The Right to Counsel
The Sixth Amendment of the U.S. Constitution
The Sixth Amendment of the Bill of Rights of the United States Constitution lays down a number of rights related with the criminal prosecutions in federal courts. These rights are applied by the Supreme Court to the states through the Fourteenth Amendments Due Process Clause. For that reason, it is important that the assistance of a counsel must be in concurrence with the practice of the adversary fact-finding process embodied in the Sixth and Fourteenth Amendments. To give a better idea, the protections provided by the Sixth Amendment are as follows
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Because of the straightforward language used in the Sixth Amendment, courts have provided conflicting, often narrow interpretations on the application of each of the guarantee of the amendment throughout the years. In fact, both the Congress that proposed the Sixth Amendment and the state that ratified it did not present any suggestion of the factual understanding with regard to the language employed in the amendment, particularly on the right to counsel clause. As a result, the earlier application of the right to counsel was only confined to guaranteeing a person who is able to afford and wishing to have a counsel would not be denied that right. It was only during the 1930s that the Supreme Court attempted to significantly expand the scope of right to counsel clause of the amendment (Find Law, 2010).
Scope
Basically, the rule in criminal justice system is that in all trial-like confrontations, the presence of the defendant is mandatorily required by the court. In these cases, the presence of the defendants counsel from which the defendant draws assistance and advice is likewise indispensable. Therefore, although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically demanded. The proceeding paragraphs provide a brief but very informative overview of the development of the defendants right to counsel in the United States.
Development of the Guarantee of Right to Counsel
Judicial proceeding is commenced from the moment a person is arrested, prosecuted on warrant in front of a judge, and committed to custody. Time and again, Courts have declared that the Sixth Amendments right to counsel is consequently attached from the time judicial proceeding is initiated. The right to counsel is an element of the right to a fair trial, and therefore, if the defendant cannot afford the services of a lawyer, the government must make sure that the defendant is provided with one. However, this present position of the criminal justice system has not traditionally been the situation in the United States.
The Supreme Courts expansion of the guarantee of the right to counsel clause only began in the landmark case of Powel v. Alabama (1932). In this particular case, the Supreme Court set aside the convictions of eight African-American teenagers sentenced to death in a hurriedly accomplished trial without the assistance of counsel. According to Justice Sutherland, due process constantly entails the observance of certain basic personal rights related with a hearing, and the right to the assistance of counsel is without doubt of this basic nature (Powel v. Alabama, 1932). Therefore, every accused person must be provided with the guiding hand of the counsel at every stage of the criminal proceeding. Without such assistance, the accused faces the possibility of conviction in view of the obvious fact that defendants are generally not acquainted with the proper procedure to ascertain their innocence.
Furthermore, the Court held that even the educated and intelligent individuals have generally small and every so often no knowledge in the science of law. People accused of a crime normally lack the adequate knowledge and skill to prepare their defense, even though they have a perfect one. Left without the assistance of a counsel, they cannot proficiently establish whether or not the evidences available and presented are helpful or detrimental to their respective case. Moreover, they may even be put on trial without proper charges and convicted upon irrelevant, inadmissible, or otherwise incompetent evidences. Therefore, the right to be heard will only provide insignificant support to an accused if it does not take in the latters right to be heard by counsel.
Mandatory Appointment of Counsel to Indigent Defendants
The next expansion of the right to counsel came in the case Johnson v. Zerbst (1938) wherein the Supreme Court declared an unconditional rule necessitating the appointment of counsel for federal criminal defendants who could not pay for the services of a lawyer. According to Justice Black, the benefit of counsel is essential to the upholding of basic human rights of life and liberty. A person whose liberty or life is endangered by a felony charged has a constitutional right to a counsel. Therefore, in all criminal proceedings, the Sixth Amendment denies from the federal courts the authority and power to take away the life or liberty of an accused without the assistance of counsel unless the latter waives such benefit. Moreover, the court declared that any waiver of the right to counsel of the defendant must be done through his or her intelligent choice and not deduced from his or her silence. For that reason, these elements must be established by the court before ensuing the hearing of a case without counsel (Johnson v. Zerbst, 1938).
