Effective and Competent Counsel – The Special Rules That Govern Colorado Criminal Defense Lawyers - Part 1

To most the Colorado criminal justice system is a very frightening and confusing place. If they are charged with a crime in Colorado they look to their lawyer of course.

Colorado criminal defense lawyers like all Colorado lawyers are held to minimal standards for the practice of law. However, the best criminal defense lawyers ascribe to a much higher level of practice.

The American Bar Association’s Standards governing The Defense Function provide clear guidelines and goals for all criminal defense lawyers.

Colorado Criminal Defense Law: Understanding The Standards of Professional Conduct for Colorado Criminal Defense Lawyers The ABA.

The Defense Function Part I. The General Standards Standard 4- 1.1 The Function of the Standards

These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.

Standard 4- 1.2 The Function of Defense Counsel

1. Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.
2. The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation.
3. Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused. Defense counsel should comply with the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
4. Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, he or she should stimulate efforts for remedial action.
5. Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in statutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense counsel has no duty to execute any directive of the accused which does not comport with law or such standards. Defense counsel is the professional representative of the accused, not the accused’s alter ego.
6. Defense counsel should not intentionally misrepresent matters of fact or law to the court.
7. Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known to defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.
8. It is the duty of defense counsel to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession applicable in defense counsel’s jurisdiction. Once representation has been undertaken, the functions and duties of defense counsel are the same whether defense counsel is assigned, privately retained, or serving in a legal aid or defender program.

Standard 4- 1.3 Delays; Punctuality; Workload

1. Defense counsel should act with reasonable diligence and promptness in representing a client.
2. Defense counsel should avoid unnecessary delay in the disposition of cases. Defense counsel should be punctual in attendance upon court and in the submission of all motions, briefs, and other papers. Defense counsel should emphasize to the client and all witnesses the importance of punctuality in attendance in court.
3. Defense counsel should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance.
4. Defense counsel should not intentionally use procedural devices for delay for which there is no legitimate basis.
5. Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client’s interest in the speedy disposition of charges, or may lead to the breach of professional obligations. Defense counsel should not accept employment for the purpose of delaying trial.

Standard 4- 1.4 Public Statements

Defense counsel should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if defense counsel knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

Standard 4- 1.5 Advisory Councils on Professional Conduct

1. In every jurisdiction, an advisory body of lawyers selected for their experience, integrity, and standing at the trial bar should be established as an advisory council on problems of professional conduct in criminal cases. This council should provide prompt and confidential guidance and advice to lawyers seeking assistance in the application of standards of professional conduct in criminal cases.
2. Communications between an inquiring lawyer and an advisory council member have the same attorney-client privilege for protection of the client’s confidences as ordinarily exists between any other lawyer and client. The council member should be bound by statute or rule of court in the same manner as a lawyer is ordinarily bound in that jurisdiction not to reveal any disclosure of the client. Confidences may also be revealed, however, to the extent necessary:
   1. if the inquiring lawyer’s client challenges the effectiveness of the lawyer’s conduct of the case and the lawyer relies on the guidance received from the council member, or
   2. if the inquiring lawyer’s conduct is called into question in an authoritative disciplinary inquiry or proceeding.

Standard 4- 1.6 Trial Lawyer’s Duty to Administration of Justice

1. The bar should encourage through every available means the widest possible participation in the defense of criminal cases by lawyers. Lawyers should be encouraged to qualify themselves for participation in criminal cases both by formal training and through experience as associate counsel.
2. All such qualified lawyers should stand ready to undertake the defense of an accused regardless of public hostility toward the accused or personal distaste for the offense charged or the person of the defendant.
3. Such qualified lawyers should not assert or announce a general unwillingness to appear in criminal cases. Law firms should encourage partners and associates to become qualified and to appear in criminal cases.
4. Such qualified lawyers should not seek to avoid appointment by a tribunal to represent an accused except for good cause, such as: representing the accused is likely to result in violation of applicable ethical codes or other law, representing the accused is likely to result in an unreasonable financial burden on the lawyer, or the client or crime is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Part II. – Access to Counsel Standard 4 - Standard 4-2.1 Communication

Every jurisdiction should guarantee by statute or rule of court the right of an accused person to prompt and effective communication with a lawyer and should require that reasonable access to a telephone or other facilities be provided for that purpose.

