Ignorance is Bliss: Why the Human Mind

Prevents Defense Attorneys From

Providing Zealous Representation While
Knowing a Client is Guilty

LAURA TERRASI*

INTRODUCTION

I
ndividuals are all susceptible to the flaws of the human mind. 1
Unconscious biases occur frequently and arise from everyday
surroundings and experiences.2 Attorneys—defense attorneys in
particular—are not immune to these psychological biases when reviewing
evidence and representing a client.3 At some point in their career, defense
attorneys will represent someone who they know is guilty.4 Even if a client
does not outright admit his or her guilt, when a client has committed a
heinous crime, guilt may be obvious through overwhelming evidence.5
Representation that involves particularly heinous and high profile crimes,
comes with numerous hours of work, complex and gruesome evidence, as
well as society’s reaction to the crime.6 Additionally, various psychological

* 2017 New England Law| Boston graduate. This Note was written during my third year
of law school, during which I took Professor Eldred's Criminal Defense Ethics course. It is in
this class where I was introduced to the psychology behind criminal defense ethics, and I
thank Professor Eldred for introducing me to this topic. I also would like to thank my law
school colleagues, who helped me prepare this Note, and my friends and family for their
support.
1 See infra Part III.
2 See infra Part III.
3 See infra Part III.

4 See K. Craig Welkener, Possible But Not Easy: Living the Virtues and Defending the Guilty, 26

GEO. J. LEGAL ETHICS 1083, 1087 (2013).

5 See Susan Bandes, Repression and Denial in Criminal Lawyering, 9 BUFF. CRIM. L. REV. 339,

369 (2006).
6 See Joe Kelly, The Genesis of Corruption in Criminal Lawyers, 25 GEO. J. LEGAL ETHICS 591,

101
102 New England Law Review [Vol. 52

barriers come into play that prevent a defense attorney from providing
zealous representation.7 Because these psychological barriers occur without
a person even realizing it, defense attorneys are not psychologically
capable of providing zealous and effective representation when they know
that their client has committed a heinous or repugnant crime.8
This Note will discuss various psychological barriers, how they
negatively affect criminal defense attorneys, and how they lead to burnout
and a lack of zealous representation. This Note will explore why these
psychological barriers and biases occur, and how they cannot be
prevented, only addressed. Part I will provide a background on
psychological barriers and how the Model Rules of Professional Conduct
promote zealousness of all attorneys. Part II addresses why this issue is
important and why a Model Rule needs to be implemented to promote
zealous representation among defense attorneys. Part III will more deeply
explore psychological barriers that occur when a defense attorney knows
that his or her client is guilty. This Note will argue that zealous
representation is not possible when these psychological barriers occur at an
unconscious level. Finally, Part IV will explore possible remedies
addressed from a new Model Rule of Professional Conduct and courses in
law school curriculum.

I. Background

A. Effective Assistance of Counsel

The Sixth Amendment affords every individual the right to counsel.9

Included in this right to counsel is that it is effective,10 the goal of which is to
afford every criminal defendant a fair trial.11 By including the right to
effectiveness of counsel, the Sixth Amendment ensures that attorneys have
the necessary skill and competence to assist clients on their charges. 12
Thus, defense counsel can deprive a defendant of his or her Sixth
Amendment right by “failing to render ‘adequate legal assistance.’”13
Indeed, effective assistance of counsel is “central to the legitimacy and
premises of the adversary system.”14 However, since the landmark decision

596 (2012).
7 See Bandes, supra note 5, at 365–66.

8 See infra Part IV. (A).

9 U.S. CONST. amend. VI.

10 Strickland v. Washington, 466 U.S. 668, 687 (1984) (emphasis added); See McMann v.

Richardson, 397 U.S. 759, 771 (1970).

11 See ALFREDO GARCIA, THE SIXTH AMENDMENT IN MODERN AMERICAN JURISPRUDENCE 1

(1992).
12 See U.S. v. Cronic, 466 U.S. 648, 656 (1984).
13 Strickland, 466 U.S. at 687; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
14 GARCIA, supra note 11, at 30.
2019] Ignorance is Bliss 103

in Gideon v. Wainwright,15 effective assistance has proved difficult to

determine by the courts.16 The analysis in Strickland v. Washington also
makes it nearly impossible for a client to prove that he or she was afforded
ineffective assistance. Although Gideon affords every individual facing
criminal charges the right to an attorney,17 the Strickland standard requires
that counsel’s performance prejudiced the defense, and deprived the
defendant of a fair trial. 18 In addition to this mandatory case law, Model
Rules have also been implemented to promote effective and zealous
representation.19

B. The Model Rules of Professional Conduct

Other rules are in place to ensure and help determine the effectiveness
of counsel.20 For example, the American Bar Association’s Model Rules of
Professional Conduct include numerous rules aimed at promoting effective
assistance of counsel.21 With this goal in mind, the Model Rules have
evolved over the last century—beginning with the Canons of Professional
Ethics in 1908, and evolving into the Model Code of Professional Responsibility
in 1969.22 The ABA Model Rules of Professional Conduct were officially
adopted by the ABA House of Delegates in 1983 and serve as a model for
most states for their ethical rules.23
Throughout their development, the Model Rules have always focused
on attorney competency and effectiveness, as seen in Canon Five of the
Professional Ethics.24 It states:
It is the right of the lawyer to undertake the defense of a person
accused of crime, regardless of his personal opinion as to the
guilt of the accused; otherwise innocent persons, victims only of
suspicious circumstances, might be denied proper defense.

15 Gideon v. Wainwright, 372 U.S. 335, 345 (1963).

16 See GARCIA, supra note 11, at 32.
17 Gideon, 372 U.S. at 345.

18 See Strickland, 466 U.S. at 687.

19 See, e.g., MODEL RULES OF PROF’L CONDUCT (1983); MODEL CODE OF PROF’L

RESPONSIBILITY (1980).
20 See, e.g., MODEL RULES OF PROF’L CONDUCT (2017); MODEL CODE OF PROF’L
RESPONSIBILITY (2017).
21 See, e.g., MODEL RULES OF PROF’L CONDUCT R. 1.3 (2017) (stating that a lawyer must

provide competent representation); MODEL RULES OF PROF’L CONDUCT R. 1.1 (2017)

(describing lawyer competency as the proper knowledge, “skill, thoroughness and
preparation reasonably necessary for the representation”).
22 See Richard Painter, Rules Lawyers Play By, in FOUNDATIONS OF THE LAW AND ETHICS OF
LAWYERING 58 (Roberta Romano ed., 2004); ABA Model Rules of Professional Conduct: About the
Rules, A.B.A., https://perma.cc/ZL3G-BELX (last updated Oct. 19, 2018).
23 ABA Model Rules of Professional Conduct: About the Rules, supra note 22.
24 CANONS OF PROFESSIONAL ETHICS CANON 5 (1908).
104 New England Law Review [Vol. 52

Having undertaken such defense, the lawyer is bound by all fair

and honorable means, to present every defense that the law of the
land permits, to the end that no person may be deprived of life or
liberty, but by due process of law.25

In the current preamble to the Model Rules, a lawyer’s responsibilities

are outlined. They state that a lawyer should be competent, prompt, and
diligent in all professional functions.26 Rule 1.1 states that an attorney must
be competent.27 The comments to this rule explain that to be effective, a
lawyer need not be an expert in a specific area of law—rather, a lawyer is
competent when he or she conducts the necessary research to become
familiarized with a case. 28 Similarly, Rule 1.3 states that an attorney must
act with diligence and promptness.29 The comments further explain that “a
lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and take whatever
lawful and ethical measures are required to vindicate a client’s cause or
endeavor.”30 A lawyer is also obligated to be fully committed and
dedicated to his or her client’s interests.31 These Model Rules promote
effective assistance of counsel by demanding diligence from all attorneys—
including those who practice defense.32

C. What is Zealous Representation?

As seen through the Model Rules, attorneys seek to practice and

promote zeal, yet may not be able to fully explain what that means.33 A
zealous person is defined as “ardently active, devoted, or diligent.”34 When
it comes to representation of a client, zeal has two elements. 35 First, there
must be a bias for one’s client, where an attorney cares for his or her client
above all else, along with “emotional energy and commitment to the

25 Id.
26 Eliane Reich, THE LEGISLATIVE HISTORY OF THE MODEL RULES OF PROFESSIONAL CONDUCT:
THEIR DEVELOPMENT IN THE ABA HOUSE OF DELEGATES, 7 (1987).
27 MODEL RULES OF PROF’L CONDUCT R. 1.1 (2014).

28 MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 1 (2014).

29 MODEL RULES OF PROF’L CONDUCT R. 1.3 (2014).

30 MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 1 (2014).

31 See id. (stating that attorneys “must also act with commitment and dedication to the

interests of the client and with zeal in advocacy upon the client's behalf”).
32 See generally MODEL RULES OF PROF’L CONDUCT (2014) (implementing

Model Rules for all attorneys that promote competency and diligence).
33 See Anita Bernstein, The Zeal Shortage, 34 HOFSTRA L. REV. 1165, 1165 (2006) (“Zeal

manifests itself as a force in both the performance and the theory of advocacy: Lawyers
practice it, and they preach it. As an element of advocacy as lawyers practice it, zeal is hard to
measure.”).
34 See Bernstein, supra note 33, at 1168.
35 See Bernstein, supra note 33, at 1170.
2019] Ignorance is Bliss 105

representation.”36 Second, is a “degree of independence, which allows for

dispassionate judgment to prevent losing sight of legal and ethical
boundaries as well as the risks of contemplated actions.”37 Commitment to
the client’s side and passion, are vital characteristics for a zealous attorney,
and one cannot be zealous without being eager and devoted to the just
outcome of a case.38 Thus, a defense attorney has to put his or her client
before his or herself, and commit to providing a strong defense.39 Many
defense attorneys have their own reasoning for why they are able to do
this.40

D. How Defense Attorneys Justify Representing the Guilty

Effectiveness of counsel is especially important when it comes to

defense work because a defense attorney is an accused’s voice in the
courtroom, and responsible for looking out for the client's best interests.41
An attorney practicing criminal defense is bound to end up representing a
guilty client.42 “How can you defend someone you know is guilty?”43 is a
widely asked question, for which defense attorneys may have a variety of
answers.44
First, as previously stated, the Sixth Amendment affords individuals
the right to counsel.45 This constitutional right makes it easy for defense
attorneys to justify representing a client who is guilty of a crime—because
the Sixth Amendment does not discriminate based on one’s guilt or the
type of crime committed.46 This is known as the “Constitutionalist’s

36 Bernstein, supra note 33, at 1170; Sylvia Stevens, Whither Zeal? Defining ‘Zealous

Representation,’ 65 OR. ST. B. BULL., 27, 28 (2005).

37 Bernstein, supra note 33, at 1170; Stevens, supra note 36, at 28.

38 See Bernstein, supra note 33, at 1171; George A. Riemer, Zealous Lawyers, 59 OR. ST. B.

BULL., 31, 31–32, (1988).

39 See Bernstein supra note 33; Riemer, supra note 38, at 31–32.

40 See Barbara Allen Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175, 175–79 (1983);

See generally Barbara Babcock, Defending the Guilty After 30 Years, in HOW CAN YOU REPRESENT
THOSE PEOPLE? 1, 3 (Abbe Smith & Monroe H. Freedman eds., 2013) [hereinafter HOW CAN
YOU REPRESENT THOSE PEOPLE?] (discussing various stories for why different defense
attorneys are able to practice criminal defense).
41 See Defense Function, Americanbar.org, https://perma.cc/MYZ7-QYEV (last visited Apr.

19, 2019); A Criminal Defense Lawyer’s Role, ILL. STATE BAR ASSOC. https://perma.cc/W2L3-
FXMU (last visited Apr. 19, 2019).
42 See generally Welkener, supra note 4, at 1087 (discussing virtue ethics to a difficult in

regards to criminal defense of a client who has privately disclosed actual guilt).
43 See Babcock, supra note 40, at 175–77.
44 See Babcock, supra note 40, at 175–77.
45 See supra Part I. A.

46 See Brent E. Newton, “How Can You Defend A Person You Know is Guilty?”: Reflections of

A Public Defender, 33 AM. TRIAL ADVOC. 167, 168 (2009).

106 New England Law Review [Vol. 52

Answer” and focuses on the notion of equal justice for all.47 Because all
individuals are afforded rights under the Constitution, it is not up to
defense attorneys to take away these rights. 48 Instead, a defense attorney
works to uphold these rights.49
Another common explanation for representing the factually guilty is
the presumption of innocence.50 This presumption is perhaps one of the
most important rights afforded to a defendant because it allows a
defendant to begin trial as an innocent person in the eyes of the court. 51 It
raises the question of whether the defendant is certainly guilty and
requires skepticism to be used by the jury during their inquiry throughout
all stages of a trial.52 Because, in the eyes of the law, the defendant is
innocent until the prosecution proves otherwise, defense attorneys may
find it easier to represent a client who admits his or her guilt.53
Relatedly, the prosecution must prove its case-in-chief beyond a
reasonable doubt.54 Because a defendant is not required to present a case
during trial, a defense attorney may justify defending a guilty client by
viewing a “not guilty” verdict as one that “does not necessarily mean that
jurors believed that the defendant was innocent of the crime charged.”55
Arguably, this only means that the jury found sufficient doubt in the
prosecution’s case, thereby justifying an attorney's defense of a guilty
client.56 This is known as the “Legal Positivist’s Answer” and focuses on
the idea that “truth cannot be known . . . a finding of guilt is not necessarily
the truth, but instead is a legal conclusion arrived at after the role of the

47 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 3.

48 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 3.
49 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 3.

50 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 9; Folt’s Argument for

Public Defense, https://perma.cc/45FL-YUVN (last visited Apr. 19, 2019).

51 See Coffin v. US, 156 U.S. 432, 453 (1895) (holding that “the principle that there is a
presumption of innocence infavor of the accused is the undoubted law, axiomatic and
elementary, and its enforcement lies at the foundation of the administration of our criminal
law”).
52 See Henry L. Chambers, Jr., Reasonable Certainty and Reasonable Doubt, 81 MARQ. L. REV.

655, 671 (1998).

53 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 9; Folt’s Argument for

Public Defense, supra note 50.

54 See Katherine Goldwasser, Vindicating the Right to Trial by Jury and the Requirement of
Proof Beyond A Reasonable Doubt: A Critique of the Conventional Wisdom About Excluding Defense
Evidence, 86 GEO. L.J. 621, 633 (1998) (explaining that the “beyond a reasonable doubt
requirement has been part of Anglo-American law for centuries”); Lucille A. Jewel, The
Bramble Bush of Forking Paths: Digital Narrative, Procedural Rhetoric, and the Law, 14 YALE
J. L. & TECH. 66, 68 (2011).
55 Newton, supra note 46, at 173.

