As a former attorney I often had to field the following question:
“How do you live with yourself when called upon to defend someone who you suspect is guilty?”
I also recently read an unfortunate article written by a reader on My News 24 entitled: “lawyers or liars?” Predictably, it was less than flattering about the legal profession. It was replete with numerous misconceptions and popular falsehoods which many members of the public have about attorneys, and/or other legal practitioners.
I feel compelled to set the record straight.
1. Firstly, most lay people I encounter seem to labour under the misapprehension that all lawyers are involved in performing criminal work. I imagine that movies and television are partly to blame for this, since most on-screen cases are criminal. After all, criminal cases usually make for the most glamorous or exciting trials – in the movies or on TV at least.
In real life, however, many lawyers specialise in commercial or civil law (divorces, damages claims, claims for monies owed, are examples of civil cases which involve one party suing the other for money or perhaps an interdict). In my experience most “lawyers” do NOT practice any criminal law at all. The assumption that any lawyer you meet makes a living defending people in criminal cases, simply because he is a legal practitioner, will most often be wrong.
2. Irrespective of whether attorneys are involved in criminal or civil cases, lawyers are NEVER permitted to lie to the court, or to knowingly permit their client or any other witness to lie to the Court or to mislead the Court. Throughout my former career as an attorney, I never once found it necessary to lie to a Court, nor did I ever find it necessary to knowingly permit a client or witness to lie to any Court.
One has bad apples in every profession of course, but from my experience, I can confidently say that if you believe that most legal practitioners are themselves liars, or believe that they knowingly permit or assist their client’s to lie to the Court or to mislead the Court, then, more often than not, you would be dead WRONG!
My experience is that most lawyers go to great lengths to ensure that they are always unscrupulously honest with the Court, even in regard to the smallest of matters.
3. Contrary to the general misconceptions of many of the public, the use of dishonesty will not assist in making competent lawyers richer or more successful. On the contrary, being caught lying to the Court or assisting the client to do so, even once, could result in disbarment and possibly also in criminal charges of defeating the ends of justice. Most lawyers understand that no fee and no client is valuable enough to justify the risk of disbarment or worse.
4. Most attorneys are also only too aware that Judges and magistrates are human and that most probably do talk/gossip amongst themselves. So too, do fellow attorneys, counsel and prosecutors, as the case may be. If one is caught lying to the Court or caught permitting a lie to be said in Court, one’s reputation, built up over years of study and practice, would be shot. Nothing can ever resurrect a damaged professional reputation.
5. A reputation is not only damaged by it being proved that a lawyer is lying. In a minority of instances, there are cases where the same practitioners seem to attract the same sort of dodgy clients and they are repeatedly involved in situations in Court which cause eyebrows to be raised. Practitioners cannot of course, always choose their clients, but they can and do refuse to act for people who require them to do anything illegal or for clients who expect them to assist such clients to lie to the court. In order to practice successfully, attorneys and counsel need to work closely alongside judges, magistrates, prosecutors, and their colleagues. Persistent rumours or suspicions of dishonesty would be the kiss of death to a lawyer’s practice. It is a frightening road to failure, not a shortcut to success or riches.
As for the bad apples, which are the blight of every profession or occupation, the legal profession has them too. Quite what motivates such practitioners to risk their reputations and their careers is a mystery not only to me, but to all decent attorneys and counsel. I suspect that most of them are not too competent to begin with, or perhaps they are tempted by laziness to risk their careers for a quick buck, in the hope that they will never be caught in the process.
6. But I hear you ask, how can I be so certain that so many practitioners are really as honest as they pretend to be or as I think they are?
Firstly, in more cases than I can remember, I have received documents from opponents in litigation which clearly damages their cases. This is in compliance with a procedural obligation to “discover” (disclose) documents in advance of a civil trial. This obligation applies irrespective of whether the document is damaging or useful to the party discovering it. In many of these cases, I know that my opponents knew that we did not have the damaging documents. In other cases they knew that we were unaware of the existence of the damaging documents. Despite possible questions from their clients as to whether the document could rather be made to “vanish”, or despite any temptation to withhold the damaged document from discovery in order to ensure a win, my opponents continued to discover such documents. Instead they either tried, where they could, to attack the validity of the damaging document, or to argue that its evidentiary value is suspect, etc.
