Counsel: Role of Counsel

In the eyes of many people, the criminal defense lawyer (defense counsel, or defender, for short) represents all that is best about the legal profession; in the eyes of others, all that is worst. Defense counsel is the innocent defendant's last refuge against the horror of wrongful conviction—or, as lawyers sometimes say in their hyperbolic fashion, the defender is the only friend that an accused person has left in the world. Defense counsel is also the guilty defendant's chief instrument for defeating justice and getting away with crime. Paradoxically, the defender is at once the indispensable condition for justice and the enemy of justice. The trait on which defenders most pride themselves—a fierce, undivided loyalty to the client—seems to many people a virtue, while to others it is a vice. Heightening the paradox is the fact that the better a legal system is—the fewer wrongful arrests and prosecutions it engages in—the more often the defender will be working to exonerate the guilty. Although a vigorous, independent defense bar is often thought to be a sign of a first-rate legal system, improving the legal system inevitably makes the defender's role more morally problematic.

The classic statement of the defender's ethical outlook was offered in 1820 by a British barrister, Lord Henry Brougham: "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion" (Nightingale, p. 8). Brougham's credo displays both sides of the dilemma. On the one hand, it eloquently extols the loyalty and personal courage that a defender must possess to represent someone accused of wrongdoing and perhaps despised by the entire community. On the other hand, it states plainly that defenders will discount to zero the alarm, torments, and destruction that they may bring on the community, a position that seems hard to justify on any plausible theory of morality.