Application of the Guarantee to Both Federal and State Courts
In the case of Betts v. Brady and Progeny (1942), the issue raised was whether or not state courts should be provided with the comparable application of the right to counsel in federal courts in all their criminal proceedings. Through Justice Roberts, the Court observed that the application of the Sixth Amendment would force only the federal courts and not the state courts of the assistance of a counsel to guarantee seeing that the Due Process Clause of the Fourteenth Amendment in state courts creates an impression more fluid and less rigid than those guarantees represented in the Bill of Rights. Unfortunately, the Court concluded that the appointment of counsel is not a basic right indispensable to a fair trial and as such, the guarantee is not the general rule in state courts. In a dissent argued by Justice Black, the Fourteenth Amendment made the Sixth Amendment germane to the states the requirement of the appointment of counsel. The constraints laid by the Sixth Amendment upon the federal courts convey a rule so essential and fundamental to a fair trial that the Fourteenth Amendment purposely made it mandatory upon the States (Betts v. Brady and Progeny, 1942).
In Gideon v. Wainwright (1963), however, the court overruled the earlier decision in Betts v. Brady and declared that because of the adversary nature of the criminal justice system, any defendant who is too poor to hire the services of a counsel cannot be guaranteed of a fair trial. Accordingly, the Court held that the benefit of counsel is extremely essential that the Fourteenth Amendment does make the right constitutionally applicable in all state courtsthat both Sixth and Fourteenth Amendments ensure that every person is entitled to the assistance of a lawyer during or after the time that legal proceedings have been commenced against him or her, whether arraignment, information, indictment, preliminary hearing, or formal charge (Gideon v. Wainwright, 1963). Therefore, the guarantee of the right to counsel by this time applies to all defendants in federal and state courts whether charged with serious crimes, misdemeanors or charged with felonies, as well as in juvenile proceedings. What is more, the Court held that unless there is a valid waiver of the right to counsel, every defendant may not be sent to prison if no counsel was provided for his or her defense.
Capital Cases
After a while, the Court in Hamilton v. Alabama (1941) declared that in all capital cases the benefit of counsel is considered a constitutional requirement and therefore mandatory so that both the public and defendants need not raise any questions regarding any prejudices or conditions ensuing from lack of counsel. The rule was intended to give some assurance to the defendants in capital cases that their trials would not be deprived of the fundamental fairness as a consequence of their failure to appoint a counsel. In the given case, the court identified three prejudicial factors that made it to conclude that in all capital cases the condition of appointment of counsel is indeed very necessary (Hamilton v. Alabama, 1961). These factors were
The individual characteristics of the defendant could likely cause difficulties on his or her attempt to achieve a sufficient defense
The technical difficulty of the capital penalty charges or of potential arguments to the charges and
Proceedings that would unexpectedly take place during the trial raising problems of injustice (Hamilton v. Alabama, 1961).
Other Landmark Cases on Right to Counsel
The right to counsel basically denotes that the government must not hinder with representation, either through the imposition of limitations upon retained or appointed counsel or through the method of appointment that would hamper the counsels ability to reasonably provide a defense. Therefore, from the moment adversary proceedings have been initiated by the government against a defendant, the criminal justice system must see to it that he or she is provided with unconstrained legal assistance. Moreover, the defendants must be guaranteed with such assistance through the counsel of choice. The proceeding paragraphs demonstrate some of the most relevant decisions concerning the scope of a defendants right to counsel
The Court held in Geders v. United States (1976) that the order of a trial judge preventing the defendant from seeking advice from his counsel throughout a 17-hour overnight break between his direct and cross-examination, in order to avert coaching or formulating of testimony, was invalid as it denied the defendant of his Constitutional right to assistance of counsel.
In Chandler v. Fretag (1954), the denial of the court of the defendants appeal for a continuance in order to confer with an attorney was held as an infraction of formers due process rights under the Fourteenth Amendment.
In McKaskle v. Wiggins (1984), although the Court has acknowledged the defendants right to self-representation and maintain definite control over the case, the participation of a standby counsel should never be denied particularly in serving the necessary function of assisting the defendant in adhering to regular courtroom protocols and procedures.
In some states, the right to counsel is extended to all issues where a persons liberty interest is endangered. Accordingly, irrespective of whether the proceeding is viewed as administrative, criminal, or civil, as long as the defendant faces a possibility of loss of liberty, then he or she is entitled to the assistance of a counsel (Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 2006).
Miranda Rights
In 1966, the landmark case of Miranda v. Arizona was decided by the United States Supreme Court, which ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Although this celebrated decision has basically focused on a suspects protection against self-incrimination under the Fifth Amendment, it likewise placed some comparable importance to the right to counsel. Accordingly, because of the latter prohibition imposed in the Miranda decision, the government today is prohibited from continuing any interrogation of witnesses or suspect from the moment the right to counsel is invoked by latter (Find Law, 2009b).
