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32 Stan. L. Rev. 293 (1979-1980)
The Ethics of the Criminal Defense Attorney--New Answers to Old Questions

handle is hein.journals/stflr32 and id is 311 raw text is: The Ethics of the Criminal Defense
Attorney-New Answers to Old
John B. Mitchellt
I have represented over 600 criminal defendants during the past 9
years. The majority of them had committed the criminal acts for
which they were charged, although a surprising number had not.
Through acquittals, hung juries, suppression motions, and the like, I
share responsibility for putting many people back on the streets who
I knew had stolen, robbed, assaulted, and even murdered. It is a
responsibility that has weighed deeply on me,' as it has on others.
Questions regarding the defense of a client whom the attorney knows
to be guilty are not new. Philosophers2 and members of the legal
profession3 have long questioned the propriety of such a defense.
Nonlawyers often ask criminal defense attorneys how they can justify
* The substance of this article was presented as a paper to the Boalt Hall Law School
faculty in March 1978.
t B.A. 1967, University of Wisconsin; J.D. 1970, Stanford University. Mr. Mitchell is a
criminal law consultant currently specializing in cases involving government misconduct.
1. I find no solace in answers such as that's just what criminal attorneys must do, or,
the Code of Professional Responsibility and the Constitution permit it. If that is what
criminal lawyers must do, I am free to choose not to be a criminal lawyer. And while both
the ABA and California Canons of Ethics permit the defense of one known to be guilty, see
RULES OF PROFESSIONAL CONDUCT art. 1, § 6068 (1978), such professional codes do not by
their adoption become transformed into a moral code. See Shuchman, Ethics and Legal Ethics:
The Proprielp of the Canons as a Group Moral Code, 37 GEO. WASH. L. REV. 244, 248 (1968);
Noonan, Book Review, 29 STAN. L. REv. 363, 364, 370 (1977).
I do not agree that [w]e are not dealing with the morals which govern a man acting for
himself, but with the ethics of advocacy. Curtis, The Ethics ofAdvocaqy, 4 STAN. L. REv. 3, 16
(1951). I draw no distinction between personal and professional ethics. Accord, Noonan, The
Purposes of Advocaqr and the Limits of Confdntiality, 64 MICH. L. REv. 1485, 1492 (1966); Oakes,
The Ethics of Advocaq in an Unjust Cause, 131 LAw TIMES 40 (1911).
2. For example, Jeremy Bentham felt that defense of the guilty made the attorney an
accessory after the fact. See Rogers, The Ethics of Advocacy, 15 LAW Q. REv. 259, 260 (1899).
3. See, e.g., Cutler, s a Lawyer Bound to Support an Unjust Cause? A Problem of Ethis, 38
A.B.A.J. 300 (1952); McCrary, A Lawyer and an Unscnupulous Client, in CASES ON LEGAL ETH-
IcS 317-19 (G. Costigan ed. 1917).

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