From Day One: Who’s in Control as Problem Solving and Client-Centered Sentencing Take Center Stage


Two significant changes in the American criminal justice system-the prevalence of plea bargaining as a replacement for trials, and the rise of problem-solving courts-have caused criminal defense lawyers to rethink their role of providing effective counsel. In particular, lawyers must rethink what it means to represent a client’s best interests and what it means to “win. ” This paper begins by describing these changes and then raises some ethical concerns for criminal defense lawyers who engage in problem solving for their individual clients or who work within “problem-solving” courts. The paper attempts to highlight some of the ethical boundaries for criminal defense advocates who want to address clients’ underlying problems while they resolve the pending criminal matter. It also highlights some of the ethical concerns presented in problem-solving courts. For traditional defense lawyers, work in problem-solving courts can require a difficult shift in attitude and advocacy strategy around what it means to provide “counsel.” Taking cases to trial remains a critical component of our criminal justice system, but for the vast majority of cases that end in plea agreements or diversion, it is also possible to provide zealous advocacy while expanding the meaning of “counsel” in new problem-solving environments.

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