The Court held that entitlement to have counsel present during a custodial questioning is essential to protect the suspects benefit against self-incrimination under the Fifth Amendment. For that reason, a person detained for interrogation must be notified in an uncomplicated manner that he or she has the right to have a lawyer with him or her throughout interrogation and to consult with such lawyer. The Supreme Court went one step further in the Miranda v. Arizona case by declaring that defendant must be informed that if he or she cannot afford the services of a lawyer the government is prepared to appoint one to represent him or her. In view of that, the right to counsel guarantee of the Miranda warning generally reads as You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed to you free of charge if you wish (Find Law, 2009b).
Situations When Miranda Warnings are Required
The fundamental rule laid down by the Miranda case is that whenever a person is divested by the government of his or her freedom of action in any considerable manner, and the government would like to question him or her and utilize the ensuing answers as evidence at any proceedings, the government, through the police officer, must read to the person his or her Miranda rights. Because of such ruling, the right to counsel is now being required from the moment the government initiates an interview to a suspect or witness, whether the interrogation takes place at the scene of a crime or in a jail, in the middle of an open field, or on a busy downtown street. Hence, if a person is not in police custody, no Miranda warning is necessary and anything the person declares can be used against the latter by the government if he or she is later incriminated with a crime. All the same, even if not in custody, but if the questions asked to a person relates to particular crime or would make the person a potential suspect the police must still inform the person of the Miranda warnings (Find Law, 2009b).
The most obvious example of being in custody is when a police officer declares to the person that he or she is under arrest. However, a person may still be in custody even if the officer did not declare that the former is under arrest. Throughout the years, the justice system has not followed absolute rules on classifying when a person is in custody or not. What the law generally considers is that a person is considered in custody when he or she has been arrested or otherwise significantly denied of his or her freedom of movement. The test used by the courts in recent years is whether or not a reasonable individual in the similar situation as that of the defendant would have been deprived of his or her freedom to leave at the scene (Find Law, 2009b).
Miranda Rights does not Safeguard the Accused from Arrest
In essence, any person suspected to have committed a crime can be arrested without being advised of his or her Miranda rights. The Miranda rights do not safeguard people from being arrested. What the Miranda rights uphold is keeping suspects from committing unintentional incrimination against themselves throughout the police interrogations. The Miranda warning itself is therefore not a constitutionally guarded right, but merely a mode to shield suspects against self-incrimination by providing them with counsel and other rights. Accordingly, if an arrested suspect demands the services of a counsel, then the interrogating officer has no choice but to discontinue any inquisitive conduct until an attorney of the suspect is present. Failing to follow this particular rule may cause the statements of the suspect inadmissible in any court proceedings.
Information Obtainable Without Miranda Warning
There is a number of certain personal information wherein police officers are allowed to inquire on a suspects or witnesses without necessarily reading to them their Miranda rights. These rights are limited to the persons name, date of birth, address, Social Security number, and other questions essential to establishing the identity of the person questioned. Likewise, a person can also be given drug and alcohol tests as well as taking other evidentiary materials relating to the person, such as vocal samples, handwriting samples, DNA samples and blood samples, without reading to them the Miranda warnings. Nevertheless, the person providing the aforesaid identification and evidentiary materials may decline or should not be forced to answer any incriminating questions asked by the police during any of the aforementioned process.
Police Interrogations
The numerous cases filed against violations of the Miranda warnings only prove that throughout the years many police officers have indeed been deceiving or attempting to deceive suspects to talk by not reading their Miranda rights. These police interrogations may be through clear-cut questioning, such as asking a suspect if he or she committed the crime, or may be less obvious, such as remarks made by the police that would probably draw out incriminating information from the suspect. This is one of the reasons why it is very important to demand the presence of a lawyer during custodial investigation.
Before or during police interrogations, a person is already guaranteed with the constitutional right to counsel. Accordingly, if a police officer is asking a person linking the latter to a particular crime, then such person can demand the assistance of a lawyer and may not be compelled to answer any of the questions related to the crime. This is still the case even if the person has not been informed by the police officer of his or her Miranda warnings. Moreover, even if there has been a formal charge against a suspect or the police placed him or her in a lineup, the aforesaid suspect must likewise be immediately provided with a lawyer (Find Law, 2009a).
