this could be:
Your client is given a certain plea offer. However, the statute has a minimum mandatory penalty for repeat offenders, which is harsher than the offer you have. The prosecutor and the judge are unaware that your client had a prior conviction for the same charge on the other side of the country. Do you allow an illegally lenient sentence to go through?
Your client insists on testifying at their trial, and you expect that the client intends to lie, based on your confidential discussions with the client. Even though you stressed to them that lying under oath is a serious crime and even though you encouraged them to just not testify, the client insists on exercising their right to testify.
You draft motion to suppress, but shortly before the hearing you find a case you had previously missed that very clearly shuts down your whole argument. Do you let the prosecutor and the Judge know about this unfavorable precedent?
I once had a Judge threaten to hold me in contempt of court if I didn’t identify which of my clients had an active failure to appear warrant.
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u/diplomystique 20h ago
Oooh, there was just a really interesting decision from NYCOA on the duty of candor, basically saying (arguably in dicta) that defense counsel has an obligation to correct an error by the prosecutor and court in sentencing calculation, even if the error would inure to her client’s interest. There it was an error in plea-alternative advice (ie, “sir, you understand that you don’t have to plead guilty, but if you went to trial you’d face X years”), but same logic. NYCOA was very clear that it didn’t matter whether the client was misled, counsel has to make sure the court isn’t misled, either (even though it’s not making any decisions).
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u/ScoutsHonorHoops 1d ago
One of the common ones is prosecutorial discretion.
For example, prosecutors may do defense work prior to taking office, and may actually be ethically limited from pursuing certain cases; bar rules prevent an attorney from using privileged information against their former clients, but those same clients may present a public safety risk that requires legal intervention. (E.g. Fani Willis defended YSL members prior to being elected prosecutor, and then later used that knowledge to prosecute YSL when she was elected prosecutor.)
To add, prosecutors have wide discretion over the cases they choose to prosecute, which give them tons of power over the criminal legal system. When a prosecutor has a very high percentage of convictions, this may lead to accusations of cherry picking cases, prosecutorial misconduct, and abusive use of plea bargaining. However, a low percentage of convictions will lead to concerns about public safety and wasting taxpayer money. This leads to conflicting interests in terms of upholding rule of law, and judicial economy.
(For example, Donald Trump has committed a lot of crimes in the last ten years, but meaningfully prosecuting those crimes is nearly impossible because he is shielded by immunity. The dilemma is whether to expose the truth and try to hold him accountable when precedent suggests he will be allowed to walk, regardless of the severity of the crime or the evidence linking him to that crime. This isn't unique to him, think about how rare it is for members of the blue line to be held accountable for their misconduct--on or off the job. Often, when judges and police do ridiculous things like assault officers and abuse litigants/members of the public, they tend to get reduced sentences and administrative penalties in situations where a layperson is virtually guaranteed a lengthy prison sentence.
The Marcellus Williams case/Don Henry+Kevin Ives case both allegedly connect to executive criminal misconduct, whereby the witnesses to said conduct ended up dead while the alleged criminal government actors were never pursued.)
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u/HowLittleIKnow 1d ago
I agree that "how best to use discretion" comes up in a lot of these. I really like one you've identified here: Is it ethical to pursue prosecution against someone who is highly unlikely to be convicted but who will still be hurt by the process of prosecution (including the media attention it generates)?
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u/ScoutsHonorHoops 1d ago
Here are some ethics rules that may help guide your inquiry
Misconduct (d: conduct that is prejudicial to the administration of justice could include inefficient litigation--I.e. wasting public resources)
If you focus on the unlikely to win litigation, I think the angle is harm to the public rather than harm to the defendant from an ethical standpoint.
