A defense lawyer is defending someone accused of a violent crime such as rape, murder, or assault, and the lawyer knows the client is guilty because the client confessed to him or he has access to evidence that clearly shows the client is guitly.
Is it unethical for the lawyer to try to get the client declared “not guilty” so he can walk free unpunished, or is the attorney’s ONLY obligation to his client?
Or does the attorney have a moral and ethical obligation to society to insure the guilty party is punished?
What is the bigger purpose: defending the client or defending society?
By karl_popper_fan -05-19 14:52:01
goz1111: It’s defending the client foremost, now that does not equate to committing a crime, but the integrity of the attorney client privilege is essential to the legal system
fangtaiyang: Ethically, a defense attorney is obligated to give his or her client the best defense. The best thing for this hypothetical attorney to do is to step out of the case entirely.
Tony C: Right………
Kevin M: Everyone is entitled to the best defense that can be made. There are unethical things however a defense attorney can do in his clients defense. One is asking the client a question on the stand that leads to a lie. That’s why when an attorney puts his guilty client on the stand, he won’t ask him if he’s guilty, he’ll say “Do you have anything you’d like to say?” or something more general. Some won’t put a guilty client on the stand at all.
northernhick: Look at it this way: If the prosecution doesn’t have enough evidence to convict a person, and that person has exercised his right to remain silent when speaking to the police, should the authorities be able to lay a charge with the expectation that the accused will talk to his lawyer, and expect that they’ll be able to rely on those statements to the lawyer in court?
It completely undermines the right to remain silent and the right to counsel, if your statements to your lawyer are fair game for making out a case against you.
That said, such knowledge isn’t without a consequence. If an accused confesses to his lawyer, that lawyer’s duty to the court prevents him from being able to adduce evidence of things he knows not to be true. Thus, alibi evidence is off the table, evidence that somebody else is the guilty party is off the table…basically, any evidence that the accused is innocent cannot be adduced, because the defence lawyer would be knowingly misleading the court, and thus violating his duty.
Still, the lawyer still has a duty to challenge the prosecution’s case against the accused. If the prosecution doesn’t have the witnesses and/or physical evidence to prove guilt beyond a reasonable doubt, the court cannot convict, and it’s the defence lawyer’s duty to see that the court realizes that it cannot convict.
It it’s not an admission, but physical evidence in the lawyer’s possession, then other obligations kick in. A lawyer can’t conceal evidence. (There are some grey areas if he intends to bring it up in court himself, but he can’t just take the murder weapon and hide it away.) In Canada, at least, there’s a practice trick called the ‘brown bagging’. If a defendant brings you the murder weapon and tells you to deal with it (and refuses to take it away himself)…defence counsel can’t just bring it to the police himself; it would be easy enough for the police to zero in on the suspect just by watching who he represents in court. Instead, defence counsel should put the object into a paper bag, retain another lawyer (thus invoking privilege with the other lawyer), and have the other lawyer bring the object to the police, telling them only that it might be relevant to some investigation.
Barry C: Actually none of the above.
The defense attorney’s obligations are to see that the defendant has the fairest trial possible in the interest of justice, regardless of what he does or does not know about the case.
I am certain this is pretty much drilled into every attorney the instant they set foot on a law school campus – it certainly was when I had a room mate who became an attorney way back when.
And when I attended a swearing in ceremony last year for the California Bar, the Judges who made speeched at the event openly referred to this.
Morgan R: We have an adversarial system of justice. An attorney’s duty is to his client, not society. Most defense attorneys avoid asking their client if “he did it”, because it can compromise the defense. (that could be a rule violation (3.3) and the ABA defense Function Standards 4-3.2 in that they may not be able to present a competetent defense without knowing details) A defense attorney is not obligated to assist in the prosecution of his client, nor is he allowed to withhold MATERIAL evidence. However, prosecutors have been known to without exculpatory evidence, because they can claim THEY didn’t believe it to be exculpatory (the stuff appeals are made of!) Model Rule 3.3 A lawyer shall not KNOWINGLY …fail to disclose a material fact to a tribunal when disclosure is neccessary to avoid assisting a crminal or fraudulent act by the client… offer evidence that the lawyer knows to be false…” ” It is a mistake if we divert the attention of the lawyer’s zeal on behalf of the client to a general concern for public interest or the social good… rules of ethics cannot be used as a tool of social engineering, that is for polictical theorists and divinty students”