Switching sides I'm writing a drama and need some help. Can a criminal lawyer in a rape case switch sides from the person they are representing to the victim if they have been fired by their client?
No. As the defendant's lawyer, they will have been privy to privileged communications. As such, it would be unfair to the defendant if they now started prosecuting. Also note that a victim very rarely has their own lawyer in a criminal case. The prosecution lawyer is acting for "the Crown" (essentially, "society as a whole"). (There are exceptions, if the victim is bringing a private prosecution - but this is very rare for serious cases such as rape).
There is a big difference between knowing something and proving it. A lawyer who knows a client is guilty can take steps to prevent the state from proving guilt. (E.g., motion to exclude evidence, cross examining witnesses.) The belief that a client has committed a crime does not necessarily mean one knows what specific crime was committed. Is a killing Murder 1, Murder 2, or manslaughter? There are defenses even when an act may be a crime. E.g., self defense, insanity, justifiable. Lawyers are not permitted to assist in perjury. E.g., allow the client to testify to something he knows is false.
A Lawyer In A Court Case Needs Court Permission To Withdraw Once a lawyer is representing a client in court, the lawyer can cease to represent the client, either by "withdrawing" or in a "substitution of counsel" (which is far less regulated), but a lawyer can only withdraw and leave the client unrepresented if the lawyer obtains the permission of the court presiding over the case to do so, after giving appropriate formal notice to the client. And, the court is within its rights to refuse to allow the lawyer to withdraw from the representation in most cases, and certainly if the reason for the lawyer's withdrawal is that the lawyer is not getting paid. Why would a court deny a lawyer permission to withdraw? A case in which a former client is self-represented is a nightmare to deal with at trial from a practical perspective for a judge, screws up the judge's calendar if the trial has to be delayed to allow a new lawyer to get up to speed after being hired, and is also much more prone to lead to reversible error that could cause the case to be overturned on appeal. For example, usually when a lawyer is present and the prosecution seeks to admit inadmissible evidence, the lawyer objects on the proper legal ground and the judge evaluates the objection and keeps the evidence out. But, if no one objects, letting in the evidence can still lead to a reversal on appeal if doing so was "plain error", and the "plain error" or objection preservation analysis on appeal becomes even trickier if the defendant representing himself objects to the evidence coming in, but for the wrong reasons - for example, objecting to inadmissible hearsay on the grounds that it is irrelevant when it isn't irrelevant but is inadmissible, but mentions that the person questioned "wasn't even there" when the statement was made. Also, since there is a right to counsel for indigent defendants in criminal cases, when a lawyer withdraws (especially for non-payment) the court now has to determine whether or not the client is indigent (which non-payment would typically support an inference of) and if so, the court must appoint a new lawyer who would have to do lots of redundant work to get up to speed in a case. Failure to do so would be fertile grounds for potentially setting aside a conviction. This is particularly a concern when the only issue is nonpayment of fees, so nothing about the representation itself is fundamentally flawed. Judge's don't have much sympathy for the lawyer in these cases in criminal matters, because the ordinary custom and practice is to work for a flat fee that is mostly paid up front. A judge who forces a lawyer to keep working a case like that is prioritizing fairness for the client over coddling the lawyer's bad business management of the lawyer's firm, protecting the public from having to hire a public defender at the public's expense in the case in a manner that might involve wasteful redundant legal work, and protecting the public interest in keeping an eye on police misconduct. But, if a lawyer is not getting paid early in a case, for example, entering an appearance on an emergency basis around the time of an arrest and then seeking to withdraw a week or two later when the client fails to make a promised retainer payment, the lawyer will usually be allowed to withdraw by the court. Generally speaking, the closer the case gets to the trial date, the more likely it is that the court will refuse to allow the lawyer to withdraw. The Impact Of A Withdrawal On A Lawyer's Reputation It is not as a general rule harmful to a lawyer's reputation to withdraw from representing a client. As noted before, there are circumstances when it is mandatory to do so (see Rule 1.16(a) below), and most of the reasons for withdrawing that are permitted but not required (see Rule 1.16(b) below) would also not damage a lawyer's reputation. For example, nobody is going to fault a lawyer for withdrawing from a case because he contracted cancer (a lawyer in my office suite had to do this, then returned to practice during a multi-year remission, and then had to withdraw again shortly before his death), or because a client has become non-responsive. Indeed, one of the main motives for a lawyer to withdraw other than not getting paid, is that the client's conduct makes it impossible for the lawyer to represent the client in a manner that doesn't harm the lawyer's reputation. For example, a key part of a lawyer's reputation is his ability to make a statement of fact or law, when not under oath to the court or to another lawyer in a case, which people will consider trustworthy without having to verify it formally. But, if a lawyer's client lies to the lawyer causing a representation made by the lawyer to end up being false, the lawyer may want to cease representing the client so that the lawyer does not end up innocently making a false statement that damages the lawyer's reputation in the future. Similarly, one of the most common