1. mugen shiyo
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    mugen shiyo Contributing Member

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    Question: Lawyers...

    Discussion in 'The Lounge' started by mugen shiyo, Dec 31, 2011.

    Had a bit of a hard time looking it up because I don't know the words for it but the question I had was if a lawyer has a client and they know that the client has committed a crime- I mean know by means of evidence or admission- are they still obliged to legally defend them and are prohibited from turning him in to the law or am I watching too much TV?
     
  2. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Asked my brother about this (long standing criminal defense attorney) and his reply is (slightly paraphrased):

    If an attorney-client relationship exists, the attorney cannot disclose any information given him by the client (or discovered through evidence) to anyone - especially law enforcement - without facing ethical violations, which could get him suspended or disbarred (there is nothing illegal about an attorney disclosing this). If someone comes to an attorney for a consult, that is also considered an attorney-client relationship even if the attorney declines the case. However, the attorney must believe they cannot provide a "zealous defense" before they are ethically relieved of the duty to accept and defend that case.

    Caveats (possibly obvious): This refers to criminal defense attorneys. Attorneys who deal only with civil cases do not have to take criminal cases (and vice versa). This obligation does not apply to future crimes - if the client tells his attorney that he plans to rob a bank, for example, the attorney could be considered an accessory if he withheld that information. Last, ethical 'rules' vary by state - the above information is typical, however.
     
  3. Dante Dases
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    Dante Dases Contributing Member Contributor

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    So in theory the advocate can knowingly mislead the court? He can seriously argue that his client didn't do something that the client has said he did while in conference? I'll be honest, I'm absolutely staggered by that. Things are somewhat different for me as a qualified barrister in the UK (currently non-practising). I have an overriding duty to the court, and not to my client. Whilst I must 'fearlessly promote the interests of my client', there is a far more important duty to ensure that justice is done.

    Time to crack out the Bar Standards Board Code of Conduct (hey, they've finally re-designed the website! Took them long enough):

    "302. A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court."
     
  4. mugen shiyo
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    mugen shiyo Contributing Member

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    Probably the same for the US then. I'm not sure. All I see is movies and those legal-thrillers. The most recent had Ryan Phillippe as the kind of smirking criminal who commits a crime his lawyer knows about but is unable to pursue due to the client-lawyer relationship. Of course...why would I believe TV, lol. Thanks, though. Hope I find something about it for the US.
     
  5. shadowwalker
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    shadowwalker Contributing Member Contributor

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    No one said anything about misleading the court. Where did you get that? But the attorney in the US has a duty to provide the best possible defense for their client. And the attorney is under no obligation to divulge information to the court (unless it's something like perjury by their client - that, again, would make the attorney an accomplice to an illegal act). But when someone is prosecuted here, it's up to the prosecution to prove their case - the defense is under no obligation to help them do so.
     
  6. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    Well, on TV, which I realize has only a passing resemblance to reality, they generally make the point that if the lawyer _knows_ for an absolute fact that his client is guilty, that limits his defense options to some extent - for example, that he can't cross-examine the client if the client is going to say things that the defense attorney knows for a fact are a lie.

    But I would assume that knowing that the client is guilty would not in any way make it inappropriate for the lawyer to argue against the quality of the evidence presented by the prosecution, come up with theories as to how the crime _could_ have been committed, and so on. I'd assume that there's a difference between, "Joe didn't steal the car!" and "Joe's six co-workers had equal opportunity to steal the car; you haven't proven that Joe did it," and that the lawyer can say that even if Joe flat-out admitted, to the lawyer, that he stole it.

    I am, again, getting all that from TV, movies, and murder mysteries, not reality. :)

    ChickenFreak
     
  7. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Basically correct. It is the attorney's ethical duty to present the very best defense possible - to "zealously defend". The court system in the US is an adversarial system, which means that the defense's job is to make the prosecutor work to prove their case.

    But TV and movies are the worst possible place to glean any real knowledge about the court system. The stories there are written for drama, to have a 'good guy' and a 'bad guy'. Very little resemblance to real life.
     
  8. Dante Dases
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    Dante Dases Contributing Member Contributor

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    In this sentence, 'the attorney cannot disclose any information given him by the client (or discovered through evidence) to anyone,' you've stated that privilege essentially overrides an advocate's duty to assist the court. Whilst I must 'must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person' (BSB Code of Conduct para. 303(a)), my overriding interest is stated at 302. If a client discloses to me that they are guilty of the offence they claim they were twenty miles away from while it took place, I must hand back my brief. I cannot appear on his or her behalf. From what it sounds like, even if the client admits to the offence in the US, the lawyer may still take it on and argue that he didn't commit it. That is what I mean by 'mislead the court'.