Standard 4 - 2.2 Referral Service for Criminal Cases

1. To assist persons who wish to retain defense counsel privately and who do not know a lawyer or how to engage one, every jurisdiction should have a referral service for criminal cases. The referral service should maintain a list of defense counsel willing and qualified to undertake the defense of a criminal case; it should be so organized that it can provide prompt service at all times.
2. The availability of the referral service should be publicized. In addition, notices containing the essential information about the referral service and how to contact it should be posted conspicuously in police stations, jails, and wherever else it is likely to give effective notice.

Standard 4 - 2.3 Prohibited Referrals

1. Defense counsel should not give anything of value to a person for recommending the lawyer’s services.
2. Defense counsel should not accept a referral from any source, including prosecutors, law enforcement personnel, victims, bondsmen, or court personnel where the acceptance of such a referral is likely to create a conflict of interest.

Standard 4 - 3.1 Establishment of Relationship

1. Defense counsel should seek to establish a relationship of trust and confidence with the accused and should discuss the objectives of the representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel’s obligation of confidentiality makes privileged the accused’s disclosures.
2. To ensure the privacy essential for confidential communication between defense counsel and client, adequate facilities should be available for private discussions between counsel and accused in jails, prisons, courthouses, and other places where accused persons must confer with counsel.
3. Personnel of jails, prisons, and custodial institutions should be prohibited by law or administrative regulations from examining or otherwise interfering with any communication or correspondence between client and defense counsel relating to legal action arising out of charges or incarceration.

Standard 4 - 3.2 Interviewing the Client

1. As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client’s responses.
2. Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel’s knowing of such facts.

Standard 4 - 3.3 Fees

1. Defense counsel should not enter into an agreement for, charge, or collect an illegal or unreasonable fee.
2. In determining the amount of the fee in a criminal case, it is proper to consider the time and effort required, the responsibility assumed by counsel, the novelty and difficulty of the questions involved, the skill requisite to proper representation, the likelihood that other employment will be precluded, the fee customarily charged in the locality for similar services, the gravity of the charge, the experience, reputation, and ability of defense counsel, and the capacity of the client to pay the fee.
3. Defense counsel should not imply that his or her compensation is for anything other than professional services rendered by defense counsel or by others for defense counsel.
4. Defense counsel should not divide a fee with a nonlawyer, except as permitted by applicable ethical codes of conflict.
5. Defense counsel not in the same firm should not divide fees unless the division is in proportion to the services performed by each counsel or, by written agreement with the client, each counsel assumes joint responsibility for the representation, the client is advised of and does not object to the participation of all counsel involved, and the total fee is reasonable.
6. Defense counsel should not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.
7. When defense counsel has not regularly represented he client, defense counsel should communicate the basis or rate of the fee to the client, preferably in writing, before or within a reasonable time after commencing the representation.

Standard 4 - 3.4 Obtaining Literary or Media Rights from the Accused

Defense counsel, prior to conclusion of all aspects of the matter giving rise to his or her employment, should not enter into any agreement or understanding with a client or a prospective client by which defense counsel acquires an interest in literary or media rights to a portrayal or account based in substantial part on information relating to the employment or proposed employment.

Standard 4 - 3.5 Conflicts of Interest

1. Defense counsel should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.
2. Defense counsel should disclose to the defendant at the earliest feasible opportunity any interest in or connection with the case or any other matter that might be relevant to the defendant’s selection of counsel to represent him or her or counsel’s continuing representation. Such disclosure should include communication of information reasonably sufficient to permit the client to appreciate the significance of any conflict or potential conflict of interest.
3. Except for preliminary matters such as initial hearings or applications for bail, defense counsel who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the codefendants represented and, in either case, that:
   1. the several defendants give an informed consent to such multiple representation; and
   2. the consent of the defendants is made a matter of judicial record. In determining the presence of consent by the defendants, the trial judge should make appropriate inquiries respecting actual or potential conflicts of interest of counsel and whether the defendants fully comprehend the difficulties that defense counsel sometimes encounters in defending multiple clients.
4. Defense counsel who has formerly represented a defendant should not thereafter use information related to the former representation to the disadvantage of the former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.
5. In accepting payment of fees by one person for the defense of another, defense counsel should be careful to determine that he or she will not be confronted with a conflict of loyalty since defense counsel’s entire loyalty is due the accused. Defense counsel should not accept such compensation unless:
   1. the accused consents after disclosure;
   2. there is no interference with defense counsel’s independence of professional judgment or with the client-lawyer relationship; and
   3. information relating to the representation of the accused is protected from disclosure as required by defense counsel’s ethical obligation of confidentiality.Defense counsel should not permit a person who recommends, employs, or pays defense counsel to render legal services for another to direct or regulate counsel’s professional judgment in rendering such legal services.
6. Defense counsel should not defend a criminal case in which counsel’s partner or other professional associate is or has been the prosecutor in the same case.
7. Defense counsel should not represent a criminal defendant in a jurisdiction in which he or she is also a prosecutor.
8. Defense counsel who formerly participated personally and substantially in the prosecution of a defendant should not thereafter represent any person in the same or a substantially related matter. Defense counsel who was formerly a prosecutor should not use confidential information about a person acquired when defense counsel was a prosecutor in the representation of a client whose interests are adverse to that person in a matter.
9. Defense counsel who is related to a prosecutor as parent, child, sibling or spouse should not represent a client in a criminal matter where defense counsel knows the government is represented in the matter by such a prosecutor. Nor should defense counsel who has a significant personal or financial relationship with a prosecutor represent a client in a criminal matter where defense counsel knows the government is represented in the matter by such prosecutor, except upon consent by the client after consultation regarding the relationship.
10. Defense counsel should not act as surety on a bond either for the accused represented by counsel or for any other accused in the same or a related case.
11. Except as law may otherwise expressly permit, defense counsel should not negotiate to employ any person who is significantly involved as an attorney or employee of the government in a matter in which defense counsel is participating personally and substantially.

