Truly Zealous: Embracing the Sword-and-Shield Approach to Criminal Defense
Introduction
The Model Rules of Professional Conduct (MRPC) state that attorneys should strive to zealously represent their clients.[1] What “zealous representation” looks like differs between clients due to different client needs, the scope and specific nature of the representation, and lawyers’ differing approaches to representation.[2] In the world of criminal defense, zealous representation is a means to achieving an end goal of winning.[3] For trial defense attorneys, though, the notion of winning often encompasses something far broader than a binary concept of pure victories and pure defeats.[4] Even a case that ultimately ends in a conviction or guilty plea can still be peppered with small victories like successful pre-trial motions, successful objections at trial, fairer plea deals, or broader reform.[5]
But on appeal, the strategies that trial attorneys use to obtain these victories can sometimes leave defendants on more precarious footing.[6] These tactics can include purposeful non-objection or failure to make or preserve a complete record.[7] When such a case gets appealed, the appellate defense attorney is left in an undesirable position as he must now zealously represent the defendant and secure a victory armed with a suboptimal record.[8] In this sense, certain trial defense tactics secure an immediate victory at the expense of the appellate attorney’s chances of winning on appeal.[9]
The purpose of this Note is to challenge the traditional notion that a trial defender’s ethical obligation of zealous advocacy begins and ends in the trial court.[10] In doing so, this Note begins with a discussion of the different perspectives of criminal defense held by trial and appellate defense attorneys, as well as the stakes of a criminal prosecution.[11] This Note then examines the distinct legal and ethical obligations lawyers owe to their clients before examining a case that is particularly illustrative on the topic.[12] Finally, this Note argues that truly zealous representation requires trial attorneys to employ a “sword-and-shield” approach that involves vigorously testing the prosecution’s case at trial while also preserving issues and making a complete record for appeal.[13]
I. Defining “Zeal” in Criminal Defense
Zealous representation is paramount to criminal defense.[14] This is because the contemporary American criminal justice system is often frequented by the most vulnerable members of the country’s social strata: the poor, the transient, and the marginalized groups with scant resources to defend themselves against the machinery of the state.[15] Without criminal defense attorneys, vulnerable defendants would have little, if any, safeguards protecting their constitutional rights.[16] However, in the course of representing clients with zeal and vigor, some criminal defense attorneys employ strategies that have harmful downstream effects on their clients.[17]
This failure to consider the long-term ramifications of trial strategy is a by-product of the distinct ecosystems of trial and appellate practice.[18] Both levels differ significantly in audience and pace.[19] This can make it difficult to timely raise a legal issue that could later be the subject of an appeal.[20] Another important factor distinguishing trial from appellate-level practice is the level of familiarity that trial defense attorneys have with prosecutors and trial judges.[21] Because trial defense attorneys often defend against charges brought by the same prosecutors in courtrooms helmed by the same judges, they may depend on unspoken body language, informal agreements, and tacit understandings to determine how far they should go in raising issues or supplying the record with the relevant information.[22] This is different from appellate practice, in which attorneys argue before a randomized panel of judges on an infrequent basis.[23]
Because of the vast differences between trial and appellate-level defense, trial attorneys may treat the appeal as an afterthought, or may not even consider it at all.[24] After all, the goal for many trial defense lawyers is to win at trial, not to lose at trial and win on appeal.[25] However, with this strategy comes risk.[26] In the event of an appeal, for example, the client may be left with an incomplete record or a stricter standard of review because the trial attorney failed to preserve an issue for appeal or relied on unspoken understandings and did not complete the record.[27] Balancing trial and appellate strategy can create a challenging dilemma, made more complicated by the interests at stake.[28]
The legal and ethical obligations owed to criminal defendants are undergirded by weightier considerations than those accompanying the legal and ethical obligations owed to other types of clients.[29] This is due to the heightened stakes of criminal prosecutions.[30] Indeed, defendants subjected to criminal prosecution risk losing fundamental liberties, freedoms, and, in jurisdictions that carry out capital punishment, even their lives.[31] These stakes remain heightened regardless of whether the defendant chooses to take a plea deal or go to trial.[32] The same simply cannot be said for defendants in civil cases, or organizational clients who rarely press beyond the threshold of the courtroom door.[33]
These heightened stakes require that attorneys vigorously represent their client and thoroughly test the prosecution’s case before a jury of the defendant’s peers.[34] However, courts are generally apprehensive to condemn or second-guess the strategy of a trial attorney.[35] This has fostered an environment where trial attorneys are able to employ any number of seemingly counterintuitive strategies, like strategic non-objection, and escape the scrutinizing eye of the judiciary.[36] Comparatively, appellate criminal defense attorneys are more constrained in their tactics, but are still given wide latitude to pursue a reasonable appellate strategy.[37]
After examining the different ethical challenges faced at both stages of representation, the dilemma comes into sharp relief.[38] A trial attorney can use questionable tactics, fail to raise important legal issues prior to trial, fail to create a complete record for appellate review, and still achieve victory in the abstract.[39] On appeal, however, the appellate attorney is forced to craft an appellate strategy from an incomplete record.[40] Trial attorneys might not concern themselves with optimizing the record for appeal because their goal is to achieve some victory without having to appeal.[41] This tug-of-war between trial and appellate attorneys places the client’s freedoms on treacherous ground.[42] Because of this dilemma, trial attorneys must determine the contours of their legal and ethical obligations to their clients and whether either obligates them to anticipate trial issues.[43]
II. Ethical Versus Legal Obligations
It is critical to first clarify the different standards that may apply in any given discussion of the duty lawyers owe to their clients.[44] As it pertains to criminal defense, whether a lawyer at the trial or appellate level has fulfilled his legal obligations to the client turns on an analysis under Strickland v. Washington.[45] Strickland is a landmark decision from the United States Supreme Court announcing that a defendant’s claim of ineffective assistance of counsel can prevail only after the defendant has shown that 1) counsel’s performance fell below an objective standard of reasonableness; and 2) the defendant was prejudiced by the deficient performance.[46]
Strickland’s standard for performance is different from the standard used to determine if a lawyer has met his ethical obligations to a client.[47] For that, courts typically look to the applicable rule of professional conduct.[48] Of course, a finding that a lawyer performed deficiently within the meaning of Strickland is a powerful indication that they failed to fulfill their ethical obligations.[49] But the inverse is not necessarily true.[50] Indeed, lawyers have been deemed effective even after they met with the client only once, slept during portions of the trial, or appeared in court drunk.[51] These are all behaviors that, if measured against stricter ethical standards, could result in sanctions.
The remedy is also different between the two.[52] A finding that a defendant received ineffective assistance of counsel is an error of constitutional dimension, and that defendant will likely be granted a new trial because the prejudice caused by the trial counsel’s deficient performance infected the entirety of the trial.[53] Thus, the remedy for a Strickland violation affects the defendant more than the defendant’s attorney.[54] Usually, a Strickland-deficient attorney is not affected by a court’s finding that the attorney performed deficiently.[55] By contrast, the remedy for ethical violations targets the offending attorney more directly, through sanctions like fines, public reprimand, or license suspension.[56] In this sense, Strickland sets forth the floor of attorney performance, and the rules of professional conduct comprise the ceiling.[57]
III. The Sword-and-Shield Approach to Criminal Defense
It must be recognized that a vital component of trial criminal defense is the preservation of issues for a potential appeal.[58] It is this formulation of trial representation that truly captures the spirit of zealous defense.[59] It is not sufficient for trial attorneys to blunder their way through pretrial proceedings or through trial without making an accurate and complete record simply to avoid irritating the judge or jury.[60] Neither is it acceptable to wager something as important as a defendant’s fundamental freedoms and liberties on something as unintuitive as a judge’s body language or facial expression.[61] The ethical duty owed to the client means that trial attorneys should consistently and unabashedly protect their clients’ rights and interests, without regard to the personal dispositions of a particular judge or a juror.[62]
This more rigorous formulation of trial defense may be better understood through the symbology of the sword and the shield. Historically, the sword has generally been used as a symbol of offense and strength—a weapon wielded by the virtuous for the purpose of attacking.[63] By contrast, the shield has traditionally represented a symbol of defense that “wards off unwanted incursions from the outside.”[64] And although the sword may at times be used defensively, the sword and shield together represent a “symbol of unity,” balancing offensive aggression with defensive precaution.[65]
