Recently, I had the opportunity to be one of the instructors at an advanced trial advocacy program sponsored by the Office of the Alternate Defense Counsel, a Colorado state agency providing defense lawyers for indigent defendants in cases where the Public Defender’s Office has a conflict of interest. For two days I worked with a group of young lawyers who were developing skills to represent clients in serious felony cases. I had the opportunity to lecture on the issue of lawyer ethics in situations where the lawyer and the client were in conflict regarding what defense to present at trial. This was a follow up to the article I had written for the Colorado Lawyer in 2014.
It was a great experience to interact with a number of young criminal defense lawyers. We discussed a wide range of topics that often arise in complex trials including co-defendant statements, cross examination of experts, the client as a witness, and dealing with other defense lawyers in multiple defendant trials. The question of ethics in dealing with both the client and the court was explored at length.
One of the reasons I find the subject of ethics in trial practice fascinating is that the issue often arises with little or no warning when the trial lawyer is in the middle of a bare knuckle fist fight, otherwise known as the American jury trial. That was exactly the scenario in the recent Colorado Supreme Court case of People v. Bergerud, 223 P.3d 686 (Colo. 2010). The defense lawyers had finished jury selection and the opening statement in the case. These lawyers had been fighting for several days on behalf of their client when Mr. Bergerud stood up and told the trial court that he wanted his lawyers replaced because they were not presenting the defense that he wanted the jury to consider.
Any experienced defense lawyer has been in a similar situation where she was totally blindsided by a development during trial and had only a few minutes to choose a strategy. These sorts of mind-boggling ethical conflicts often arise in the context of serious criminal cases and particularly in homicide trials. That was the situation in Bergerud where the defendant was on trial for two counts of first degree murder. The defense lawyer had to shift from focusing on the trial and deal with a strategic disaster involving competing loyalties. In Bergerud, the lawyer had to maneuver between her duty of loyalty to her client, her duty to preserve the privileged communications of her client, and her duty of candor to the trial court.