The Ethics of Criminal Defence for the Legally Guilty
By Randann Sargent
Criminal defence lawyers are morally justified and, ideally, obligated to defend a person accused of a crime, irrespective of what that crime is. The more heinous the activity, the stronger the moral justification and obligation. Such a statement likely elicits an understandably strong reaction from the average person and contributes to a poor perception of lawyers in the criminal justice system. After all, seeing a person who is accused of an abhorrent action escape penal sanction seemingly strikes a moral chord in our society in an unacceptable way. That said, while the emotional reaction is understandable in these cases, such perspectives must necessarily be subservient to a more long-term, dispassionate view that considers the integrity of the system. Failing this, the legal process is eroded, and we risk two consequences: 1) the conviction of innocent persons; and 2) the disproportionate punishment of the guilty. Both outcomes are antithetical in a liberal democratic state.
This position requires an understanding of the moral justifications of the institution that creates the defence lawyer’s role, the rationale of an accused’s right to be defended, why the general citizenry has an interest in supporting the resolute defence of an accused and, finally, the theoretical underpinnings of punishment.
Notably, what follows is an argument rooted in first principles which comprise our system of criminal justice. There are clearly defined ethical boundaries stated in the Alberta Law Society’s Code of Conduct (the “Code”) on how lawyers should practice in the profession and when they cannot act for a client. For example, where a conflict exists, or the lawyer lacks competency. These are not at issue in this paper. The position being explored here is what it means to be a “resolute advocate” and why it is in everyone’s best interests to appreciate such a role.
LEGITIMACY OF THE SYSTEM PRESUMED
The defence lawyer requires both perspective and understanding of the justifications of the system if they are to be a resolute advocate. The moral authority of the rule of law justifies a lawyer’s legal and stalwart actions in defence of an accused. The legal system helps us organize complex society by facilitating, broadly, human flourishing. This is achieved through systems of economics and property transactions, as well as social organization through criminal justice statutes and structures of government. We will be specifically focusing on the criminal justice system.
As the primary focus for us is ethically justifying the defence lawyer’s specific role within the criminal justice system, much of the institution’s legitimacy is presumed. While a historical review of the philosophical evolution which gave rise to our common law and adversarial processes is fertile ground for debate, we will only conduct a cursory review of the most prominent principles that drive much of criminal legal thought in Canada: liberalism and theories of punishment.
FIDELITY TO LAW AND LEGITIMATE INTERESTS
Prospective and practicing defence lawyers undoubtedly have been asked how it is that they can defend a guilty person, or a person accused of an unspeakable crime. It has become a platitude to simply reply, “everyone deserves a defence”. We certainly struggle at times to appreciate when a person is successfully defended. Informed discussion about the flaws of our justice system and workable solutions need to take place; however, often such ire is tacitly (and sometimes explicitly) conflated with the morality of the lawyer.
These cases aside, the lawyer themself can struggle with the morality of their position, absent public outrage. Crimes involve real people, with real victims, and the details of such incidents can leave even experienced lawyers in pensive thought. Indeed, it has been argued in the field of legal ethics that “a lawyer cannot, more than anyone else, keep personal conscience and professional conscience in separate pockets…it cannot be seriously denied that every lawyer is, in some measure, the keeper of the client’s conscience.”
Prior to attending law school at the University of Calgary, I listened to a speech Justice Moldaver gave to an enthralled room of soon-to-be lawyers. Having been a defence lawyer, he shared some of his experiences as he made the trek toward earning a coveted seat on our Supreme Court of Canada. Wanting to one day defend the criminally accused, I took every opportunity afforded to develop a cogent perspective that would help me understand my role in the legal system.
When the time came to ask questions, I patiently waited and contemplated approaching the mic. Here I was, not more than twenty feet from a revered Supreme Court Justice, pondering if I dare engage him. The room bore an intimidating crowd: law students and practitioners asked insightful questions on topics of law that I knew little about at the time. I wondered if my question was inappropriate, too personal, or, frankly, too direct. But I needed to know—I needed to know from a Supreme Court Justice how I could defend a guilty person and still live with myself if their acquittal brought future harm to another. It was not enough for me to simply think, “I was just doing my job.”
