Article on whether a prosecutor’s ethical duty to disclose exculpatory information is coextensive with her constitutional obligation to do so

Just over a week ago, The Harvard Law Review Blog published "Disentangling the Ethical and Constitutional Regulation of Criminal Discovery," a short article on whether a prosecutor’s ethical duty to disclose exculpatory information is coextensive with her constitutional obligation to do so.  You can read it in full here.

ABA Journal and New York Times articles on prosecutorial misconduct

Long time readers of this blog know that I have posted many comments on prosecutorial misconduct, including on the fact that there is little accountability for it (most recently here).  For all my posts on prosecutors' ethics go here and scroll down.

Thus, two articles caught my eye recently.  One is an op-ed piece published a couple of days ago in the New York Times, lamenting on the lack of accountability of prosecutors.

The other is an article in the May issue of the ABA Journal reporting that New York is considering changing the current rule that allows a prosecutor to wait until the eve of a trial to disclose exculpatory evidence.

As described in the article, New York’s current laws allow prosecutors to withhold key evidence, including witness names, police paperwork and prior statements by witnesses, until immediately before the prosecutor delivers an opening statement, which puts defense counsel at a disadvantage when preparing for trials.

I must confess I had never heard of that (which the article states is also the case in three other states), but from what I read in the article,  I agree the law puts defense counsel at a disadvantage and should be changed.

You should take a look at the article, which is very short, here.

Supreme Court decides McCoy v Louisiana, finding ineffective assistance of counsel when attorney conceded guilt over client's objection

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. (I later posted some updates and relevant links here.) 

In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon).  In Nixon, the Court found that the lawyer had not provided ineffective assistance of counsel based on a distinction between "conceding guilt" and "pleading guilty."   I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make a fundamental decision, which is explicitly reserved for the client to make, without client consent.

McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. 

Yet, I am pleased to report that the Court found for the defendant, holding that

“a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reason- able doubt.”

I definitely think this is the right decision in this case.  I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too.

You can read the full opinion here.  The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.

Wisconsin Supreme Court to consider raising pay for private lawyers assigned to represent criminal defendants

Wisconsin's Public Defender's Office assigns private attorneys around 40 percent of its cases and pays them the lowest rate in the nation. Now, the office is having a difficult time finding lawyers willing to take those cases. Tomorrow, the state Supreme Court will take up a petition that would give attorneys a raise. Wisconsin Public Radio's Danielle Kaeding has more.

Tennessee Formal Opinion finds that prosecutors' ethical duty to disclose evidence to the defendant is broader than duty under Brady v. Maryland -- UPDATED

As I have discussed before, some cases or ethics opinions have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (DC and New York, for example, see here and here). Others have held both duties are the same (Wisconsin, for example).

We can now add the Tennessee Supreme Court's Board of Professional Responsibility to the list of those who think the duty is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

If you want to read about how a prosecutor approaches the issue of exculpatory evidence, go here.

UPDATE (8/29/19):  The Tennessee Supreme Court has vacated the opinion.  See here.

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice -- UPDATED

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Article on the lack of accountability of prosecutors for misconduct and what can be done about it

I have written often about prosecutorial misconduct and how rare it is to see accountability on the part of prosecutors who engage in it.  (Go here and scroll down for my posts on this.)  For this reason I recommend you go read an article by United States District Judge Frederic Block of the Eastern District of New York in which he argues it’s time to end the notion of absolute immunity for prosecutors.  You should read the full article here. 

Simple Justice has a comment on the article here.

US Supreme Court hears oral argument in McCoy v Louisiana; Justice Sotomayor compares it to an ethics class in law school -- UPDATED

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  During the argument Justice Sotomayor said the case sounded like a law school hypo.  And she is right (for all the reasons I mentioned in my comment).  Also, according to the ABA Journal, Justice Neil Gorsuch was among the justices who appeared to see merit in the defendant's case.

The ABA filed an amicus brief (see here).

The oral argument is available here.

Bloonberg Law has a story on the case here.

The New York Times has an article on the case here.

The SCotUS blog has a summary and analysis of the case here.

NPR's coverage of the case is here.

Above the Law has a post on the case here.

I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon.  (Again, see my comment above).

UPDATE 1/26/18: Ethical Grounds has a comment on the case here.

High profile case dismissed because of prosecutorial misconduct

Earlier this month I heard that the court dismissed the case against rancher Cliven Bundy, two of his sons and a militia commander from Montana (arising out of  an armed standoff against federal agents in Nevada).  However, I did not noticed until recently that in dismissing the case, the Chief U.S. District Judge chastised the federal government for what she characterized as a “reckless disregard to fulfill its constitutional duties.”

