Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

J. Vincent Aprile II

Religious Wars of Independence

A public defender staff attorney recently came face to face with the ethical pitfalls inherent in the institutionalization of defender services when the defense lawyer's independent professional judgment was challenged on the grounds of freedom of religion. Apparently an administrative supervisor's review of the staff lawyer's notes in a juvenile client's litigation file had revealed that the lawyer had spoken to the client about reading a specific section of the Bible prior to their next meeting.

Although neither the client nor any family member had complained about this exchange, the administrative supervisor took this opportunity to berate the staff public defender for initiating discussions of personal religious beliefs with juvenile clients. There was neither evidence nor allegation that the action attorney was attempting to evangelize his juvenile clients to a particular religion or to religion in general.

According to the administrative supervisor, who is a lawyer, public defender lawyers can address religious issues with their juvenile clients only when a client, who alleges either being precluded by authorities from practicing his religion or being forced by authorities to participate in religious activities, brings that information to counsel's attention.

The supervisor noted that the staff lawyer had admitted both discussing religious beliefs with juvenile clients and inquiring whether a juvenile client was attending church or other religious services. Questioning the staff attorney's judgment, the administrative supervisor advised the lawyer to refrain from such discussions with juvenile clients in the future.

To clarify this scenario, the term "administrative supervisor" is used to indicate a lawyer in a public defender program who has administrative responsibilities over a number of staff lawyers, but does not have an attorney-client relationship, even as cocounsel or second chair, with the staff lawyers' clients. The administrative duties include such matters as time and attendance, employee evaluations, and case assignments. The staff attorney or action attorney has an attorney-client relationship with each of his or her clients that is governed by the applicable rules of professional conduct.

Although no criminal defense lawyer, retained or assigned, should be bent on proselytizing clients, regardless of the client's age, a discussion of religion and religious matters with a client is certainly not taboo or verboten, despite the administrator's belief to the contrary. Indeed, the staff attorney's references to religion appear to be well within accepted legal and ethical parameters.

"In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1(Discussion Draft 1983).) The thrust of this rule of professional conduct is that a lawyer is not required to limit his or her advice to a client to matters of law and procedure but has the discretion to raise other considerations-including moral and social- when dispensing advice. Within such an ethical context, it would be difficult to conclude that discussing religion with a client, even a juvenile, would somehow be unethical or improper.

Perhaps even more relevant to this discussion is the first sentence of Model Rule 2.1. According to the prefatory sentence, "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice." (Id.) In the vignette the action counsel, the only lawyer with an actual attorney-client relationship with the juvenile, is having his "independent professional judgment" monitored, reviewed, censored, censured, and ultimately limited or directed by an administrative supervisor.

The only basis for the supervisor's authority over the action attorney is the employment relationship. The staff lawyer is employed by a public defender office. Yet, "[a] lawyer shall not accept compensation for representing a client from one other than the client," including a public defender program, "unless," inter alia, "there is no interference with the lawyer's independence of professional judgment." (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.8(f)(2) (1983).) By agreeing to work for a public defender program, a criminal defense lawyer does not agree to place his or her "independent professional judgment" in a state of suspended animation and to embrace an ethics or value system imposed by administrative fiat. Instead, each public defender delivery system is required to adopt procedures and policies that foster and protect each staff attorney's "independent professional judgment" from attacks by judges, prosecutors, the public, government officials, and, most importantly, from its own defender administrators.

It is well recognized that "[a] lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services." (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.4(c) (1983); (emphasis added).) In the scenario, the staff attorney is ethically obligated to resist and protest the administrative supervisor's attempt "to direct or regulate" the staff attorney's "independent professional judgment." The supervisor has no ethical or legal right to substitute his or her "professional judgment" for that of the action attorney.

Was the administrative supervisor correct and the staff attorney simply wrong on the question of a public defender discussing religion with his or her juvenile client? Is there some aspect of religion that somehow makes it an exception to the kinds of nonlegal "considerations such as moral, economic, social and political factors" that a lawyer may include in his or her advice to a client? The answer is an obvious "no" to both questions.

First, a lawyer may ask a client about virtually anything in attempting to learn about the client and the client's situation. Of course, the client does not have to answer the lawyer and always may decline to answer the lawyer's inquiries. But, most importantly, any answer the lawyer receives from the client is confidential and cannot be disclosed without the client's consent. (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983).)

