88-F-117 - Criminal Defense lawyer filing Motion to Suppress




Inquiry is made concerning the ethical propriety of criminal defense lawyers filing motions to suppress without any investigation of facts concerning matters contained therein.

Canon 7 of the Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 states that a lawyer should represent a client zealously within the bounds of the law. This Canon is a statement of the standards of professional conduct expected of lawyers in their relationship with the public, with the legal system, and with the legal profession. The Canons embody the general concepts from which the Ethical Considerations and Disciplinary Rules of the Code are derived.

The Ethical Considerations of the Code are aspirational and represent objectives toward which lawyers should strive. They are a body of principles upon which lawyers may rely for guidance in specific matters. Some of the Ethical Considerations applicable to this inquiry are as follows:

EC 7-1. The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations. The professional responsibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law; to seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense.

EC 7-2. The bounds of the law in a given case are often difficult to ascertain. The language of legislative enactments and judicial opinions may be uncertain as applied to varying factual situations. The limits and specific meaning of apparently relevant law may be made doubtful by changing or developing constitutional interpretations, inadequately expressed statutes or judicial opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent.

EC 7-3. ... While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law.

EC 7-4. The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.

EC 7-6. Whether the proposed action of a lawyer is within the bounds of the law may be a perplexing question when his client is contemplating a course of conduct having legal consequences that vary according to the client's intent, motive, or desires at the time of the action. Often a lawyer is asked to assist his client in developing evidence relevant to the state of mind of the client at a particular time. He may properly assist his client in the development and preservation of evidence of existing motive, intent, or desire; obviously, he may not do anything furthering the creation or preservation of false evidence. In many cases a lawyer may not be certain as to the state of mind of his client, and in those situations he should resolve reasonable doubts in favor of his client.

EC 7-7. In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. ...
A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.

EC 7-19. Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by his zealous preparation and presentation of facts and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments. The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law.

EC 7-21. The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.

The Disciplinary Rules of the Code are mandatory and state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. The Disciplinary Rules applicable to this inquiry are as follows:

DR 7-101(A)(4). A lawyer shall not intentionally;
(a) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules,...
(b) ...
(c) Prejudice or damage his client...

DR 7-102(A). In his representation of a client, a lawyer shall not:

(1) ... assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

(3) ...

(4) Knowingly use perjured testimony or false evidence.

(5) Knowingly make a false statement of law or fact.

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

The American Bar Association Standards for Criminal Justice includes in Chapter 4, "The Defense Function," Standard 4-1.1(d) which states that it is unprofessional conduct for a lawyer intentionally to misrepresent matters of fact or law to the court.

The comments to Standard 4-1.1 applicable to the inquiry are:

Defense counsel should not be viewed as impending the administration of justice simply because he or she challenges the prosecution, but as an indispensable part of its fulfillment.

... included in defense counsel's obligations to the client is the responsibility of furthering the defendant's interest to the fullest extent of the law and the standards of professional conduct permit.

Advocacy is not for the timid, the weak, or the retiring. Our system of justice is inherently contentious
... and it demands that the lawyer be inclined toward vigorous advocacy. Nor can a lawyer be half-hearted in the application of his or her energies to a case. Once a case has been
undertaken, a lawyer is obliged not to omit any essential honorable step in the defense ... .

It is fundamental that in relations with the court, defense counsel must be scrupulously candid and truthful in representations of any matter before the court. ...

... Counsel's place in our adversary process of justice requires that counsel be guided constantly by the obligation to pursue the client's interests. Counsel must not be asked to limit zeal in the lawsuit of those interests except by definitive standards of professional conduct.

Standard 4-1.2 of the ABA Standards for Criminal Justice states, in part:

(b) It is unprofessional conduct for defense counsel intentionally to misrepresent facts or otherwise mislead the court in order to obtain a continuance.
(c) Defense counsel should not intentionally use procedural devices for delay for which there is no legitimate basis.

