Tuesday, July 22, 2008
Posted by Alan Childress
Lawrence J. Fox, an attorney with Philly's Drinker Biddle & Reath and the former chair of the ABA's standing committee on ethics and professional responsibility, has posted to SSRN Law & Soc'y: Legal Prof'n his article "Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities." It is also in Hofstra Law Review, vol. 36 (2008). Here is the abstract:
This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases. The complete text of the issue, which also contains the Guidelines themselves, is available online at www.law.hofstra.edu/DeathPenalty.
It is counsel, and not any non-lawyer member of the multidisciplinary defense team which needs to be assembled to provide competent representation in a capital case, who bears ultimate responsibility for the team's performance and for decisions affecting the client and the case. This article describes the many respects in which counsel's specific obligations under both the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue are either direct implementations of or logical corollaries to deeply-rooted provisions of the Model Rules of Professional Conduct that would bind counsel in any event. Correspondingly, the ABA Guidelines and Supplementary Guidelines illuminate the requirements of the Model Rules in the particular context of capital representation.