56 See Newton, supra note 46, at 173.

2019] Ignorance is Bliss 107

defense lawyer has been fully played.”57

In addition to justifications based on basic rights of a defendant, others
draw on human nature and reasoning to justify defending the guilty. 58 The
“Humanitarian’s Answer,” in particular, focuses on the fact that criminal
defendants are simply people who are in need of help and that it is a
lawyer’s job to help them.59 Similarly, the “Social Worker’s Reason” focuses
on the fact that many of those in need of a public defender are part of the
lower socioeconomic class.60 Already at a disadvantage, those accused of a
crime—and members of the lower class—benefit by having a defender
because a defender is there to advocate for them.61 Accordingly, just by
having someone on their side, individuals in the lower-class are given
access to resources that they would not have otherwise—making a criminal
defense attorney feel as though he or she is really making a difference in
people’s lives.62
Lastly, at another extreme, many criminal defense attorneys justify the
work that they do simply because they find it interesting.63 Representing
those accused of heinous crimes involve intense facts and evidence, and
defense attorneys are able to argue these facts in court early on in their
careers.64 A defense attorney is often categorized as the “underdog” and
winning a case in this capacity is thrilling for many. 65 Despite these
justifications, there remains numerous barriers that will not allow a defense
attorney to zealously represent his or her client.66

57 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 3.

58 See, e.g., HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4; Babcock, supra
note 40, at 178.
59 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4; Babcock, supra note 40, at
178.
60 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4; Babcock, supra note 40, at

178; Anthony D’Amato & Edward J. Eberle, Three Models of Legal Ethics, NW. U. SCH. OF L. 1, 7
(2010) https://perma.cc/4LEC-AQB6.
61 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4; Babcock, supra note 40,

at 178.
62 See HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4; Babcock, supra note 40,

at 178.
63 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4.

64 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4.

65 HOW CAN YOU REPRESENT THOSE PEOPLE?, supra note 40, at 4 (“To win as an underdog,

and to win when the victory is clear—there is no appeal from a ‘Not Guilty” verdict – is
sweet.”).
66 See, e.g., Tigran Eldred, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent

Defendants in Criminal Cases, 65 RUTGERS L. REV. 333, 356 (2013); Keith A. Findley & Michael A.
Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292
(2006) (describing how tunnel vision leads to false confessions and faulty investigations); Ian
Weinstein, Don’t Believe Everything You Think: Cognitive Bias In Legal Decision Making, 9
CLINICAL L. REV. 783, 796 (2003).
108 New England Law Review [Vol. 52

E. Psychological Barriers

The psychological barriers that occur when a defense attorney

represents the accused—particularly those guilty of a heinous crime—
occur at an unconscious level.67 Morality, tunnel vision, repression, and
burnout, are all various phenomena that need to be addressed in order for
a defense attorney to effectively represent the guilty.68

1. Morality

Morals shape who we are as people and “govern an individual’s

behaviors and choices.”69 When a defense attorney’s morals come into
conflict with a case that he or she views as repugnant, the duty to provide a
zealous defense can come into conflict with his or her sense of moral
sensibility.70 The Model Rules of Professional Conduct state that an
attorney does not take on his or her client’s moral views during
representation, but a lawyer still needs to represent his or her client’s
interests.71 Although a defense attorney is not morally responsible for the
outcome of a trial, knowing that his or her client has committed a heinous
crime may make a defense attorney feel otherwise.72

2. Tunnel Vision

Tunnel vision is defined as the “compendium of common heuristics

and logical fallacies, to which we are all susceptible, that lead actors in the
criminal justice system to focus on a suspect, select and filter the evidence
that will ‘build a case’ for conviction, while ignoring or suppressing
evidence that points away from guilt.”73 Tunnel vision affects defense

67 See Anthony W. Batts, Maddy DeLone & Darrel W. Stephens, Policing and Wrongful

Convictions, NCJRS.gov 6 (Aug. 2014), https://perma.cc/2X7T-2N79.

68 See generally Eldred, supra note 66 (discussing cognitive biases and how they negatively

affect a defense attorney’s decision making); Findley & Scott, supra note 66, at 292 (describing
how tunnel vision leads to false confessions and faulty investigations).
69 Moral Values, ALL ABOUT PHILOSOPHY, https://perma.cc/46TS-CCGH (last visited Apr. 20,

2019).
70 See Kresenda L. Keith, Ethical Dilemmas in Representing the Factually Guilty Client,

ACADEMIA 5–6, https://perma.cc/6Z74-DEF3 Client (last visited Apr. 20, 2019).

71 MODEL RULES OF PROF’L CONDUCT R. 1.2(b); Anthony A. Borgeas,

Necessary Adherence to Model Rule 1.2 (b): Attorneys Do Not Endorse the Acts or Views of
Their Clients by Virtue of Representation, 13 GEO. J. LEGAL ETHICS 761, 761 (2000); Richard J.
Heafey, Moral Attorneys; Moral People, MARKULA CTR. FOR APPLIED ETHICS (Nov. 12,
2015), https://perma.cc/84CS-R7SF.
72 See Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public

Defenders, 106 HARV. L. REV. 1239, 1249 (1993).

73 Findley & Scott, supra note 66, at 292.
2019] Ignorance is Bliss 109

attorneys just as much as it affects police officers and prosecutors.74 When

an attorney is fixed on a certain conclusion, tunnel vision works by filtering
information to support this conclusion, even when the information
otherwise would not have supported that conclusion.75 Similarly, it causes
an attorney to overlook information or facts that do not support his or her
conclusion.76 Tunnel vision “by definition emerges in hindsight.”77 This
means that a defense attorney cannot realize that he or she is under the
"spell" of tunnel vision.78
Tunnel vision is made up of two types of cognitive biases, confirmation
bias and hindsight bias.79 Confirmation bias is “the tendency to seek
information and evidence that bolster existing expectations and
hypotheses.”80 It is a type of motivated reasoning that causes a defense
attorney, who begins a case knowing that his her client is guilty, to “engage
in an unconscious effort to gather information that is consistent with that
conclusion.”81 This bias is a natural aspect of human cognition and works
without human awareness.82 Hindsight bias, on the other hand, differs
from confirmation bias because hindsight bias refers to “the tendency to
think that an eventual outcome was much more likely to occur than one
originally expected.”83 When an individual creates a memory, he or she
draws upon prior experiences and beliefs.84 Hindsight bias is also known as
the “‘I knew all along’ phenomenon because it is a projection of new
knowledge into the past accompanied by a denial that the outcome
information has influenced judgment.”85 This bias is subject to error
because an individual does not realize that he or she is combining past
beliefs in order to form new information or memory. 86 This lack of
awareness causes an individual to become overconfident in their ideas,

74 See Findley & Scott, supra note 66, at 292.

75 See Findley & Scott, supra note 66, at 292.
76 See Findley & Scott, supra note 66, at 292.

77 Mark Godsey, The Dangers of Tunnel Vision, THE WRONGFUL CONVICTIONS BLOG (Dec. 5,

2012), https://perma.cc/QF65-K9SV.
78 See Batts et. al., supra note 67.
79 Eldred, supra note 66, at 356; see Batts et al., supra note 67.
80 Batts et al., supra note 67.

81 Eldred, supra note 66, at 356–57.

82 Saul M. Kassin et al., The Forensic Confirmation Bias: Problems, Perspectives, and

Proposed Solutions, J. OF APPLIED RESEARCH IN MEMORY & COGNITION 47 (2013),

https://perma.cc/5X5G-TUG9.
83 Batts et al., supra note 67.

84 Batts et al., supra note 67.

85 Scott A. Hawkins & Reid Hastie, Hindsight: Biased Judgments of Past Events After the

Outcomes Are Known, 7 PSYCHOL. BULL. 311, 311(1990).

