That's the title of Andrew Cohen's latest at the Atlantic. It's subtitled, "Legal ethicists are alarmed by a recent federal appeals court ruling that requires attorneys to suggest alternatives to the lethal injection procedures they deem unconstitutional." Here's the beginning:
May a court compel a defense attorney to breach her ethical duties to her client in a death penalty case? More precisely, when an inmate's counsel is asserting that a state's lethal injection procedure violates the Eighth Amendment's prohibition against "cruel and unusual" punishment, should she be required to suggest an alternative?
However you phrase it, this profound question has arisen in Missouri after a group of prisoners challenged the state's dubious lethal injection protocols, and the 8th U.S. Circuit Court of Appeals issued a January ruling denying them relief. Those prisoners have now asked the United States Supreme Court to accept their case for review, arguing that the 8th Circuit plainly misinterpreted the Supreme Court's 2008 ruling in Baze v. Rees.
The idea that judges would force defense attorneys to do the government's job of identifying viable lethal injection options has alarmed legal ethicists. Last week, for example, the folks at the Ethics Bureau at Yale Law School urged the justices to overturn the 8th Circuit's ruling because it "flies in the face" of a lawyer's obligations to her client. Neither the Sixth Amendment, the Eighth Amendment, nor the Supreme Court's ruling in Baze demand such a result, they argue.