When a Guilty VerdictIs In The Accused’s Best Interests– Ethical Dilemmas for Lawyers

Dale DewhurstAssistant Professor, Legal StudiesAthabasca Universitydaled@athabascau.ca

The Ethical Problem

The Code of Professional Conduct for lawyers directs promotion of the client’s best interests.

No where is “best interests” defined.

The Ethical Problem

How do “best interests” apply to a guilty plea?

Enter a guilty plea to the offence, or an included or appropriate offence, providing:

an acquittal is uncertain or unlikely, the client admits the required elements, the client knows the consequences, the client so instructs, preferably in writing.

The Ethical Problem

However, what if: conviction is not certain without the client’s co-

operation; and, the client is not prepared to admit the required

elements?

And, what if: the client's best interests suggest pleading guilty to

the offence charged; and also self-disclosing and pleading guilty to similar

offences not yet charged?

The Ethical ProblemCommon perceptions are:

winning the case is the presumed goal. the lawyer is to fearlessly raise every issue, argument

and distasteful question to help the client's case; and the lawyer is to obtain “any and every remedy and

defence which is authorized by law”. “The lawyer is not obliged … to assist an adversary or

advance matters derogatory to the client’s case.”

The Ethical ProblemYet, what about offending connected to

compulsive behaviours grounded in mental health concerns, is a zealous defence the best?

Here, mental health literature argues that accountability, punishment and treatment are in the client's best interests.

What should lawyers do when victory in the legal case contradicts the client's best interests?

An Ethical Dilemma?

The lawyer ethically promotes the client’s case to the detriment of the client’s best interests.

Alternatively, the lawyer promotes the client's best interests by unethically sacrificing the client’s case.

Thesis The “client's best interests” and the focus on the

legal case are not necessarily compatible.

To properly advise clients, lawyers need to draw upon mental health expertise to develop a robust understanding of the client's best interests that goes beyond the client’s case.

To resolve the ethical dilemmas, certain provisions in the Code need to be amended or more robustly interpreted.

1. Ethical Tensions.

We don’t see Code provisions that define or expand on how to understand the client's best interests.

What we see are explanations of the lawyer's duties to: limit representations to the scope of the retainer; follow the Code over conflicting client’s interests; advance the client's legal case; and preserve the client’s legal rights.

2. A Zealous Defence?Most jurisprudential literature comes to similar

conclusions.

1820 - A classic statement of this comes from Lord Brougham: “An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons … is his first and only duty …” (Queen Caroline's Case)

2. A Zealous Defence?

1965-66 - Thode writes that : “[W]hat ever is within the framework of law is not merely a possible ethical standard – it is the ethical standard for the trial lawyer … Any effort to set up non-authoritative standards … based on some brooding omniethic -- is in violation of the basic ethic and should be considered unethical.”

Thus, the client's best interests are defined by the

parameters of the legal system, nothing else.

2. A Zealous Defence?

2003 – Adams comments that “Lawyers have an ethical obligation to zealously protect the interests of their clients and if they abandoned legal norms, they would have a difficult time understanding the responsibilities.”

3. Practical Case Examples.

Foster:

The accused was a grade 7-9 teacher charged with 9 sexual assaults against students spanning a 16 year period.

After serving his sentence on the first convictions, Mr. Foster was promptly re-arrested and charged with additional offences from the same 16 year period.

3. Practical Case Examples.

Toft:

The accused worked at a reform school for juveniles. He plead guilty to 34 sexually related assaults involving 19 young males over a span of 20 years.

Subsequent to his conviction, 15 fresh charges arose but were stayed in favour of proceeding with an inquiry.

3. Practical Case Examples.

Oral presentation given by seven sexual offenders on parole (1998). They desired:

To have their problems end quickly. To avoid stress and family disruption. To avoid lengthy incarceration.

4. The Mental Health Literature.

The public wants ever more severe punishments in the mistaken belief that it will stop recidivism.

There is a direct correlation between increasing severity of retributive punishment and offender motivation to avoid responsibility.

