Spaeth, Edmund B.

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Limitations on the Effectiveness of Criminal Defense Counsel: Legitimate Means or Chilling Wedges

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SYMPOSIUMLimitations on the Effectiveness of Criminal DefenseCounsel: Legitimate Means or "Chilling Wedges?"FOREWORDTHE HONORABLE EDMUND B. SPAETHtRecent experience has required more aggressive prose-cution of society's fight against the mounting evils of crime.We commend both vigorous prosecution and all legitimatemeans in aid of this laudable task. This, however, does notmean that society can afford a "no holds barred" approachto law enfbrcement lest the "solution" engender faults of anequally serious nature.'A lawyer owes ethical obligations not only to the lawyer's client,but also, as an officer of the court with a duty to uphold the Constitu-tion, to the legal system. These ethical obligations are especially urgentin the area of criminal law, where the liberty and perhaps the life ofthe defendant are at stake as well as the vindication of the victim'srights. In this situation, when emotions run high on both sides, theprosecutor and defense counsel can easily cross the line between ethicaland unethical conduct in an attempt to "win at all costs"- never mindwhether justice is served. This Symposium examines some of the ethicaldilemmas that defense counsel may encounter.f Senior Fellow in Law and Director of the Center on Professionalism, Univer-sity of Pennsylvania. A.B. 1942, Harvard College; LL.B. 1948, Harvard University.Judge Spaeth served as the President Judge of the Pennsylvania Superior Court from1983 to 1986.1 United States v. Klubock, 832 F.2d 649, 658 (1st Cir. 1987), vacated, UnitedStates v. Klubock, No. 86-1413 (1st Cir. May 1, 1987) (order granting rehearing enbanc,- which withdrew the panel's opinion and vacated its judgment); see also UnitedStates v. Klubock, 832 F.2d 664, 665 (en banc) (Torruella, C.J.) (stating that the halfof the en banc panel voting to affirm the district court also "abide[d] by the majoritypanel opinion").(1779)1780 UNIVERSITY OF PENNSYLVANIA LAW REVIEWThe Symposium reprinted below was held on March 1, 1988, atthe University of Pennsylvania. It was sponsored by the University ofPennsylvania Law Review, the Center on Professionalism at the LawSchool, and the Law School Council of Student Representatives. Sup-port for the Symposium was also provided by the Law School's AlumniSociety. The Symposium offered an exchange between private practi-tioners, government attorneys, and academics.Section one addresses the issue of when the government may sub-poena defense counsel to testify before a grand jury. The prosecutortypically will be seeking information pertaining to client identity, fees,or future criminal activity of the client. The danger of subpoenaingdefense counsel is that it "drives a chilling wedge" between counsel andclient. This is so not simply because the rules of professional conductdiscourage, 2 and sometimes prohibit,3 an attorney in a case from beinga witness in that case, but also because of its deleterious impact on theattorney-client relationship, especially the client's willingness to com-municate with the attorney.Section two concerns investigating criminal defense counsel sus-pected of criminal wrongdoing. Everyone agrees that attorneys engagedin criminal conduct should be investigated and prosecuted, but overzeal-ous investigation, employing modern crime detection techniques such aselectronic surveillance, may intrude into the zone of a legitimate attor-ney-client relationship. There must be reasonable and adequate safe-guards on investigatory techniques that balance the conflicting concernsof ensuring the sanctity of the attorney-client relationship while permit-ting the prosecution of unethical attorneys.Section three considers the effect of Nix v. Whiteside4 on the crim-inal defense practice. The papers examine the implications of perjuri-ous testimony by criminal defendants on counsel's ability to present azealous defense. Specifically, the issues discussed are: (1) how muchknowledge must the attorney have before acting on the conclusion thatthe client's testimony will be perjurious; and (2) what should the attor-ney do in anticipation of client perjury or when the client commitsperjury?Finally, section four considers how various limitations on defensecounsel may affect the defendant's sixth amendment right to counsel.52 See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.7 (1987); MODELCODE OF PROFESSIONAL RESPONSIBILITY DR 5-101(b) (1980) id. DR 5-102.1 See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.7 (1987); MODELCODE OF PROFESSIONAL RESPONSIBILITY DR 5-101(b) (1980) id. DR 5-102.4 475 U.S. 157 (1986).5 See U.S. CONST. amend. VI.[Vol. 136:1779FOREWORDThe papers discuss the scope of the right and the impact of the federalfee forfeiture statute,' which requires defense counsel to forfeit any feethat came from the proceeds of a criminal enterprise.In sum, the papers that follow are a significant contribution to thefield of legal ethics. They recognize the importance of the attorney-client relationship as one of the cornerstones of our criminal justice sys-tem, while at the same time acknowledging the necessity of some limi-tations on the activities of defense counsel. How to achieve a properbalance of these conflicting concerns is the common theme of the debatethat follows.6 Pub. L. No. 98-473, §§ 303-309, 98 Stat. 1837, 2044-53 (1984).1988]

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Limitations on the Effectiveness of Criminal Defense Counsel: Legitimate Means or Chilling Wedges

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