Panel Discussion of Response to Divided Loyalties: Musings on Some Ethical Dilemmas for the Institutional Criminal Defense Attorney


JAMES JACOBS: I think it is only fair that Professor Guggenheim be afforded some time for rebuttal.

MARTIN GUGGENHEIM: I am amazed by the reactions of the defense attorneys here to my claims. I am also quite sorry to hear them. Contrary to a suggestion that I have some hostility or lack of respect for defense attorneys,1it’s only because I consider them family that I used the first name basis in the paper. I am a defense attorney. Prosecutors and judges are people I work with and against, but I’ve never been either one. I have the highest respect for defense attorneys; I have the highest respect for the problems which they face, but I don’t think we can wish them away. I’m struck by the fact that the academics here are saying that there’s a real problem in representing the indigent criminal defendant, and that the people working in the field respond with an academic answer: defense attorneys may never breach duties to clients, and therefore they don’t.

Second, I am also disappointed to hear such a simplistic response. It really doesn’t do much good to recite the rules and simply remind us that they require client control of significant litigation decisions. We must acknowledge the enormous influence that lawyers have in the decisions clients make.’ Inmost cases, what lawyers say to clients and fail to say to them, and what lawyers emphasize play a controlling role in what clients do. We can’t pretend otherwise.

Suggested Reading

Panel I: Defund Means Defund Andrea Ritchie (she/her) is a Black lesbian immigrant whose writing, litigation, and advocacy has focused on policing of women and LGBT people of color for the past two decades. She is currently a researcher with