Washington Law Review
The Failure of Situation-Oriented Professional Rules to Guide Conduct: Conflicting Responsibilities of the Criminal Defense Attorney Whose Client Commits or Intends to Commit Perjury
The legal profession has long promulgated rules in an effort to guide attorneys toward appropriate ethical behavior. By formulating such rules and by enforcing them through professional discipline, the profession has undertaken the admirable task of policing its own members. The past decade has seen a proliferation of different standards for attorney conduct, in part because of common law developments in the areas of legal malpractice and ineffective assistance of counsel. In addition, the bar has contributed to the proliferation of conduct rules by establishing standing committees that have promulgated advisory ethical standards in certain specialized fields. Despite the increasing number of rules, however, their situation-oriented character has resulted in omissions and inconsistencies which leave attorneys without guidance in many situations. More importantly, the proliferation of ethical conduct rules has served to emphasize a long-standing problem inherent in those rules: They embody two essentially contradictory views of the lawyer's role—the "lawyer as an officer of the court" and the "lawyer as a zealous representative of the client"—but fail to articulate a basis for deciding which view should govern his conduct in specific situations. Through an examination of the professional conduct rules that govern the controversial situation of a criminal defense attorney whose client intends to commit or is committing perjury, this comment analyzes the failure of those rules to guide attorney conduct and presents an alternative approach to their formulation.
Joni H. Ostergaard,
The Failure of Situation-Oriented Professional Rules to Guide Conduct: Conflicting Responsibilities of the Criminal Defense Attorney Whose Client Commits or Intends to Commit Perjury,
55 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol55/iss1/5