reasons for a lawyer to withdraw other than not being paid is that the client simply stops responding to telephone calls, stops showing up to meetings with the lawyer, doesn't respond to mail or email, fails to appear at court for hearings, or at mediation sessions, or at probation officer meetings, etc. Since a lawyer is required to get a client's signature and/or approval for certain steps of a case, and often to show up in person at hearings as well, the lawyer is required to withdraw to preserve the lawyer's reputation because not doing so would force the lawyer to have violations of court rules that the lawyer is responsible for meeting on behalf of a client. It would be rare for a good lawyer to make it through a career without having to withdraw for a reason like this at least half a dozen times over a career. Obviously, there are reasons for a withdrawal that can hurt a lawyer's reputation. If the lawyer withdraws because he won't be able to make court dates because he will be serving a jail sentence himself or will be in drug rehabilitation or is facing embezzlement charges, that isn't good for the lawyer's reputation. Similarly, if the lawyer withdraws following a judge's implication that the lawyer has engaged in misconduct in a case, or following a client letter to court accusing the lawyer of something unsavory, that hurts the lawyer's reputation. A client discharging a lawyer from a case can be good or bad for the lawyer's reputation, if it happens infrequently, although frequently being fired by clients is always bad for a lawyer's reputation. If the client seems crazy or mean spirited, being fired won't hurt the lawyer's reputation. If the client seems reasonable or seems to have good cause to fire the lawyer, it does hurt the lawyer's reputation. But, in general, good lawyers withdraw from representing clients, not exactly on a regular basis, but certainly many times during the course of an ordinary, highly reputable career. A typical, good quality, ethical lawyer with a busy practice will withdraw from representing a client in the middle of a case perhaps once every two to four years on average, and more often if the lawyer handles a lot of small cases and a high volume of clients. Put another way, a typical reputable lawyer probably withdraws from representing 0.5%-2% of the lawyer's clients mid-case. Of course, if a lawyer routinely withdrew mid-case from say 5%-20% of that lawyer's cases, that would reflect poorly on the lawyer who, even if each individual withdrawal is proper, is not doing a workmanlike job of screening potential clients. Reasons For Withdrawal Allowed Under Arkansas Law The authorized reasons for withdrawing from a representation in Arkansas are set forth in Rule 1.16 of the Arkansas Rules of Professional Conduct: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) a client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Ethical Reasons The Question First of all, to clarify, the question when asking about "ethical reasons" is asking about personal, not legally enforceable reasons based in personal morality that a lawyer might withdraw. This terminology can be a bit confusing because violations of legally enforceable rules of professional conduct for lawyers, are commonly called "ethics rules". But, violations of "ethics rules" were discussed above, and this part of the answer is about non-legally enforceable reasons rooted in a lawyer's personal moral compass that might cause a lawyer to withdraw from a representation of a client in the middle of a case. The question says this about "ethical reasons": Ethical reasons: When they were hired the lawyer thought the client was innocent (e. g. he thinks the wife accuses the husband of rape just to piss him off), but in the course of the process they came to the conclusion the client is guilty (e. g. the husband actually raped his wife). Defending an innocent client was OK with the moral standars of the lawyer, defending a criminal, who committed a particularly nasty (according to the beliefs of the lawyer) crime isn't. and In the section ethical reasons I mean a situation, when the lawyer has the gut feeling that the client is 100 % guilty, but the court may think otherwise. In real life there are situations, when you have a feeling like that, but you can't prove it. Nonetheless, you act based on that feeling (even if there is no evidence that could prove this feeling to another party). The evidence may be not enough for court or police, but it's enough for them. Criminal Lawyers Routinely, Ethically Represent 100% Guilty People No criminal lawyer who deserves to be practicing law, and honestly, almost no lawyer period, would consider it unethical to represent someone who is 100% guilty in a criminal case. Indeed, the prevailing assumption is that 95%+ of criminal defendants are guilty of something, and criminal defense lawyers actually kind of dread representing a client who really is 100% innocent, because the acceptable standards of success in the case that won't result in injustice and acceptable litigation options in the case, are so much narrower. The fact that a client is 100% guilty, in and of itself, even if the lawyer thought originally that the client was innocent, is absolutely not an honorable reason for a lawyer to withdraw, and the reputation of a lawyer who withdrew from a representation simply on the grounds that the client really did commit a heinous crime, would be shattered. The most esteemed lawyers are those who represent the clients who are charged with the most heinous crimes. Lawyers aren't in the business of deciding whether someone is guilty or innocent. That is the job of a judge and jury. They are in the business of putting the client's best foot forward. Indeed, frequently, a lawyer will intentionally refrain from having a client tell the lawyer about the facts necessary to actually know if the client is guilty or not. Lawyers are not primarily in the business of getting innocent people acquitted. They are primarily in the business of getting people who are guilty of something, or are culpably engaged in activity that is arguably a crime and arguably not a crime, the best available outcome under the