Prepared by Ellen Yaroshefsky for for the NACDL Post-Dobbs Defender Skills Summit in July 2023

This webinar focuses on the unique ethical challenges appellate attorneys encounter in their attorney-client relationships. Topics include the nature and scope of the client’s role and rights regarding the decision to appeal and the issues to be raised in the appeal, the attorney-client relationship when an attorney is pursuing an Anders brief, responsibilities when ending appellate representation, and overall communications with the client during the appellate process.

In this webinar, we address the ethical implications of government surveillance and client communications. Defense lawyers regularly use phone calls, texts and emails to communicate with clients, investigators, witnesses and others associated with their cases. Many of these communications are privileged, yet government surveillance programs can capture and store them. We explore how this happens, and how defense lawyers can keep their communications out of government hands.

In this webinar, we address the ethical implications of government surveillance and client communications. Defense lawyers regularly use phone calls, texts and emails to communicate with clients, investigators, witnesses and others associated with their cases. Many of these communications are privileged, yet government surveillance programs can capture and store them. We explore how this happens, and how defense lawyers can keep their communications out of government hands.

Extend to Language Access

ABA Formal Opinion 500 makes clear that Model Professional Rules of Conduct 1.1, 1.4, and 5.3 apply to language access. The opinion instructs that lawyers (1) must make assessments as to when an interpreter or translator is needed; (2) cannot make the client responsible for procuring the service; and (3) bear the responsibility for making sure that the client understands the lawyer’s advice.

to Limit the Government’s Contact With Employees of a Represented Company

Andrew Boutros and John Schleppenbach provide practical guidance for white collar practitioners concerning when ABA Model Rule of Professional Conduct 4.2 prohibits the government from contacting and trying to interview employees of a represented corporation. The government may disagree with defense counsel’s interpretation of the rule. At the very least, however, providing notice of corporate representation should open a dialogue that prevents unpleasant surprises with regard to contacts with corporate employees.

Professional Responsibility Guidance on the JTF-GTMO-CDR Orders Governing Written Communications Management for Detainees Involved in Military Commissions of 27 December 2011 and Governing Logistics of Defense Counsel Access to Detainees Involved in Military Commissions of 27 December 2011

The practice of criminal defense law became “virtual” because of COVID-19. ABA Formal Opinion 498 addresses how an attorney’s professional obligations are affected by working remotely.

This month John Wesley Hall reviews Disloyal: The True Story of the Former Personal Attorney to President Donald J. Trump by Michael Cohen.

An Ounce of Prevention Can Be Worth a Pound of Cure, Especially When Careful Planning Avoids Ethical Pitfalls

Defense attorneys Andrew Boutros and John Schleppenbach provide proactive guidance for white collar practitioners on avoiding ethical traps – such as a potential conflict of interest – when entering into joint defense agreements.

Lawton P. Cummings, Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform, 31 Cardozo L. Rev. 2139. This is a work from the Cardozo Law Review Symposium New Perspectives on Brady and Other Disclosure Obligations: What Really Works? (2009).

This page contains materials and information related to professional conduct and ethical issues, including ineffective assistance of counsel and withdrawing or substituting counsel. Whether you need to know your duties to a client or you are raising an IAC claim in post-conviction, you have come to the right place.

Using Client Information in Social Media Advocacy

Some criminal defense attorneys use social media platforms, such as Twitter, to provide insight and commentary about the legal system. While this can be an effective approach, attorneys should consider the ethics rules before posting on social media. Professor Nicole Smith Futrell discusses the key ethical considerations, and she offers guidance to defenders on how to responsibly draw from their specialized knowledge and the experiences of their clients in order to expose systemic injustice.

Technology, including mobile devices and cloud computing, makes some law office tasks easier, but easier is not synonymous with ethical. Internal procedures and individually managed protections are important for safeguarding client confidentiality. However, attorneys must always consider the Rules of Professional Conduct when implementing systems and procedures to manage client information.

President Lisa Wayne's written statement to the Senate Commerce, Science, and Transportation Committee regarding advancing the science and use of forensics in criminal cases and investigations.