Even with the availability of various professional conduct rules, it has become almost a norm for defense attorneys to overstep legal boundaries in pushing for their clients justice. They have defended their behavior as zealousness, a trait required of defense lawyers. However, there are instances when such a zealous nature has had negative implications for their clients. The paper argues that defense lawyers should stay within the legal boundaries, because even though zealousness is an important aspect of defense advocacy, it sets back the concepts of due process, justice, and counsel. Moreover, it leads to the ineffective representation of the client infringing on his right to effective counsel.

Right to Counsel

The right to counsel is constitutionally guaranteed by the Sixth Amendment to all accused persons in criminal proceedings (Roberts, 2013). However, its application in federal and state courts has evolved over time. It has its roots in Indiana Supreme Court over a century ago when the court declared that an indigent accused person should have the right to an attorney (Roberts, 2013, p.2650). Later on, the right was reaffirmed in the 1938 U.S. Supreme Court decision of Johnson v Zerbst (Roberts, 2013, p. 2650). Although, it was only guaranteed in federal proceedings. The right to counsel of an indigent person was dealt a blow in the 1942 case of Betts v Brady, when the court refused to extend the right to an indigent accused in state felony proceedings (Roberts, 2013, p. 2650). It was not until the landmark ruling in the 1963s case of Gideon v Wainright that the United States Supreme Court unanimously ruled that the right to counsel should be guaranteed to all accused persons in both federal and state proceedings (Roberts, 2013, p.2650). Finally, in 1984 the U.S. Supreme Court in Strickland v Washington confirmed that a defendant is entitled to the effective assistance of counsel (Roberts, 2013, p.2652). Consequently, with time, several ethical rules have been developed to assist defense attorneys effectively represent their clients.

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Ethical Rules Governing Defense Counsel

There exist several rules governing a defense lawyers conduct. For example, Canon 37 of the American Bar Associations Canons of Professional Ethics advocates for the attorney-client confidentiality (Sokolow, 2012, p.35). The attorney-client privilege protects the discussions between the two parties. Despite that, the defense counsel is not to participate in his clients instrumentalities of crime or to assist the client to engage in fraudulent conduct.

The ABA Standards for Criminal Justice also offers ethical guidelines for defense lawyer. For instance, the Standard 4-7.5 forbids a defense attorney from assisting his client to commit perjury (Sokolow, 2012, p.37). Upon his client informing him of his intention to commit perjury, the defense attorney is to discourage the client strongly from doing so. If it fails, the attorney may seek to either disclose the perjury to court or withdraw from representing the client.

Nevertheless, the same guidelines also ironically support the defense counsel's passionate protection of their clients. For example, according to standard 4-11.2 of the ABA Standards for Criminal Justice, the defense counsel in defending his client may resist the wishes of the judge on some matters (Sokolow, 2012, p. 29). In doing so, he or she is not acting against his obligation to justice, but is rather observing an essential requirement within the adversary process that advocates for zealous advocacy of a defense lawyer. Defense counsels practicing overzealous advocacy use such provisions to defend their stance. It is where they differ in their roles from prosecutors. For example, a prosecutor is bound by the duty not to use the power of cross-examination to discredit a witness if the prosecutor knows the witness is testifying truthfully (Sokolow, 2012). On the other hand, a criminal defense counsel is allowed to attempt to discredit a witness by employing cross-examination even when he knows the witness is telling the truth (Sokolow, 2012). Moreover, while the prosecutor is allowed to arraign with vigor, his/her duty is to convict only the guilty. A defense attorney, in turn, has the duty to defend his client whether innocent or guilty (Sokolow, 2012). One has no similar responsibility as the prosecutor to determine the truth. It, therefore, grants defense attorneys an opening to practice enthusiastic advocacy.

