Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers?

33 Pages Posted: 10 Sep 2016

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Date Written: September 8, 2016

Abstract

State ethics codes based on the ABA Model Rules of Professional Conduct address lawyers’ work in advocacy but do not target lawyers’ work in particular areas of advocacy or in other specialized practice areas. For more than forty years, critics have asserted that existing ethics rules are too superficial and should be supplemented by specialized rules. This article examines the utility of specialized ethics rules for one particular sub-specialty — death-penalty defense practice. After identifying arguments for and against a specialized ethics code for death-penalty cases, the article analyzes the arguments in the context of a particular ethics dilemma that some death-penalty defense lawyers have encountered — namely, whether to pursue post-conviction relief on behalf of an ambivalent or unexpressive mentally-ill death-row inmate. The article finds persuasive reasons for courts to develop specialized rules that would provide death-penalty defense lawyers more clarity in how to address this and other ethics dilemmas. Recognizing that courts will likely remain indifferent to the idea of developing specialized ethics rules, however, the article concludes by identifying other ways for courts to mitigate the uncertainties that specialized rules would address.

Suggested Citation

Green, Bruce A., Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers? (September 8, 2016). Georgetown Journal of Legal Ethics, Vol. 29, No. 527, 2016, Fordham Law Legal Studies Research Paper No. 2836576, Available at SSRN: https://ssrn.com/abstract=2836576

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

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