Noisy withdrawal time. You tell the judge you have to withdraw. He asks why. You say you cannot tell him. He refuses you permission. You say you really really have to withdraw. He asks why again. You say you can’t tell him because of ethical considerations. He allows you to withdraw.
Well if it gets to0 bad you can as Villa says, return instructions ("withraw"as you yanks say). Generally its a judgement call and it really depends on the facts of the case. For the most part I would very strongly advise the client not to take the stand. The reason being that when I do my examination in chief (direct exam in the US) of him it will be compromised. I won’t be able to elicit a denial from him (which I would normally do), I will have to infact steer clear of a line of questioning that might make him deny guilt. I will also be hampered in my closing argument since I can’t put forward good character (very important if its a first offence). This will no doubt be noticed by the evil sadistic person; known as opposing counsel and whe he rises up to cross examine the accused, he will tear him a brand new one.\
Its still doable and is pretty much the supreme test of advocacy skills, but why do you think the are so many plea bargains?
In the alternative, you ask to approach, and at sidebar you suggest that the client be allowed to testify in narrative fashion…ie, he takes the stand, says whatever dumb thing he wants to say, but you will not be asking any questions–and the prosecutor then gets to take him apart on cross. Really only one reason you’d do that, and this is it…so the Court knows what’s up, and you’re covered under ethics rules.
I totally forgot about narrative testimony. Good thing I am not a criminal defense lawyer.
Just to mix it up (for fun…I am not seeking to corner anyone here on anything):
What if your client admits his guilt to you (his attorney) but you really think he is not guilty. Maybe he is covering for someone else (maybe the mob told him to take a fall “or else” or whatever hypothetical suits you).
Can you put him on the stand and try to elicit a denial from him and be ok ethically? Or do you just have to go with what he told you? If he said he is guilty then you have to proceed under that regardless of what you feel the actual truth to be?
Well I cannot ethically stop a client pleading guilty, whatever I think, just as I cannot stop him pleading not guilty.
I can’t elicit testimony I know to be untrue. But I am not sure how this situation would come up because presumably he would have plead guilty and so wouldn’t be on the stand…
These issues are ones that should be dealt with at conferance wth your client, where it is standard to say “you must plead not guilty if you are not guilty”. If he still insists on taking the fall well its unlikely that he would even get to the stand, simply at the first hearing he will be asked to enter a plea and will say “guilty”.
That said, it would be difficult position for me. Legal Privilage is not absolute and this is one circumstance where I might break it, if the client tells me that he is not guilty and is going to plead guilty. Or I might return instructions.
I know, I’d be a terrible lawyer. But one thing I’ve always believed is that just because the rules say its supposed to be done one way doesnt mean there are no exceptions
I would completely be mindful of the ramifications of what I’d be doing, no doubt. This isnt a decision that I’d make lightly. But ultimately, if I truly believed that the guy is guilty, then I cannot simply rationalize it away as “lets do it the right way” or “let someone else take responsibility”. My conscience would demand that I act, and I would. Since I believe that the law is first and foremost there to protect people, to act as a benefit to those who do good, then I see absolutely no benefit to me or anyone in society if I simply ignored the underlying spirit of the law and why we have it in order to follow its letter and defend a guilty person
I considered the guy would just plead guilty but used the mob angle hoping to suggest that while the mob wanted someone else to go stand trial and risk jail they didn’t care if his attorney got an acquittal so the guy might still enter a “not guilty” plea. May as well take a shot at a not-guilty verdict.
I admit it is a stretch. Just curious what an attorney would do in such a circumstance.
I can imagine there have been times where maybe a parent wants to cover for a child or something. Maybe not common but not out of the realm of possibility for someone else trying to take the fall when they didn’t do anything.
You wouldn’t be ignoring the underlying spirit of the law and following its letter. The situation that you describe is one where you merely think your client is guilty. Now that thought might get you to the stage where you should withdraw, and it might not. But don’t be arrogant enough to presume you can act as judge and jury. What you have said you would do is, on the basis of your opinion regarding someone’s guilt, act in a way such as to guarantee their conviction. That’s reprehensible as far as I can see.
Now, in a situation where I knew the person was guilty, I might still represent them if I felt, for example, the evidence had been wrongfully obtained. That’s still, in my mind, protecting people, because enforcig the law on the police is as important if not more so than enforcing it on individuals.