Eventually, I mustered the courage and adjusted the mic, Justice Moldaver looking at me expectantly. I took a breath and paused to gather my thoughts before speaking. As a point of reference, I recited a story he had told about defending a person accused of sexual assault. It was a difficult case for Justice Moldaver and, from what I remember, he ultimately decided to not take sexual assault cases after this particular trial. So, I asked him what advice he would give to defence lawyers in reconciling the possibility that a client they know is guilty, but is found not guilty, goes on to harm another person or, in the immediate situation, escape formal punishment.
Now, I understood the strict legal answer to the question; however, I was interested in the ethical, personal component. There was an awkward silence. Justice Moldaver’s voice was direct and flat as he replied, “Don’t take the client.” Another awkward silence followed. Reflecting back, I feel my question was not clear, or was misunderstood. The issue could not be resolved in such a simple manner. I needed more—there had to be more.
The concepts of privilege and loyalty connote a closeness between the lawyer and client, giving the perception that, at least to a substantial degree, the lawyer shares the position of their client—both morally and legally. Indeed, some have argued that having integrity as a lawyer involves fidelity to personal projects one finds ethical and worthwhile. Some have even argued that if the lawyer has little concern for the morality of their role, they are doomed to adopt—or maintain—a “thespian-like” depiction in how they practice law. For the average corporate lawyer, though, the prescriptions such arguments posit fail to grasp the majority of their work; it is difficult to believe the latest merger or tax compliance consultation forwarded truth and justice—but I digress. However, when these arguments for a fusion of morality and professional projects are considered in the criminal context, the ethical quandaries are much more apparent—at least on a personal level. This is the case because working in the area of criminal law requires the practitioner to necessarily deal with situations involving personal harm to others.
The issue of personal morality is further compounded when we consider that advocacy usually requires an emotional investment in the client’s interests. However, it is critical that a lawyer does not allow their emotions to be the guiding force in how they conduct a trial. They must recognize that emotions can overwhelm rational faculties, and this needs to be respected. It is a question of degrees. In a criminal matter, the client often has life circumstances deserving of sympathy and consideration. At the same time, not all clients compel empathy and, frankly, can be ruthless and repugnant. In either situation, irrespective of the client’s disposition, the lawyer needs to attach themselves to a component of that case that allows them to reconcile seemingly incompatible notions of morality and how to defend against undesirable allegations.
Ultimately, the answer lays in the lawyer’s fidelity to the law and the client’s legitimate interests. This position has been argued by Bradley Wendel, and also explored in Canada (AG) v Federation of Law Societies of Canada. In this sense, criminally charged persons serve as a conduit whereby our rights come to be understood and state power is demarcated. Adopting this understanding of criminal defence facilitates the lawyer in persuasively and resolutely advocating for even the most unsympathetic client, and being morally justified in doing so.
Fidelity to the law protects against the conviction of innocent persons. First, a lawyer ensuring the integrity of the process develops their own skills, which, even if the current client is guilty, prepares them for representing future clients where guilt is unknown. Second, if the integrity of the system is eroded and guilt assumed, the jurisprudence could either go underdeveloped in areas needing clarification or developed in a manner that favours future convictions in cases where such a verdict would have otherwise been ill-founded.
The first reason is the most compelling. It is much more likely that the conviction of innocent persons will occur when the lawyer fails to operate at their maximum potential, irrespective of the client’s circumstances or guilt. Developing these skills goes far beyond basic competency requirements found in the Code of Conduct—a lawyer can provide representation that is “good enough,” for the purposes of avoiding formal sanction, but fall short in other, perhaps more subtle ways that contribute to a wrongful conviction. For example, in how strategic decisions are made or the state’s evidence is tested throughout the process.
The second concern has two components, and while both are comparatively weaker positions to the first premise, still deserve consideration. When a lawyer fails to forward a defence in a particular case, the more likely risk is that the law remains underdeveloped. For example, if your client was found guilty because DNA transfer evidence was unchallenged, the court is unable to comment on the veracity of potential issues such evidence can pose. If we uncritically accept the conclusiveness of certain kinds of evidence, it is foreseeable that a person will eventually be found guilty when the standard of proof would have otherwise gone unsatisfied had the courts been availed of relevant evidentiary pitfalls. The jurisprudence explicitly developing in a way that supports unfounded convictions, is much less likely. When a court is aware of the relevant law and rules, and the defence lawyer has properly forwarded every reasonable argument, any errors are more likely to be caught in the appeals process, and the law clarified or reaffirmed.
