OPINION 131
June 1956

DEFENSE OF THOSE ACCUSED OF CRIME - An attorney representing the defendant in a criminal case is not required to call attention, to a fatal defect in his client's indictment.

 Canons 5, 19.

Question

If a lawyer, employed to defend one charged with crime, discovers a fatal and fundamental defect in the indictment, then should such attorney apprise the trial court or district attorney of such error, or should he proceed to try the case knowing that in event of conviction a reversal will follow, thereby giving the accused much additional time?

Opinion

This is a close question. However, a majority of the members of the committee are of the opinion that there is nothing unethical in such conduct. There is no obligation on the part of an attorney to assist the State in convicting his client. The obligation is on the prosecuting attorney to prepare indictments properly and to discover any defects which may exist in them after they are prepared and filed. To require the attorney for the defense to point out defects in an indictment is not consistent with the attorney's duty to represent his client faithfully as required by Canon 5 of the Canons of Ethics of the State Bar of Texas. (5-4)