circumstances. This involves insisting that the prosecution do everything it is required by law to do in order to prove its case in a lawful manner, negotiating with the prosecutor over what particular crime is the most appropriate way to classify particular conduct, and pushing for the most lenient possible sentence. For example, criminal defense lawyers routinely push to have clients who are 100% guilty acquitted because the evidence against the defendant was obtained illegally by the police. Part of a lawyer's role in defending a criminal case involving a guilty defendant is to perform the larger civic role of constantly monitoring the law enforcement system for police misconduct that incidentally benefits the client (and that is one reason why a court doesn't want to let a lawyer withdraw when the defendant is likely to be guilty but there are indications of police misconduct in the case). Arkansas Rule of Professional Conduct 3.1 which governs a lawyer's legal duty to raise only meritorious claims and defenses specifically addresses the difference between civil and criminal cases in this regard: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. The official comment (number 3) to this rule, related to the criminal case exception states: The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule. What Sort Of Personal Moral Considerations Are Appropriate? The main ground for withdrawing from representing a client for "personal" moral reasons is that (from Rule 1.16 above): a client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement Typically, this involves matters of litigation tactics that are not illegal or fraudulent, but that are likely to hurt an innocent third party, to further victimizes the person harmed by the crime, or appeals to prejudice or hate or corruption that could do long term damage to the legal climate or other people. For example, suppose that there is strong circumstantial evidence to suggest that a husband killed his wife, and the husband can't provide an alibi for his whereabouts at the time of the crime because he has amnesia, but the lawyer knows that the wife was actually killed by your client and the husband was actually saving the life of the burglar who in a car accident leaving the scene before the burglar bonked the husband on the head causing the husband to lose his memory. Your client was a burglar who was caught red handed for the burglary with items in his trunk and DNA evidence in the house, but your client lied and said that the wife was dead when he entered the house. A lawyer might conceivably limit how far he would be willing to go to point the blame at the husband even if the client wanted the lawyer to pursue that angle. Or, the victim might be a child who after being victimized had a frail emotional state. The client might push the lawyer to rudely and aggressively question the child and to intimidatingly investigate the child's friends, in an effort to cause the child to have a breakdown and refuse to cooperate further with the prosecution, but lawyer might not be willing to use that tactic even though it might work. Or, the client might be on trial in a county with a lot of KKK members some of whom will probably lie about their biases and end up on the jury. The client might want the lawyer to make an argument that implies with dog whistle type statements that the victim was a gay Jewish black man who didn't deserve to live anyway, while the client was the descendant of a plantation owner who was active protecting KKK interests in the county, and effectively nudge the jury to engage in jury nullification and acquit the client even if they believe that he is guilty. But, the lawyer might not be willing to use that tactic. But, no lawyer worth his salt would ever withdraw in the middle of a case from representing a client simply because the lawyer learned that the client was a KKK leader who was 100% guilty of the crime, and not because of a disagreement in the tactics that the client insisted that the lawyer use.
Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception.
Attorneys are universally required to tell the truth at all times and generally, they do. They are not allowed to lie on behalf of their clients or themselves. This doesn't mean that someone else's attorney necessarily has your best interests at heart. And, attorneys can, for example, fail to mention options that exist, but might not be the best for the attorney's client. Also, if an attorney's client lies to him or her about the facts, the attorney could conceivably say something inaccurate while believing it to be true. In the kind of meeting you are describing, however, most likely, the attorneys are simply going to explain your parents' estate plan, over which you have no control or say in any case, and there is no reason for suspicion or paranoia.
There is a firm difference between giving advice on "what the best decision is likely to be" and "what decision to make". The former is what lawyers must do, which comes from: Conduct and Client Care Rules: Whatever legal services your lawyer is providing, he or she must— discuss with you your objectives and how they should best be achieved: give you clear information and advice: Lawyers and Conveyancers Act 2006: legal work includes— advice in relation to any legal or equitable rights or obligations: So, there is nothing in the law that requires lawyers to advise you on "what decision to make". Instead, they explain to you the range of possible decisions and what ramifications / implications / consequences they have. They won't make the choice for you — it's always yours. Is it legally correct that a lawyer is not permitted to provide advice on what decision to make It is not strictly true that a lawyer "is not permitted". Rather, they are not obliged to do so. And they have a damn good reason not to: there is a huge difference between being responsible for legal facts based on which you make decisions, and being responsible for decisions themselves.
england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: &quot;Infinite&quot; indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2.
The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence.