Thursday, November 19, 2009

How Attorneys Can Represent Their Guilty As Charged Clients In Good Conscience by Keyana Jones

As an aspiring criminal defense attorney, the moral dilemmas that I will inevitably face trouble me. Especially in the arena of litigation, it seems to me all attorneys experience some degree of moral conflict at one point or another regardless of whether the trial involves a criminal or civil matter. And so the ultimate question is how does a criminal defense attorney in good conscience represent the guilty? And by the same token, how does a civil attorney in good conscience represent the wrong?

Like every tough question, there is no bright line answer. However, after given these questions much thought and reading what other people have to say about this issue, I believe litigators can align their professional duties with their moral responsibilities by (1) Seeking justice and (2) Thinking creatively.

First, an attorney’s ultimate goal must be to seek justice and not to simply win.
I realize this is easier said than done. In an article published in an ABA journal entitled, “Litigation,” Martin Siegel (a seasoned litigator) writes “[S]omewhere along the line, the craft of lawyering inevitably overwhelms the justice of it. Clients pay our bills, not abstractions like truth or justice, and you might have noticed that client’s like to win.” But as attorneys we are called to be zealous advocates, not “hired guns” who win at all costs. This calling applies whether we personally think the client is guilty, innocent, right or wrong.

It’s my belief that you can seek justice and be a zealous advocate simultaneously even when you believe your client is in the wrong because justice is a multifaceted concept. Justice encompasses not only traditional notions of morality and fairness but due process. As far as morality and fairness are concerned, even the guilty is entitled to a fair outcome. It’s the attorney’s duty to present their client’s side of the story to help facilitate a fair outcome. In terms of due process, this entails constitutional protections. And so, if for example a case is won on a constitutional technicality, such as evidence being inadmissible because it is fruit of the poisonous tree, that too is justice. My point is justice is complex and it does not come in one-size-fits-all. And so even if you are certain your client is guilty or was in the wrong, in some aspects of the case justice may be on your client’s side and it’s an attorney’s duty to bring those details to light.

Second, even when our clients are guilty as charged, as zealous advocates we must think outside the box for solutions. In the criminal context, the fact is the majority of people charged with a crime are probably guilty. In an online article, a criminal defense attorney wrote he could not recall the last time he represented someone who he thought was innocent. In addition, a personal friend once told me “most people I represent either did it or had something to do with it.” When faced with these types of situations I think it’s important for lawyers to seek creative solutions. For example, in the criminal context design unique plea bargains that encompass not only jail time, but rehabilitation, community service, counseling or avenues to express remorse. In the civil context, in addition to money settlements consider whether there are other compromises or actions/ inactions parties can do to solve the problem. As Steven Covey, author of The Seven Habits of Highly Effective People said, don’t think win-loose think win-win.

I have not begun practicing law yet. And so it’s fair to say this article is written from a somewhat na├»ve and idealistic perspective. However, I believe it is important for “rookie” attorneys to adjust their moral compass at the outset of their career as opposed to when we are in the trenches of a moral dilemma.

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  1. Thomas R. Griffith11/22/2009 01:23:00 PM

    Ms. Jones,
    It's thinking like this that will lead to actions resulting in a reduction of plea-bargaining the innocent and ultimately reforming an antiquated system.

    As you are aware, when 90 to 95 percent plead out, it reflects on the criminal defense lawyers as a whole. When people are released and shown to have been innocent all along, it reflects on the entire system. When a newbee speaks out against the "old school" methods and attempts to introduce true change, they'll come out of retirement to comment.

    In closing; there would be no need for Innocence Projects if the game were played fairly. There would be no need for if these "Projects" stopped ignoring non-DNA claims of innocence. There would be no need to introduce logical change, if the justice system wasn't broken. You are on a path leading to greatness and it's hoped that you never back down along the way.

    You'll know when you've crossed over to the dark side when you learn that you've plead out an innocent person & refuse to right that wrong.
    The PNG Team

  2. " the criminal context design unique plea bargains that encompass not only jail time, but rehabilitation, community service, counseling or avenues to express remorse."

    This is not thinking outside the box. While good options, this is within the box. I'm not sure "thinking outside the box" is really where defense lawyers need to be.

    Take another crack at this one when you get some experience. This is really a topic that would benefit from experience. I would suggest an interview next time.

  3. (Comment by Mr. Joel Reed, left at 5:50pm EST on 12/18/2009. Per the posting rules on this blawg, comments left are encouraged to be civil. As administrative moderator, I am respectfully posting Mr. Reed's excerpted comment. Sls.)

    "I'm concerned that you think there is some enormous difference between a 'hired gun' and a 'zealous advocate.' A 'hired gun' must operate within the bounds of the laws of physics; bullets only go so far. A 'zealous advocate' must operate within the bounds of the laws and ethics rules. Other than that, they are both hired to win and to hit what they are aiming at (with the EXCEPTION of prosecutors, who must be zealous advocates only while seeing that justice is done). I'd suggest a nice quiet career in transactions for you, where you can draft paperwork for real estate transactions without having to constantly soothe your conscience with answers to fraudulent moral questions such as how individuals who believe in and ARE SWORN TO UPHOLD the Constitution of the United States of America can represent guilty clients in good conscience. [T]here are things more important than the guilt or innocence of any particular person, and some of those things are the concepts underlying our democracy. [ ]."


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