Although trial criminal defense is far different from the medieval manuscripts in which the sword and shield are prevalently featured, it is nevertheless useful to import some of the same symbolic concepts to trial defense.[66] For a defendant, a criminal prosecution may be thought of as an “unwanted incursion” jeopardizing the defendant’s life and liberty.[67] The prosecution, armed with the seemingly infinite resources of the state, may indeed appear to be as formidable as the adversaries that feature in the literature as antagonists to those wielding the sword.[68]
As it pertains to trial criminal defense, the sword is the aspect of trial strategy that concerns itself with attacking the strength of the prosecution’s case as a means of reifying justice.[69] In a literal sense, it is how the attorney will attack and test the prosecution’s case.[70] This can include challenging the admissibility of forensic evidence, challenging the admissibility of improper witness testimony, filing suppression motions, and impeaching incredible testimony.[71] Analogously, the shield represents the duty of trial defense counsel to know the law, anticipate potential issues in a given trial, and properly preserve them for appeal when they do occur.[72] After all, the duty owed to the client is paramount.[73] This means that any fear of alienating the jury or upsetting the judge through zealous representation within the bounds of the law should be superseded by the duty to the client, and the understanding of the importance of issue preservation for appeal.[74] When criminal defense attorneys anticipate, raise, and preserve issues, they employ the shield, ensuring that the client is protected at trial and has a robust record on appeal.[75]
Without a shield, the chances of the defendant’s trial being tainted by error increases, and the defendant’s chances of successfully litigating this issue on appeal decreases due to the less forgiving standard for unpreserved issues.[76] A defense attorney who does not make the appeal part of the trial strategy does not fulfill the ethical obligation of zeal to the client.[77] Zealous representation is not characterized by relying on assumptions of body language, nor is it characterized by purposely forgoing arguments or objections out of an unfounded fear of alienating the judge or jury.[78] Just as those wielding the sword in traditional literature would be off-balance without a shield, so too is a trial attorney’s strategy off-balance if it only includes plans of offense with no defense.[79]
The sword-and-shield approach to trial criminal defense does not require that defense attorneys gaze into a proverbial crystal ball in order to divine every issue that may arise.[80] For example, it is generally understandable for an attorney to fail to raise some unexpected issue that arises in the quick-moving heat of trial.[81] At other times, there may be scenarios in which failing to object to certain testimony opens the door to a favorable line of questioning that the trial attorney wishes to exploit.[82] The sword-and-shield approach simply advises that, notwithstanding these considerations, trial defense lawyers still owe an ethical duty to anticipate the issues that are likely to arise and properly preserve them while making a complete record when they do arise.[83] This standard of performance is most faithful to the ABA’s goal of zealous representation.[84]
Conclusion
Under the sword-and-shield approach proposed in this Note, trial defense attorneys wishing to embody zealous representation should make the possibility of an appeal a component of their trial strategy.[85] This means anticipating likely legal and factual issues, creating a full record, and preserving such issues when they do arise.[86] In this sense, trial attorneys, as a facet of zealotry, owe a forward-looking and anticipatory ethical duty to the client to protect the client’s interest at trial and on appeal.[87] This does not mean that trial lawyers are expected to scry a crystal ball to determine what issues will arise during trial. Instead, this approach asks lawyers to act cautiously and think proactively.[88]
[1] See Model Rules of Pro. Conduct Preamble (Am. Bar Ass’n 2023) [hereinafter MRPC] (describing a lawyer’s obligation to “zealously . . . protect and pursue a client’s legitimate interests, within the bounds of the law . . . .”); MRPC r. 1.3 cmt. 1 (“A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”).
[2] See, e.g., Kim Taylor-Thompson, Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 Geo. L.J. 2419, 2453 (1996) (discussing different approaches to zealous representation among public defenders); see also Julie Goldman, The Need for Mental Health Courts for Lawyers to Fulfill Their Duties Under ABA Model Rule 1.14, 26 Geo. J. Legal Ethics 683, 684 (2013) (“The lawyer's duty of zealous representation entails different tasks when one deals with a mentally ill client . . . .”).