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In practicing zealous advocacy, some defense counsels go too far to the point of going against the professional ethics. For example, some advocates tend to disregard rule 3.6 of AMRPC that requires a lawyer participating in the litigation of a case not to make an extrajudicial statement that is discernible by means of public communication (ABA, 2002, p.20). William Kunstler is an example of attorneys famous for disregarding such rule. While defending the Chicago eight protesters accused of conspiring to incite a riot at the 1968 Democratic National Convention, Kunstler kept addressing the media on extrajudicial matters all in a bid to push for justice for his clients (E. Kunstler, & S. Kunstler, 2009). He also used the platform to attack then-President Nixon. He was sentenced to prison for the contempt of court. The U.S Court of Appeal later reversed the charges. In another instance in 1984, while representing Joey Johnson, who had been accused of desecrating the American flag, a respected symbol, Kunstler regularly made proclamation to the media on the state of the case (E. Kunstler, & S. Kunstler, 2009). He also accused the judges of being partial. Such actions by a defense lawyer can, at times, negatively affect his client.

Ineffective Representation

Overzealous advocacy of a defense attorney should not negatively affect his or her client to the extent of it resulting in an ineffective representation as it goes against the concept of justice. The Justice has evolved over time. During the colonial period, it was based on judges precedents (Roberts, 2013, p.2654). For serious crimes, a grand jury was composed to bring justice, but attorneys and prosecutors were not recognized. However, due to the rising rates of crime in the society, the district attorneys position was formed in order to prosecute criminals. It necessitated the establishment of a defense attorneys position to ensure justice for accused persons.

Justice, therefore, demands the effective representation of defendants. However, some counsels in plea-bargaining agreements in the name of seeking justice for their clients, end up ineffectively representing their clients. According to a 2010 study on the overzealous representation by defense counsels, defense attorneys are the cause of 90 percent of guilty verdicts handed through plea, bargaining with African-American clients being the majority on the receiving end of these verdicts (Edkins, 2011, p.413). As the attorneys believe in the stereotype of racial bias towards African-American defendants, they enter them into unfair plea bargains for the sake of justice. Such unfair plea agreements are against the concept of due process of the law. The concept of due process has existed ever since the nation adopted it from the British Magna Carta that instructed everyone including the monarchy to obey the laws of the land (Roberts, 2013). By defense attorneys conducting unfair plea bargains on behalf of their clients, they are going against both procedural and substantive due process. There is, however, a remedy for clients in the Strickland standards.

Strickland Standards

Thankfully, the courts offer remedies for defendants who due to their attorneys overzealousness or ineffectiveness, ended up negatively affected. Yet, in order to be compensated, the defendants have the onus to prove the ineffectiveness of their counsels. The standards for proof were enacted in a two-prong test from the case of Strickland vs. Washington. First, the defendant must prove that the counsel's representation was deficient. Secondly, he or she must demonstrate that deficient performance deprived him/her of a fair trial (Roberts, 2013). In plea bargain cases, it is relatively easy for the defendant to prove how prejudice negatively affected his chance at justice.

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An example is the 2010 case of Padilla vs. Kentucky, Padilla, a lawful permanent resident of the U.S. was arrested with marijuana in his truck (Roberts, 2013, p.2657). He faced deportation if convicted of marijuana trafficking. However, he was not aware of this information, as his attorney had counseled him not to agonize about his immigration status because he was lawfully residing in the United States. He incorrectly instructed Padilla to enter a guilty plea bargain for five years in prison (Roberts, 2013, p.2658). Padilla successfully proved that his attorney's actions were deficient under professional standards. As he had not known that he would face deportation, Padilla was also able to prove the second test that the plea bargain prejudiced him of a chance to stay in the U.S. (Roberts, 2013). The rule in Strickland may just be the leverage defendants need to ensure their attorneys represent them without being ineffective or going overboard all in the chance of granting them justice.


Defense attorneys need to recognize the importance of the evolution of counselling concepts, due process and justice in ensuring client's right to effective counsel. They should practice effective counseling by staying within the legal boundaries. Moreover, defense lawyers should avoid overzealous advocacy that leads to negative consequences for their clients. Attorneys through exercise of overzealous advocacy and participation in unfair plea bargains have ended up costing their clients their liberty all in the interest of fighting for their justice. Thankfully, Strickland standards if conclusively proved are a way of ensuring clients get relief from overzealous and ineffective attorneys.

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