86 Id.
110 New England Law Review [Vol. 52

thereby reinforcing a conclusion that is not necessarily correct. 87 Other than

these biases, defense attorneys also face other emotional barriers, such as
repression and denial, and burnout, which negatively affect their ability to
represent a client.88

3. Repression and Denial

Faced with a client who has committed a particularly gruesome crime,

a defense attorney may find it easier to suppress his or her feelings towards
the crime, the victim, and society’s reaction, and instead keep an objective
view of the case.89 This is known as selective empathy and can occur
naturally when a defense attorney is representing the guilty. 90 Selective
empathy allows the identification of items of importance, assessment of
risks, and evaluation of other’s intentions.91
Although repressing feelings towards a client’s horrific crime may
seem to be the right—and most sensible—thing to do, a lawyer’s
“emotional responses and the interpersonal dynamics between lawyer and
client are almost always important and may often be determinative of the
decisions clients make.”92

4. Burnout

Confronting gruesome facts, facing sympathetic victims and their

families, meeting offenders of brutal crimes, and repressing emotions, will
eventually take a heavy toll on criminal defense attorneys, causing
eventual disinterest in their job and responsibilities. 93 There are numerous
reasons why attorneys lose interest in their work, one of which includes
burnout, a widely experienced phenomenon among defense attorneys.94

87 Batts et al., supra note 67 (explaining that “a lack of awareness, along with a propensity

to be overconfident about one’s beliefs, can reinforce a premature conclusion”).

88 See, e.g., Bandes, supra note 5, at 345 (discussing the idea of repression of emotions in

criminal defense work); Lee Norton et al., Burnout and Compassion Fatigue: What Lawyers Need
to Know, 84 UMKC L. REV. 987, 990 (2016) (explaining what burnout is and how it impacts
attorneys).
89 Compare Bandes, supra note 5, at 345 (discussing the mechanisms in which those working

in law develop to become indifferent to the cases they deal with daily, rather than becoming
engulfed with emotions during each case), with Sara Rimer, Lawyer Sabotaged Case of a Client on
Death Row N.Y. TIMES (Nov. 24, 2000) https://perma.cc/PNF8-EAHE (describing attorney who
purposefully did not file motion for his client’s appeal because he did not like him).
90 See Bandes, supra note 5, at 363.

91 See Bandes, supra note 5, at 342

92 Weinstein, supra note 66, at 786.

93 See generally Norton et al., supra note 88 (explaining what burnout is and how it impacts

attorneys).
94 Barbara Babcock, “How Can You Defend Those People?”: The Making of a Criminal Lawyer,

53 GEO. WASH. L. REV. 310, 314 (1985) [hereinafter The Making of a Criminal Lawyer] (reviewing
2019] Ignorance is Bliss 111

Symptoms of burnout include: “depression, cynicism, boredom, loss of

compassion and discouragement.”95 Working long hours and with difficult
clients only worsens these symptoms.96 Litigators in general burn out at a
high rate.97 However, when a particularly heinous crime and aggravating
evidence against a client are coupled together, burnout is even more likely
to occur.98
Many former public defenders, “attribute burnout to the psychological
impact of confronting hundreds of crimes, victims, and criminals on a daily
basis.”99 A criminal defense attorney does not “represent murderers and
rapists to express their support for murder and rape; they must find
justification within the norms of the profession . . . .”100 For criminal
defense attorneys, identifying and maintaining a purpose greatly reinforces
the work that they do.101 When this purpose is lost or forgotten, burnout
results.102
If defense attorneys allow their client’s guilt or innocence to weigh on
them, burnout is more likely to occur.103 When defense attorneys realize
that their client is guilty—and that others will likely be as well—their role
becomes corrupted, and [o]nce [defense attorneys "consciously recognizes
this fact, [their] work becomes insupportable and [they are] disabled.”104
Burnout is also associated with internal psychological conflicts,
“whereas at other times it is a conflict between the lawyer’s values and
those of the organization at which he or she works.”105 This results in a
diminished attorney-client relationship because when an attorney is
overworked and experiencing these symptoms, he or she does not spend
the required time on cases and cannot give clients the amount of dedication
that is necessary to adequately represent them. 106 It is vital to address this

JAMES S. KUNEN, “HOW CAN YOU DEFEND THOSE PEOPLE?”: THE MAKING OF A CRIMINAL
LAWYER (1983)).
95 Geralyn Datz, The Enlightened Lawyer Overcoming Stress and Creating Balance, 62 LA. B.J.

275, 276 (2015).

96 Id.

97 Janine Robben, Burnout Cautionary Tales, 69 OR. ST. B. BULL. 16, 17 (2008).
98 Id.

99 The Making of a Criminal Lawyer, supra note 94, at 314.

100 Joe Kelly, The Genesis of Corruption in Criminal Lawyers, 25 GEO. J. LEGAL ETHICS 591,

596 (2012).
101 See Norton et al., supra note 88, at 996.

102 See Norton et al., supra note 88, at 996 (“When we lose sight of our purpose, something

essential is lost, and this loss of vision contributes significantly to burnout.”).

103 See Bandes, supra note 5, at 367.
104 Bandes, supra note 5, at 367, 369.
105 Dan Lukasik, Lawyer Burnout, LAWYERS WITH DEPRESSION (Feb. 28, 2013),

https://perma.cc/75LM-9P4E.
106 See Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV.
112 New England Law Review [Vol. 52

connection between the psychological barriers mentioned above and

burnout, because without addressing this connection, defense attorneys are
not able to zealously represent their clients and provide effective
assistance.107

II. A New Model Rule Should be Implemented to Ensure Zealous

Representation of all Defendants

This issue is important because the previously discussed psychological

phenomena occur without defense attorneys realizing it.108 This is a
dilemma because defense attorneys need to be ready to zealously represent
those accused of crimes, including those accused of particularly heinous
crimes.109 Without zealous representation, individuals’ most basic
constitutional rights, which defense attorney’s help to ensure are carried
out, may become non-existent.110 Defense attorneys must ensure that such
constitutional injustices are not systematically ignored.111 A criminal
defense lawyer “must be able to stand up to enormously powerful forces,”
and unconscious biases are often overlooked as one of these powerful
forces.112 It is difficult enough for defense attorneys to determine the
necessary emotional strategies needed to defend someone guilty of a
gruesome crime, and without addressing the problem, it will continue to
burden defense attorneys.113 It is easy to acknowledge that psychological
biases and unconscious influences exist, but difficult for defense attorney’s
to contemporaneously notice and prevent them. 114 The “starting point for
most defense lawyers is the belief that their clients are likely guilty of the
crimes charged, [so] any effort to reduce confirmation bias must seek to

461, 473-75 (2007) (explaining that “experienced attorneys often are so demoralized by their
inability to spend adequate time on their cases that they are unable to exert the effort
necessary even to maintain contact with clients, let alone to provide effective
representation.”); see, e.g., Roy Carroll & Simon Hattenstone, Defending the Indefensible?
Lawyers on Representing Clients Accused of Nightmarish Crimes, GUARDIAN (June 27, 2014, 10:00
AM), https://perma.cc/3T53-LU8H (describing the story of William Kelley and how defending
Charles Ng negatively affected his life.)
107 See Monroe H. Freedman, Why It’s Essential to Represent “Those People,” in HOW CAN
YOU REPRESENT THOSE PEOPLE? 73, 78-79 (Abbe Smith & Monroe H. Freedman eds., 2013).
108 See Eldred, supra note 66, at 356; Batts et. al., supra note 67; Saul M. Kassin et al., The

Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions, J. OF APPLIED RESEARCH
IN MEMORY & COGNITION 47, 50 (2013), https://perma.cc/6SWN-JELR.
109 See Freedman, supra note 107, at 74.
110 See Freedman, supra note 107, at 74.
111 See Freedman, supra note 107, at 75, 78.
112 See Freedman, supra note 107, at 79.
113 See Bandes, supra note 5, at 349.
114 See Eldred, supra note 66, at 338.
2019] Ignorance is Bliss 113

counteract that predisposition.”115 Therefore, it is necessary to acknowledge

new ways to prevent these biases and promote zealous representation.116
Two outlets that can be used to address these issues are inside of the law
school classroom, and through the Model Rules of Professional Conduct.117

ANALYSIS

III. Unconscious Psychological Barriers Impede a Defense Attorney’s

Ability to Follow the Model Rules of Professional Conduct and
Provide Effective Assistance

A. Morality as a Barrier

Defense attorneys must remain morally neutral.118 This means that an

attorney’s moral views must be kept to his or herself because it is an
attorney's professional responsibility to do so, regardless of how he or she
may actually feel towards the client and the crime.119 Morals can become an
issue when it comes to representing those guilty of heinous crimes because
[I]t is . . . easier for us to believe . . . in our own errors regarding
moral judgment . . . few think it necessary to take any precautions
against their own fallibility, or admit . . . that any opinion, of
which they feel . . . certain, may be one of the examples of the
error to which they acknowledge themselves to be liable.120
This means that morals can cause individuals to make errors when
faced with a situation that goes against these views. 121
Further, when we are able to go against our own moral views, we may
experience “significant betrayal of self” for going against what we
believe.122 This is also known as a moral conflict of interest, and it can
impair an attorney’s loyalty to his or her client by clouding professional
judgment.123 Even if a defense attorney believes that he or she is able to

115 Eldred, supra note 66, at 390.

116 See Eldred, supra note 66, at 390.
117 See Sean Jaramillo, Lawyer Psychology, UNLV NEWS CTR. (Nov. 26, 2012),

https://perma.cc/LP3C-HSUX.
118 Robert F. Cochran, Jr., Crime, Confession, and the Counselor-at-Law: Lessons from

Dostoyevsky, 35 HOUS. L. REV. 327, 341 (1998).

119 Stewart v. Holland, 876 P.2d 357, 362 (Utah 1994); Robert F. Cochran, Jr., supra note 118,

at 341 (“Attorneys are bound to have private feelings about the clients they represent and
their guilt or innocence, but it is their professional responsibility to set aside private feelings
and judgments.”).
120 Katherine R. Kruse, Lawyers, Justice, and the Challenge of Moral Pluralism, 90 MINN. L.

REV. 389, 405 (2005) (internal citation omitted).

121 See id.
122 Id. at 404.
123 See id. at 393; see also MODEL RULES OF PROF’L CONDUCT r. 1.7 (a) (2) (2017) (prohibiting
114 New England Law Review [Vol. 52

represent a client who is guilty of a gruesome crime, an attorney still needs

to be aware of moral sensitivity.124 Moral sensitivity is “a recognition of the
effects of one’s own actions on others.”125 Without moral sensitivity, a
defense attorney may make the wrong moral judgment, and fail to be a
zealous advocate.126
For instance, appointed to represent Russell Tucker in his appeal,
David B. Smith did not initially refuse to take Tucker's case.127 Tucker
robbed a K-Mart store and shot and killed the security guard who had
chased after him.128 Smith was known as one of the “best trial lawyers” and
was generally opposed to the death penalty—the punishment his client
was facing.129 However, after reading the trial transcripts and meeting
Tucker, Smith decided that he did not like him and did the unthinkable; he
purposely missed a deadline for filing a key motion in Tucker’s appeal.130
This is an example of an attorney who followed his own morality even
though he knew that it was wrong.131 Smith came forward years later,
stating in an affidavit that he “decided that Mr. Tucker deserved to die.”132
Smith is also an example of an attorney who agreed that the defense of
his client was justified as part of our judicial system, yet who could not
zealously represent his client because he had no motivation or moral
reason to do so.133 Smith realized that what he did was wrong, as
evidenced by his actions in coming forward.134 However, at the time he was
representing Tucker, his moral compass simply would not allow him to
fulfill his role as a defense attorney and fight zealously for his client on his
appeal.135 This is often referred to as “moral pluck,” where a lawyer cuts
“ethical corners in order to do what they perceive as the right thing.”136
Although this may have been the right thing in Smith’s eyes, his client was

representation when it will be materially limited by an attorney’s personal interests).

124 See Cochran, supra note 118, at 386.
125 Cochran, supra note 118, at 385; see William H. Simon, The Ideology of Advocacy,
Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29, 133 (1978).
126 See Cochran, supra note 118, at 386.
127 Rimer, supra note 89.
128 Rimer, supra note 89.

129 Rimer, supra note 89.

130 Rimer, supra note 89.

131 Ogletree, Jr., supra note 72, at 1249.

132 Rimer, supra note 89.

133 Charles J. Ogletree, Jr., supra note 72 at 1242.

134 Rimer, supra note 89.

135 See MODEL RULES OF PROF’L CONDUCT r. 1.1 cmt. 1.

136 Michael Asimow & Richard Weisburg, When the Laywer Knows the Client is Guilty: Client

Confessions in Legal Ethics, Popular Culture, and Literature, 18 S. CAL. INTERDIS. L.J. 229, 249
(2009).
2019] Ignorance is Bliss 115

almost executed as a result of his inaction to file a key motion. 137 In

addition to the aforementioned, it is likely that Smith experienced tunnel
vision due to his morals and early judgments of his client. 138

B. Tunnel Vision: The Workings of Unconscious Biases

Tunnel vision receives its name from causing the mind to focus on one
outcome and preventing it from seeing items that contradict a desired
outcome.139 A person experiencing tunnel vision simply cannot see things
clearly and overlooks the bigger picture.140 In everyday decisions, tunnel
vision manifests itself in the form of fear, and causes someone who is in
fear of making the wrong decision to refrain from trying new things. 141
In the criminal justice system, tunnel vision can affect every stage of an
investigation.142 Police officers often experience tunnel vision while
investigating a crime and arresting individuals. 143 The prosecution can also
be affected by tunnel vision, thinking that they have a stronger case than
may be true against the individual of interest. 144 Criminal defense attorneys
are not immune from tunnel vision, either.145
Tunnel vision is the “‘compendium of common heuristics and logical
fallacies,’ to which we are all susceptible, that lead actors in the criminal
justice system to focus on a suspect, select and filter the evidence that will
build a case for conviction, while ignoring or suppressing evidence that
points away from guilt.”146 Tunnel vision so easily affects even the most
well respected attorneys because it is comprised of unconscious biases.147
People hold cognitive biases that cause rational thought processes to
become “random or irrational.”148
Confirmation bias works as part of tunnel vision because it causes the
mind to seek to confirm a predetermined outcome.149 A criminal defense

137 See Rimer, supra note 89.

138 See Rimer, supra note 89.; Findley & Scott, supra note 66, at 292.
139 Ingrid Mathieu, When Vision Becomes Tunnel Vision, PSYCHOL. TODAY (Aug. 3, 2011),

https://perma.cc/V53S-2TM7.
140 Id.
141 Id.
142 See Findley & Scott, supra note 66, at 292.

143 Findley & Scott, supra note 66, at 292.

144 See Findley & Scott, supra note 66, at 292.

145 See generally Eldred, supra note 66 (discussing the workings of tunnel vision in the

practice of criminal defense law).

146 See Findley & Scott, supra note 66, at 292.

147 See Findley & Scott, supra note 66, at 307.

148 Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive

Science, 47 WM. & MARY L. REV. 1587, 1590–91 (2006).

