> "This is a very difficult issue," he says. "Obviously most of us would think that the lawyer should just do what's in the best interest of the client in the view of the lawyer."
That doesn't seem very "obvious" to me, any more than it seems "obvious" that a doctor should just go ahead and carry out a medical procedure he recommends after I refuse it.
... or resign.
There are lots of instances in professional services where you simply have to say 'no'. If you're not willing or able to represent your client in the way they want to be represented, the correct response is, "I'm sorry, but I'll be unable to continue to advise and represent you on this matter."
In the doctor example above, the doctor will—and should—absolutely refuse to follow your instructions to cut off your arm. (If you are insistent, you can probably find someone in the body modification community to do it for you, though a) it's probably illegal for them to do so and b) don't confuse that with legitimate medical intervention.)
Lawyers may not be free to do so, though they can try.
In reality there is usually wriggle room concerning motive or the suitability of the charge, say. But I know a lawyer who has turned away clients who have flat out confessed to him.
1) Defendants have the right to a trial, regardless of how "obviously guilty" they are in anyone's eyes.
2) Trials are, in part, about whether the state has met its burden to prove the elements of the case, regardless of the lay truth of the accused's guilt. [A]
3) Given the above, the work of a lawyer (in a trial) does not inherently involve the representation that "this defendant is innocent", but only that "there is insufficient evidence of that element of the case", which needn't be a fraud on the court, even if the prosecution's claim is true.
(With that said, more specific lies can be off limits.)
[A] A Man for All Seasons: "The world must judge according to its wits; this court must judge according to the law."
2) Yes.
3) Yes. The difficulty arises when the lawyer has been provided with evidence by the client which supports the charge.
Ultimately it's the lawyers job to present the client's case, however implausible. However, "I did it but I want to pretend I didn't" isn't a case, it's a lie.
If you agree, that's walking back on your original comment; if you disagree, that seems to go sharply against 1/2/3.
Edit: As the others note, this is going sharply against well-known legal principles. Do you have any authoritative citation that UK lawyers can't represent clients at all on a not-guilty plea while believing them to have "done it"?
But how does he know his client is guilty? Is he supposed to judge his client?
What reason would the attorney have for not believing the information that the client confesses voluntarily under the veil of attorney-client privilege?.
Considering the historical reliability of the ways in which we find people guilty of crimes that sounds like a terrible system.
Edit: the first was, the second was hired by the family, who filed that his client was indigent and he was to be paid from public defense monies.
> But he was continually at odds with his public defenders, eventually firing them for refusing to file subpoenas he prepared for a dozen witnesses, who he said could support his alibi defense and other claims. He briefly acted as his own lawyer until his parents hired Larry English to defend him, and even then, the defendant continued to file motions in his own defense.
> English repeatedly advised McCoy to plead guilty in exchange for life in prison instead of the death penalty or to plead not guilty by reason of insanity, but McCoy repeatedly refused, insisting that he was innocent.
This is how innocent people end up on death row.
A lawyer advising you to plea guilty is not necessarily assuming you are guilty any more than a lawyer saying that you have a solid basis for a not guilty plea necessarily assumes you are factually not guilty.
The lawyer is advising you on their opinion of where you will get the best (which may merely be “least terrible”) result from the legal system.
Now, they may or may not be doing a decent job of that, but that's a different issue.
As a side note, I've been told that public defenders will actually tend to get better deals from prosecutors than private counsel because they have to work together so much that they tend to know when the prosecutor will bend.
Also, I do not condone plea bargaining. I think it generally distorts justice in ways that are very corrupt, and create very mis-aligned incentives.
Absolutely freaking not. This is not how professional services works. I hope this is not actually an endemic perspective in the legal community?
That is highly contextual. A coworker of mine called that the "Physician <-> Prostitute Spectrum." Certain service providers will pretty much do whatever you pay them to. Other service providers will filter their request through their expert knowledge. This also depends on the nature of the request, of course. It's not like a Doctor is going to give you a sex change you didn't ask for, if things are working correctly.
Whether to plead guilty should be up to the client, unless they aren't competent.
A better analogy would be going to a prostitute and insisting on a condom, but then the prostitute pokes some holes in it and becomes pregnant "because you seemed lonely so I thought a child might be best for you". That would be a case of requesting one service (protected sex not resulting in pregnancy) but getting an undesirable one (unprotected sex resulting in pregnancy) solely because the service professional disagreed with "what's in the best interest of the client in the view of the [prostitute]". Which, to put it mildly, is not what you paid for. :-)
If a hired professional disagrees with a course of action that a customer has explicitly requested, the appropriate action is to decline to enter into a professional services arrangement, or break an existing one. Not just go ahead with whatever you wanted to do anyway because you think its better.
Not a better analogy. The same analogy. It's a counterpart to the unwanted sex change from the Doctor. (From what I've read, it's certain that an unasked for sex change was performed by some doctors on some infants.)
> State psychiatric experts found McCoy mentally competent to stand trial.
> McCoy suffered from diminished mental capacity
> people who represent themselves in major criminal trials often have enormous mental health problems and imperception of reality.
It is a very, very high bar these days in order to be found mentally incompetent, and as there is no social safety net, the mentally incompetent are disproportionately prosecuted via the legal system.
This seems more like the court thought he was fine and the lawyer decided the guy was mentally incompetent himself, which, given the article lists several other mistakes the lawyer apparently made, this sounds like he just was kind of a crappy/lazy lawyer.
In case anyone thinks I'm not considering the difficulties faced by overworked public defenders, I here ya, but the lawyer that screwed all this up was retained by his parents.