Failure to Provide Warning to Right to Counsel
In the Miranda case, the United States Supreme Court highlighted that the right to a counsel during interrogation is the cornerstone of the safeguard against self-incrimination. Accordingly, the court declared that individuals under custodial interrogation by the government should be immediately informed of their right to counsel and that a counsel will be assigned for them if they cannot afford one (Find Law, 2009b). The Constitution does not demand a word for word presentation of the Miranda warnings as it is sufficient that the reading procedure effectively safeguards the person against forced self-incrimination. Moreover, the court held that if the interrogation was made without the assistance of a counsel even after the suspect was informed of such right, the government must show evidence that the suspect intelligently and knowingly relinquished the right to counsel (Find Law, 2009b).
Therefore, if government failed to provide a warning to the persons right to counsel during interrogations, or if the government cannot demonstrate that a valid waiver was given, then the answers will be inadmissible at trial. Any court that strips a defendant of his or her right to counsel under situations that do not validate a finding of a valid waiver should be declared to have infringed the fundamental right to due process and to counsel of the aforesaid defendant. Such infringement should result in a reversal of the order of the court that relied on such testimony extracted without the assistance of a counsel.
Fruit of the Poisonous Tree
The Fruit of Poisonous Tree doctrine is originally established in the case Silverthorne Lumber Co. v. U.S. (1920). The doctrine denotes the inadmissibility of testimonials, evidences, etc. gathered by the government through the employment of illegitimate methods (Silverthorne Lumber Co. v. U.S, 1920). It simply means that when the tree or the method used is poisonous, its fruit, or the evidence gathered, is likewise poisonous. Therefore, if the police discover significant information on account of an interrogation that infringes the Miranda rule, then that information is automatically not acceptable at trial (Find Law, 2009b). One ambiguity in this doctrine, however, is when the suspects break the sequence of evidence themselves by coming forward with new evidence such as impulsive admission regarding a crime. Accordingly, any information that are voluntarily disclosed by a person to a police officer after the latter has properly informed the person of his or her right to counsel are thus admissible at trial (Find Law, 2009b).
Competency Concerns
The right to counsel of the defendant is basically his or her right to the valuable assistance of counsel. The Sixth Amendments right to counsel encompasses the right of the defendant to retain counsel of his or her preference as well as to be represented in the fullest extent by such counsel. In case the defendant cannot pay for the services of a lawyer, the Court must provide one immediately from the start of case. By doing so, the defendant will be afforded with an effective assistance during the preparation, and at the hearing of his or her case, as well as for the counsel to take part fairly and fully in the adversary fact-finding process of the case and to put together an effective closing argument. In other words, a defendant must be provided with unrestricted and reasonable opportunity to consult and employ with counsel, otherwise, the right to be heard by counsel would be of little significance.
The role of the defense attorney is of fundamental importance in almost every stage of the judicial proceeding. The specific role of an attorney, however, generally varies depending on the case and the nature of the charges. The absence of a definite standard for measuring the competency of defense counsel has become the source of enormous confusion within state and federal courts. The confusion is basically manifested by the assortment of tests being employed by the courts nowadays. All the same, in harmony with the explanations on the preceding paragraphs, the foremost responsibilities of a defense lawyer may be summarized as follows
Counseling the defendant of his or her rights as well as clarifying to the latter what to anticipate at various stages of the proceedings
Discussing a plea bargain with the government on behalf of the defendant
Making sure that the constitutional rights of the defendant are not infringed during court proceedings and through law enforcement conduct and
Presenting legal defenses, objecting to improper evidence and questions, cross-examining witnesses, as well as investigating evidence and facts of the case (Find Law, 2009c).
Based on the foregoing responsibilities, a counsel clearly plays an important role in the adversarial system and in producing just results regarding the case. Accordingly, the presence of a lawyer at the trial together with the accused is not sufficient to assure the constitutional requirement to the right to counsel. All defendants need the knowledge and skill of counsels in order to effectively reject the attempts of the State to execute or imprison them. A defendant is therefore not only entitled to right to counsel, but most importantly entitled to the effective assistance of counsel.
Ineffective Assistance
It is worth mentioning that a defendant must sufficiently discuss with his or her counsel competently and honestly, all the facts indispensable to solve the case. Following the effort by the defendant however, if the assistance offered by the retained counsel is still manifestly ineffective, then such incompetence will be viewed under the Sixth Amendment as denial in trial against the defendant. The judge must therefore not only abstain from generating circumstances of ineffective assistance, but is also duty-bound under particular conditions to make inquiries whether the counsel of the defendant may render or is already rendering ineffective assistance. It is important is that the defendant is at all times not deprived of the assistance of an effective counsel.