Second, there are a multitude of sound professional reasons why a lawyer might want to discuss religion and religious matters with even a juvenile client. If a defender learns that the juvenile is religious or steeped in the traditions of a particular religion, then the lawyer may decide that religious references or considerations may be persuasive to the client and use those concepts in advising this particular client. The public defender may know that the government authority that has the power to release the juvenile from confinement, whether a judge or a board, has tended in the past to look with favor on the releases of those juveniles who can show a past religious commitment or have religious activities prominent in their release plans. Certainly, a lawyer would be less than effective were he or she to avoid discussing with the juvenile client the topic of religion when evidence of past or future religious involvement could actually increase the client's chance of winning release. Regardless of whether the government entity should be showing favoritism to clients with religious commitments, neither the lawyer nor the client has an obligation to challenge the impropriety of such a preference, and instead may seek to take advantage of the bias existing in the system that benefits the client. Legitimate reasons for soliciting information about religion from a juvenile client are legion.

Having a juvenile client agree to a suggestion to read a section of the Bible or a religious tract is likewise legitimate, as long as the lawyer is not forcing or manipulating the juvenile client to do something that the client does not wish to do. A lawyer always has the discretion to "initiate advice to a client when doing so appears to be in the client's interests." (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1 cmt. (1983).)

Perhaps the administrative supervisor thought that because the public defender agency was funded by government money, the public defender's discussion of religious matters with juvenile clients would run afoul of the First Amendment to the United States Constitution. Such an analysis would not be persuasive.

It has long been established that when a public defender, even though compensated by government funds, performs the traditional functions of a criminal defense lawyer, there is no state action or government involvement. "[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." (Polk County v. Dodson, 454 U.S. 312, 325 (1981).) Similarly, "a public defender does not qualify as a state actor when engaged in his general representation of a criminal defendant." (Georgia v. McCollum, 505 U.S. 42, 53 (1992).) The public defender staff attorney in question simply lacks the prerequisite "state authority" necessary to generate state action.

Obviously, a retained criminal defense counsel, as a nonstate actor, would be powerless by his or her actions to violate a client's right to freedom of religion as guaranteed by the First Amendment. A public defender, despite being funded by the state, is equally powerless to breach an indigent client's freedom of religion.

Ironically, the supervisor's administrative prohibition on the action attorney discussing religion with juvenile clients contains the ingredients for a viable claim of a violation of the right to freedom of religion. It remains an open but undecided question as to whether "a public defender . . . would act under color of state law while performing certain administrative . . . functions." (Polk County v. Dodson, supra, 454 U.S. at 325.) "The determination whether a public defender is a state actor for a particular purpose depends on the nature and context of the function he is performing." (Georgia v. McCollum, supra, 505 U.S. at 54.) The potential exists that the administrative supervisor by banning religious discussions with juvenile clients may have trampled the federal constitutional rights of both the staff attorney and the juvenile clients. "[T]he First Amendment obviously excludes all 'governmental regulation of religious beliefs as such.' " (Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990).)

Is there a compelling reason that juvenile clients, unlike adult clients, must be protected from their lawyers' references to religion and religious matters? No credible justification for such a patronizing position exists. "When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." (ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14(a); (emphasis added).) This ethical precept advises the public defender to treat his or her juvenile clients with the same kind of deference, attention, and respect as the lawyer would accord an adult client without a disability. Client autonomy prevails despite the client's lack of majority. Working from these basic ethical principles, it would be extremely difficult to defend the administrative supervisor's general prohibition against discussing religion and religious matters with juvenile clients.

Even more debilitating to the supervisor's position is the reality that the lawyer's duty as an advisor to exercise "independent professional judgment" in representing a client is particularly compelling when the client is under a disability, such as minority. Again, the action attorney who has the client-counsel relationship with the juvenile must fall back on his "independent professional judgment" and refrain from blindly following the directives of an administrative supervisor.

Regardless of the intentions of the administrative supervisor, the administrative directive precluding the action attorney from discussing religion with juvenile clients reveals yet another reason why an agent of a public defender program is barred from directing or regulating the "independent professional judgment" of any staff attorney in the program. Although it is extremely disturbing that this administrative supervisor has incorrectly placed limitations and restrictions on his own professional judgment to the detriment of his own personal clients, there is no reason why, by virtue of his administrative position in a public defender agency, a supervisor should be allowed to multiply his error by the number of lawyers under his supervision and their respective clients. Fortunately, the bedrock ethical principles of this country protect public defender staff attorneys from their administrative supervisors who attempt to direct or regulate their "independent professional judgment," even in the religious wars fought in this nation's juvenile justice system. n

J. Vincent Aprile II is a senior capital litigator with the Department of Public Advocacy in Frankfort, Kentucky, where he has been a state public defender for 27 years and served as the agency's general counsel for 17 years (1982-99). He is also a member of the Criminal Justice Section Council, current member and former chair of the editorial board of Criminal Justice magazine, and contribu