Some questions about legal ethics (or personal policy) arising from a discussion I had with a lawyer last night.
You are asked to defend an accused criminal who you personally believe to be guilty (in that he most likely committed the act he is being tried for).
If you would not take the case in 1., suppose you took the case assuming he was most likely innocent and subsequently became convinced that he was guilty. (Not as simple as 1. because, among other things, in the first case no one could fault you for refusing to take the case, but here you could argue that ethical considerations required either course of action.)
You’ve taken/kept the case under 1. or 2., and believe your client is likely guilty. You believe the most likely chance for acquittal is if you appeal to the jury’s prejudices (e.g. highlight the accused’s shared race or socioeconomic status) or stupidity (e.g. convince the jury that DNA is just a bunch of mumbo-jumbo nonsense).
Same as 3. but you actually believe your client is innocent. Despite his innocence, you believe his best chance for acquittal is in focusing on these other matters.
1a - 4a. Same as the above four cases, but this time with regards to civil litigation versus criminal. IOW, someone is asking you to represent him/her in a dispute with another private individual - you believe that he did/didn’t borrow the money or harm the guy or whatever, and he is asking you to help convince a judge/jury otherwise. Complication here is that it’s easier to take a stance allowing criminals to go free if the government can’t convict under the rules, than it is to support helping people rip off other people. The guy I spoke to last night got a lot less confident when I shifted the discussion to civil cases, but still said he would take such a case (which was convenient for him because he was a civil and a not a criminal lawyer).
[I put this in GD because it seems debate-worthy - my apologies if this turns out to be the wrong forum.]
Really none of the variants you mention make any difference. Most criminal defendants are actually guilty. They’re still entitled to a vigorous defense. The State must be held to the standard of proving guilt beyond a reasonable doubt. Doesn’t matter if the crime is jaywalking or mass murder. Contrary to popular belief, the role/obligation of the criminal defense lawyer is not to “get the client off”. The role of a criminal defense lawyer is to see that the client’s rights are protected. He must be given a fair trial, before an impartial jury(unless he wishes to waive trial by jury). The evidence against him must be admissable under the applicable rules. The witnesses against him should be cross examined to expose any contradictions, bias, or other reasons to doubt the testimony. He must be able to present witnesses/evidence in his own defense, and have compulsary process to obtain same. The jury must be properly instructed on the applicable law, and they should hear argument from counsel before rendering a verdict.
On the civil side, the lawyer must be aware of Rule 11–basically requires a lawyer to believe any pleading he files to be well founded in law and fact, or to be a good faith argument for a change in law. Take a contracts case as an example. The contract is either valid, or it is not. Perhaps parts of the contract are ambiguous, or vague. Could be the client believes he has fulfilled his obligations under the contract. If the contract says he is to produce X number of widgets, and he’s done that, but y number of widgets don’t satisfy the other party for some reason–wrong size/color, defective materials, the case can be argued either way. As long as there is some reasonable argument in favor of the client’s position, there is no ethical problem in advocating that position on behalf of the client.
Add the point that the facts do not always equate to the crime charged. The whole “lesser included offense” structure presumes this, and it is the prosecution’s job to accuse of the highest level of crime they believe they can successfully prosecute. Joe did X which killed Tom; he’s charged with first degree manslaughter. The fact that Joe killed Tom is not in dispute. But it may be criminally negligent homicide, involuntary manslaughter, etc. A good lawyer can demonstrate that the factual elements of the case do not add up to what the proscution charges as a crime.
For a real-life though seemingly hypothetical example, consider this: A teenager is walking down a beach past cottages on a November evening when a freak snowstorm hits. He takes shelter in one of the cottages, which is unlocked, drinks some tapwater, secures the premises better (closes a window left open an inch, etc.), waits out the storm, leaves a note for the owner telling what he did and why, blows his nose on a Kleenex, sticks it in his pocket, exits the cottage and walks back home. Under New York law he is guilty of the felony crime of burglary – he entered a dwelling place without the owner’s consent and removed something (the Kleenex) from the premises. Since the boy was on probation for vandalism a year before and the cottage owner brought it to the cops, this actually had to be tried out in court – they found there was no criminal intent, and he served out his probation. But it’s a good example of “committed the crime” not equating to justly guilty: all the elements of the crime of burglary save criminal intent were actually present, but no one in his right mind would consider it a felony crime.
Your example is about legal aspects, but I was thinking more along the line of factual ones. Where the two sides disagree about what happened, and your job as a lawyer is then to claim that your client’s version is what happened, even though you don’t actually believe it did.
Does “well founded in law and fact” imply that it has to be most likely actually true, or could “could conceivably be true because you never know” suffice?
The issue is a non starter. What I believe is irrelevant, what the evidence suggests is what you have to concentrate one. I have had several cases where I knlow that the guy was most likley guilty, he got off. Do I feel conflicted, the answer is no, in each of the cases, the evidence was insufficient and the accused deserved and got the benefit of the doubt.
Secondly, on the issue of appealing to prejudices, works well on TV and in fiction, not in real life. Saying a black, white, Asian, Dutch or Aussie guy is less credible soley because of his nationality (unless there is some other factor present) will only get you shot down by the judge and probably be a major professional conduct violation. Ditto,. saying DNA is a bunch of mumbo jumbo, unless that is an issue in the case, for instance, the DNA test is not probative in the circumstances or that the technique is untested.