Accordingly, the Court expressed a three component test for ineffective assistance of counsel in all criminal trial proceedings
There exists an attorney-client relationship
Deficient performance of the attorney and
Consequential injustice to the defense is so severe as to bring the result of the trial into question (Find Law, 2010a).
In cases where the competency of counsel is questioned, Courts have held that the requirement of the assistance of counsel under the Sixth Amendment is already satisfied if a reasonably adequate counsel has represented the defendant, and this presumption of competency is further satisfied when the counsel appears for the defendant. Therefore, the uncertain tactical choices carried out by a counsel do not automatically cause a conviction to be disposed of due to incompetency. In order to ascertain injustice that resulted from the incompetency of an attorney, the defendant must demonstrate that there is a reasonable possibility that the outcome of the case would have been different if not for the unprofessional inaccuracies of the counsel.
It is important to note that in order for a claim of counsel incompetency to be successful, the aforesaid three elements must be present. Without all of these elements, it cannot be declared that the conviction of a particular defendant is due to the incompetency of the counsel who caused the decision to be undependable. This test was eventually refined by the Court in Lockhart v. Fretwell (1993) by declaring that not only would a different trial outcome be possible as a consequence of attorney direction, but that the trial outcome which did take place was essentially unreliable or unfair (Lockhart v. Fretwell, 1993).
Grounds for Claim of Ineffective Assistance
Incompetency happens when a lawyer negligently and ineffectively handles a case that causes considerable harm to the defendants case. The standard of competency does not differentiate counsels appointed by the government or those privately hired by the defendants. Below are some of the most common grounds for claim of counsels ineffective assistance
Deficient and inadequate representation that results to the denial of the Sixth Amendment rights
Absence of the counsel through critical stages of the proceedings
Failure of the counsel to maintain sufficient communication with the defendant
Failure of the counsel to be diligent, prompt, and competent
Failure of the counsel to negotiate favorable results during the plea bargaining
Failure of the counsel to support the defendants premise of the case
Failure of the counsel to file well-timed motions
Failure of the counsel to subject prosecutions case to consequential adversarial testing
Failure of the counsel to investigate mitigating circumstances and evidence, which are necessary for sentencing
Performance of the counsel prejudiced defendant and was deficient and
Counsel offered appalling proposal, or had conflict of interest (Liberty International, n.d.).
If the defendant claims that his or her counsel is rendering ineffective services at any stage of the criminal proceeding, then a motion for mistrial or motion to dismiss should be filed immediately. These motions are important since during the appeal, any of the foregoing ineffectiveness of a counsel will result in waivers of such acts, which normally prejudices the defendant (Liberty International, n.d.). All the same, the defendant must present evidences of the prejudices to prove the counsels ineffectiveness. Moreover, the defendant must demonstrate that the counsels ineffectiveness has undermined the accurate implementation of the adversarial process. Finally, the court must take into consideration the totality of circumstances that resulted in an unfair trial or unreliable trial (Liberty International, n.d.).
Objective Standard of Reasonableness
The counsel is viewed at all times to make reasonable tactical decisions so that a constitutionally valuable assistance in the form of enthusiastic support of the defendants case is achieved. Likewise, a counsel is viewed to be duty bound to make reasonable investigation, as well as make rational decision. Failure to hold on to these standards exposes the counsel to disciplinary complaints or action. Nonetheless, judges charged with evaluating claims of ineffective assistance should avoid examining the counsel in retrospection and be highly deferential to actions of the counsel.
As explained on the preceding paragraph, as of the moment, there is no definite standard for measuring the competency of defense counsel. However, in many jurisdictions, the performance of a counsel is generally gauged through the objective standard of reasonableness test. The test revolves around the inquiry on whether or not the assistance of the counsel was reasonable considering all the prevailing norms of practice and circumstances as reflected by legal profession standards (Liberty International, n.d.). Accordingly, this test is based on a minimum standard that justifies the presumption that a counsel is indeed competently serving his function in the adversary system.
