Recently the Principal at our firm, Andrew Senia, gave a talk to Paideia Australia on Ethics of a Criminal Lawyer. Our law firm practices in various areas of law but it is in criminal law where ethical problems most arise.
This is part of what Andrew had to say…
Almost every day there are ethical problems in the practice of law.
A good example is in the probate area when immediately someone dies numerous people come out of the woodwork to claim part of the estate.
All sorts of moral and legal issues arise concerning testators obligations.
What are the ethical obligations of a lawyer?
The ethical obligations of lawyers have existed in common law for many years. They are also covered by legislation such as the legal profession practice act and the legal profession practice rules.
Lawyers are in fact offices of the court and must behave in a fit and proper way relative to the position.
This standard is higher than other people in society.
The first duty is to the court.
Perhaps unlike our America cousins, it is clear that our first duty is to the court and that duty supersedes the duty to the client, even if that is against the lawyers’ self-interest.
Can you represent a person you know to be guilty?
This is a common question asked to lawyers at cocktail parties or philosophy meetings.
There are no right or wrong answers to this question; as how you answer it largely depends on the particular lawyer’s skill and experience and personality as well as their attitude.
A recent study by Standford Law Professor Barbara Backcock found that most lawyers she interviewed took on cases involving grave acts of violence or acts of depravity simply because they considered that was their job.
And of course the lawyer could be wrong in assuming guilt on their client.
Even a confession should be looked at as you might get a case of a person confessing to a crime to protect another.
Our democratic system demands that people are entitled to be defended.
It is a balancing act. There is a prosecutor who represents the interest of the State, a Judge who determines the law, and a Jury which determines facts.
There is also a defence lawyer whose role it is to protect the rights of the accused.
If this equilibrium was disrupted it well may indeed bear serious consequences and a distilling of democracy.
“SHOULD A CLIENT PLEAD GUILTY OR NOT GUILTY”?
Leaving it to the prosecution…
The onus of proof in a criminal matter is for the prosecution to show guilt beyond reasonable doubt.
As long as the lawyer does not mislead the court the lawyer could leave it to the prosecution to prove the case against the client.
However’ often this is a risky strategy as any misleading to the court, even by saying nothing, could put the lawyer themselves in trouble.
For instant if you know your client is guilty you should not allow a witness to give evidence suggesting someone else is guilty.
Not guilty because of some reason in law..
This is a much better strategy as ethics allow the lawyer to take advantage of the law as it stands.
The obligations to not mislead or be untruthful to the court, does not mean forsaking vigorous advocacy for your client.
To the contrary the aim is to win on behalf of your client and the legal system is well served by robust yet upright advocacy.
Andrew has represented numerous people on some very serious charges. The most serious of these are the murder cases he has conducted. These included, sole people charged and people charged who acted together.
Andrew took these cases on because it is his job, and the people charged needed representation in our democratic legal system.
The majority of cases were heard in Supreme Court where the clients pleaded not guilty.”
Remarkably Andrew was able to do his job effectively with the jury’s acquitting the accused.
Why are clients are acquitted in the face of overwhelming evidence against them, was not because of any untruth that they said, nor because anyone was misled.
They were acquitted because the prosecution were unable to show the necessary elements which constituted the main elements of the charges to be proven in Law.
In one case, for example, the accused was so affected by the circumstances that she could not have formed the necessary intent to kill.
We argued that she in fact acted like a robot and the defence of Automatism was created. This case is in the law book.
There are many factors that a criminal lawyer must consider when advising a client whether to plead guilty or not guilty among which the ethics involved are paramount.
A lawyer in Australia is an officer of the court and the first duty is to the court and he or she should not mislead or tell any untruths.
However that doesn’t mean that a lawyer should not defend a client with vigor and skill to the best of the lawyer’s ability.
The very fabric and philosophy of our legal system depends on it.