[3] See Chelsea Davis et al., “It’s the Hardest Decision I Have”: Clients and Defenders on the Role of Mental Health in Case Strategy, 14 Ohio St. J. Crim. L. 463, 465 (2017) (“Broadly, the goal of criminal defense is clear: to the greatest extents possible, preserve the client's innocence and personal liberty.”).
[4] Jonathan Rapping, Redefining Success as a Public Defender: A Rallying Cry for Those Most Committed to Gideon’s Promise, Nat’l Ass’n Crim. Def. Laws. (last visited Apr. 14, 2025), https://www.nacdl.org/Article/June2012-RedefiningSuccessasaPublicDefe (rejecting the notion that success requires getting “not guilty” verdicts, dismissals, and favorable plea offers, and concluding that success “mean[s] being able to look in the mirror each night and know on that day I had given each and every client the representation she or he deserved”); Valeria Baćak et al., “Fighting the Good Fight”: Why do Public Defenders Remain on the Job?, 31 Crim. Just. Pol’y Rev. 939, 951 (2019) (describing one public defender who defines winning as the “direct impact on the individual” and the fact that defense attorneys can “treat [clients] like human beings when everybody else is against them.”).
[5] See Stephan H. Peskin, Innovative Pre-Trial Motions in Criminal Defense, 1 Am. J. Trial Advoc. 35, 35 (1977) (“On a very practical level a win is equally rewarding for counsel and his client if accomplished pre-trial, avoiding the need for an impassioned argument before a jury.”); Steven Lubet, Objecting, 16 Am. J. Trial Advoc. 213, 247 (1992) (“When an objection is sustained, the opponent of the evidence has been successful.”); Thea Johnson, Plea Bargain Task Force Report, 2023 A.B.A. Crim. Just. Section 6 (noting that many defendants “use the plea process to avoid some of the most severe aspects of the criminal system”); see also Baćak et al., supra note 4, at 944 (concluding that public defenders find satisfaction in “fighting what is considered an unjust system and its actors—including police, prosecutors, and judges”).
[6] See Larry Cunningham, Appellate Review of Unpreserved Questions in Criminal Cases: An Attempt to Define the “Interest of Justice”, 11 J. App. Prac. & Process 285, 315 (2010) (stating that “some defense attorneys – either out of ignorance or strategy – do not adequately or properly preserve claims on the record”); see also United States v. Wolf, 787 F.2d 1094, 1099 (7th Cir. 1986) (finding that many trial attorneys fail to preserve issues via objection under the “belie[f] either that the witness will give an answer helpful to the defense (or at least not harmful to it) or that too-frequent objecting will irritate the jury or make it think the defendant is trying to hide the truth”); McMillin v. State Farm Lloyds, 180 S.W.3d 183, 194 n.6 (Tex. App. 2005) (noting that “trial attorneys frequently face such strategic trade-offs between error preservation and the more immediate goal of winning at trial”).
[7] See McMillin, 180 S.W.3d at 194 n.6.
[8] Adam Hofmann, Lawyers Should Try Their Cases with Appeal in Mind, A.B.A. J. (Feb. 9, 2023), https://www.abajournal.com/voice/article/lawyers-should-try-their-cases-with-appeal-in-mind (“Even the best appellate attorneys are largely constrained by the trial record . . . .”).
[9] See Lawrence S. Katz, Preserving Issues on Appeal in Criminal Cases, 92 Mich. Bar J. 26, 26 (2013) (arguing that trial counsel’s strategic failure to preserve issues can hinder appellate strategy because the standard of review for unpreserved issues is much stricter than that of preserved issues).
[10] See infra Part IV.
[11] Infra Section I.A.
[12] Infra Parts II–III.
[13] Id.
[14] Cf. Bailey v. Tucker, 621 A.2d 108, 114–15 (Pa. 1993) (finding that a lawyer may be liable for malpractice when, among other things, the lawyer acts with “[r]eckless or wanton disregard of the defendant's interest . . .”).
[15] See Alexi Jones & Wendy Sawyer, Arrest, Release, Repeat: How Police and Jails are Misused to Solve Social Problems, Prison Pol’y Initiative (Aug. 2019), https://www.prisonpolicy.org/reports/repeatarrests.html (describing the demographics of those most likely to interact with the criminal justice system); Cf. Michigan v. Bryant, 562 U.S. 344, 381 (2011) (Scalia, J., dissenting) (describing criminal trials as “the coercive machinery of the state”).
