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What Do You Do When You Meet a 'Walking Violation of the Sixth Amendment' If You're Trying to Put that Lawyer's Client in Jail?

58 Pages Posted: 12 Apr 2001  

Vanessa Merton

Pace University School of Law


Based on an experience in the prosecutorial clinic the author directs, she seeks to explore some of the reasons that a conscientious scholar and teacher of professional ethics with, if anything, a strong predilection toward the criminal defense perspective, would fail to adhere to ethical principles and Disciplinary Rules in which she firmly believes and that are designed to assure fairness and justice in the criminal process ? a value which for all prosecutors must be primary. She reviews various theoretical "escapes" from the ethical duty that she felt obliged to, but did not, perform, as well as the moral and ethical justifications that she found intellectually compelling, but motivationally inadequate.

In this hard place where unambiguous duty meets actual case,
the author suggests, is the space where teachers of professionals must make their best efforts to take their students, whether through real or simulated experience, so that they can develop the faculty of reflecting squarely on the true causes for their failures of ethical will without attributing them to the confusion or rationalization which so often characterize the discussion of professional ethics. On a more pragmatic level, the author points out that her actual knowledge of the realities of disciplinary enforcement (as a former Trial Counsel for a disciplinary committee)and of the enforcement of ethical standards in the criminal justice system may subliminally have affected the strength of her ethical resolve, and that more effective enforcement of the particular ethical rule she violated would perhaps induce a different behavior if not a different interior choice ? compliance, if not commitment.

Keywords: prosecutorial ethics, ineffective assistance of counsel, lawyers' duty to report, prosecutors' duty to do justice, situational ethics, casuistry, clinical legal education, teaching professional responsibility, domestic violence, family violence, criminal justice

Suggested Citation

Merton, Vanessa, What Do You Do When You Meet a 'Walking Violation of the Sixth Amendment' If You're Trying to Put that Lawyer's Client in Jail?. Fordham Law Review, Vol. 69, December 2000. Available at SSRN: or

Vanessa Merton (Contact Author)

Pace University School of Law ( email )

80 North Broadway
White Plains, NY 10603
United States
(914) 422-4333 (Phone)
(914) 422-4391 (Fax)

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