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Successive Representation by Criminal Lawyers

NCJ Number
92252
Journal
Yale Law Journal Volume: 93 Issue: 1 Dated: (November 1983) Pages: 1-64
Author(s)
G T Lowenthal
Date Published
1983
Length
62 pages
Annotation
The tendency of the courts to overlook the complexities of successive representation (when criminal defense lawyers confront their former clients as prosecutor witnesses) and the lack of coherence in dealing with the resulting problems can be traced to three main sources.
Abstract
First, the bar itself ignored successive representation as an issue worthy of analysis in its rules of professional responsibility, at least before the recently proposed 'Model Rules.' Without a normative framework to provide guidance to practitioners, individual lawyers have formulated their own rules of conduct, with no uniformity. Second, unlike joint representation of criminal codefendants, successive representation in criminal defense is not a highly visible phenomenon. Third, the former client in criminal litigation is not a party and is not represented by counsel. Therefore, there is no mechanism similar to the disqualification motion in civil litigation to bring the issue to the attention of the trial court for preventive action. If more direction is provided to criminal lawyers in the first instance, and trial courts are alerted to the circumstance of successive representation sufficiently in advance of trial to advert potential problems, the fairness and reliability of the criminal justice system will be increased. Rule 1.9 of the 'Model Rules' is a step in the right direction. A pretrial judicial inquiry to determine the existence and potential effects of successive representation is sorely needed. Finally, if disqualification is seen as a careful balancing of the competing interests in each case, the risk of disqualification motions on questionable motives can be minimized. A total of 277 case notes are provided. (Author summary modified)