[16] See William C. Kinder, Note, Putting Justice Kagan’s “Hobbyhorse” Through its Paces: An Examination of the Criminal Defense Advocacy Gap at the U.S. Supreme Court, 103 Geo. L.J. 228, 257 (2014) (internal citation omitted).
[17] See, e.g., State v. White, 30 P.3d 340, 343 (Mt. 2001) (dismissing a defendant’s ineffective assistance of counsel claims without prejudice because the alleged deficiencies, stemming for failures to object, involved non-record evidence that was not subject to review on direct appeal).
[18] See Trial Versus Appellate Versus Postconviction Work, Univ. Mich. Pub. Def. Training Inst. (last visited Apr. 7, 2025), https://www.law.umich.edu/mdefenders/students/Different-Types-of-Indigent-Defense/Pages/Trial-versus-Appellate-versus-Postconviction-Work.aspx.
[19] See Alison S. Burke et al., Introduction to the American Criminal Justice System 273, 276 (2021) (articulating that “[a]ppeals court panels consist of three judges,” and that “[s]tate trial courts tend to be busy, bustling places with lots of activity. Appellate courts, on the other hand, tend to be solemn and serene, formal places”).
[20] See Jonathan O’Konek, To Object or Not Object, That is the Question: A Criminal Law Practitioner’s Guide to the Five “W’s” of Evidentiary Objections, 95 N.D. L. Rev. 156, 161 (2020) (“[I]t is often more difficult for a practitioner to prepare an objection to testimonial evidence.”).
[21] Randall T. Shepherd, Judicial Professionalism and the Relationship Between Judges and Lawyers, 14 Notre Dame J.L. Ethics & Pub. Pol’y 223, 245 (2000) (highlighting the importance of maintaining positive working relationships with judges).
[22] See, e.g., Standards for Crim. Just.: Def. Function, Standard 4-7.2(g) (Am. Bar Ass’n 2017) [hereinafter Defense Function] (“Defense counsel should develop and maintain courteous and civil working relationships with judges and prosecutors, and should . . . cooperate with courts and organized bar associations in developing codes of professionalism and civility, and should abide by such codes that apply in their jurisdiction.”); see also Ein Y. Cornwell, The Trials of Indigent Defense: Type of Counsel and Case Outcomes in Felony Jury Trials, 78 Alb. L. Rev. 1239, 1246 (2015) (“To the extent that public defenders are enmeshed in courthouse culture, and because they anticipate repeated interactions with prosecutors, public defenders may be constrained in their ability to aggressively attack the prosecution's case.”)
[23] Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1009 (2005) (“In the Courts of Appeals, panels are the product of random draws of three among a larger set of members of the court.”).
[24] See Gaetan Gerville-Reache, Playing Chess: How Appellate Lawyers can Shape the Record Long Before Appeal, Am. Bar Ass’n (Mar. 26, 2025), https://www.americanbar.org/groups/judicial/resources/appellate-issues/2025-winter/appellate-lawyers-shape-record-long-before-appeal/ (stating that appellate counsel for a corporate client frequently “finds missed opportunities to present an argument in a particular way or even preservation problems for the appeal”).
[25] Christine R. Davis, Striking a Balance to Win: Balancing the Need to Win the Trial with the Need to Preserve the Record on Appeal, 81 Fla. Bar J. 18, 18 (2007) (“Sometimes the quest for success at trial, however, comes at the expense of preserving the record for appeal.”).
[26] Id.
[27] Id. (“Failing to preserve the record can be fatal to the ultimate outcome of the case.”).
[28] See infra Section I.A.
[29] United States v. Kouri-Perez, 187 F.3d 1, 12 (1st Cir. 1999) (“Notwithstanding the risk of sanctions, defense counsel are obligated to represent their clients vigorously, within the bounds of all applicable ethical codes, particularly in a criminal case where the stakes may be much greater than in civil cases.”)
[30] Id.
[31] See In re Winship, 397 U.S. 358, 363 (1970) (“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.”).
