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 naïve 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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