Counsel: Role of Counsel

The dilemma is at its most intense when the client is guilty, for then the lawyer seems not much different from the driver of a getaway car: both aim to help the criminal escape just punishment for his crime. Morally if not legally, the defender becomes an accomplice in the criminal's escape.

Lawyers respond with several arguments about the importance of representing the guilty and, moreover, representing the guilty as vigorously as the innocent. Each of these arguments has force, but each is open to criticism.

The adversary system. The system of criminal justice, which pits prosecution against defense, requires undivided partisanship. Because the prosecutor will present the state's case, the defender must concentrate entirely on the accused's, and present it as forcefully as possible. A corollary to this principle of partisanship is that the lawyer should not be held morally accountable for zealously defending the client; otherwise, moral compunctions might compel defenders to restrain their zeal, in violation of the principle of partisanship. Taken together, the principles of partisanship and nonaccountability are thought by many to define the advocate's role (Luban, 1988; Schwartz; Simon, 1978).

This argument grounds the defender's ethic of partisan zeal in the nature of the adversary system (see Freedman's 1975 work for a classic statement of this argument). However, the adversary system has often been criticized on the ground that it turns the system of legal justice into a contest of skill and resources and encourages amoral ruthlessness on the part of prosecutors and defenders alike. That is, the very system that is supposed to justify partisan zeal can be criticized precisely on the ground that it encourages too much partisan zeal. In this way, the argument based on the adversary system begs the question of how partisan a defender should be. In addition, the argument based on the adversary system may apply with less force to legal cultures with different procedural systems.

Another version of the argument focuses on liberal fear of the state. It seems too unfair to pit the might of the state against a solitary defendant, even a guilty one, without providing the defendant with a champion (Luban, 1993). Critics, however, point out that criminals seldom if ever face "the bogey of the state"; in reality, they are pitted against "a small number of harassed, overworked bureaucrats" (Simon, 1998, p. 174), and there is little reason to suppose that "the state" poses a greater threat to the public than do the criminals it prosecutes.

Usurping the court's role. A defender who refuses to defend the guilty, or offers a less vigorous defense, has substituted his or her own judgment that the client is guilty for the verdict of the judge or jury. Not only does this violate the trial's division of labor, it denies the defendant the due process that trials are meant to provide by, in effect, convicting the defendant before the trial. Sometimes this argument is phrased as a point about the nature of truth in law: when Boswell asked Dr. Johnson how he could represent a cause known to be bad, Johnson replied, "Sir, you do not know it to be good or bad till the Judge determines it."

Skeptics may reply that the defender is not literally substituting his or her judgment for that of the judge and jury, because the defender is not rendering a legal verdict on the defendant. The defender is merely deciding how vigorously to defend based on what he or she knows of the client's guilt or innocence. As for Johnson's argument that the lawyer cannot "know" the client is guilty, it rests on a play on words. If Johnson meant that only the judge is authorized to establish forensic facts, he was wrong to couch the point in terms of knowledge rather than authority; if he meant that lawyers can never know more than judges about a case, he was simply mistaken.

The political activist's reason. Many defenders view their job as fighting for society's outcasts and underdogs. Violent criminals have themselves often grown up as victims of violence and oppression; the criminal justice system operates in a racist manner; criminal sentences are often savagely harsh; and conditions of imprisonment in many jurisdictions are inhuman. For these reasons, as one writer puts it, "A lawyer performs good work when he helps to prevent the imprisonment of the poor, the outcast, and minorities in shameful conditions" (Babcock, p. 177).

Here too, the argument, strong as it is, is open to doubt. It does not apply to prosperous white-collar criminals, racial-majority defendants, or those whose punishments are not excessively harsh. More importantly, the argument glosses over the fact of guilt, including the legitimate interests of past and potential crime victims in having dangerous criminals isolated from society. Victims too have rights, and often the victims of crimes are themselves the poor, the outcast, and minorities in shameful conditions (Simon, 1998).

Making the screens work. Only when the defense bar makes a practice of vigorously challenging prosecutors, even in cases where the defendant is guilty, will prosecutors and judges take precautions to ensure that only valid cases, backed by solid evidence, are brought. The aggressive defender disciplines the prosecutors, making them do their jobs, and thus, "by defending the guilty, the defense attorney protects the freedom of the innocent" (Mitchell, p. 320; see Kaplan, pp. 231–232). To this argument, one critic responds by asking whether vigorously challenging prosecutors includes misleading them and the court, as vigorous partisan advocacy may require when the defendant is guilty. If so, then it seems less plausible that vigorous defense "makes the screens work" than that vigorous defense makes the system fail (Simon, 1998, pp. 178–179).

One other version of this argument seems valid and uncontroversial, however. Prosecutors often charge defendants with multiple crimes, or choose the most serious among several possibilities in the statute book. One crucial role the defender plays is to keep the prosecution honest by resisting overcharging, or by arguing vigorously that the facts support only a less serious crime (manslaughter rather than murder, for example). Likewise, when prosecutors press for the harshest sentence, the defender highlights facts that point toward leniency. Without the defender, prosecutors have little incentive to be careful in their charging decisions and sentencing recommendations.

Confidentiality and zeal. Recall that in liberal polities, respect for human dignity requires a defender to present the defendant's good-faith story as the defendant would if he or she was knowledgeable about the law and skilled at public speaking. The defender cannot present the client's story, however, unless the defendant can tell the defender the facts of the case, and defendants will not do this unless they believe they can do it safely. That is the root justification of confidentiality: lawyers must keep client confidences to encourage clients to tell them everything they need to present the case. Some argue that this policy behind confidentiality is so strong that clients must be assured that what they tell their lawyers will never work to their disadvantage. For that reason, counsel cannot curtail vigorous defense merely because the client has admitted guilt.

The implications of this argument are farreaching, and, it may prove, too much so. It means, to take a characteristic ethical problem facing defenders, that a defender must treat the client's perjurious testimony as if it was true, because otherwise the client's confidences about the actual facts will be used to the client's disadvantage (Freedman, 1966, 1975). This conclusion, however, is not commonly accepted by legal professions anywhere in the world. American ethics rules, like those in many countries, typically require defenders to inform courts about client perjury, and never permit defenders to argue perjurious testimony as if it were true. True, this rule forces clients to choose between concealing facts from their defenders—thereby running the risk of inadequate defense—or confiding in the defenders but giving up the opportunity to commit perjury. In that case, the defender is not presenting the client's fabricated story as the defendant would; but respecting the client's human dignity requires only that the client be allowed to present a good-faith defense through the lips of the defender, not a fabricated one. It follows that the argument that confiding in the defender must never be permitted to harm the client is too strong: client confidences must never be used to harm the client's good-faith defense, but if the client's defense is not in good faith, defenders should not offer it, even if the result harms the client.