    Now, if the client doesn't tell me but I form my own strong suspicions, I'm not prevented from acting on his behalf. If, in conference, I ask the question, 'Did you do it?' and the client says, 'No,' then I'm not misleading the court with the information I've been given (knowingly or recklessly). In truth, it's very unlikely that I'd be put in that position because someone who's arguing he didn't do it in court is all the more likely to be keeping up appearances out of court, and that includes in conference with their barrister.

    You are aware that your legal system is modelled on ours, but with a few distinct changes? We've had an adversarial system since medieval times, and the focus has always been on getting to the right conclusion, not the one that the state wants. That's why the barrister's overriding obligation is to the court, rather than his client.
     
  9. prettyprettyprettygood
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    prettyprettyprettygood Active Member

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    From what I gathered from a mis-spent holiday in Florida watching the televised Casey Anthony trial and associated commentary, the utmost assumption is that a defendant is innocent until proven guilty in court - therefore the role of the defence attorney isn't to simply argue that their client didn't commit the crime, but to make sure that the prosecution proves beyond reasonable doubt that they did before a guilty verdict is given. There are clearly ethical issues, but I don't think it's necessarily unethical to represent someone who has told you they are guilty (even assuming they were telling the truth when they confessed) as long as you don't mislead, for example by saying that the defendant was 20 miles away from where the crime was committed when you know that this is untrue. In those circumstances, I would expect the defence position would be to state that the defendant was at the scene, but that this does not mean they committed the crime...and the prosecution would have to prove that they did.


    Anyway, I'm sure Shadowwalker, and google, can provide much more insight into the US legal system than this British layperson, but that's my understanding of it :)
     
  10. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    If the lawyer knows that the defendant has committed a crime, then they cannot defend them. How can they, when any defence would be predicated on lying to the court? It would be a definite breach of the code of ethics for barristers.

    (My answer is, of course, based on my own jurisdiction- England and Wales. I know shit-all about other places laws, but I'd be staggered if they differed drastically from our own)
     
  11. the1
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    the1 Active Member

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    Okay so to get this straight... If a client reveals to their lawyer that they have indeed committed the crime in question, then attorney-client privileged is waived and the lawyer must either tell the court or discontinue their relationship with that client?
     
  12. Banzai
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    Banzai One-time Mod, but on the road to recovery Contributor

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    Well, if the lawyer knows that the client has committed the crime, then to stand up in court and say that they didn't would be lying. That's an instant breach of ethics, surely?
     
  13. shadowwalker
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    shadowwalker Contributing Member Contributor

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    First, we need to differentiate where this is taking place. In the US, this is absolutely incorrect. Attorney-client privilege is waived only if the client informs the attorney of a future illegal act. The attorney is required to represent their client unless they can prove to the judge that they cannot (and judges typically are hard to convince).
     
  14. shadowwalker
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    shadowwalker Contributing Member Contributor

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    In that case, the lawyer does not stand up in court and say that. Rather, they do what they are supposed to do - make the prosecution prove the client did it, within reasonable doubt.

    In the US, the defense attorney is supposed to make sure that their client receives a fair trial, that they are not convicted on flimsy or faked or illegally obtained evidence. They do not operate for the court - they operate for their client.

    FYI - many many cases never get to court anyway, as the prosecution and defense are able to work a plea agreement which serves the interests of both sides.
     
  15. Dante Dases
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    Dante Dases Contributing Member Contributor

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    So the lawyer knows for a fact they're guilty, but is still encouraged to try to get them acquitted? Serious reform to that system is needed, otherwise the legal system loses so much integrity. I'd have no faith as a member of the public if I knew that was going on in my jurisdiction.

    And don't get me started on my opinions on the plea bargaining system. Fair to say I think it's one of the worst ideas in the history of criminal justice.
     
  16. shadowwalker
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    shadowwalker Contributing Member Contributor

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    The attorney is required to give them the best defense possible. If the state (prosecutor) cannot prove its case, that is not the fault of the defense.

    The plea bargain system is a godsend for both sides - mainly because it saves money, and also - despite critics who haven't really looked at the outcomes - the defendant typically ends up with basically the same sentence s/he would have gotten going to trial.