Conflicts in Representation
Basic is the rule that lawyers are obligated to meticulously stay away from representing conflicting interests. In fact, in several jurisdictions, lawyers are demanded to prevent themselves from being placed in a situation where they may show to be representing conflicting interests. As a result, on the occasion that the counsel is representing at least two defendants, the lawyer may claim to the trial judge in a timely manner that the potential conflicts of interests among or between the clients have made him or her incapable of delivering efficient legal assistance. However, the failure of the judge who is aware or should have been aware of the conflicting interest of the counsel to question as to whether or not such conflict was unfavorable is not a ground for the outright reversal of the case. Throughout the years, the United States Supreme Court has expanded and elaborated the conflict of interest principle through different cases under the following rules
The right to counsel of the Sixth Amendment pertains to defendants who are served by appointed counsel and to defendants who retain private counsel
Judges are not automatically obliged to commence an investigation into the accuracy of the multiple representation claimed in view of the fundamental rule that conflict of interest does not exist in the absence of special circumstances raised by the counsel or defendant and
In order to ascertain a violation, the defendant must prove that an actual conflict of interest has negatively affected the performance of his or her lawyer (Find Law, 2010).
Therefore, in a situation where a lawyer may not be able to faithfully discharge the responsibility of absolute loyalty to a client as a result of simultaneous responsibility of loyalty to another client, then it may be said that the lawyer is under conflicting interest (Flamm, n.d.). However, before a judge allows a conflict of interest request of a counsel, the former must first carefully scrutinize the counsels assertions, and unless the judge believes that the risk is not just isolated, he must not allow the appointment of a separate counsel. Some of the conflicts of interests that judges usually examine include adverse representation and multiple representations.
Adverse representation, also known as direct adversity conflict, is a type of conflict wherein lawyers represent one client in a way that is unfavorable to the interest of another existing client, but normally in a distinct matter (Flamm, n.d.).
Multiple representations, also known as concurrent or dual representations, is another type of conflict wherein a lawyers concurrently represent at least two clients with regard to the similar issue, and the interests of each of the client are or may eventually become conflicting (Flamm, n.d.).
Conflicts may sometimes arise when lawyers act in dual roles, as where lawyers concurrently serve as both legislator and a private counsel. It may also take place in a scenario where a counsel represents an organization and serves on its board of trustees or directors. In addition, conflict concerns may take place in parallel representation, as where a lawyer undertakes to represent simultaneously two or more plaintiffs in different cases against a single defendant who has inadequate assets out of which to assure an unfavorable judgment.
Conflicts Between Counsel and Client
Lawyers should likewise not allow their personal interests affect their exercise of independent judgment on behalf of an existing client. Should lawyers fall short of honoring this warning, the court may disallow them to handle the clients case or order other restrictions. One of the most common conflicts that occur between clients and lawyers is when a lawyer acquires proprietary interests in the case he or she is litigating (Flamm, n.d.). Therefore, the acquisition of a counsel of even reasonably little interests in litigation may give rise to his or her disqualification and in some cases, even the counsels law firm. Likewise, disqualification may occasionally be ordered in a circumstance where counsel enters into a media rights agreement with a criminal defendant.
In some cases, however, a lawyer may be authorized by court to represent a client even though he or she has a pecuniary interest in the case litigated. Nevertheless, to prevent conflicting interests and being disqualified, it is incumbent upon the counsel to divulge the nature of his or her interest completely as well as the potential unfavorable consequence on the client. Apart from this, the lawyer must get a hold of the educated consent of the client to continue to represent the latter, regardless of the conflicting interest.
Conclusion
The right to counsel is in essence a fundamental element of the right to a fair trial in view of the fact that in order for a trial to be reasonable, utmost legal assistance to the defendants must be provided. As such, the presence of the defendants counsel from which the defendant draws assistance and advice is indispensable. Although the Sixth Amendment does not directly mandate the presence of the defendants counsel during criminal proceedings, it is important to take note that every time the physical presence of the defendant is required by the court, the presence of the counsel is likewise automatically required. However, this present position of the criminal justice system has not traditionally been the situation in the United States, as the expansion of the guarantee of the right to counsel clause only began in the landmark during the 1930s.
Eventually, in the landmark case of Miranda v. Arizona, the United States Supreme Court ushered a period of court-enforced controls on the governments authority to interrogate the people they bring into custody. Following this case, courts have declared that the Sixth Amendments right to counsel is consequently attached from the time custodial investigation is initiated. For that reason, the government must see to it that the defendant is always provided with a competent counsel through unrestricted legal assistance, and interest that is consistent with the client.
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