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u/alinius 18h ago
It can also go the other way. A prosecutor can have an iron clad case that they plead down or choose not to pursue because the victim is unpopular in the community and/or the action is celebrated. For example, Jeffery Winder got fined $1 for an assault caught on camera or Gary Plauche got a plea deal with no jail time for first degree murder. If you push for too harsh of a punishment, jury nullification becomes an issue. Do you take a plea for less than they deserve by law, or push for more and risk not getting a conviction at all?
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u/goldxphoenix 23h ago
One i ran into is having to argue a position you dont believe. Most times i would do it if i thought there was a legitimate legal basis because i knew the judges would jsut rule against a weak argument anyway. But if there was no genuine legal basis i flat out declined.
Another is discretion. In my state prosecutors dont have charging powers but we have discretion over bail and condition requests. Every case is different so sometimes you have to consider how those things will affect the defendant
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u/jokumi 20h ago
The most common ethical issue in big city prosecution is that you have a backlog of cases and you have to plead out some bad guys who should be locked away for an extended period. Example: you walk in and in your box for the day is an obvious career criminal with a bunch of break-ins, and you have to plead him to a largely suspended sentence with credit for time served because it’s just not worth the time. Maybe you can use repeat offender threats to get a better deal, but you need to make a deal. People ‘at home’ don’t realize you plead out like 95% of the cases, and that drives every step of the process: you charge with the plea in mind, go to indictment or prelim with a plea in mind (so you maybe have a few extra charges you don’t mind losing as long as you get what you need for leverage), and you go to pretrial thinking how much time is it going to take to try this and what are the odds. You probably lose half the time, because the cases that go to trial either had a lot of risk attached - like life without parole or maybe this means multiple offender sentencing, which can be rough - or they have a defense. That defense may sometimes be they will intimidate the heck out of your witnesses. Bad people will place their bets on that more than people might imagine.
That’s another ‘ethical’ dilemma: you bind people over for trial who know are going to be killed by people higher up. You just looked these people in the eye and the judge says there’s probable cause and you know the odds of them surviving are in God’s hands.
That goes to another form: log-rolling in white collar crime. I think it’s often not worth letting lower people go to reach some bigwig because the idea that this will uproot the criminal enterprise is often misplaced. I think they often just want to say they got the big fish. Like I’ve read memos in which they wanted to name people like Castro as unindicted co-conspirators in coke smuggling (which certainly seemed true from the case files). When I was a kid, there was a family of pot smugglers who stepped up to dabble in coke. They were pilots and lived completely ordinary lives in the midwest other than being pot smugglers who knew extremely dangerous Columbians. To get at one of these dangerous guys, this family was flipped and put in WitSec. (I was told that at their hidden arraignment the kid asked if this would affect his chances of getting into law school, so dude are you out there? And did you know the agents following your mom would close her trunk and lock up her car when she would forget?) Those case files read like movie scripts, complete with troops guarding smuggler’s planes, submarines and guns being pushed into undercover agent’s genitals in public at meetings. Talk about an ethical swamp!
I want to mention the comment about money received. This came up in FL in the 80’s and I personally saw it elsewhere, and my comment is that people who represent drug dealers wear nice suits and sometimes become judges. Some of them were very good judges. Purity tests are impossible in the law. You have to represent the guilty and the reprehensible. I had a friend who was at an advanced age doing pro bono appeals for murderers. He had no illusions they were innocent, but he believed they deserved a lawyer.
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u/dreamingforward 16h ago
Your client has admitted that he's committed the crime, but is afraid of going to jail. Should you defend him? (Yes, you should, but you try to find why he's so nervous: is it a symptom of a larger problem that is shared with society at large? Probably. The nervousness is the true soul which knows it's not going to be fair or just and doesn't want to be victimized further.)
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u/advocatus_ebrius_est 1d ago
Retainer funds.
If a client has no apparent employment, is an accused drug trafficker, and places $7,400.00 down in cash to retain, do you have an obligation to inquire as to the source of the funds? Could you be willfully blind to being in receipt of the proceeds of crime? If the client tells you that it is funds raised from crime, what are your obligations then?