[32] See Breazeale v. Victim Servs., 878 F.3d 759, 769 (9th Cir. 2017) (“A plea bargain is not a commercial exchange. It is an instrument for the enforcement of the criminal law. What is at stake for the defendant is his liberty.” (quoting United States v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999))).
[33] See Kouri-Perez, 187 F.3d at 12; see also Charles Silver, Does Civil Justice Cost too Much?, 80 Tex. L. Rev. 2073, 2075 (2002) (“[F]or every [civil] dispute in the court records, there are nine others that never even reach the filing stage.” (internal quotation omitted)).
[34] Id.; see also Eli J. Esakoff, Note, Defendants in the Dark: How the Jencks Act is Incompatible With the Adversarial Legal System, 31 J.L. & Pol’y 100, 145 (2023) (“Our justice [system] . . . is designed to test the prosecution's case in order to minimize overzealous prosecuting.”). Describing the duty to test the prosecution’s case, one court stated:
It is the defense counsel's duty to investigate all aspects of the State's case including the physical evidence introduced in trial. [this duty] is not simply a matter of common sense, it is an obligation set forth in the ABA Standards regarding the baseline of representation a defense attorney must provide his client.
Fontenot v. Allbaugh, 402 F. Supp. 3d 1110, 1205 (E.D. Okla. 2019) (citing Rompilla v. Beard, 545 U.S. 374, 387 (2005)).
[35] See, e.g., DiMattina v. United States, 949 F. Supp. 2d 387, 414 (2013) (denying a criminal defendant’s ineffective assistance of counsel claim because “[p]erceptive Monday morning quarterbacking . . . does not trump well-reasoned, on-the-scene decision-making”).
[36] See, e.g., United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970) (“[I]t is understandable that a defense counsel may wish to avoid underscoring a prejudicial remark in the minds of the jury by drawing attention to it.”).
[37] See, e.g., Allen v. Chandler, 555 F.3d 596, 603 (7th Cir. 2009) (“When an appellate counsel omits ‘a significant and obvious issue . . . [the court] will deem his performance deficient.’ (quoting Mason v. Hanks, 97 F.3d 887, 892–93 (7th Cir. 1996))).
[38] See State v. Allen, 786 N.W.2d 124, 128 (Wis. 2010) (“An indigent defendant’s appellate counsel is bound by different ethical considerations than trial counsel.”).
[39] See Davis, supra note 25.
[40] See Massaro v. United States, 538 U.S. 500, 504–05 (2003) (“When an ineffective-assistance claim is brought on direct appeal, . . . the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.”).
[41] See Vice, The Real Saul Goodman From “Breaking Bad” and “Better Call Saul”?, YouTube, at 14:57 (Jan. 28, 2016), https://www.youtube.com/watch?v=NAVsBfOjc4c (“[A]t the Legal Aid Society, they emasculate lawyers . . . because they’re so concerned about preserving the record, trying the case for the appeal. But lawyers who try the case for the appeal are [going to] lose.”).
[42] As one treatise explains:
[T]he error-preservation presumptions recognize that objecting to every potential error in the trial tribunal is not sound strategy—for trial or for appeal . . . . While vigorously objecting to a series of leading or argumentative questions might be theoretically correct, the objections are worthless on appeal when the errors resulting from those rulings do not rise to the level of reversible or prejudicial error.
1 Beth Scherer & Matt Leerberg, North Carolina Appellate Practice and Procedure § 4.01 (2025).
[43] See infra Parts II, IV.
[44] Cf. In re Petition to Stay the Effectiveness of Ethics Op. 2017-F-163, 582 S.W.3d 200, 209 (Tenn. 2019) (interpreting the Tennessee Rules of Professional Conduct to impose different obligations concerning disclosure of evidence in criminal prosecutions than Brady v. Maryland, 373 U.S. 83, 87 (1963)).
[45] Strickland v. Washington, 466 U.S. 668, 687 (1984).
[46] Id.
[47] See Freeman v. Chandler, 645 F.3d 863, 869–70 n.3 (7th Cir. 2011) (concluding that a lawyer’s breach of ethical obligations is not necessarily sufficient to make out a claim of ineffective assistance of counsel under Strickland) (quoting Nix v. Whiteside, 475 U.S. 157, 165 (1986)).
[48] See, e.g., id.; see also In re Petition, 582 S.W.3d at 209.
