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Old 04-27-2011, 03:35 PM
YogSosoth YogSosoth is offline
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Need a lawyer to explain this: Dropping a client

According to this Slate.com article, it's not so easy for a lawyer to drop a client. I actually didn't realize there was an issue. I've always figured that a lawyer works for the client but can still make decisions on whether or not he's able to fulfill his contract. If he can't, he can quit

Here's the part of the article that bugged me, and I severely disagree with this:

Quote:
"Criminal defendants have a constitutional right to take the stand in their own defense. Occasionally, one of them tells his lawyer in advance that his entire line of testimony will be lies. This scenario presents what legal scholar Monroe Freedman famously referred to as the lawyer's "trilemma." The attorney has an obligation to fight for the client's interests, a responsibility to identify perjury to the court, and a duty to keep his client's secrets. Because the client has put the attorney in a situation in which it's impossible to fulfill all three professional obligations, some lawyers see this as a situation that demands withdrawal.
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"Unfortunately, it's not that easy. As mentioned above, an attorney can't withdraw in the middle of litigation without the judge's permission, and it's indisputably unethical for an advocate to directly inform the judge that his client is a liar. What usually happens in these cases is that the lawyer approaches the bench and asks to beg off the case for vague "ethical reasons." The judge, knowing exactly what's going on, typically denies the request, because the jury would smell a rat if the lawyer were to disappear right before the defendant took the stand. The judge, continuing the Kabuki-style exchange, informs the advocate that he has satisfied his ethical obligations and must continue. In some courts, the lawyer can protect his sense of ethics by simply putting the client on the stand and instructing him to "tell the jury his story," rather than specifically prompting the lies."
And people wonder why lawyers get a bad rep sometimes. If I'm reading it right, the lawyer's not even supposed to be only defending or upholding the law, but also the client's interests, and if there's a conflict, it's not automatically what's legal that wins out???

Why is this allowed? Specifically, a court is supposed to get to the truth, protect people, uphold our society, yada yada yada, but here you have a lawyer who knows the client's going to lie and he can't tell anyone?? Fuck that! Shouldn't the law be able to step in at this point and say "You know what? We have laws against perjury, you can't lie to a court, so if a lawyer finds out about the client lying, then yes, go ahead and spill the god damn beans. The client's a liar and he should be punished. If he doesn't want the jury to suspect something, then DON'T FUCKING LIE".

I'm not a lawyer, and I've had issues with how the law works, but this seems like cutting off the nose to spite the face. Laws are supposed to be followed. If they're not, there's punishment. To get to the truth and find out the proper person to punish or the correct and just conclusion, everyone must tell the truth. Then the judge or jury will decide. If you needed to break the law, that's where the decision should rest. It seems like this "trilemma" is saying that if you really really think you're innocent, or even if you just want a Not Guilty verdict, then it's ok to lie as long as the result would have been what it would have been had you not lied in the first place.

I guess I wouldn't make a good lawyer or a legislator, because the first thing I would do upon hearing my client's gonna lie is to tell him don't do it, and then call him out on it in the middle of the courtroom if he does lie. And as a legislator, I would strip that mandate from the law saying that lawyers can't tell anyone their client is lying. That's the truth. No one should ever be in trouble legally from telling the truth in a courtroom.
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  #2  
Old 04-27-2011, 03:42 PM
Simplicio Simplicio is online now
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Quote:
Originally Posted by YogSosoth View Post
I'm not a lawyer, and I've had issues with how the law works, but this seems like cutting off the nose to spite the face. Laws are supposed to be followed.
Lawyer-client privilege is also a law. Hence the "trilemma".
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Old 04-27-2011, 03:43 PM
Whack-a-Mole Whack-a-Mole is offline
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My understanding is if the client insists on taking the stand and the attorney has good reason to think he/she will lie to given questions then the attorney does not ask them those questions (they ethically cannot...not saying all attorneys abide by it).

If you take the stand your attorney may ask, "Is your name YogSosoth?" After that your attorney goes and sits down and lets the prosecution have its way with you (they may pursue other lines of questioning that they have no reason to think you will lie about).

In theory your attorney should make this clear to you beforehand and dissuade you from taking the stand. But if you insist then I suspect something like the above would happen.

ETA: IANAL...this is just my understanding of it.

Last edited by Whack-a-Mole; 04-27-2011 at 03:45 PM..
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Old 04-27-2011, 03:56 PM
msmith537 msmith537 is offline
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There's "the truth"...and then there's "the truth"
-Lionel Hutz, esq.

The lawyers duty is to present his client's case as best he can through facts and testimony, not get to some objective "truth". Technically, anyone who commits a crime and then pleads "not guilty" is lying.