Another reason why I can speak about the integrity of most lawyers is because of the countless occasions on which I have been approached for advice by legal practitioners who face an ethical dilemma. Sometimes, the dilemma involved something trifling where the risk of being exposed for doing the wrong thing was negligible. And yet, there is this obsession on the part of most such practitioners I have encountered to do the right thing. I mention this simply because most members of the public never see or hear about lawyers agonising about doing the right thing or about doing making the correct ethical choice in a difficult case. And when I tell lay people about how often legal practitioners discuss ethical dilemmas amongst themselves, and seek advice from each other in regard thereto, I am often met with astonishment.
7. Now if I haven’t bored you to tears, I will answer the question about why criminal lawyers must defend those who they may think are guilty.
There is of course, the reason that every person is entitled to the best defence possible. That is a good enough reason on its own. A system of justice cannot, in my view, function properly without the competent representation of parties in Court.
But there is a more important reason which I learned from experience when I was a candidate attorney in a criminal case – and that is that the lawyer who believes his client is guilty could be wrong. I won’t tire you with all the details, but I was consulted by someone accused of the theft of funds from his employer. He professed his innocence, but when I heard his astonishing and implausible story, I was convinced he was lying. I was extremely reluctant to handle his case. He convinced me to do so, and I ran the trial.
Of course, I was bound to use his implausible version of the facts as the basis of his defence. Despite my reluctance to do so, I cross examined the state witnesses, trying to trap them into concessions which would assist me to argue that my client’s version was reasonably possibly true. The hair on the back of my neck started to rise as, one by one, the concessions I required were reluctantly made by one state witness after the other. Such were the facts of this case that what was happening could only be the result of one thing. My client’s outrageous version had to be true…and he was indeed clearly innocent. The state’s case collapsed and the magistrate mentioned that it was his pleasure to grant my application for the discharge of the accused at the end of the state case, which, quite correctly, was not opposed by the state prosecutor.
I learned a valuable lesson that day. Let the prosecutor prosecute, and leave the judging to the Judge. A defence lawyer’s job is to defend. As long as defence attorneys do not knowingly assist their clients to lie in Court and do not assist in misleading the Court, it is a job which can be done with honour.
Heaven forbid that you should find yourself in a situation where, as an accused in a serious criminal case, neither your family, nor your friends, believe that you are innocent when in fact you are. Assume further that the public and media are baying for your blood. That is the day you may, for the first time appreciate, that even if your lawyer does not believe you, you will need him to defend you, and to do so to the best of his ability.
8. Of course, there are those cases where the accused are guilty and lawyers, by doing their jobs honourably, end up assisting them to return to the streets and to repeat their offences. Quite correctly, most civilised systems of justice require proof of guilt to be beyond a reasonable doubt. This requires competent police work and competent prosecution. If a prosecution fails, it often fails for the lack of such competence on the part of the police or the prosecution, and usually not solely because a lawyer did his duty towards his client.
To ensure that the innocent, which might one day be you, are not wrongly jailed for crimes they did not commit, it is necessary that we give the guilty the benefit of reasonable doubt as to their guilt. The only consolation I can offer, is that many criminals repeat their offences, and even if they escape conviction one or twice due to reasonable doubt, most tend to find themselves back in Court and justice eventually prevails.
Finally, where an accused person tells a lawyer he is guilty, the lawyer has two ethical choices. He can have his client plead not guilty and test the state’s case without putting any version which is contrary to his client’s instructions to the state witnesses and without permitting his client or any other defence witnesses to give evidence which contradicts his client’s instructions. In such a case, and where the State’s case seems strong, the defence attorneys often advise their clients of the need to change their plea to guilty during the state case. Alternatively, the attorney’s other choice is to simply advise his client to plead guilty at the outset, and to concentrate on the mitigation of sentence.
Disclaimer: All articles and letters published on MyNews24 have been independently written by members of News24's community. The views of users published on News24 are therefore their own and do not necessarily represent the views of News24. News24 editors also reserve the right to edit or delete any and all comments received.