The ruling was prompted by the discovery of more 3,000 pages of evidence federal prosecutors failed to turn over to defense attorneys. You can read more about the case here and here.

Illinois Supreme Court decides People v Cole, holding the Public Defender's office is not a "firm" for purposes of conflicts of interest

Back in September I wrote about a case before the Illinois Supreme Court called People v Cole in which the Public Defender refused to represent a client arguing that accepting the representation would constitute a concurrent conflict of interest.  Go here for that post which includes links to the oral argument.

In my original post, I wrote that based on the position adopted by the US Supreme Court in Holloway v Arkansas, "it would seem like the contempt conviction should be reversed."  But my position assumed that the PD's office would be considered just like any other law firm for purposes of a conflict -- ie, that if one lawyer had a conflict, the conflict would be imputed to other lawyers in the firm.

Well, about a month ago, the Illinois Supreme Court issued its decision and it did not hold as I predicted precisely because it attacked my premise.  It reiterated that in Illinois the PD's office should not be considered to be a law firm for purposes of conflicts of interest. 

You can read the opinion here and a good comment on the case at the Legal Ethics Forum.

Court of Appeals for the Fourth Circuit comments on repeated misconduct ouf of prosecutors office in Virginia

The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's attorney and his deputies and assistants for failing to adhere to their obligations” under the Constitution, and that “We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth's Attorney's office continue to stake out positions plainly contrary” to those obligations, he said.  The case is Juniper v. Zook, 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.

The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."

The problem is that this conduct is the result of the development of the Brady progeny.  Brady imposes a duty to disclose "material" evidence.  However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.

For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case.   Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict.  If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.

One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held.  Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure. 

For more see the article in the ABA/BNA Lawyers' Manual at  33 Law. Man. Prof. Conduct 678.

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find my comment here.  Today, I learned that the ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.

New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence

In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors of their obligation to turn over “information favorable to the defense” in all criminal cases.  According to the National Registry of Exonerations, 38% of the 234 exonerations in New York state have involved violations of the duty to disclose exculpatory evidence.  You can read the press release announcing the new rule here.  (This link also includes the task force's report, which makes a number of other recommendations worth reading.)  The new rule also directs judges to remind defense lawyers of their duty to provide effective assistance of counsel under Constitutional standards.   The ABA Journal has more on the story here.

7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony

    Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor. 

    In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony.  When asked on cross–examination, the witness denied having recanted her testimony.  Both the prosecutor and defense counsel knew this was a lie.  Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand.  However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.

    The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed.  The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959)  and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.

    After an en banc rehearing, however, a majority of the court reversed.  According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

    In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony.  Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding.  Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury. 

    The Court of Appeals, however, distinguished the case before it from these two cases.  In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony. 

    In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court.  They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief. 

    According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury. 

    The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances.  A lie is a lie, and the prosecutor has a duty to correct it, they said.  The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony.  The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.  

    It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves.  Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case.  It only held that the Supreme Court has not decided it.  It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case.  I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances.  That would be wrong.

    The Marshall Project has a comment on the case here.

ACLU sues Nevada alleging constitutionally inadequate indigent defense system

The ACLU of Nevada has sued the state, alleging that indigent defense in rural counties is so inadequate—and so poorly overseen by state authorities—that the defense provided is inadequate  under the Sixth Amendment.  The ABA Journal has the story here.

California finally adopts professional responsibility rule requiring prosecutors to disclose exculpatory evidence

A few days ago I reported that the Louisiana Supreme Court recently held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.  (See here.)

Now comes news that the California Supreme Court has approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California by revising Rule 5-110 to include the obligation to disclose exculpatory evidence.  If you are wondering how this was not part of the rule already, it is because California remains the only state that has not fully adopted the ABA Model Rules.  Popehat has the details here.

Interestingly, in contrast with the decision in Louisiana, the comment to the new California rule implies that the duty to disclose is broader than the duty imposed by Brady:

[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland . . .  and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. . . .

Louisiana continues to make bad law regarding duty to disclose exculpatory evidence

As you probably know already, Louisiana has a long (and on might say troubling) history as it relates to the duty of disclosing exculpatory evidence (see  here and here), most notably Connick v. Thompson and Smith v. Cain (See here, here, and here).

Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.

Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise.  I have written about this in the past here.

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  The New York City bar's ethics committee has also issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.

The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here.  The case is called In re Seastrunk and you can read the opinion here.

How not to practice law -- UPDATED

It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.

How not to practice law:  As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury.  The Legal Profession Blog has the story.  The prosecutor was suspended for a year and a day (although all but 6 months was stayed.)   [UPDATE 10/29/17:  Lawyer Ethics Alerts Blog has a story on this case here.]