    But trying to defend the court system we have to people who only have headline knowledge (or from TV/movies) is an exercise in futility, really.
     
  17. art
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    art Contributing Member Contributor

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    I'm more than a little surprised that our two legal eagles thinks as they do upon this..and certainly on this pretty fundamental issue British and US philosophy/practices do not diverge. Probing the merits of the prosecution case need not involve lying. This business of defending the person you know to be guilty might be thought to bolster rather than undermine the integrity of the system. SW has given some reasons why. Here's a reasonable little essay on the matter:

    http://www.ethicsscoreboard.com/list/defense.html
     
  18. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Excellent article. Thank you.
     
  19. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yes, excellent article Art. The idea that a defendant isn't entitled to a defense if "known" to be guilty is a scary one, and it wouldn't take too much imagination to envision some trunking consequences of such an approach.
     
  20. Dante Dases
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    Dante Dases Contributing Member Contributor

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    I'll always agree that it's better a guilty man be acquitted than an innocent man convicted. I never meant for the opposite to come across. It just happens that we have a mechanism preventing a barrister from misleading the court. He can't raise an argument that something didn't happen when in fact he knows it did. Should I return my brief as I am obliged to by the Code of Conduct, another barrister would pick it up. He'd probably suspect the case history. He might be able to draw inferences into what went on beforehand. However, if the client has anything resembling sense he won't tell his new barrister what happened. He'll give his story, what he wants the barrister to get across in court, and the barrister will then be able to make his arguments in accordance with 303(a) of the Code of Conduct (see above). He might be a guilty man and he might go free, but the barrister hasn't misled the court. I could talk about my own experiences from a year in practice, but I can't for obvious reasons.

    I disagree with plea bargaining because there's more of a danger that an innocent man will suffer for something he didn't commit because he wanted to get it all out of the way, or because he's been led to believe that the evidence is against him. I also don't like the idea of the prosecution putting forward the sentence: the only person to decide a man's sentence should be a judge (again, if I were a Crown Prosecutor my Code of Conduct prevents me from doing things like asking for certain sentences; a sentencing and mitigation hearing would have me only outlining the established facts and aiding a judge with regards to the sentencing guidelines). We do have discounts on sentences for guilty pleas here, but the judge decides the sentence rather than the prosecution. If a client indicates a desire to plead guilty, then his barrister will generally run through the whole case and advise them very strongly on it, whilst leaving the ultimate decision to the client.

    And trying to defend any court system to anyone at all is futile. Laymen, by and large, are ignorant of the mechanisms of justice. The tabloids slag off the courts at any opportunity (even going so far as to misrepresent the decision of a court - hello, Daily Mail). I've come in for a fair bit of abuse myself when people have asked what I went to university to study and I tell them I'm a qualified barrister.

    I do still think the biggest problem in the law is politicians sticking their nose into things like sentencing policy, mind. There's a shift of emphasis every five years while they try to score points for the next election. Absolute nightmare.
     
  21. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Same in the U.S. But you do not have to do this to provide a defense for someone.
     
  22. shadowwalker
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    shadowwalker Contributing Member Contributor

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    Couple things to clear up - the prosecution does not determine the sentence. The prosecutor and the defense attorney come to a tentative agreement as to the final charges and the recommended sentence. The defense attorney takes that offer to the client - if the client agrees, it's then taken to the judge. It is the judge who determines whether or not to accept it, and the judge is the final decision maker as to sentencing. And believe me, it's much more lucrative for the defense attorney to go to court than to accept a plea bargain - so if it happens, it's almost always in the client's best interests. I frankly do not believe any innocent person in their right mind would plead guilty to any charge just to get it out of the way (unless of course it's a misdemeanor), and any decent defense attorney will make sure the client knows what the evidence is and how strong it is. No one wants to railroad the innocent, because that just means the guilty party is still out there, waiting to wreak more havoc.
     
  23. Dante Dases
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    Dante Dases Contributing Member Contributor

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    I'll be having words with a friend of mine who has grossly misled me.
     
  24. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    sw seems to be referring to the judicial system in the us, dante... and it may not be the same on your side of the pond...
     
  25. shadowwalker
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    shadowwalker Contributing Member Contributor

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    True - I thought dante was referring to the US system and his understanding of that, rather than how it works in the UK.

    I'm going to have to develop the habit of adding "in the US" to all my posts - too many other countries! :D
     

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