The Ethics Counselors of the National Association for Public Defense are available to NAPD members as a resource in the area of legal ethics and professional responsibility, particularly relating to the unique challenges faced by public defenders and assigned counsel in the representation of indigent clients.
The Counselors prepare and recommend NAPD positions on best practices and draft formal ethics opinions for issuance by the NAPD Steering Committee. Additionally, the Counselors are developing ethics training, such as webinars and CLE programs that focus on ethical issues and dilemmas that arise in the course of criminal defense practice. Eventually, the Counselors will broaden their scope to provide individual and program members of NAPD with information on professional responsibility rules and requirements; guidance on specific ethical inquiries; and independent consultation and confidential advice on problems or questions concerning ethical conflicts and professional conduct in legal and disciplinary matters.
In December 2014, the Counselors released NAPD’s first Formal Ethics Opinion. The opinion addresses the confidentiality of client information when defense team representation includes social workers and other non-lawyer professionals whose licensure is affected by statutory or professional mandatory reporting obligations. NAPD’s review of the applicable rules of professional conduct and other pertinent authorities concluded that social workers and other healthcare professionals, as well as other non-lawyer professionals who are members of the client’s defense team, may not report or disclose any confidential client information or privileged communication without the express contemporaneous permission of the lawyer for whom they are working on behalf of the client. You can read the opinion HERE.
In March 2016, the Counselors released their second Formal Ethics Opinion which addresses the circumstances under which defense counsel may be required to turn over documents, records, or other material or objects having potential evidentiary value to the prosecution or law enforcement. NAPD’s Opinion explains how and when defense counsel’s duties are triggered under the applicable rules of professional conduct, as well as under other legal and ethical authorities. You can read the opinion HERE.
In August 2016, the Counselors issued Formal Ethics Opinion 16-2 concerning access to witnesses by defense counsel under the Model Rules of Professional Conduct, specifically Rules 3.4 (fairness to opposing party and counsel) and 4.2 (the “no-contact” rule). The opinion focuses on the circumstances in which lawyers can, and cannot, communicate with witnesses and others who may be represented, including those employed by a represented organization or governmental entity. In particular, the opinion deals with the availability of professional staff at mental health facilities operated by the state to counsel representing the liberty interests of patients/clients that have been involuntarily committed to those facilities pursuant to a civil commitment statute. In addition to examining the MRPC, including relevant commentary, the opinion reviews applicable case law and other authoritative sources that address the issues involved in the scenario presented. You can read the opinion HERE.
Currently, the Counselors are working on a variety of issues relating to standby counsel that may result in an ethics opinion or a “best practices” policy paper for use by defender offices.
If you’re an NAPD member, regularly check the Ethics page on MyGideon, which will be dedicated to all things related to ethics and professionalism, including issues that are of interest to defenders and other public defender advocates and helpful in the day-to-day representation of clients.