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   Dear Fellow Members:

    Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.

         MD Rules of Professional Conduct


Legal Ethics Hotline Volunteers ... March
Ronald Canter ... 301-943-6111 ...
David Gavin ... 301-279-2700 ...


Lawyer Groups Criticize Ethical Shortcomings of Defense Counsel in Supreme Court Death Penalty Case
By Ronald S. Canter

“Nowhere do the rules of ethics jjustify a decision to concede guilt.”

On January 17, 2018, the United States Supreme Court heard oral arguments in the case of McCoy v. Louisiana, an appeal from a Louisiana Supreme Court ruling affirming a murder conviction and death sentence in a triple homicide case. On direct appeal, the defendant argued his conviction should be reversed because of ineffective assistance of counsel.  Throughout the trial, Mr. McCoy claimed he was innocent and offered an alibi defense that he was out of state at the time the murders occurred even though he did not have any witnesses to support his alibi defense.  Notwithstanding his protestations, Mr. McCoy’s counsel conceded his guilt to the jury during opening statement and at closing argument in hopes of avoiding the death penalty that was ultimately handed down.  

The Louisiana Supreme Court rejected Mr. McCoy’s argument that his counsel should have advanced his “unflinchingly maintained claim of innocence,” determining that to do so would violate the attorney’s obligation under Rule 1.2(d) which precludes a lawyer from counseling a client to “engage or assist . . . in conduct that the lawyer knows is criminal or fraudulent.”  The Court believed that presenting the alibi defense through the defendant’s testimony put the attorney in an ethical conundrum based on the perception that Mr. McCoy committed perjury when articulating his alibi defense. However, the Court’s observation was based on supposed “overwhelming” evidence of guilt and not on his counsel’s actual knowledge that Mr.
McCoy was in fact guilty.  In rejecting Mr. McCoy’s appeal, the Louisiana Supreme Court held that “conceding guilt, in a hope of saving a defendant’s life at the penalty phase, is a reasonable course of action in a case in which evidence of guilt is overwhelming.”

Amicus Briefs filed by the American Bar Association and by ethics professors from 10 outstanding law schools urged the Supreme Court to reverse Mr. McCoy’s conviction.  Both amici took Mr. McCoy’s lawyer to task for violating ethical rules by conceding his client’s guilt.  The law professor’s brief explained that “Larry English (Mr. McCoy’s attorney) was bound by the rules of ethics – as well as the Sixth Amendment and basic agency principles – to confirm his representation accordingly.  Yet in his opening statement to the jury and again in closing, Mr. English affirmatively told the jury that Mr.
McCoy was guilty”.  The professors argued that Mr. English violated Rule 1.2(a) which requires a lawyer to abide by the client’s instructions regarding the objectives of representation and, as a result “violated his professional obligations and denied his client the fundamental right to challenge the prosecutor’s allegation of guilt.”1

The amici further argued that Rule 3.3, relied by the Louisiana Supreme Court, did not compel Mr. English to confess Mr. McCoy’s guilt because this Rule “does not allow the lawyer to refuse to offer the testimony of the defendant client if he only ‘reasonably believes’ that the client intends to testify falsely”. The record was clear that Mr. English did not know for a fact that the evidence was false.  Other arguments advanced by the amici stressed that a criminal defense attorney’s effort to seek an acquittal is always a lawful and ethical objective of representation and just because Mr. English believed the evidence against his client was “overwhelming” was no justification for a decision to concede Mr. McCoy’s guilt.  

The McCoy’s case illustrates the dilemma faced by a lawyer representing a criminal charge with a death penalty offense where there is overwhelming evidence of guilt. Mr. English felt that the best way to spare his client’s life was to admit Mr. McCoy’s guilt.  Although this may have been a rational decision, the Rules of Professional Conduct compel a different result because in this case, as in all cases, a lawyer is the agent of the client and is duty bound to follow the client’s instructions and should in all cases be obliged to put the prosecutor to its proof of the crime.2 

1There is no indication in the record before the Supreme Court that Mr. McCoy complained to the Louisiana attorney disciplinary authorities about the conduct of his attorney at trial.  

2Although Maryland has abolished the death penalty, the ethical rules cited in this article are should guide a lawyer’s conduct in other circumstances.


P. David Gavin
Allen J. Katz

Samuel M. Shapiro



March 15, 2018 --

April 19, 2018
May 17, 2018

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