Document Type

Article

Publication Title

North Carolina Law Review

Volume

69

Publication Date

1990

Keywords

Model Rules of Professional Conduct, Model Code of Professional Responsibility, zealous representation, obstruction-of- justice statutes, attorney-client privilege

Abstract

Professional codes adopted by states and based on the Model Rules of Professional Conduct and the Model Code of Professional Responsibility govern lawyers' conduct. The ethical codes, however, fail to address many ethical questions confronting lawyers. In this Article, Professor Bruce Green highlights the ethical codes' weaknesses, particularly as they relate to the conduct of criminal defense attorneys. As he describes, the ethical codes require advocates to represent their clients "zealously," but, at the same time, "within the bounds of the law." When the codes do not proscribe conduct that would advance their clients' causes, conscientious advocates must consider whether other laws, including the criminal laws, would forbid the proposed conduct. When the relevant criminal laws themselves are ambiguous, advocates face the further dilemma of whether to forego measures beneficial to their clients or to engage in potentially criminal conduct. To illustrate the difficulties the ethical codes create, Professor Green focuses on a question that criminal defense attorneys sometimes encounter: Is it permissible to advise an unrepresented witness to assert the fifth amendment privilege instead of providing testimony harmful to the attorney's client? Professor Green argues that the ethical codes should explicitly forbid such conduct, which may violate obstruction-of- justice statutes, to prevent well-intentioned attorneys from unwittingly overstepping the bounds of the criminal law. He further argues that, in the absence of clear guidance, attorneys should not interpret the duty of "zealous representation" to compel conduct of doubtful legality.

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