[49] See, e.g., State v. Clay, 824 N.W.2d 488, 502 (Iowa 2012) (finding that an ethical violation does not necessarily amount to ineffective assistance of counsel).
[50] See Mickens v. Taylor, 535 U.S. 162, 176 (2002) (declaring that the purpose of the United States Supreme Court’s ineffective assistance of counsel jurisprudence is not to act as a mechanism for enforcing rules of legal ethics and professional responsibility).
[51] See McMann v. Richardson, 397 U.S. 759, 763 (1970) (remanding a habeas petition without making a finding that respondent had been deprived of effective assistance of counsel when his attorney met with him for the first time ten minutes before a plea colloquy and convinced him to plead guilty after giving him legal advice that did not accurately represent the law); Muniz v. Smith, 647 F.3d 619, 623–24 (6th Cir. 2011) (finding that a pro se habeas petitioner failed to establish ineffective assistance of counsel under Strickland when he argued that his trial attorney fell asleep during trial because he could not show that the attorney’s slumber prejudiced him); United States v. Lloyd, 983 F.Supp. 738, 742–43 (N.D. Ill. 1997) (denying a defendant’s claim that he received ineffective assistance of counsel when his lawyer was intoxicated during trial).
[52] Herbin v. Hoeffel, 806 A.2d 186, 195 n.15 (D.C. 2002) (“If the lawyer's breach occurs in the course of representation in a criminal trial, a client may claim that ineffective assistance of counsel prejudiced his criminal trial, entitling him to a new trial. The lawyer's violation of a professional rule, if proven, could also be ground for professional discipline.” (citing Strickland v. Washington, 466 U.S. 668, 695 (1984))).
[53] Id.
[54] Id.
[55] Mickens, 535 U.S. at 176 (Finding that Strickland and its progeny were not intended to “enforce the Canons of Legal Ethics, but to apply needed prophylaxis . . . to assure vindication of the defendant's Sixth Amendment right to counsel”).
[56] United States v. Cavin, 39 F.3d 1299, 1308 (5th Cir. 1994) (“[E]thical obligations are enforceable; a lawyer violating them may find himself before the state Supreme Court facing sanctions up to and including disbarment.”).
[57] See, e.g., Gary Feldon & Tara Beech, Unpacking the First Prong of the Strickland Standard: How to Identify Controlling Precedent and Determine Prevailing Professional Norms in Ineffective Assistance of Counsel Cases, 23 Univ. Fla. J.L. & Pub. Pol’y 1, 1 (2012) (describing the Strickland standard as a test used to determine if an attorney’s performance falls below the “minimum requirements” of the Sixth Amendment).
[58] See, e.g., Katz, supra note 9, at 26 (arguing that “[d]efense counsel should make a potential appeal an integral part of their trial preparation and strategy”).
[59] See Parham v. State, 229 So. 2d 582, 584 (Miss. 1969) (stating that “appointed counsel is required to provide active and zealous representation rather than engage in a pro forma exercise which is not according legal representation in any substantial sense,” but that counsel’s adequacy does not turn on whether “the case was won or lost”).
[60] Katz, supra note 9, at 27 (arguing that trial defense attorneys should “[b]alance any concerns about alienating the jury with the knowledge that an objection not made is unpreserved unless an appellate court decides the objection could not have cured the error”).
[61] Id. at 27–28 (recommending that trial defense attorneys, among other things, “insist on a complete record,” “avoid off-the-record or tacit understandings,” and “do not leave anything, such as gestures or demonstrations, to the transcript reader’s imagination”).
[62] Id.; see also Kenneth L. Gillis, Appeals: Winning Appeals by Preserving Key Issues in the Trial Court, 11 Chi. Bar Ass’n Record 24, 24 (1997) (recommending that lawyers who are worried about alienating the jury thorough too-frequent objections make an objection at sidebar, request a standing objection, or object “just audible enough for the judge and court reporter to hear you and preserve your position”).
