Return to
Non-CALJIC Offenses – Contents F 18.54a
Criminal Acts By Lawyers Vis à Vis Client.
INSTRUCTION 1
A lawyer or solicitor’s proper role is to be a zealous advocate for [his][her] client. Being an advocate means that lawyers and solicitors are ethically obligated to represent their clients zealously and diligently. This duty of zealous advocacy does not mean that a lawyer is free to violate the law. Rather an attorney must act as a zealous advocate within the bounds established by the law. Thus, a lawyer may not knowingly assist [his][her] client to commit an illegal act. By the same token, however, a lawyer may not intentionally fail to perform any lawful act required to vindicate [his][her] client’s cause, position or endeavor. It is entirely appropriate for a lawyer to take an aggressive position on behalf of [his][her] client. An advocate may legitimately urge any position favorable to [his][her] client if the lawyer acts in good faith and the position is not frivolous. Even if a lawyer represents a client whom you consider to be a bad person and even if you disapprove of the client’s goals or the lawyer’s legitimate legal tactics, you may not infer guilt solely on the basis of the lawyer’s representation of that client. For, the law does recognize the role of attorneys and you must not find a lawyer guilty simply for serving [his][her] client within the bounds of his professional and ethical obligation even if you dislike the client. However, this does not mean that a lawyer or solicitor is above the law. Indeed, a lawyer may not, under the guise of zealous advocacy, knowingly violate the law.
INSTRUCTION 2
As part of a lawyer’s professional obligation, attorneys and solicitors are bound by a duty of confidentiality. They have an obligation not to reveal any information relating to their representation of a client, without that client’s consent. A lawyer is not permitted to decide when [he][she] will keep [his][her] client’s affairs confidential. Rather, the lawyer is ethically bound to maintain that confidence until [he][she] is instructed otherwise by the client. There are very few exceptions to this broad rule of confidentiality. The principle of confidentiality does not extend to communications between attorney and client made for the purpose of committing a crime.
Points and Authorities
An attorney representing a lawyer charged with a crime involving the lawyer’s professional services should request that the court instruct the jury so it may properly distinguish between a legitimate act of an attorney on behalf of a client and intentional criminal conduct. (Julia Evans Guttman, Defending Lawyers on Trial: Making Sure the Jury Sees the Real Image, ABA Criminal Justice Magazine (Spring 1996) pp. 3-60.) These instructions should address a number of critical issues. First, the court should instruct the jury on the appropriateness of the attorney-client relationship. Second, the court should instruct the jury on what constitutes lawful professional activity in representing clients. Third, the court should instruct on the nature of a lawyer’s duties under the rules of professional conduct or the code of professional responsibility. When put at issue by the defendant’s conduct, the instruction should include a discussion of the attorney’s duty as an advocate and the duty to maintain client confidences. (Id. at 59-60; see also U.S. v. Cavin (5th Cir. 1994) 39 F3d 1299, 1310; U.S. v. Reamer (4th Cir. 1978) 589 F2d 769, 771; U.S. v. Frankfeld (D.Md. 1952) 103 FSupp 48, 50-51; Cardin v. Maryland (87) 533 A2d 928, 934-36 [73 Md. App 200].) The above instructions on the lawyer’s duties in general (Inst 1) and duty of confidentiality (Inst 2) were given in a 1994 prosecution in U.S. v. Stein (CA No. 93-375), in the United States District Court for the Eastern District of Louisiana where two lawyers were charged with mail fraud, money laundering, and conspiracy in connection with legal services provided to their client. (See the above Guttman article, at p. 3 and p. 60.)