149 Id. at 1594–95.
116 New England Law Review [Vol. 52

attorney will recognize the relevance of evidence that confirms a client’s

guilt more than the evidence that mitigates this guilt. 150 Thus, when a client
tells an attorney that he or she is guilty, a defense attorney is more likely to
see evidence that confirms this rather than notice evidence that may help to
poke holes in the state’s proof.151 Because of confirmation bias, “a lawyer
who believes that his or her client is guilty can be expected to seek out
evidence confirming guilt, whereas disconfirming evidence that might
raise questions about guilt will be avoided.”152
Hindsight bias—also a part of tunnel vision—further affects the way a
defense attorney analyzes evidence by causing an attorney to think that a
certain outcome is inevitable, even if such an outcome is through the fault
of his or her own.153 When this occurs, a defense attorney’s judgment,
tainted by hindsight bias, can have serious consequences for clients who
are depending on their defense attorney to act on their behalf. 154 Decision
makers are unable to learn from their mistakes and clients are faced with
the consequences of an unfair trial, due to the fact that their attorney could
not zealously represent them because of hindsight bias.155

C. Repression of Empathy and Denial of Emotional Involvement

Emotional responses, such as repression of empathy and denial of

emotional involvement, shape legal and ethical dilemmas just as much as
the other psychological barriers discussed above do. 156 Emotional
boundaries between an attorney and his or her client are evident in cases
where the client has committed gruesome crimes.157 Defense attorneys
learn to adapt to selective empathy by “shutting out awareness of the pain
of victims, survivors, and witnesses.”158 Reasoned denial is “the
motivation to reach a particular conclusion which leads to actively
assigning a role to some premises while not taking others into account.”159

150 See id. at 1596.

151 See id.
152 Eldred, supra note 66, at 372.

153 Kimberly Feberwine, Hindsight Bias and the Subsequent Remedial Measure Rule: Fixing the

Feasibility Exception, 55 CASE W. RES. L. REV. 633, 636–37 (2005), https://perma.cc/8J7N-SG8X;

see Stephano Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective
Assistance of Counsel, UTAH L. REV. 1, 2 (2004).
154 See Therese A. Louie, Decision Makers’ Hindsight Bias After Receiving Favorable and Un-

favorable Feedback, 84 J. APPLIED PSYCHOL. 29 (1999) (explaining that “judgments tainted by

hindsight bias can have serious consequences for decision makers and for those who depend
on them.”).
155 See id.
156 Bandes, supra note 5, at 342–43.
157 See Bandes, supra note 5, at 358; Carroll & Hattenstone, supra note 106.
158 Bandes, supra note 5, at 363.
159 Bandes, supra note 5, at 345 (quoting Maria Miceli & Cristiano Castelfranchi, Denial and
2019] Ignorance is Bliss 117

Denial has the potential to interfere with a defense attorney’s ability to deal
with difficult crimes, even though it may be a healthy coping
mechanism.160 Denial can lead to the suppression of one’s emotion, which
is “the conscious or semiconscious decision to postpone paying attention to
a conscious impulse or conflict.”161 Denial and suppression of emotions,
however, decrease an attorney’s zealous representation because empathy
“enables lawyers to care deeply about what happens to their clients, and
this concern is one of the things that keep them going in difficult times.”162
To illustrate, Charles Ogletree, a public defender, recognizes that
having empathy for his clients only improves the quality of his
representation.163 Empathy, he explains, “provides defenders with the
ability to hear ‘complex, multivocal conversations,” such as conversations
with opposing counsel.164 It enables lawyers to stand “in another’s shoes
and view[] the situation from her perspective.”165 Ogletree believes that
“the better understanding we have of a situation at all levels, the better our
decision making is likely to be.”166
Due to the suppression of empathy while at work, many lawyers are
unable to access their emotions after hours.167 Defense attorneys experience
a loss of the capacity to feel even when the work day is over.168 Therefore,
suppression and denial not only have a negative effect on a defense
attorney’s ability to form relationships with clients—but those outside of
his or her work life as well—leading to a diminish in work ethic.169
Diminishment in an attorney’s work ethic is a sign of burnout and happens
frequently to attorneys in the field of criminal defense work. 170

D. Imminent Burnout for Defense Attorneys Who Represent the Guilty

Symptoms of burnout include: “depression, cynicism, boredom, loss of

Its Reasoning, 71 BRIT. J. MED. PSYCHOL. 139, 140 (1998)).

160 Bandes, supra note 5, at 353.
161 Bandes, supra note 5, at 373.
162 Bandes, supra note 5, at 362–63.

163 See Ogletree Jr., supra note 72, at 1271-72.

164 Ogletree Jr., supra note 72, at 1274-75.

165 Ogletree Jr., supra note 72, at n. 148.

166 Ogletree Jr., supra note 72, at 1274-75 (1993) (citing Lucie E. White, Revaluing Politics: A

Reply to Professor Strauss, 39 UCLA L. REV. 1331, 1338 (1992)).

167 Bandes, supra note 5, at 378.
168 Bandes, supra note 5, at 378; Randy Bellows, Notes of a Public Defender, in PHILLIP B.
HEYMANN & LANCE LIEBMAN, THE SOCIAL RESPONSIBILITIES OF LAWYERS: CASE STUDIES 73
(1988).
169 See Bandes, supra note 5, at 379–80.
170 See Bandes, supra note 5, at 380–83.
118 New England Law Review [Vol. 52

compassion and discouragement.”171 Burnout is comprised of emotional

exhaustion (being drained emotionally by contact with others),
depersonalization (feeling cynical and negatively toward people), and
reduced personal accomplishment (evaluating one’s work in a negative
manner).172 It causes an attorney to not only experience physical
symptoms—such as shortage of breath and panic attacks—but also leads to
a lack of motivation to do one’s work.173 Working long hours with difficult
clients will only worsen these symptoms, while contributing to high
burnout rates.174
Burnout causes problems for defense attorneys because they are faced
with difficult clients and caseloads.175 It causes a defense attorney to forego
his or her emotional involvement, leading to a lack of concern for a client’s
case.176 A defense attorney who is experiencing the symptoms and side
effects of burnout is unable to zealously represent his or her client.177
Representing a client accused of rape, Randy Bellows questioned why he
was doing so and was unable to take on another rape case once his client
was found not guilty.178 He struggled with questions such as:
How would I know my client was not the same person who had
raped a member of my family? And, beyond this, if I could not
represent the man who had raped a member of my family, how
could I represent the man who raped a member of someone else’s
family?179
Thus, burnout for some defense attorneys leads to the inability to
represent clients who have committed gruesome crimes.180
William Kelley, a defense attorney asked to represent Charles Ng
(notorious serial killer known for videotaping his rapes and killings of
numerous females in the 1980’s), is an example of an attorney who thought
he could zealously represent his client but experienced psychological
barriers while doing so.181 Kelley began his representation wanting to

