Something topical , albeit dated from Ontario.
Right. It’s not a very practical situation to get into, and fortunately I’ve never been in it. If I were, I would file my motion and not give “no” reason. I would I’m required to withdraw because;
adding that I cannot disclose the reasons why that would happen wtithout violating other ethical rules;
- Cite rule 1.16(b) as additional grounds, with a similar disclaimer.
A judge who is paying attention will know what that means. If the motion is denied, then I go to the next step. I agree this isn’t clear and it’s far from practical. My state bar offers informal ethics opinions by telephone and email. I’d probably get one before I did anything.
Well, what about this? An 18-year-old high school senior is sent home from school on a warm spring day with a severe cold. Arriving home, he finds that, uncharacteristically, his parents have locked the house completely, and he isn’t carrying a key. (For our purposes, I’ll set this in upstate New York, in a small town where people might feel it safe to leave their house unlocked.) The young man goes to the house of neighbors he’s known all his life, finds they’re not home but the house is unlocked, enters the house, takes a Kleenex from the box on the kitchen counter, blows his nose, sticks the Kleenex in his pocket, pops open their large bottle of Tylenol, takes one pill out and downs it with a glass of water, rinses the glass, and goes back to his own back yard to wait for his parents.
Brand new neighbors, however, see him walk in, do things inside, and come back out, and call the police.
Now, he is factually guilty of the felony crime of burglary 3rd degree under New York law, with, I think, a maximum sentence of seven years of prison. To wit, he entered their premises without permission for the purpose of committing a crime, viz., he took something of value which belonged to them, i.e., the Kleenex and the Tylenol.
He’s factually guilty of a felony. Does he or does he not deserve a good lawyer who will give him the best possible defense, even if he admits to what he did to that lawyer?
Yeah, it’s an extreme case. But so are they all. I pointed out the case of the 16-year-old kid whose older friends took him to get drunk and break into someone’s summer cottage, last time we did one of these. Maybe he deserves some punishment – but not being the only person convicted of a felony for it, with all the destuctiveness of any future for him that entails.
Being guilty of the factual elements of a crime and being legally guilty of that crime are two different things. That’s why they have lesser included offenses.
What about the issue of bad law? The client may indeed be guilty of breaking the law, but what if the law is bad? Surely the lawyer can go for jury nullification. Let’s suppose that the ‘crime’ was what was previously classed as self-defence.
IANAL, but lawyers aren’t allowed to even mention jury nullification in court, nor can they come right out and say “The law is bad; ignore it and find my client not guilty even though he is.” Doing so can trigger a mistrial and a disbarement.
Thanks, missed hearing this.
The Barristers’ Rules in NSW cover this situation. If a barrister has a client who confesses his guilt to the barrister but then maintains a plea of not guilty then the barrister can return the brief - if there’s sufficient time for another barrister to take over the case and the client isn’t insistent that the original barrister continue to act.
Otherwise the barrister has to run a “frozen” defence i.e. restrict his efforts to testing the evidence presented by the Crown and making sure that the Crown meets the appropriate burden of proof. The barrister cannot falsely suggest that some other person committed the offence or set up any sort of affirmative case that’s inconsistent with his client’s confession.
That seems somewhat draconian. Just because the barrister cannot in all honesty admit reasonable doubt nor can the barrister perjure himself shouldn’t mean that he cannot do whatever possible to elicit feelings of doubt from the judge or the jury.
The principle Cunctator has stated is pretty much standard. A barrister owes an ethical duty to the client, but also owes an ethical duty to the court: the barrister cannot mislead the court. If the client has said to the barrister, “yes, I was driving that night and had been drinking”, the barrister cannot try to suggest that someone else had been driving the car, or that the client was stone-cold sober. But the barrister can still require the Crown to prove the case, for example, by challenging the admissibility of the breath analysis for failure to comply with the legal requirements for a valid breath sample.
He can’t do whatever possible in any jurisdiction. The rules of evidence, practice and procedure, and so on apply to both parties.
But still, I would imagine that stating that somebody else could’ve potentially done the crime would be standard practice, and given such a rule, it would be painfully obvious to the jury and the judge that defense is explicitly not stating it. Confessing to your defender is a pretty dumb thing to do in most circumstances, but still, this sounds unjust to me.
I imagine that returning the brief (withdrawing as counsel) is much more common practice in such cases in Oz, then.
As I said above (and GFactor explained much better) it ain’t easy to withdraw as counsel in the middle of a criminal proceeding in the US.
There is a Rumpole of the Bailey story where Rumpole is the junior barrister under one of the more senior people in the practice. In the story the senior barrister asks the client if he did it. Rumpole jumps into say that you cannot ask that question of the client because if he says yes then he cannot be your client anymore. Is is a silly story in the way most of the Rumpole stories are. The senior barristers are a bunch of stuffed shirts who don’t know their way around the more practical aspects of defending accused criminals.
I don’t know whether it’s more common or not. I don’t actually practise law.
I had a colleague who was in an almost identical situation, with the added wrinkle that it was a bench trial, which meant that the judge WAS the finder of fact, creating an even stronger argument for not disclosing the details. Also, she was the THIRD court-appointment for the accused, so the judge was not buying a pig-in-the-poke motion of “I wanna withdraw and I can’t say why.” She consulted me, which of course didn’t breach her duty, and based on an opinion we got from state ethics (by phone, because this was well before the days of ubiquitous e-mail), ended up just not arguing the tainted evidence at closing.
Conviction ensued.
So, you want defence lawyers to knowingly mislead the court by suggesting things that they know are not true? Plus, to suggest something as an alternative explanation, the lawyer needs to have at least something in the evidence before the court to support that explanation. Putting in that type of “evidence”, knowing that it is not true, is suborning perjury. Do you want defence lawyers to do that?
Cite? It’s been tried a least once recently here in the U.K. They failed with foxhunting and succeeded in a case where their clients were accused of destroying GM crops, and had videoed themselves doing it and published the video.
I am pretty sure he was talking about the US. Do you guys have “Disbarment”? not talking about a similar process I mean in the sense Alphabio meant it?
This is the kind of stuff that makes me crazy re: lawyers.
IMHO a person who “did” the crime is NOT entitled to be found Not Guilty unless
a) they really didn’t do the crime
b) the evidence was tainted
c) insanity
d) mitigating circumstances - which I’ll only allow if the person confesses first; none of this “I didn’t do it but if I did it was because of blah blah blah”.
To me anything else is a mockery of justice and explains why people sometimes take the law into their own hands.
What a way to begin a Friday; by getting really angry!
Forgive me, but a place where people take the law into their own hands because they ‘know’ someone is guilty even though some tricksy lawyer got him off is a place I don’t want to be.