ethics

The Prior Record Level Worksheet with Missing Convictions: A Persistent Ethical Dilemma

Suppose you are a defender representing a client charged with Possession of Firearm by Felon. You receive a plea offer in the case, along with the AOC-CR-600B, the “Worksheet” regularly used for calculating the Prior Record Level (PRL) before sentencing. You review the worksheet and notice that it makes no reference to a prior felony conviction for which your client served prison time. You know of this missing conviction because you regularly verify the information the State provides to you, and you saw the conviction in the relevant database. You also discussed the conviction with your client when interviewing him about his past experiences and record in prison. Without the prior conviction, your client would be sentenced as a PRL III for felony sentencing purposes, but with the conviction, your client would be sentenced as a PRL IV. The general practice in your judicial district is for both parties to sign the PRL Worksheet, stipulating to the information set forth on the form and agreeing with the defendant’s PRL classification as indicated.

How should you proceed?

In teaching felony defenders here at SOG, I’ve seen this ethical dilemma threaten to swallow up the allotted ethics hour on multiple occasions. It is a challenging issue that, like many other dilemmas, involves a clash between ethical obligations.

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New Bulletin on Social Workers in Public Defender Offices and Issues Involving Mandatory Reporting

Increasingly, public defender offices are bringing social workers in-house. As part of a growing interest in holistic defense, these offices are relying on social workers to assist with the representation of their clients in a variety of ways. Social workers can locate housing, find appropriate treatment for substance use disorder or mental illness, and improve client communication by building trust and sensitivity to clients’ needs. This work may support the presentation of mitigation evidence at sentencing, and beyond that, break cycles of involvement with the criminal justice system.

North Carolina is in the midst of a major, legislatively-funded expansion of its public defender system. The School’s Criminal Justice Innovation Lab is supporting NC Indigent Defense Services by evaluating the implementation of social work positions in public defender offices to learn more about the ways the inter-professional collaboration functions, how social work positions are structured, and common benefits and challenges of using social work staff.

During this work, a question has arisen on several occasions: how should the inter-professional defense team navigate a situation, such as learning of child abuse, where mandatory reporting laws require notification to the local department of social services (DSS) or law enforcement? Should social workers comply with state statutes and follow their own ethical code by making a report? Or does the attorney’s obligation to keep client confidences and provide effective assistance of counsel “trump” the social worker’s duty to report?

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Five Ethics Rules Every Prosecutor Should Know

The School of Government and the Conference of District Attorneys co-sponsored Practical Skills for New Prosecutors last week. The five-day course includes 12 hours of Professionalism for New Attorneys requirements, so we spent a lot of time talking about professionalism and ethics. While every attorney should, of course, be familiar with the Rules of Professional Conduct, there are five ethics rules that should be at the top of every prosecutor’s list.

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Prosecutors, Ethics, and Plea Bargaining in Misdemeanor Cases

The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors. ­

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Last Means Last

A case involving charges of impaired driving is calendared on today’s district court docket. The defendant was charged more than two years ago; the case has been continued several times pursuant to motions made by the defendant and the State. When this case last appeared on the docket, the State moved for a continuance, and the defendant objected. The district court granted the State’s motion, but ordered that it be the last continuance for the State. Earlier this morning, the State again moved to continue the case. The district court denied the State’s motion, and directed the State to call the case or dismiss the charges. The State refused to take either action. What can the judge do?

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Legal Ethics and Social Media

The number of lawyers using Facebook, Twitter, LinkedIn and other social media networks grows daily.  So too does the number of lawyers doing foolish and unethical things on those networks.

In this post I highlight some of the more egregious social media missteps made by lawyers in recent years, in the hope that other lawyers won’t repeat them.   Then I describe how the Rules of Professional Conduct apply to social media both generally and in specific contexts such as investigations, litigation, and client testimonials.

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Criminal Charges, Civil Settlements, and Legal Ethics

The domestic violence case against Carolina Panther Greg Hardy was dismissed this week. According to the Charlotte Observer, a principal reason was that the alleged victim, Hardy’s ex-girlfriend, refused to cooperate and avoided service of a subpoena. Prosecutors also told the judge that the alleged victim had reached a civil settlement with Hardy. To be clear, no one has said that the settlement agreement required the alleged victim not to cooperate. But could the agreement contain such a provision?

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New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery

Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.

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Does Brady Apply After a Conviction?

Everyone knows that under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor must disclose material exculpatory or mitigating evidence to the defense. But does Brady apply only prior to trial, or does the obligation continue after a defendant has been convicted? That’s one of the questions raised by this Washington Post article, which reports … Read more