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7 Ohio St. J. Crim. L. 647 (2009-2010)
The Role of the Defense Attorney: Not Just an Advocate

handle is hein.journals/osjcl7 and id is 653 raw text is: The Role of the Defense Attorney:
Not Just an Advocate
Roberta K. Flowers*
Virtually all difficult ethical problems arise from conflict between a lawyer's
responsibilities to clients, to the legal system and to the lawyer's own interest in
remaining an ethical person while earning a satisfactory living.1
The proposed hypothetical clearly demonstrates the truth of the statement
quoted above from the Preamble to the ABA Model Rules of Professional
Conduct. The preamble is not often referred to in legal scholarship and some
might even look on its use as an overly simplistic view of a complicated problem.
In this essay it is appropriate, however, to begin analyzing the hypothetical by
remembering the role of the attorney. The tri-partite role of the attorney is the
beginning point when dealing with what has been called the criminal defense
2
attorney's trilemma. To attempt to answer the question from the myopic view of
only an advocate is to miss the important role that attorneys play in society as a
whole. It is imperative that this ethical dilemma be evaluated by applying a
combination of all the responsibilities required of the attorney in today's American
legal system. The unwillingness of attorneys, whether criminal defense or others,
to assume all of the roles assigned to them has led, in part, to the negative public
perception that has plagued the legal profession.3
The Model Rules of Professional Conduct define the role of the attorney as
threefold: A lawyer, as a member of the legal profession, is a representative of
clients, an officer of the legal system and a public citizen having special
responsibility for the quality of justice.'4 The language does not differentiate the
roles based on the kind of law the lawyer practices nor does it prioritize the
different roles. This lack of differentiation leads to the conclusion that all lawyers,
no matter what area of law, have a responsibility that goes beyond merely
advocating for the client. An attorney must act as an officer of the court,
respecting the need for truth and truth-seeking within the confines of the adversary
system and as an active participant of a system that places justice as a core value.
William Reece Smith Jr. Distinguished Professor of Law, Stetson University.
MODEL RULES OF PROF'L CONDUCT pmbl. (2009).
2 MONROE H. FREEDMAN & ABBE SMIH, UNDERSTANDING LAWYERS' ETHIcs 159-95 (3d ed.
2004).
3 L. Timothy Perrin, The Perplexing Problem of Client Perjury, 76 FoRDHAM L. REv. 1707,
1707-08(2007).
4 MODEL RULES OF PROF'L CONDUCT pmbl. (2009).

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