Jenner & Block

Fischer and Ziegler Obtain Important Pro Bono Criminal Defense Victory

In a significant criminal justice victory, Associate Brian J. Fischer and Partner Richard F. Ziegler helped obtain an appellate court reversal in a criminal contempt conviction of a public defender who had refused to defend his client at a criminal trial on a half-day's notice.  The court’s opinion in Ohio v. Brian Jones, Case No. 2008-P-18 (Ohio 11th Dist. Ct. of App.) drew considerably from the arguments presented in the Firm's amicus brief in reinforcing important ethical safeguards in the criminal justice system.

The Firm's amicus brief concerned a public defender in Ohio who was assigned by his office to defend an individual charged with a misdemeanor assault. When the public defender appeared at court the next morning for what he believed would be a routine pre-trial conference, he was told that his client's trial was about to begin.

Despite the public defender’s explanation to the court that he was wholly unprepared to proceed and that his ethical obligations precluded him from continuing and endangering his client's constitutional rights, the court refused the attorney’s motion for a continuance and ordered him to proceed.  Upon his refusal, the court held the attorney in criminal contempt, had him taken into custody, and later sentenced him with a fine.

At the request of Fordham Law School's Louis Stein Center for Ethics and Law, Jenner & Block prepared an amicus brief asserting that the attorney’s contempt conviction rested on an improperly narrow understanding of counsels’ ethical duties.  Among other things, the brief argued that an attorney has a constitutionally-rooted ethical obligation to prepare and investigate adequately for trial that cannot be extinguished by court order or threat of contempt; the contempt conviction was at odds with the court's obligation to administer and ensure a fair trial; and it is improper to rely on appellate courts to cure foreseen and easily avoidable representation deficiencies.  Moreover, it contended that imposing criminal contempt on an attorney in these circumstances risks chilling defense attorneys' discharge of their ethical duties.

Mr. Fischer participated in the oral argument before Ohio’s Eleventh District Court of Appeals, which shortly thereafter reversed the attorney’s contempt conviction. 

“Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution,” the court said.  “Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.”

In addition to the Fordham Law School's Louis Stein Center for Ethics and Law, amici from across the country joined the Firm’s brief, including: the American Civil Liberties Union of Ohio Foundation; the National Association of Criminal Defense Lawyers; the Hofstra University School of Law's Institute for the Study of Legal Ethics; the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School; the Office of the Ohio Public Defender; the Ohio Association of Criminal Defense Lawyers; and the University of Miami School of Law's Center for Ethics and Public Service.