171 Datz, supra note 95, at 276.

172 See Martin S. Pinales, Lawyer Burnout, 31 CHAMPION 4, 4 (2007).
173 See id.
174 Robben, supra note 97, at 20.

175 See supra Part III. C.

176 See Ogletree Jr., supra note 72, at 1241 n.9 (discussing burnout, a term which he uses to

"describe the disillusionment, depression, and demoralization experienced by public

defenders as a result of their job responsibilities and working conditions," and citing sources
that discuss burnout in additional contexts); see also supra Part III. C.
177 See Bandes, supra note 5 at 380–83 (discussing burnout and lawyer’s true experiences

with it).
178 Randy Bellows, supra note 168, at 87.
179 Randy Bellows, supra note 168, at 78.
180 Randy Bellows, supra note 168, at 78.
181 See Carroll & Hattenstone, supra note 106.
2019] Ignorance is Bliss 119

understand Ng, showing that he attempted to connect with his client on a

personal level, despite the severity of his charges.182 However, Ng
recorded all of his rapes, beatings, and killings, and part of Kelley’s role as
his attorney was to watch these key pieces of evidence.183 Kelley recalls
watching the tapes as “tough”, and guesses that he probably did not sleep
the night after he first saw them. 184 During his representation, Kelley had
his own relationship end and blamed Ng’s case for it.185 Kelley was also
drained after representing Ng—so much so that he decided to give himself
a vacation in Ireland.186 Although Kelley is glad he represented Ng, he says
that he would never do it again. 187
From Kelley’s story, the many psychological barriers are evident.188
Watching the tapes, and knowing that his client was guilty, it is likely that
Kelley experienced tunnel vision or cognitive biases without realizing it. 189
After watching videotapes implicating a client, it is understandably
difficult for an attorney to find any sort of evidence pointing away from
guilt.190 Given the content of these tapes, including one involving a terrified
female with her blouse cut off, listening to Ng tell her that he is going to
keep her,191 any moral person would have found it difficult to put that
evidence out of their mind when coming up with a defense.192 Cognitive
biases are likely to occur when faced with such gruesome evidence and as
a result, ethical decision-making can be implicated.193 Also, people make
“ethically relevant decisions automatically; they intuitively form a
judgment, and then search for justifications for their decisions.”194 If ethical
decision-making occurs subconsciously, then this can have serious
implications for a lawyer’s conduct.195

182 See Carroll & Hattenstone, supra note 106.

183 See Carroll & Hattenstone, supra note 106.
184 See Carroll & Hattenstone, supra note 106.

185 Carroll & Hattenstone, supra note 106.

186 Carroll & Hattenstone, supra note 106.

187 Carroll & Hattenstone, supra note 106.

188 See Carroll & Hattenstone, supra note 106; see also supra Part III.

189 See Carroll & Hattenstone, supra note 106; see also supra Part III. B.

190 See Carroll & Hattenstone, supra note 106 (“The video tapes were tough. In one,

Kathleen Allen is in chains. They're talking to her, telling her she'll do their bidding, that
they're going to keep her captured. She's terrified. It's hard to see that stuff. The first time I
saw that I was like, wow.”).
191 Carroll & Hattenstone, supra note 106.

192 See Carroll & Hattenstone, supra note 106; see also supra Part III. A.

193 See supra Part III. B.

194 Leslie C. Levin, Bad Apples, Bad Lawyers or Bad Decisionmaking: Lessons from Psychology

and from Lawyers in the Dock, 22 GEO. J. LEGAL ETHICS 1549, 1554 (2009).
195 Id.
120 New England Law Review [Vol. 52

Kelley also experienced signs of burnout while representing Ng. 196

Kelley worked on the case for six years and described the case as a
“monster.”197 His actions of taking off to Ireland show that he had
experienced signs of burnout while representing Ng. 198 Whether or not he
was aware of this burnout is not evident. 199 His story also displays signs of
emotional repression, because he blames his work on this case for ending
his personal relationship.200 Because burnout occurs gradually throughout
an attorney’s work, Kelley likely did not even notice the subtle changes in
his work ethic until it was at its lowest.201
Kelley’s story is not unusual, as studies show that attorneys who work
on homicides experience “frustration, fatigue, and demoralization that
interfere[s] with performance and family life.”202 In a study on attorneys
who faced misconduct reports in New York, many of the behaviors of the
lawyers studied were “explained by social and psychological processes
that affect the decision-making and conduct of most human beings.”203 As
previously stated, these behaviors all occur without an attorney realizing
it.204 This is understood as ethical blindness—”the phenomenon that causes
people to fail to perceive themselves as unethical in situations in which
their own self-interest conflicts with duties owed to others.”205 Thus,
although defense attorneys, such as Kelley, believe that they are upholding
their ethical standards when representing their clients, they may not be
doing so.206 Because this is something that defense attorneys are not
consciously aware of, remedying the situation is difficult, yet possible if
clear rules are put in place for defense attorneys. 207

196 See Carroll & Hattenstone supra note 106; see also supra Part III. D.
197 See Carroll & Hattenstone, supra note 106.
198 See Carroll & Hattenstone, supra note 106.

199 See Carroll & Hattenstone, supra note 106.

200 See Carroll & Hattenstone, supra note 106; see also Part III. C.

201 See Robben, supra note 97, at 17.

202 Andrew P. Levin, Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients

Who are Victims of Domestic Violence and Abuse, A.B.A. COMMISSION ON DOMESTIC VIOLENCE
(Winter 2008), https://perma.cc/Q4E5-K4DD.
203 Levin, supra note 194, at 1552–53.
204 See Eldred, supra note 66, at 339.
205 Eldred, supra note 66, at 339.
206 See Eldred, supra note 66, at 339.
207 See Bibas, supra note 153, at 5.
2019] Ignorance is Bliss 121

IV. How to Remedy this Issue

A. Should a Defense Attorney Know Whether or Not a Client is Guilty?

1. Lawyers Who Do Not Ask

Many defense attorneys avoid asking their clients “did you do it?”208
Defense attorneys may fear that if they knows their client committed the
crime, they may not be able represent that client to the best of their ability,
and may not want to be responsible for the truth.209 Others strive to keep an
open mind while representing their client.210 Defense counsel cannot care
about guilt because it can affect the zealousness of their representation. 211
Arguably, if attorneys want to follow the Model Rules, they should remain
ignorant to whether or not their client committed the crime.212 It is not the
role of defense attorney’s to free the innocent or punish the guilty,213 and if
they take on this mentality it will “inevitability lead to corruption of the
defender’s role because most of the accused are guilty.”214 By making it
known to clients that guilt versus innocence is irrelevant to the case, and
informing clients not to reveal any culpability, defense attorneys are
protecting themselves from violating the Model Rules. This simultaneously
protects clients by ensuring that they are afforded adequate
representation.215 When it comes to innocence and guilt, attorneys' beliefs
“must be backed by evidence, otherwise it largely torments the defender
and interferes with the performance of the attorney’s professional duty.”216
This approach may be the necessary approach in order to zealously
represent the factually guilty defendant, because defense attorneys are
“ethically bound to zealously represent all clients, those whom they think
will be justly found guilty as well as those whom they think are factually
innocent.”217 Although attorneys cannot ever really know whether or not
their client is guilty, psychological biases provide a reason for not asking a

208 Cochran, supra note 118, at 349; see also William A. Edmundson, Contextualist
Answers to Skepticism, and What a Lawyer Cannot Know, 30 FLA. ST. U. L. REV. 1, 8 (2002).
209 See Cochran, supra note 118, at 349.

210 Melissa Viney, How Can You Defend Someone You Know Is Guilty? THE GUARDIAN

https://perma.cc/MVD2-CNQD (last visited Nov. 24, 2018).

211 See Robert P. Mosteller, Why Defense Attorneys Cannot, but Do, Care About Innocence, 50

SANTA CLARA L. REV. 1, 4 (2010).

212 See Ogletree, Jr., supra note 72, at 1249.

213 See Babcock, supra note 40, at 180.

214 Bandes, supra note 5, at 367–68.

215 See Viney, supra note 210.

216 Mosteller, supra note 211, at 4.

217 Janet Portman, Representing a Client who the Lawyer Thinks is Guilty, NOLO,

https://perma.cc/4866-WR2J (last visited Nov. 24, 2018).