> He briefly acted as his own lawyer until his parents hired Larry English to defend him, and even then, the defendant continued to file motions in his own defense. English repeatedly advised McCoy to plead guilty in exchange for life in prison, but McCoy repeatedly refused, insisting that he was innocent. Finally, English embarked on a strategy of conceding his client's guilt, in hopes of avoiding the death penalty."
Right, but it sounds like a big part of the problem here is that the bar is set very high here, perhaps more than is reasonable.
I doubt the lawyer has his client's interests in mind all the time: A new trial with more money coming up, media exposure, "25 years is jail isn't that bad, could've been life," "if we wrap it up by Tuesday, I can still make for Jeff's birthday party" etc etc. Lawyers are human and representing clients is a business. The most important period in your life is just another trial to him.
Bottom line: Unless the lawyer is willing to do his client's time, he should be overruled by the person that really stands to lose, the client.
Let's rate representation from 0-100, with 0 or a negative being a drunk lawyer, sleeping through the trial, and 100 being the dream team, 10+ lawyers with unlimited funds.
What if your lawyer rates a 15 (scale 0-100) and simply says that that's what I really believed, given the evidence and resources avail ? Who is going to disbar /blame him when he recounts the challenges he faced?
> Who is going to disbar /blame him when he recounts the challenges he faced?
The disciplinary commission of the State Bar, who will be reviewing the information provided, and will be composed aren't 15s.
And, quite possibly, a court hearing a malpractice claim and applying the professional standard of care.
https://www.ncbi.nlm.nih.gov/pubmed/15948330 https://www.ncbi.nlm.nih.gov/pubmed/19132621 https://www.ncbi.nlm.nih.gov/pubmed/17115518
Doctor: undergo my recommended treatment or you will die
Patient: no
Patient: Doctor, please chop off one of my hands for no good reason
Doctor: no
There are plenty of instances where you have the right to compel another person to do things.
I can go on all day.
The poster above you does not understand what a 'right' is and is trying to make a point about positive vs negative rights, but doesn't actually understand the distinction.
> The poster above you does not understand what a 'right' is and is trying to make a point about positive vs negative rights, but doesn't actually understand the distinction.
Ok. Nice talking with you. Have a good day.
It stems from respecting a persons right to liberty, and when trying to respect some other rights of one party involves the forced action of another party, it often may incroach on right to liberty of the latter party.
The idea of when it's acceptable to encroach on someones liberty using some type of forced complience is a complicated dance, as it should be. Personally, I usually lean on the side of respecting liberty above others. This necessarily involves respecting everyone's right to excercise their liberty in order to be an asshole, idiot, bigot, etc.
In the latter there's no clear upside other than "for fun", and definite harm.
The line is drawn between "do no harm" and "force good".
It's in the interests of the judicial system that each client is entitled to a vigorous defense on a level playing field. That's the only thing that keeps the system working (as broken as it is). It's in the interests of the clients to do various things. Those things do not necessarily involve a vigorous defense or the best possible outcome for them.
If I signed a paper absolving my lawyer from damages, then asked him to punch me in the nose, should he? I don't see why not. If I did the same thing with my doctor, should he? Absolutely not.
This is the study of ethics, that is, the types of behaviors that professionals expect of one another as part of their profession. Ethically, I think the lawyer felt he should enter and defend the guilty plea. Whether or not that is the correct ethical decision -- and whether or not that decision is in the best interests of the judicial system -- is the interesting part.
Seems like this might be a boutique definition of "vigorous defense."
(I'm a big lover of freedom, so I'm in the second camp. If you're able to stand trial you're able to plea anything you'd like. But I guess there's some question here because of the public's desire not to let anybody be put to death by the courts that might have avoided it with a better defense?)
If they decide this lawyer did the right thing then it seems to me like we've created three tiers where there used to be two: competent and incompetent. Now there's competent to stand trial, competent to stand trial yet incompetent to defend themselves, and completely incompetent to stand trial. Things would get a lot more complicated.
scenario 1:
> Doctor: undergo my recommended treatment or you will die > Patient: no
scenario2:
> Patient: Doctor, please chop off one of my hands for no good reason > Doctor: no
lets add a scenario 3:
> Doctor: I need to chop off your hand within the next hour or you will die > Patient: no
What do you think the doctor should do?
A more realistic scenario is probably DNR orders, which doctors do honor.
> Wrongful life. Theoretically, if a patient is resuscitated in the OR against the patient's wishes, a “wrongful, life” lawsuit could be filed. Under this suit, a patient could request compensation for ensuing expenses for continued life, negligence, and battery. An Ohio appellate court reviewed a case in which a patient was resuscitated after a DNR order was documented on his chart.12 Although the court in this particular case rejected the wrongful life theory, it did uphold the possibility that battery and negligence had occurred. This case has made it certain that the advance directive is an important component of a patient's chart.
[0] Evelyn Eckberg RN: The Continuing Ethical Dilemma of the Do-Not-Resuscitate Order http://onlinelibrary.wiley.com/doi/10.1016/S0001-2092(06)626...
> Doctor: I need to chop off your hand for no good reason > Patient: no
> for no good reason
Does that cut mustard? Why not?
After all, it seems self-evident that nobody would seriously ask for these things if they themselves didn't believe they had a good reason, yes?
Or go to an engineer or architect and ask them to design something manifestly unsafe.
One of the differences between a profession and a customer service job is telling the client "no" if the client is asking for something inappropriate.
This is more reminiscent of the doctor refusing to amputate your arm, and then instead cutting off your little finger while you ask him not to.