On the last point and on civil issues, you put your clients case forward, until doibg so would be a professional conduct violation. And lawyers don’t usually try to"screw the otehr side over", they act on instructions from teh clients and a lot of the time you put your clients best interests forward by advising them against a course of action, on several divorce and custody negotaitions, I have seen lawyers advise their clients to act more reasonably.
The fact that juries aquit rather easily, and give out ridiculous awards is well known. Again irrelevant, ask a dozen practitioners you will get a dozen different answers, one person told me that in a rape case when defending, she wanst the jury to have as many women as possible, another told me she wants as few as possible. Both give reasons, but professionally, if you are resorting to emotional appeals, your goose is well cooked by then and you will most likely fail.
Not to hijack, and I think this is along the same lines, but do you know whether your client is guilty or not? Do you ask him/her?
Take a murder case. Do you want to know that yes, he really killed the guy and then look for holes in the case, or is it a matter of sticking your fingers in your ear, pretending he is innocent and try to take it from there?
The criminal defendant scenario doesn’t present a question of Legal ethics - you are ethically bound to defend as zealously as is possible in the circumstances, and ethically bound to keep your client’s confidences.
You can withdraw if the facts are so repugnant to you that you feel you cannot uphold your ethical duty of zealous advocacy. If this happens to you frequently, you are definitely in the wrong field.
The criminal defense attorneys I’ve known (and I hope to someday count myself in their number) tend to have Lawful Neutral as their alignment, if I can get nerdy on you. They place a high value on restraining the state, holding them to their burden against a citizen, preventing widespread abuse of rights by the police, etc. Some good law has been made on behalf of some not-very-savoury defendants. Miranda, anyone? Everyone’s favorite kidnapper-rapist?
Overheard at a Public Defender’s office:
Attorney in lunchroom: “I think he might be our rare client who is actually innocent!”
In your conferance with the client you try and acertain as many facts as possible. You advise them of the strenghts and weaknesses of their case (from an evidential standpoint) and then ask them what plea they want. Usually most juridictions have due credit for a guilty plea (meaning the punishments might be reduced). You advise them of that.
If they say they are guilty and they say they want to plead not guilty, you can continue to represent them, but you are hampered, since you can’t mislead the court. So you can’t put forward a defence which is based on saying “I did’nt do it”, since you know that is wrong. The whole defence becomes them essentially one of asking the prosecution to prove their case, you can attack their evidence properly, lets say the main evidence is based on identification, you can properly attack the identification, in cross you can put it to the witness, that it was dark, he only got a fleeting glimps, he saw the assailant at a distance, he cannot be absolutly sure etc, since these are all true. You cannot however put it to the witness that he did not see the defendant, since that would be something you know is not true.
“Ladies and Gentleman, if I know that this man is guilty of murder, I can’t look you in the eyes and say that he is innocent, or else I would lose my law license. (Stare at jury) Ladies and gentlmen, this man is innocent!!!”
There is a reason that the verdicts in a criminal trial are “guilty” and “not guilty”, however much we want to contrast guilt and innocence. The prosecutor is attempting to prove beyond a reasonable doubt that the defendant did something that complies in every detail with the definition of the crime charged at a given time and place. The defense is not required to prove that the defendant is innocent of all crimes, misdemeanors, offenses, and peccadilloes – they’re only required to show that the prosecution’s burden of proof has not been met – that he is not guilty of the crime charged, or at least that his guilt has not been proven.
The proper response to this question is neither “Yes” nor “No” nor even “That is subject to client-attorney privilege” but rather “Your honor, I move for a mistrial” – to hich the judge says, “Granted, with all costs borne by the prosecution.”
In England and Wales, since 1990, we have had something called a wasted costs order, which can be made against the counsel personally. If the barrister dose something like what is suggested by glee well the amount ordered might well be enough to pay for a years worth of legal aid!
I’ve had this discussion before with a friend of mine who’s a lawyer. I completely disagree with her opinion, which is that she would still do whatever it takes to get her client off
If I was a lawyer, and I thought my client was guilty, I would do everything possible to sabotage the case and lose it
Thank God you aren’t a lawyer then. The lawyer doesn’t make the determination of guilt. The jury or judge does. The fact that you as a lawyer **think **the person is guilty isn’t relevant. Now if you know they are guilty, that might be different. It might not prevent you from representing them (though it also might), but it shoudl certainly alter the type of defense you put forward.
Problem is - even if you don’t buy the argument that lawyers should always help the guy get off - that the guy is paying you money to represent him. You’re taking the guy’s cash and betraying him.
Plus, the guy is trusting you with his defense. If you would be upfront about not believing him, he’d have the opportunity to hire someone else, and you’re robbing him of the opportunity to have any representation.
There was a recent case in which a lawyer for the DA admitted that he had deliberately thrown the state’s case because he believed the defendent was innocent. He was investigated but ultimately not sanctioned.
But that differed in that the DA has the official job of determining the truth and seeking justice, versus representing anyone in particular. (The complicating factor in this guy’s case was that he was an employee of the DA versus the DA himself, so the question was whether this was his decision to make.) That would not apply to a lawyer representing a private client.
Assume your client admitted to being guilty of the crime to you (his attorney).
What if your client demands to take the witness stand and proclaim their innocence?
On the one hand you cannot perpetrate the lie knowingly on the court but on the other doesn’t your client have a right to take the witness stand in their own defense if they want to?