I was trying to come up with a scenario and it was mob stuff that sprung to mind. I guess the bottom line that we keep returning to is that I cannot ethically elicit testimony I know to be false. If the client has told me he is going to lie on the stand, I’m not allowed to ask questions that can bring those lies out. I think you are imagining, and correct me if I am wrong, a situation where the attorney stands there and asks “you didn’t really do it did you, you were lying to protect X” I just don’t know how I would get to that position, because I couldn’t have asked him the preceeding questions where he confesses because I would know I would be eliciting a lie there.
One question for the crim lawyers that could answer this - if my client testifies in narrative, gets crossed, can I then redirect? Because that is the only way I can see that would get to this conundrum. And if that is the situation, I would think ethically I would be allowed to do it.
In particularly sticky ethical situations is there a way for an attorney to approach the Bar and get a ruling on what course of action should be taken without violating attorney/client privilege?
Or do you just have to hope you pick right?
We have an ethics help line, and there are lots of model rulings. I don’t think the help line is a safe harbor, but it is pretty damn good.
Also, as a junior associate, you are pretty well covered if you approach the ethics partner and follow his or her advice.
Whenever I have one, I always just put it here in GQ.
(Kidding! Kidding!)
In England and Wales its pretty standard to reexamine (as its called here) when its the accused on the stand.
Whack-a-Mole, as said before these are issues where judgement needs to be exersized, it really depends on the circumstances.
I wouldnt do this unless I was fairly sure. “Think” probably isnt the most descriptive sense of what my mindset would be. It’d be more accurate to say that I believed very strongly of his guilt based on what I know of the evidence. I wouldnt do this just on a little whim, that’s what I’m trying to get at. Given that as a defense lawyer, I’d be expected to know everything the prosecutors know AND the little snippets of information confidentially told by client to lawyer, I’d have a more than good idea of the guilt of my client. That might be arrogant, but its not as simple as boiling the evidence down to me acting as judge and jury. As a lawyer, I’d know the law, and if it was truly the instance in which guilt is pretty well established, well, then I would think its reprehensible NOT to act
I also did not agree with one response my friend gave. She said that had she been given or obtained information or evidence that she knew established her client’s guilt, she’d withdraw, as you suggested. That, to me, seems reckless. My job as a lawyer would be simply to use the law to defend the innocent and those with reasonable doubt, and somehow get the guilty into jail. Withdrawing from the case, even to act as witness for the other side, would result in less success of a just outcome than if I remained lawyer and secretly sabotaged the case
I half agree with that. It would depend on the case. If the guy was guilty and evidence wrongfully obtained, I’d have to weigh that against the magnitude of the crime he committed and act accordingly. The law has to be written broadly to be valid in as many situations as possible, so some situations require a less broad stroke. I might or might not determine that he deserves to be sent to jail despite how the evidence was obtained so sabotage is definitely a possibility
Then you’d be in the wrong profession to begin with.
“Simply?” You can’t be a defense attorney AND a DA AND a judge AND a jury all at the same time. Let’s just say, our founding fathers had this idea that concentrating every type of power in one individual was a really bad idea. Sure, lawyers-types are drunk with power and all, but that’s a lot to take on even for them.
You’ want to be a vigilante? Well, saddle up the Batmobile and go to town. But what you have described is in no way a “lawyer’s job.”
Assuming, of course, that I am a competent defense attorney and have no conflict of interest (e.g., he killed my baby sister, or, even worse, failed to kill my brother :D), I defend him. He’s entitled to a defense, and the government must be kept in check.
That I won’t do. He’s entitled to a vigorous and competent defense, not a lying defense.
I find it difficult to imagine that being the case, so I’d need more specifics to answer.
I’ll think about it some more, but I doubt I’d take that one.
If you don’t want to defend guilty people, you better not become a defense attorney.
Fact is, a very large fraction of people accused of crimes actually committed those crimes. If defense attorneys refused to represent guilty people most people accused of crimes couldn’t find anyone to take their case.
Either you’re OK with the idea that guilty people aren’t entitled to due process, or you’re OK with the idea that everyone is entitled to due process, whether they are guilty or not. I prefer the second.