[63] See Gareth Boyd, The Symbolism of Sword and Shield, The Symbolic World (May 15, 2020), https://www.thesymbolicworld.com/content/the-symbolism-of-sword-shield (“The symbolism [of the sword and shield] is a profound expression of two of the most basic operative principles guiding the manner in which Man acts and reacts . . . .”); see also Daniil Lobach, Medieval Sources of the Modern Symbolic Meaning of the Sword, 283 Advances Soc. Sci. Educ. & Humanities Rsch. 779, 780 (2018) (“In the medieval coronation formulas used in the Anglo-Saxon, German and French coronation ceremonies, the transfer of the sword symbolized the power that the church solemnly handed over to the kings to protect those who needed it.”); Id. (“The emperor Carolus Magnus . . . always wore a sword not as an ornament, but as a symbol of power.”).
[64] Id.
[65] Id.
[66] Id. (describing the origins of the symbolic sword and shield).
[67] See In re Winship, 397 US 358, 363 (1970).
[68] Compare Boyd, supra note 97 (stating that the sword was used by “St. Michael defeating Satan at the Apocalypse, Sigurd slaying Fafnir, [and] St. George liberating the village of Silene from the venomous scourge of human sacrifice”) with Cory Issacson, Note, How Resource Disparity Makes the Death Penalty Unconstitutional: An Eighth Amendment Argument Against Structurally Imbalanced Capital Trials, 17 Berkley J. Crim. L. 297, 308 (2012). (“Even taking prosecutions of non-indigent defendants into account, there often exists a huge gap between resources allocated to the prosecution and those allocated to indigent defense.”).
[69] Compare Lobach, supra note 97 (describing a ceremony in medieval Germany in which an individual could assert innocence on a charge of theft by reciting an oath of innocence while standing in a circle in the ground drawn by a sword) with Marcia G. Shein, The Government’s Use of Lost Evidence, 38 Champion 26, 30 (2014) (“Like most complicated issues, a practitioner involved in a case in which evidence has been lost or destroyed must be prepared to attack the prosecution's case on several fronts.”).
[70] See, e.g., State v. Worthen, 222 P.3d 1144, 1153 (Utah 2009) (“In our system of justice, . . . a defendant may present evidence that casts doubt on the State's ability to prove all the elements of the crime.”).
[71] See, e.g., Defense Function, supra note 22, at Standard 4-4.1(c) (describing the duty of defense attorneys to investigate forensic evidence, impeach witnesses, and challenge questionable evidence).
[72] Katz, supra note 9, at 26.
[73] Defense Function, supra note 22, at Standard 4-1.2 (“The primary duties that defense counsel owe to their clients . . . are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity.”)
[74] Katz, supra note 9, at 27.
[75] Id. (explaining that failure to preserve issues can result in a more scrutinizing standard of review on appeal, or even waiver of the issue entirely).
[76] Id.
[77] Defense Function, supra note 22, at Standard 4-1.2(d) (“Defense counsel should act zealously within the bounds of the law and standards on behalf of their clients . . . .”).
[78] Katz, supra note 9, at 26–28; see also Defense Function, supra note 22, at Standard 4-1.5.
[79] See Boyd, supra note 97 (stating that the sword and shield was used a symbol for balance); see also Hofmann, supra note 8 (“The best way to win on appeal is to win at trial.”).
[80] Cf. Wilson v. Williams, 182 F.3d 562, 571 n.3 (7th Cir. 1999) (Coffey, J., concurring in part, dissenting in part) (asking, rhetorically, how “the pretrial conference attorney [can] be expected to know what will come up at trial unless he too has the latest, computerized crystal ball?”).
[81] See, e.g., State v. Bhattacharya, 18 Ore. App. 327, 331 (Or. Ct. App. 1974) (concluding that more specificity should be required in pre-trial objections because “the pretrial objection can be researched and written under relatively calm circumstances, as distinguished from an extemporaneous objection made in the heat of trial” (internal quotations omitted)). But see Gillis, supra note 96, at 24 (recommending making objections as soon as possible, even if they are made “after a lunch break” or “first thing in the morning, after an issue was raised late in the afternoon before”).
[82] See Gordon v. United States, 518 F.3d 1291, 1300 (11th Cir. 2008).
[83] See supra Part IV.
[84] See Defense Function, supra note 22, at Standard 4-1.4(a).
[85] See supra Part IV.
[86] Katz, supra note 9, at 26.
[87] See supra Part IV.
[88] Id.