If you’ve never met a lawyer before, then this question may sound strange to you. Then again, with so much crime going on in the world, you may have taken a second to think about the quality of the people who represent murderers in court. How do they do it?
I’ve been a lawyer for some time now, having passed all sorts of legal exams over the years. It still strikes me as odd when I get this question even though, if I had a penny for the times people have asked me whether I’d represent a murderer in court, I’d have a lot more Louis Vuitton handbags by now.
There is a longstanding and sacred rule of law stating that every defendant is entitled to a fair trial. And another one which states that every defendant is innocent until proven guilty. But any idealistic facet of the law falls short of the reality. That in fact, people (lawyers definitely included) are by definition human beings, and as such they have their limits and weaknesses. How is this relevant? Well, it is when we consider that it is people, mere human beings, who are trained to interpret and apply the rule of the law. Mere humans decide whether to charge defendants with offences and mere humans decide whether these defendands are innocent or guilty of those offences.
Wise men centuries ago realised that in order for there to be a rule of law, there must be safeguards. So, to protect the rule of the law, there is a code of conduct which guides and binds all practicing lawyers offering through its provisions solutions to difficult situations.
Where a defendant confesses his guilt to his lawyer, the code of conduct provides a solution.
Can he refuse to represent a guilty client?
In English law he may not be able to refuse to represent a client because of the ‘cab rank’ rule which says that a practicing barrister must accept any work presented to him (save for some exceptions). Yet there is a solution:
The notion of estoppel , provides that a lawyer may represent a guilty defendant, by leading a defence as a shield and not a sword. What this beautiful phrase means is that the lawyer should not go as far as to prove the defendant’s innocence but only so far as to adequately represent his client in the criminal proceedings.
The fact that there is a legally accepted solution to this problem does not make it a panacea. Some grim examples of gross miscarriage of justice in the UK (Birmingham 6, the Guildford 4 etc.) prove that the justice system can get it terribly wrong at times. Does this mean that it is entirely flawed? Following the above said miscarriages of justice there was an overhaul of the system (thankfully) acknowledging the shortcomings of a jury consisting of only middle class, middle aged, middle minded people.
Apart from the legal dimension to the problem of representing a guilty defendant the lawyer may also have to face the psychological dimension on the lawyer’s morale when he knowingly represents a guilty client. Arguably, legal training should equip lawyers to deal with less than ordinary situations. But Is the lawyer practicing in an ideal world? Hardly. Then perhaps the legal profession should aim to enhance the lawyers’ knowledge, skills and information, enabling them to practice within the boundaries of the ethos provided for by the rule of law but taking into consideration the socio-economic challenges of this world.
When the murderer represented in court is a previously law-abiding citizen whose family was murdered by the victim, the meaning of all legal terms is looked at in an entirely new context.
Does the rule of law afford any flexibility in its application especially when hideous crimes have taken place? Should it?