The law is a system of rules which a community accepts and recognises to regulate the actions of its members. When any members are thought to be guilty of breaching those rules, they are given access to a trial, with a third party who can represent them and coherently present their stories for a jury to deliberate on and determine the severity and enforcement of penalties. That third party is a lawyer, and the member they are defending; their client. Whether a lawyer should be held personally morally responsible for defending a culpable client is one of the most debated questions of practical ethics. Not only is it ethically acceptable for lawyers to defend a client they know is guilty, provided they at no time seek to misinform the court, but it is an ethical responsibility that is ultimately essential to maintaining an effective legal system of integrity.
The justice system aims to determine the truth of any given case. In order for an accused person to be convicted of a crime, the prosecution must prove to a jury that the defendant is guilty beyond reasonable doubt. As such, a defence lawyer’s role is to challenge the prosecution to provide a case sound enough to reasonably justify a conviction – not to act as the means of delivering justice. This is the concept of the burden of proof: a conviction cannot be reached without appropriate evidence because it ensures that the government cannot abuse its power; prevents the innocent from being convicted; and oversees the fair treatment of the accused; ultimately protecting the integrity of the overarching legal system (Wendel, 2014, p. 30). Introducing evidence inconsistent with guilt, regardless of the actual culpability of the defendant, is the best way to assert said defendant’s right to hold the state to a high burden of proof.
Lon L. Fuller and John D. Randall published a study in 1958 that examined the theoretical repercussions of a legal system without effective representation for the accused, and concluded that the justice of the associated legal system would inevitably collapse.
“At some early point a familiar pattern will seem to emerge from the evidence; an accustomed label is waiting for the case and, without awaiting further proofs, this label is promptly assigned to it… What starts as a preliminary diagnosis designed to direct the inquiry tends, quickly and imperceptibly, to become a fixed conclusion as all that confirms the diagnosis makes a strong imprint on the mind, while all that runs counter to it is received with diverted attention…” (p. 1160)
Research into cognitive psychology reinforces this deduction, and the phenomenon has been coined “confirmation bias” – the tendency to unconsciously principally notice evidence that confirms something one assumes to be true. The only effective way to “[combat] this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known” is to introduce “an adversary presentation” (Kahneman, 2011, p. 90) in the form of a defence lawyer. If a lawyer were to be morally ostracised for associating themselves with a client they know to be guilty, they would be inclined to refuse representation on the client’s behalf. In this event, the client could struggle to attain proper legal assistance. As an institution, the system is ethically obligated to provide effective and fair representation on behalf of all accused in order to maintain its integrity; and by extension, the individuals who work as instruments of the law are ethically consigned to the same responsibility.
The points that a lawyer makes to justify their personal moral consciousness in defending a client they know to be guilty are based on their professional ethical duties, but those duties are grounded in considerations of ordinary morality. The series of Nüremberg trials in 1945 and 1946 set a precedent that avoids exclusion from moral accusations for “merely following orders” (Wyzanski, 1946, online) – performing any morally questionable act is not made permissible by pleading professional duty. A principal of professional ethics must fundamentally entail normal ethical principles in order to be deemed morally acceptable. The defence of a guilty client could potentially result in harm to innocents, which is an argument at the forefront of the moral critique of defence lawyers. However, loyal client service is the primary professional ethic that lawyers adhere to – they make a promise to defend the client to the best of their ability. A promise invites trust, and betrayal of trust induces harm (Shriffrin, 2008, p. 481); therefore keeping trust is a convention of ordinary morality that is highly regarded. Although defending someone a lawyer knows to be guilty could be perceived as ethically wrong, the promise they make to provide a client with effective representation serves to enable the dignity, autonomy and truth that the legal system esteems.
The moral stance that lawyers themselves hold towards their ethical responsibility to their clients is overwhelmingly unanimous. A famous case in 1982 saw an innocent man, Logan, sentenced to a lengthy prison term for the murder of a security guard. Another man, Wilson, involved in a separate murder case, confessed in confidence to the murder Logan was convicted for. Wilson’s lawyer, bound to non-disclosure, did not reveal the information that could have prevented Logan’s imprisonment. That lawyer, Jamie Kunz, was quoted on the topic:
“If I had ratted him out… then I could feel guilty, then I could not live with myself. I’m anguished and always have been over the sad injustice of Alton Logan’s conviction. Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? […] It’s clear where my responsibility lies and my responsibility lies with my client.” (Kunz, 2008, Deseret News)
Despite acknowledging the injustice of Logan’s prosecution, Kunz made it clear that maintaining his promise to defend Wilson was his priority, and not only did he feel legally and ethically justified in that, but he felt as though not preserving his promise would be morally impermissible. While this is only one example, it is obvious that even in a case of such high stakes, both systems of moral judgment: the emotional and the deliberated; align to support the moral value of keeping a promise made in a legal professional capacity in spite of the culpability of the client.
