By Tanmay Gupta
The role of the defense attorney is one that is very controversial in criminal law. On October 27th of this year, a federal judicial panel rejected a proposal to force defense attorneys to disclose more information, primarily financial statements of a defendant when he asks for a court appointed lawyer. [1] These issues seem to constantly get debated by legal panels on the exact role of the defense attorneys.[2]
Currently, defense attorneys must disclose if they are pursuing an affirmative defense, such as self-defense, entrapment, mental illness or cognitive impairment, intoxication, double jeopardy, or duress. [3] This is a contrast to prosecutors, who under the Brady doctrine, are required to disclose names and addresses of witnesses, criminal convictions of witnesses, relevant written or oral statements, summaries of oral statements, law enforcement reports, and exculpatory evidence that will negate guilt. [4] Defense attorneys have the requirement under the Model Rules of Professional Conduct to protect confidentiality and privilege of their client; thus traditionally, they have been required to disclose much less than other attorneys through discovery. [5]
There has been discussion over requiring defense attorneys to disclose more while still being in compliance with the Model Rules of Professional Conduct and Due Process. For example, Sara Kropf and Margaret Cassidy have written an article expounding on a broader obligation of mandatory disclosure for cases relating to federal contractors.[6] They state that even if there is an expansion of mandatory disclosures by defense attorneys, the rules and Due Process would still limit how large of an expansion occurs. [7] In fact, courts have allowed an expansion of mandatory disclosures in certain instances but have exempted attorneys from this obligation if the disclosure violates the rules of conduct and Due Process. [8] According to them, defense attorneys need to strike a balance between disclosures and protecting their client’s interests. [9]
On the other hand, the American Bar Association has stuck by its position that keeps the mandatory disclosures for defense attorneys the same. Rule 1.6 of the Model Rules of Professional Conduct has been interpreted to mean that privilege and confidentiality outweigh any requirement to disclose for the purposes of fairness in a criminal trial. [10] The Bar has not been enthusiastic in changing this. The Rules of Criminal Procedure, created in response to Supreme Court cases regarding the subject, only require prosecutors to disclose nearly everything they have; the same is not true for defense attorneys. [11] Thus, the bar believes that they should not expand disclosures if the Supreme Court does not require it.
This conflict between obligations to the client and obligations to the court and the other side is a conflict unlikely to go away in the future. Both sides have merit to their arguments and this debate divides every body of rulemaking in this country. It will be up to the future criminal lawyers to figure out which side of the debate should be victorious.
[1]Nate Raymond, U.S. judicial panel rejects disclosure rule change inspired by Avenatti case, Reuters (Oct. 27, 2022), https://www.reuters.com/legal/legalindustry/us-judicial-panel-rejects-disclosure-rule-change-inspired-by-avenatti-case-2022-10Defense attorney does not need to disclose information about a witness that he does not call to testify-27/.
[2] Jane M. Graffeo, Ethics, Law, and Loyalty: The Attorney’s Duty to Turn over Incriminating Physical Evidence, 32 Stan. L. Rev. 977 (1980); Uthman Law Office, Defense attorney does not need to disclose information about a witness that he does not call to testify, San Francisco Criminal Lawyer Blog (Jan. 29, 2019), https://www.sanfranciscocriminallawyerblog.com/defense-attorney-does-not-need-to-disclose-information-about-a-witness-that-he-does-not-call-to-testify/.
[3] Christa Groshek, RULES OF DISCLOSURE IN A CRIMINAL DEFENSE CASE, Groshek Law (Mar. 17, 2022), https://www.christagrosheklaw.com/blog/2022/03/rules-of-disclosure-in-a-criminal-defense-case/.
[4] Christa Groshek, RULES OF DISCLOSURE IN A CRIMINAL DEFENSE CASE, Groshek Law (Mar. 17, 2022), https://www.christagrosheklaw.com/blog/2022/03/rules-of-disclosure-in-a-criminal-defense-case/. See Brady v. Maryland, 373 U.S. 83, 87-91 (1963), https://supreme.justia.com/cases/federal/us/373/83/.
[5] See Model R. Prof. Conduct 1.6 (2022), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6 /.
[6] Sara Kropf & Margaret Cassidy, Defending a Client in a Mandatory Self-Disclosure World: Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations (Part 1), Grand Jury Target (July 13, 2022), https://grandjurytarget.com/2022/07/13/defending-a-client-in-a-mandatory-self-disclosure-world-representing-federal-government-contractors-in-parallel-criminal-civil-and-administrative-investigations-part-1/.
[7] Sara Kropf & Maragret Cassidy, Defending a Client in a Mandatory Self-Disclosure World: Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations (Part 1), Grand Jury Target (July 13, 2022), https://grandjurytarget.com/2022/07/13/defending-a-client-in-a-mandatory-self-disclosure-world-representing-federal-government-contractors-in-parallel-criminal-civil-and-administrative-investigations-part-1/.
[8] Sara Kropf & Maragret Cassidy, Defending a Client in a Mandatory Self-Disclosure World: Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations (Part 2), Grand Jury Target (July 20, 2022), https://grandjurytarget.com/2022/07/20/defending-a-client-in-a-mandatory-self-disclosure-world-representing-federal-government-contractors-in-parallel-criminal-civil-and-administrative-investigations-part-2/.
[9] Sara Kropf & Maragret Cassidy, Defending a Client in a Mandatory Self-Disclosure World: Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations (Part 2), Grand Jury Target (July 20, 2022), https://grandjurytarget.com/2022/07/20/defending-a-client-in-a-mandatory-self-disclosure-world-representing-federal-government-contractors-in-parallel-criminal-civil-and-administrative-investigations-part-2/.
[10] See Model R. Prof. Conduct 1.6 (2022), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6 /.
[11]Fed. R. Crim. P. 16(a)-(b), https://www.law.cornell.edu/rules/frcrmp/rule_16.