Rape Shield law under attack in Bryant case
December 25, 2003
A lawyer’s got to do what a lawyer’s got to do. And sometimes that means bending the law almost till it breaks.
Why you hire a lawyer is, to be sure, to know the law. But your lawyer’s also supposed to act as your advocate, to press your rights and interests as far as they may fairly and lawfully be pressed. Your lawyer’s job — his or her professional and ethical responsibility — is to be solidly and zealously in your camp, and to advance your case, claim or defense as far downfield as the rules of lawyering permit.
Rule 3.1 of the Colorado Rules of Professional Conduct provide that: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding … may nevertheless so defend the proceeding as to require that every element of the case be established.”
In interpreting this rule, it has been observed that a lawyer, as the client’s champion and advocate, has a duty to use legal procedure for the fullest benefit of the client’s cause. But in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change – and therein lies the rub.
Reputation at risk?
While a lawyer must not advance frivolous propositions before the court, the lawyer is duty bound to interpret, finesse and sometimes muscle the law in the manner most advantageous to his or her client, including a plea for changing or amending existing law if both circumstance and reason compel.
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This is, in fact, how law changes and evolves. Reconsideration of existing law led to the extinction of such monstrous evils as the Jim Crow laws and is the mechanism by which law keeps pace with an ever-cha