Responses to Divided Loyalties: Musings on Some Ethical Dilemmas for the Institutional Criminal Defense Attorney


I note that Professor Guggenheim’s hypotheses, as articulated today and in his written paper, I indicate that the judge and the prosecutor exert their so-called forbidden pressure upon defense counsel. But I also note that his criticism of the prosecutor and the judge for exert-ing this pressure is non-existent. He appears to lay the burden of overcoming the resulting violations of the constitution and of ethics solely upon defense counsel, rather than upon a common understanding by all members of the process that the dilution of the rights of an individual defendant is absolutely inappropriate and unconstitutional.

Professor Guggenheim first assumes that institutional defenders will trade off the interests and rights of one client in favor of another, in the face of actual or perceived pressure by judges and prosecutors-pressure made possible by the institutional lawyer’s regular and repeated appearances in court.These charges against defense counsel and the institutional defender are serious ones, but they are misconceived, and I’m glad that I have the opportunity to correct this misconception.

Suggested Reading