How not to practice law:  Offer to pay a witness $7,000 for his "honest testimony."  The Law For Lawyers Today has that story here.  The lawyer was suspended for 35 days.

US Supreme Court grants cert to decide whether it is ineffective assistance of counsel to concede client's guilt over client's objection -- UPDATED

The U.S. Supreme Court has granted review in McCoy v. Louisiana in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here. The New York Times also has some information on the case here.

In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, "the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life." 

There is only one problem.  There is no such ethical duty.

The duty of the lawyer is to represent the client and this includes following the client's instructions as to the goals of the representation.

The case presents an opportunity to clarify a terrible old decision of the US Supreme Court called Florida v. Nixon.  In that case, a lawyer attempted unsuccessfully to get his client - also a death row inmate - to cooperate in preparing his defense.  The inmate, who probably had diminished capacity, either did not understand what was happening or did not wish to communicate with the lawyer.  Eventually, the lawyer decided to concede guilt in order to argue for a lower sentence at the sentencing phase of the trial.  On appeal, much of the discussion revolved around whether there is a difference between "conceding guilt" and "pleading guilty."  The distinction is important because the rules of professional conduct explicitly reserve the right to plead guilty to the client.  Simply stated the lawyer has no authority to decide whether to plead guilty without a client's consent.

In a confusing opinion, the Court found that the lawyer had not provided ineffective assistance of counsel.  Yet it is not clear whether the decision was based on either (a) that the decision was for the client to make but the lawyer could make the decision for the client because the client was incapable of communicating with the lawyer or (b) that the decision was for the lawyer to make because it was "tactical" in nature.  If the decision in the case was to plead guilty, then the Court's decision must have been based on option (a), which would be wrong under the rules of professional conduct.  If the decision was "to concede guilt" (meaning something different from pleading guilty, even if the effect is the same) then it can be argued the Court's decision was based on option (b).  

I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make the most fundamental decision, which is explicitly reserved for the client to make, without client consent.

And now McCoy could be even worse.

In McCoy, the Court is being asked to take the decision in Nixon one step further and allow the attorney to make the decision over the express objection of the client based on the notion that the decision to "concede guilt" is purely tactical and, thus, can be made by the lawyer.  In fact, in affirming the lower court's decision, the Louisiana Supreme Court found no Sixth Amendment violation stating that “[g]iven the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.” [emphasis added.]

I did not like that interpretation in Florida v. Nixon and I like it even less here.  As explained in the amicus brief of the The Yale Law School Ethics Bureau (available here),

The decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused. ... In this case, Mr. McCoy vigorously and repeatedly expressed his desire to assert innocence at trial. Yet Mr. English [McCoy's lawyer] disregarded those entreaties and readily conceded guilt . By doing so, Mr. English not only betrayed the sacred bond between lawyer and client, but also denied Mr. McCoy his personal right to put on a defense.

[Because of the egregious nature of the ethical failures in this case,] Mr. McCoy was constructively denied counsel. By conceding guilt over Mr. McCoy’s express objection, Mr. English failed to act within the scope of the attorney–client relationship. He was not, in any meaningful sense, acting as Mr. McCoy’s lawyer. Mr. McCoy therefore did not just receive an “incompetent counsel”–he effectively did not receive any counsel “at all.” ...

Additionally, Mr. English failed to subject the prosecution’s case to meaningful adversarial testing. Indeed, far from testing the prosecution’s case, Mr. English seemed downright eager to advance it. He readily conceded Mr. McCoy’s guilt in his opening statement; called Mr. McCoy to the stand only to impeach his credibility; and failed to present any evidence that challenged the prosecution’s theory of the case. ...

Relying on reasoning from the Court’s decision in Florida v. Nixon,... the Louisiana Supreme Court declined to find Mr. English’s conduct presumptively prejudicial. But Nixon only held that a lawyer is not required to obtain affirmative consent from the client before conceding guilt. It expressly did not address the situation presented here, where the client positively objects to conceding. The difference between conceding guilt in the face of a client’s non–response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney–client relationship.

I agree.

Another argument in the case is that the lawyer was compelled to concede guilt because the lawyer did not believe the client's story and, thus, thought the client was going to base his defense on false evidence.

Yet, the rules of professional conduct do not give a lawyer the authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence.  Even if the lawyer believes the client intends to present false evidence, the alternative approaches to the problem provided by the rules do not include conceding guilt.

Whatever the Court decides, this will be a very important decision.

UPDATE (11/25/17):   The ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

UPDATE (January 26, 2018):  The Supreme Court heard oral arguments on the case today.  Here are some comments and links on it.  The oral argument itself is available here.