Criminal Defense Exception

Criminal Defense Exception

The second sentence of Model Rule 3.1 lifts the basis requirement for one kind of defense: "A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established."¹ Two clients qualify: the defendant in a criminal case, and the respondent in any proceeding that could end in incarceration, whatever name the proceeding bears. The word "nevertheless" signals that the sentence cuts against the first sentence's demand for a non-frivolous basis in law and fact. The lawyer may defend so that every element of the case must be established, and the text permits nothing beyond that.

The exception follows from the way a criminal case is built. The government must establish every element of the charge, and the defendant may plead not guilty and hold it to that task. Suppose the first sentence of the rule applied without exception. A defense lawyer could then contest only the elements the lawyer personally thought beatable, so a lawyer who believed the client guilty would have to concede everything. The client's trial would depend on the lawyer's private view of the evidence, and the state would meet an adversary only when the defense already expected to win. The exception cuts that dependence: the lawyer's assessment of guilt no longer decides whether the government must prove its case. The second category rests on the same reasoning, because the liberty at stake does not shrink when a proceeding carries another name but could still end in incarceration.

A defense lawyer who is certain the client is guilty may therefore still plead not guilty, cross-examine the government's witnesses, and move for acquittal on any element the prosecution has failed to prove.² Each of those steps requires the government to establish its case, and none asserts anything about what actually happened.

Students tend to carry that permission into civil litigation, and exams invite them to.

The civil defendant has no comparable right to put the other side to its proof. A party who knows an allegation is true has no basis to contest it, and the liberty interest that supports the criminal defendant's position is missing from a case that ends only in a money judgment. The exception is a narrow carve-out, and a civil lawyer cannot stretch it.

The exception also runs in one direction. It names the lawyer for the defendant or respondent and says nothing of the lawyer for the government, and the first sentence of Rule 3.1 still forbids a lawyer to bring a proceeding without a non-frivolous basis in law and fact.³ A prosecutor, who acts for the sovereign, receives less latitude than the defense in the surrounding rules, not more. A prosecutor must disclose to the defense evidence or information that tends to negate the guilt of the accused or mitigates the offense. A criminal defense lawyer, though forbidden to conceal information unlawfully and bound by the discovery rules, has no general duty to volunteer adverse information.⁴

The prosecutor's duties reach the accused's access to counsel as well. Rules 3.8(b) and (c) require a prosecutor to take reasonable steps to facilitate the accused's access to counsel, and they forbid a prosecutor to procure a waiver of important pretrial rights from an unrepresented accused.⁵ Their purpose is to prevent overreaching by trained advocates who carry the authority of the government.⁶ Once the accused has a lawyer, the prosecutor must deal through that lawyer: Rule 4.2 bars a lawyer from communicating about the subject of the representation with anyone the lawyer knows to be represented in the matter, unless the other lawyer consents.⁷

The exception ends at the point where the lawyer stops requiring proof and starts supplying falsehood.

The line sits where the text draws it. The exception covers a defense that requires every element to be established, which is a way of holding the government to its burden. It says nothing about presenting false evidence or false statements, and other rules govern those; Rule 3.4(b), for example, addresses falsifying evidence and counseling a witness to testify falsely. A fabricated document, a coached lie, or an invented factual claim therefore falls outside the exception, however serious the charge and however certain the lawyer is of the client's guilt. The usual exam error reads the freedom to hold the government to its proof as a freedom to do whatever helps the client.