122 New England Law Review [Vol. 52

client whether he or she committed the crime in question.218

2. Possible Model Rule Designed to Have Lawyers Follow this

“Not Knowing” Approach

The Model Rules of Professional Conduct address being truthful in an

attorney's representation.219 These rules also “discuss the requirement that
lawyers not introduce false evidence, mislead a third person, or act
deceptively or fraudulently.”220 The rules do not address, however,
whether or not defense attorneys, specifically, are allowed to ask their
clients whether or not they are guilty of the accused crime.221 Standard 4-
3.1(a), of the Criminal Justice Standard for the Defense Function, states that
a defense attorney should "work to establish a relationship of trust and
confident with each client" by explaining "the necessity for frank and
honest discussion of all facts known to the client in order to provide an
effective defense." A defense attorney should also explain that attorney-
client privilege will protect the client's disclosures.222 The Model Rules
should also state that a defense attorney should not ask whether his or her
client is guilty due to the previously discussed psychological barriers. 223
Simply telling someone that unconscious processes exist will not
prevent them from occurring.224 A rule needs to be implemented that will
prevent these biases from ever occurring in the first place.225 This rule
would be specific to criminal defense attorneys and state that they shall not
directly ask their clients whether or not they are guilty.226 The unconscious
biases of a defense attorney should not prevent a client from having a fair
trial just because the attorney suspects that the client may be guilty.227
Therefore, not knowing whether one’s client is guilty is necessary. 228 This

218 See id.

219 See MODEL RULES OF PROF’L CONDUCT R. 3.3; MODEL RULES OF
PROF’L CONDUCT R. 8.4 (AM. BAR. ASS’N 1983); Peter J. Henning, Laywers, Truth, and Honesty
in Representing Clients, 20 NOTRE DAME J.L. ETHICS & PUB. POL’Y 209, 210 (2006).
220 Henning, supra note 219, at 213.

221 Henning, supra note 219, at 213.

222 Defense Function, A.B.A., https://perma.cc/MYZ7-QYEV (last visited Nov. 24, 2018).

223 See supra Part III.

224 Bibas, supra note 153, at 5 (explaining that “merely telling someone about a cognitive

bias or asking her to try harder is ineffective to correct that bias”).

225 See supra Part II; see also Eldred, supra note 66, at 357 (describing that “unconscious

psychological processes play a powerful, often dominant, role in human decision making”).
226 See Ogletree, Jr., supra note 72, at 1249.
227 See Viney, supra note 210; What if I know that My Client is Guilty, BRISBANE LEGAL (Jan.
15, 2014 7:35 AM), https://perma.cc/7QY8-2XRK.
228 Rob Atkinson, A Skeptical Answer to Edmundson's Contextualism: What We Know We

Lawyers Know, 30 FLA. ST. U. L. REV. 25, 27 (2002).

2019] Ignorance is Bliss 123

Model Rule will state something similar to: "A lawyer practicing criminal
defense shall not ask his or her client whether or not they have committed
the accused crime. Should a defense attorney know through other means
that his or her client has committed the crime, he or she shall make
reasonable efforts to become aware of any biases that he or she may
have."229 Adopting a version of this rule, coupled with early education on
these psychological phenomena and biases, therefore, is necessary.230

B. Law School Courses on Psychology

Addressing psychological concepts in law school is another remedy

that can mitigate the issues that come with representing those guilty of
heinous crimes.231 Most law schools fail to tie psychology into its ethical
courses, but a trend to start doing so has begun to emerge. 232 Many law
schools are implementing “lawyer and psychology” classes that teach
students about cognitive psychology and how it can affect their ethical
duty to their future clients.233 By intertwining legal ethics with cognitive
psychology, not only will law students know the Model Rules of
Professional Conduct, but also understand how their own minds and
morals can interact with their ability to be an ethical attorney.234 Because it
is often difficult for attorneys to learn from their own ethical missteps, and
the missteps of others, addressing psychology in an ethics course will help
students see how they can be making unethical decisions even when not
intentionally doing so.235 These courses will entail the various
psychological phenomena addressed in this Note, and how they negatively
impact attorneys.236 Students will be faced with real life situations and

229 Compare MODEL RULES OF PROF’L CONDUCT R. 1.7(a) (stating that an attorney shall not

represent a client when it involves a concurrent conflict of interest), with ABA Standards for
Criminal Justice: Prosecution and Defense Function, A.B.A. 1993, https://perma.cc/5W4G-ENNB
(approving Model Rules specific to criminal defense work).
230 See infra Part IV. B.
231 See Jaramillo, supra note 117; FPT Heads of Prosecutions Committee Report of the Workings
Group on the Prevention of Miscarriages of Justice, GOVT. OF CANADA https://perma.cc/T5AW-
YZG9 (last visited Nov. 25, 2018).
232 See Jaramillo, supra note 117; see also FPT Heads of Prosecutions Committee Report of the

Workings Group on the Prevention of Miscarriages of Justice, supra note 231 (discussing the
implementation of the major case management and general investigation courses to include
education on tunnel vision).
233 See Jaramillo, supra note 117.

234 See supra Part IV. (B).

235 See Jennifer K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 ARIZ. ST. L.J.

1107, 1112 (2013).

236 See supra Part IV.
124 New England Law Review [Vol. 52

determine how they think they would react.237 Once they reach a decision,
students will learn how to analyze the same situation using the opposite
strategy that they originally thought of.238
This approach will allow future attorneys to view a situation from an
outside perspective because they are analyzing a situation with a strategy
that they did not initially think of.239 By doing the opposite of what their
psychological biases tell them to do, future attorneys can actively undo
what these barriers initially cause them to think. 240
While in practice, engaging with co-counsel on difficult defense cases
will ensure that two attorneys, each with a different psychological makeup
and morals, devise strategies for the client, as opposed to just one
attorney.241 This will allow an attorney to take on an outsider’s perspective
more easily and bring awareness to these unconscious biases.242 With these
remedies in place, psychological barriers will have a lesser effect on the
zealousness of representation, with more clients benefiting from the
representation of counsel.243

CONCLUSION

“An advocate, in the discharge of his duty, knows but one person in all
the world, and that person is his client.”244 A lawyer’s most vital role is to
zealously represent his or her client—despite the nature of their charges or
guilt. Although society commonly asks defense attorneys how they can
represent someone they know is guilty, society should be asking whether
defense attorneys are psychologically capable of representing a guilty
client. Because the numerous psychological barriers and repercussions
discussed in this Note occur below our level of consciousness, this question
may not have an answer. Stopping psychological biases from occurring is
unlikely, so a defense attorney may be better off not knowing whether or
not his or her client is guilty. In situations where it is an obvious and
inevitable fact, defense attorneys should make themselves aware of the

237 See Jaramillo, supra note 117.

238 See Eldred, supra note 66, at 389 (discussing that considering the opposite of whatever
decision is about to be made, “the decision maker can lessen the power of self-serving biases
that contribute to the unconscious aspects of decision making”).
239 See Eldred, supra note 66, at 389.

240 See Eldred, supra note 66, at 389.

241 See Katherine L. Milkman et al., How Can Decision Making Be Improved, 4 PERSP.

PSYCHOL. SCI. 379, 380 (2009).

242 Id.
243 See supra Part III.
244 Henning, supra note 219, at 210.
2019] Ignorance is Bliss 125

risks of emotional suppression and burnout, which further hinder their

ability to zealously represent their client. Although all defense attorneys
strive to be zealous advocates, regardless of the crime or mistakes of their
client, this objective may be a tough hurdle to reach when at odds with our
psychological makeup.