Groups » Ethical Issues and the Criminal Defense Lawyer

One of the most persistent questions that criminal defense lawyers grapple with is if they are doing the right thing by representing even the guilty.

The Sixth Amendment in the American Constitution provides the accused with the right to counsel. Every state has its own statutes and rules governing the professional responsibilities that a lawyer has towards his client.

This implies that the Constitution provides that every person, guilty or not, has the right to a competent defense, and that they will be presumed innocent until proven otherwise. It also advocates zealous advocacy to protect the rights of the accused as a necessary part of the justice system.

A criminal defense attorney in Chicago (and everywhere in the world for that matter), engaging in criminal practice will often come across situations when his legal duties and his own sense of right and wrong may come to a conflict.

There may be situations wherein you may find your conduct to be technically ‘ethical,’ but may be designed to evade certain rules which require a notice.

Circumstances may arise where what you do may be moral and ethical, but will still be condemned by the prosecutor. You may be left to wonder several times about the ethical lapses in the courtroom, juxtaposition with staying within the boundaries of the professional ethics of the legal system.

You may find yourself bending the rules/laws to an extent that you might start questioning the morality of your own actions. Even if you don’t ignore or bend the rules, you will see other lawyers not hesitating in doing so.

Such situations are a criminal defense attorney’s nightmare.

This problem troubles not only the legal community, but also the general public, and has been a topic of debate for decades. Integration of the legal and the moral obligations, however, continues to remain highly disputed.

Innocent Until Proven Guilty

When it comes to fighting a criminal case, there are the factually guilty and the legally guilty. Factual guilt refers to what the defendant actually did, whereas legal guilt refers to what the prosecutor proves.

Defendants, who have committed the act that goes on to become a criminal charge against them, are often hesitant of whether or not they should tell their lawyer about it. Even when they don’t, they worry that their lawyers will presume they are guilty and will probably choose either not to represent them, or will do a half-hearted job.

For a lawyer to decide if he should accept a case, he needs to look into the most important consideration – whether or not the prosecution can prove, beyond a reasonable doubt, that his client has committed the crime that he has been accused of.

This is very different from asking whether or not the client has actually committed the act in question. For instance, if the client is charged with robbery, and he did actually snatch someone’s purse on the street, he can win an acquittal if the victim fails to identify him.

Herein lies the key difference between factual guilt and legal guilt.

Before taking on a case, a competent criminal defense lawyer will not ask whether his client really committed the crime or not. Rather, he would ask if the government can prove that his client did, in fact, commit that particular crime.

Irrespective of what the defendant has done, he is not legally guilty until the prosecutor produces enough evidence to persuade a judge/jury to convict him of the crime.

A criminal defense lawyer may, however, may not lie to the judge/jury by explicitly and specifically saying that the defendant did not do something that the lawyer knows the defendant did do. Rather, the lawyer’s tactics and arguments should be all about the government’s inability to prove the elements of the crime.

A Skeptical View

Several criminal defense attorneys are skeptical about the place of ethics in law. Most law schools teach about ethics wherein they talk about certain rules and how they can be lawfully manipulated. One may feel that attorneys get away by paying little or no price for their ethical breaches. In fact, they earn quite lucratively from it.

Of course, attorneys would like nothing more than to bring the highest levels of ethics into law. When one describes the benefits of ethical practice, it often sounds like a scene from a movie which ends with a ‘feel-good’ factor for everyone. It would definitely be great to have the trust and the admiration of your colleagues, and to have the judges acknowledge your honest demeanor and take you at your word (rather than try to dodge you in public).

But then again, there will always be that other criminal defense lawyer, who won’t bat an eyelid before breaking all the rules, won’t mind being scorned at by his colleagues and the judges, and yet manage to make a handsome profit.

One may say that ethical behavior will bring you benefits in the long term; and if you are in the profession of law to make quick money, it may seem that unethical practices are more profitable, or that acting ethically will only lead to you losing out on a lot of moolah.

Being ethical in the field of law isn’t a cakewalk. If taking this route was indeed the easiest way to success, or the fastest way to making money, the need for codes of professional conduct and penalties for violations of those codes would lessen greatly.

At the same time, not many attorneys would disagree that if more lawyers acted in an ethical manner, legal practice would become a lot more straightforward and gratifying.


Professionals and personal ethics are two different ball games, and both need to be handled sensitively. In the field of law, several criminal defense lawyers, especially newbies, find it extremely difficult to come to terms with the ethical dilemma which comes with this profession. Experience, however, is the best teacher. The important thing to remember when being a good lawyer is that you’ll be hired only if you know how to get your client out of trouble, rather than getting yourself into it.

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