The solution that seems to be producing the most effective results is the risk-needed model of offender rehabilitation.

4. The Mental Health Literature.Addressing dynamic risk factors is in the client's

long-term best interests (and the community's best interests).

Nothing in the zealous adversarial approach moves lawyers in this direction.

Instead, "If antisocial behaviour is reinforced through rewards or escape from painful stimuli, it is likely to be strengthened and become part of person's general repertoire in the future."

4. The Mental Health Literature.

Offenders seek support for the patterns of thinking that facilitate their behaviours and find it in a legal system that is focused on denial and avoidance of responsibility.

Unless pleading guilty, therapeutic interventions may be delayed for two years or more. During this waiting time, the accused becomes entrenched in denial and in trying to convince family and friends that he is not guilty.

5. Observations & Limits.

In these cases, mental competence is not at issue from a legal point of view. These accused know the nature and consequences of their actions and they are able to effectively retain and instruct their lawyers.

Also, the presumption of innocence is not at issue as it does not apply between an accused and his or her own lawyer.

5. Observations & Limits.We are considering cases where the offenders have,

factually, performed the requisite criminal act and possessed the requisite mental elements to support a valid criminal conviction.

What is being suggested is not to facilitate the Crown's aims but to respond to a more robust understanding of the client's best interests.

The adequacy of an individualistic approach to crime

and justice is at issue.

6. Resolving the Ethical Dilemmas.

Entering a guilty plea to the offence charged or to another offence appropriate to the admissions gives the lawyer minimal ethical leeway.

In the above examples, had the accused received thorough mental health counselling along with their legal consultations they may have decided to plead guilty at the outset.

6. Resolving the Ethical Dilemmas.

For the past 30 years there has been a growing body of jurisprudence promoting a more holistic approach to legal client counselling. However, the Code has changed very little, if at all, to accommodate these developing approaches.

Examples of this literature are:

6. Resolving the Ethical Dilemmas.1977 -- Binder & Price: the client-centered

approach to legal interviewing and counselling. 1982-83 – Redmount: questioning conflict of

interest directives with a relational approach to legal interviewing and counselling.

1999 – Daicoff: examining the combination of therapeutic jurisprudence and preventive law.

6. Resolving the Ethical Dilemmas.2003 – Adams: looking at the role of mediation and

new duties to advise and encourage settlement.

2005 – Macfarlane: reporting for Justice Canada on collaborative family law.

2007 – Anderson: studying collaborative practice initiatives between lawyers and non-lawyer's and the value of interdisciplinary legal practice.

6. Resolving the Ethical Dilemmas.

Two things stand out: the historical understanding of the zealous advocate

is still the common understanding;

given the fact that the Code requires lawyers to focus on the client's best interests, why has the adversarial, zealous and individualistic approach been the default position and remained the default position despite 30 years of efforts to revise it?

7. Final Words.

Consider how many lawyers know enough about treatment to know that it is in the client's best interests.

Versus, how many lawyers use treatment as a tool to speak to sentencing should they lose at trial.

For now it is sufficient to conclude that the "client's best interests", and the focus on the legal case, are not necessarily compatible.

7. Final Words.

To properly advise clients, lawyers may need to draw upon the expertise of mental health professionals in order to develop a more robust understanding of the client's best interests that goes beyond a focus on the client’s case.

However, if the client has received complete advice and still desires a vigorous defence, then the lawyer must provide one.

7. Final Words.

What we should be left with is an understanding that if lawyers actually wish to promote the client's best interests, zealous and partisan advocacy should be seen as a final resort, not as the default method of legal representation.

The Code of Conduct must be expanded and

revised to accommodate this new understanding.

When a Guilty VerdictIs In The Accused’s Best Interests– Ethical Dilemmas for Lawyers

Dale DewhurstAssistant Professor, Legal Studies

Athabasca University

1 University Dr.

Athabasca, AB, Canada

T9S 3A3

daled@athabascau.ca