Quote:
Originally Posted by Whack-a-Mole
If you take the stand your attorney may ask, "Is your name YogSosoth?" After that your attorney goes and sits down and lets the prosecution have its way with you (they may pursue other lines of questioning that they have no reason to think you will lie about).
IANAL, but my understanding (US law) is that opposing counsel can only cross examine a witness based on topics that came up during initial questioning. The prosecutor can call your client as a witness for the prosecution, but under the Fifth Amendment (AKA pleading the Fifth), he does not have to answer any questions.

Last edited by msmith537; 04-27-2011 at 03:56 PM..
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Old 04-27-2011, 04:00 PM
The Great Sun Jester The Great Sun Jester is offline
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Defense attorney's job is to make the prosecution prove something beyond a reasonable doubt. Even if the defense knows his client is guilty as sin or is going to lie, it doesn't change his challenge to the prosecution, nor does it change his duty to point out the weaknesses in the prosecution's case. He's under no obligation to look a juror in the eye and say, "My client is innocent."

If the prosecution is going to rely solely on the testimony of the defendant, then they already have a flimsy case irrespective of whether the defendant is guilty.

Last edited by The Great Sun Jester; 04-27-2011 at 04:01 PM..
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Old 04-27-2011, 04:15 PM
mazinger_z mazinger_z is offline
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Your first problem is deciding that there is a truth to be told. There isn't. There's an account, but it's not the truth, not exactly.

The other issue is that since the truth can't really be known, and known to all, we have standards to implement and procedures to follow. Because as a society we value liberty so much, criminal prosecutions looking to take away that liberty must be held to the highest standard, hence the guilty beyond a reasonable doubt.

However, I see that the short argument is already been made: the defense attorney also has to see to it that society (the prosecution) plays fair. This is also looking out for the best interest of society.
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Old 04-27-2011, 04:30 PM
Lemur866 Lemur866 is offline
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If a defense attorney's first responsibility isn't to his client, then there would be lots of people who wouldn't deserve defense attorneys. If your attorney thinks you're guilty, he'll quit, or help the prosecution instead.

Except, we've decided as a society that everyone on trial deserves a defense attorney, not just those who aren't guilty. I suppose we could have some sort of tribunal to decide whether someone accused of a crime is a guilty scumbag who doesn't deserve a defense attorney, or an innocent citizen who does. However, once we've gone to the trouble of figuring out whether someone is innocent and deserves a defense, it seems a bit thick-headed to go on with the prosecution once we've decided the guy is innocent and deserves a fair trial.

So, rather than first having a hearing to decide whether the accused deserves a fair trial, we give everyone a fair trial. And if, after the fair trial, we decide someone is guilty and didn't deserve that fair trial, well, that's the price we pay for a having a system where we don't just punish people on the word of the authorities.

We don't have a system of jurisprudence because we love lying criminals, we have a system of jurisprudence because we hate arbitrary authority. Defense attorneys are an indispensable part of a fair justice system, therefore even scumbags who don't deserve an attorney must have one. Not for them, but for us.
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Old 04-27-2011, 04:38 PM
Malthus Malthus is offline
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Quote:
Originally Posted by Lemur866 View Post
If a defense attorney's first responsibility isn't to his client, then there would be lots of people who wouldn't deserve defense attorneys. If your attorney thinks you're guilty, he'll quit, or help the prosecution instead.

Except, we've decided as a society that everyone on trial deserves a defense attorney, not just those who aren't guilty. I suppose we could have some sort of tribunal to decide whether someone accused of a crime is a guilty scumbag who doesn't deserve a defense attorney, or an innocent citizen who does. However, once we've gone to the trouble of figuring out whether someone is innocent and deserves a defense, it seems a bit thick-headed to go on with the prosecution once we've decided the guy is innocent and deserves a fair trial.

So, rather than first having a hearing to decide whether the accused deserves a fair trial, we give everyone a fair trial. And if, after the fair trial, we decide someone is guilty and didn't deserve that fair trial, well, that's the price we pay for a having a system where we don't just punish people on the word of the authorities.

We don't have a system of jurisprudence because we love lying criminals, we have a system of jurisprudence because we hate arbitrary authority. Defense attorneys are an indispensable part of a fair justice system, therefore even scumbags who don't deserve an attorney must have one. Not for them, but for us.
That's about as good an explaination as any ... every once in awile this sort of question crops up, either as 'how can solicitor client privilege possibly be a good idea?' or more basically 'how can lawyers defend people they personally think are guilty?', and the explaination to both is - it isn't the individual lawyer who provides justice, it is the system that he or she is a part of that is supposed to do that.

Essentially, a defence lawyer can go to sleep at night in good concience because they believe that, overall, the system does provide justice, as advertised - it may not be a perfect or even a particularly good system, but so far, it beats most of the alternatives.
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