Standard 4-3.6(a) of the ABA Standards states:

Many important rights of the accused can be protected and preserved only by prompt legal action. The lawyer should inform the accused of his or her rights forthwith and take all necessary action to vindicate such rights. The lawyer should consider all procedural steps which in good faith may be taken, including, for example, motions seeking pretrial release of the accused, obtaining psychiatric examination of the accused when a need appears, moving for change of venue or continuance, moving to suppress illegally obtained evidence, moving for severance from jointly charged defendants, and seeking dismissal of the charges.

The applicable "comments" to Standard 4-3.6 are as follows:

One of the lawyer's most significant tasks is to inform the client of the nature, extent, and importance of constitutional and legal rights and to take the procedural steps necessary to protect them. This includes advice concerning the privilege against self-incrimination and the appropriate responses to be made to a lineup, interrogation, or problems relating to statements to news media. Many cases require that special steps be taken to preserve existing evidence under the control of others or that prompt ballistics tests, handwriting tests, or medical examinations of the accused be made.

Standard 4-4.1 states:

Standard 4-4.1. Duty to investigate

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilty or the accused's stated desire to plead guilty.

The commentary to Standard 4-4.1 states that prosecutors and law enforcement agencies are important sources of information needed by the defense lawyer and may have in their possession facts that defense counsel must know. The accused's belief that he or she is guilty in fact may often not coincide with the elements that must be proved in order to establish guilty in law. In many criminal cases the real issue is not whether the defendant performed the act in question but whether the defendant had the requisite intent and capacity. The accused may not be aware of the significance of facts relevant to intent in determining criminal responsibility. Similarly, a wellfounded basis for suppression of evidence may lead to a disposition favorable to the client. The lawyer's duty is to determine, from knowledge of all the facts and applicable law, whether the prosecution can establish guilty in law, not in some moral sense. The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate's role. Failure to make adequate pretrial investigation and preparation may be grounds for finding ineffective assistance of counsel.

It is important and critical to note that the civil adjudicative process is primarily designed for the settlement of disputes between parties, whereas the criminal process is designed for the protection of society. See EC 7-21. There are substantive and material differences in the civil and criminal process. The practical effect of affirmatively stating that criminal defense lawyers may not ethically file motions to suppress without any investigation of facts, or inadequate investigation of facts, would be the same as stating that Rule 11 of the Rules of Civil Procedure is applicable in criminal proceedings.

The Rules of Criminal Procedure do not permit nor allow for the extensive discovery process used in civil cases. Criminal defense lawyers are not permitted to develop evidence or information relating to motions to suppress under oath as extensively as permitted in civil cases. They are not permitted to take discovery depositions or interrogatories, file requests for admissions and production of documents. In some instances the hearing on the motion to suppress is the only means available to develop sufficient information or evidence and the only method available to develop sworn evidence concerning the matter. In some instances the Rules of Criminal Procedure permit that time limitations may be imposed for filing pretrial motions and that failure to raise defenses or assert objections constitute a waiver of such defenses. See Rule 12, Rules of Criminal Procedure.

The threshold issue of making Rule 11 of the Rules of Civil Procedure applicable to criminal procedure is not an appropriate subject or issue to be addressed in a Formal Ethics Opinion; and, not within the authority or jurisdiction of the Board of Professional Responsibility.

Lawyers are ethically obligated to represent clients zealously within the bounds of law and the applicable Disciplinary Rules of the Code of Professional Responsibility as cited herein; however, Rule 11 of the Rules of Civil Procedure is not applicable to criminal proceedings. The Ethical Considerations of the Code of Professional Responsibility and the Standards and comments of the ABA Standards for criminal justice as cited herein are included in this opinion and intended to serve as aspirational objectives toward which lawyers should strive and not intended to be mandatory.

This 15th day of December, 1988.


Cecil D. Branstetter
Jerry C. Colley
Jean Nelson