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How Lawyers Can Avoid Ethical Problems When Preparing for and Handling Criminal Defense Litigation (Coursework Sample)


You have been asked by the senior partner in your law firm to prepare a brief memorandum (2-4 pages) for the lawyers in your firm as to how to avoid ethical problems when preparing for and handling criminal defense litigation. Think carefully about the ethical issues which may arise in such litigation once the client has agreed to representation, and in particular situations where (a) you have been asked by the client to present an alibi witness who may be lying, (b) you know your client will not tell the truth when she takes the stand, and (c) your client promised to tell the truth but then lied on the stand. Include your suggestions as to the appropriate conduct necessary to avoid the problems. Focus on the direction given in the relevant rules, Comments, and materials in your text, including Supreme Court cases.

How lawyers can avoid ethical problems when preparing for and handling criminal defense litigation
Course title:
TO: Senior Partner
FROM: Junior Associate
DATE: September 18, 2015
SUBJECT: How to avoid ethical problems in criminal defense litigation
Lawyers often encounter ethical problems when they prepare for and handle criminal defense litigation. Defense counsel should understand how and when a lawyer has adequate knowledge of the client’s perjury to take the necessary action to remedy or prevent the efforts of the defendant to inject untrue evidence into the proceedings.
An alibi witness who might be lying
If a client asks the attorney to present an alibi witness who might be lying, what the attorney should do is that she should not permit the client do so. Rule 4 – 3.3: Candor Toward the Tribunal states that an attorney shall not intentionally let any witness to give testimony or other evidence which the attorney knows as being untrue. In general, when evidence which a lawyer knows is untrue is offered by an individual who is not the client, then the attorney has to refuse to provide it in spite of the wishes of the client. The lawyer should try to convince the client not to use the alibi to lie in court.
Client will not tell the truth when she takes the stand
If the lawyer knows that her client would not be telling the truth when she takes the stand, then the lawyer should attempt to discourage her client from doing that. However, if the client is resolute on testifying falsely, what the lawyer should do is to request to withdraw from the case. According to an informal opinion of the American Bar Association Committee on Professional Ethics...
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