Standard 4- 3.6 Prompt Action to Protect the Accused

Many important rights of the accused can be protected and preserved only by prompt legal action. Defense counsel should inform the accused of his or her rights at the earliest opportunity and take all necessary action to vindicate such rights. Defense counsel should consider all procedural steps which in good faith may be taken, including, for example, motions seeking pretrial release of the accused, obtaining psychiatric examination of the accused when a need appears, moving for change of venue or continuance, moving to suppress illegally obtained evidence, moving for severance from jointly charged defendants, and seeking dismissal of the charges.

Standard 4- 3.7 Advice and Service on Anticipated Unlawful Conduct

1. It is defense counsel’s duty to advise a client to comply with the law, but counsel may advise concerning the meaning, scope, and validity of a law.
2. Defense counsel should not counsel a client in or knowingly assist a client to engage in conduct which defense counsel knows to be illegal or fraudulent but defense counsel may discuss the legal consequences of any proposed course of conduct with a client.
3. Defense counsel should not agree in advance of the commission of a crime that he or she will serve as counsel for the defendant, except as part of a bona fide effort to determine the validity, scope, meaning, or application of the law, or where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.
4. Defense counsel should not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation and except that defense counsel may reveal such information to the extent he or she reasonably believes necessary to prevent the client from committing a criminal act that defense counsel believes is likely to result in imminent death or substantial bodily harm.

Standard 4- 3.8 Duty to Keep Client Informed

1. Defense counsel should keep the client informed of the developments in the case and the progress of preparing the defense and should promptly comply with reasonable requests for information.
2. Defense counsel should explain developments in the case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Standard 4- 3.9 Obligations of Hybrid and Standby Counsel

1. Defense counsel whose duty is to actively assist a pro se accused should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.
2. Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed to do so by the court.

Part IV. – Investigation and Preparation Standard 4 - 4.1 Duty to Investigate

1. Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
2. Defense counsel should not seek to acquire possession of physical evidence personally or through use of an investigator where defense counsel’s sole purpose is to obstruct access to such evidence.

Standard 4 - 4.2 Illegal Investigation

Defense counsel should not knowingly use illegal means to obtain evidence or information or to employ, instruct, or encourage others to do so.

Standard 4 - 4.3 Relations With Prospective Witnesses

1. Defense counsel, in representing an accused, should not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
2. Defense counsel should not compensate a witness, other than an expert, for giving testimony, but it is not improper to reimburse a witness for the reasonable expenses of attendance upon court, including transportation and loss of income, attendance for depositions pursuant to statute or court rule, or attendance for pretrial interviews, provided there is no attempt to conceal the fact of reimbursement.
3. It is not necessary for defense counsel or defense counsel’s investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.
4. Defense counsel should not discourage or obstruct communication between prospective witnesses and the prosecutor. It is unprofessional conduct to advise any person other than a client, or cause such person to be advised, to decline to give to the prosecutor or defense counsel for codefendants information which such person has a right to give.
5. Unless defense counsel is prepared to forgo impeachment of a witness by counsel’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, defense counsel should avoid interviewing a prospective witness except in the presence of a third person.

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