It is also not probable for an individual to unequivocally deem the accused as guilty; nor is culpability the responsibility of a lawyer to determine. The law aims to find truth in a way that honours human dignity – it respects the rights of all accused by the maxim “innocent until proven guilty”. People do not forfeit their basic human rights simply because they have been accused of a crime. Until conviction, all parties have equal right to be heard. A lawyer deals with evidence, which can usually at most only tend to prove something. Unless a belief can somehow be suspended to the level of actual knowledge, a lawyer cannot draw a conclusion on the truth of a case, or the accountability of any client they defend. The idea that “an ethical theory [can call] on lawyers to assume direct responsibility for the validity of a decision” can make “experienced lawyers who have a feel for the uncertainty of facts in practice rightly sceptical” (Wendel, 2014, p. 25); “thus, one of the defence lawyer’s most important duties, as a matter of professional ethics, is to avoid forming any opinion about the guilt or innocence of one’s client” (Woolley, 2008, p. 26). The vast majority of those accused of committing a crime regardless of supposed guilt need a lawyer to help them present an intelligible case to the institution that has the power to punish them. “Honouring someone’s dignity means honouring their being, not merely their willing” (Finnis, 1980, p. 76). Without providing the accused with the means necessary to effectively defend themselves is to ignore them; to assume that their point of view is worthless; which amounts to their humiliation and their human dignity being violated. A review of Harvard Law in 1993 brought forth the following suggestion that “lawyers perceive their clients as frightened, overwhelmed, facing a dehumanising and terrifying system, and in need of someone to relate to them as a human being” (Ogletree, p. 1245). Not only is it absurd to presume that guilt can be certain, it is a violation of human dignity to refuse to allow someone to be heard – a defence lawyer honours one of the most basic of human rights that is ethically undeniable through being the articulate mouthpiece of their client.
General ethical principles can justify the morality of the role of a defence lawyer, and it is also supported by much larger philosophical ethical theories: consequentialist, deontologist, and aretaic. Consequentialist moral theory, as the name suggests, has it that the right thing to do is that which leads to the best outcome (Paulo, 2016, p. 209). To determine what constitutes the ‘best’ outcome, the good produced is measured – act utilitarian philosophy defines ‘good’ as the overall utility, or happiness. Therefore a consequentialist justification of the defence of a guilty client would rely on the overall utility that could come from doing so. The utility in law is specifically the determination of truth. The legal system can only continue to function optimally and determine truth if all accused are fairly represented. As a rule to ensure maximum utility, a free society should do its utmost to prevent the incarceration of innocent people – thus a consequentialist, act or rule utilitarian, would believe that lawyers must defend guilty clients in the interest of maximising utility. Deontology is a philosophy that focusses more on the concept that actions themselves are inherently right or wrong; the consequences are irrelevant (Rawls, 1971, p. 21). While the potential to inflict harm on others would be considered ethically impermissible by standards of deontological constraints, the sacrifice of human dignity that would occur if lawyers would refuse to defend a client outweighs that risk. A deontologist cannot permit the disrespect of a person’s autonomy, so they too would agree that a lawyer is ethically obligated to defend a guilty client. The final major branch of ethical theory is that of aretaic philosophy. It determines what is right and what is wrong by scaling an action against the hypothetical actions of a fully virtuous person, or a person acting in the least vicious way they can (Copp, 2006, p. 516). A fully virtuous person would display the virtue of truthfulness and act accordingly – in order to produce truth, a full functioning legal system is required; and in order to have that, one needs a defence lawyer. The least vicious thing to do is to provide fair representation and trial to someone accused of a crime. Once again, philosophical ethical theory demands that a lawyer defend a client even if they know they are guilty.
Without a properly functioning legal system, society would not be able to effectively regulate the actions of its members. Lawyers are unconcerned with delivering justice. Instead their role is to ensure that the dignity of accused members of society is respected, and that the jury that does decide upon blame and penalties is properly informed per the will of the accused. A lawyer cannot be held personally morally responsible for lawfully defending a culpable client because they are supporting a legal system that promotes dignity, integrity and truth; upholding their professional and personal moral obligations; and ensuring that the rights and autonomy of all are respected. The role of a defence lawyer is not only ethically acceptable, but an ethical responsibility.
S O U R C E S R E F E R E N C E D
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