Consider a scenario where the lawyer knows their client is guilty: they have fully confessed to the lawyer in private. In this situation, the lawyer needs to internalize the critical importance of the principles which underpin the legal process, such as the presumption of innocence, rules of evidence, truth-seeking, and when state-imposed punishment becomes legitimate. At every stage in the process, the lawyer must still test the state’s case; every witness must be vigorously cross-examined, and the evidence must be correctly admitted or weighed. In our adversarial system, the truth of the allegations or facts of a situation cannot otherwise be established. Moreover, justice cannot be done as the process becomes diluted, and consequently, unfair. For punishment and the restriction of liberty by the state to be just, the requisite standards need to be fulfilled. Our society is, generally, underpinned by liberalism, which has ushered human flourishing to a historically unparalleled degree. This means that at times, guilty people avoid penal sanction to sustain standards intended to grant liberty a position of primacy in a democratic state.
If the state cannot meet their burden and the guilty client is acquitted, this is where the lawyer may struggle the most with the morality of their position. Indeed, this is where I found myself when I sought guidance and advice from Justice Moldaver. While my view here is perhaps still developing (as all of our opinions should be), I have found salvation in some respects. The lawyer must caution themselves in believing they have a crystal ball of fortune that allows them to predict a person’s recidivism. In most cases, you are not going to know if your client will leave court and continue on to harm another person. Engaging in this predictive exercise will undermine your ability to advocate for your client and ensure that the process is legitimately maintained, and that broader rights are protected.
This is not to suggest the lawyer should be ambivalent about future harm to others; it is to posit that trying to control this element inherent in almost every criminal case, will lead you astray—either professionally or psychologically. To be certain, if the lawyer is aware that harm is imminent, they have an obligation to stop it. Accepting you are otherwise in a powerless position in this regard means that when future harm does happen, you bear that scarlet letter to the appropriate degree. And while this may be an extremely low degree in the circumstances, it will likely nonetheless weigh on the consciousness of a reflective person. The lawyer must understand how their role in the system is justified, that the system itself is justified, and that their personal and professional limitations cannot stop recidivism. That said, when harm befalls another person, the sorrow is inescapable and will likely always remain with you in some capacity. Ironically, it is the personal toll defence lawyers pay in pursuing justice and ensuring others are treated with the same.
Defence lawyers, more often than not, represent clients that are guilty of something. If guilt is proven, both the client and society have an interest in seeing that punishment is proportionate. Moreover, considering the focus we generally place on whether a person is guilty of an offence beyond a reasonable doubt, we are prone to take for granted that this is only one part of the criminal justice process. If guilt is proven, the client must be sentenced. At this stage, the lawyer needs to maintain a principled approach in defending their client. The issue is not only whether a person is guilty, but precisely what they are guilty of.
When a person has been proven guilty, is when we are most likely to forsake our principles—especially if the crime is particularly violent or has otherwise caused substantial harm to innocent people. The client has transgressed the social contract and the state is now justified in punishing. The issue here is that we have a slavish adherence to retribution and ideas of deterrence. All too often, it seems only the longest custodial sentences remotely satiate a public clamouring for “justice.” The defence lawyer needs to resist these ingrained ideas and be more forward-looking. It is not that your client does not deserve punishment, but that they ought to be punished 1) only for what they are guilty of, and 2) only to the degree that they are morally culpable. Anything beyond this is an assault on the long-term administration of justice and usurps our society’s understanding of rights.
As an aside, there are arguments to be made that penal punishment itself, while theoretically justified is, because of the practical realities and broader social implications, no longer ethical. These discussions are beyond our purview here. Moreover, they do not assist the contemporary lawyer who needs to operate within the current system. That said, this is a central issue in our criminal justice system and lawyers seeking to advocate for change should educate themselves in this area. How our system sentences offenders, and for how long, is arguably ripe for reform.
Continuing on, while people may understandably want to see the guilty punished, and retribution and deterrence certainly have a role to play in that process, it is against their long-term interests to desire punitive punishment. I suggest that most people do not appreciate this, as they feel they will never be charged with a criminal offence. Many of these people are probably correct; however, there is a broader cultural, rights-based component that such a perspective fails to realize. The rights enumerated in Canada’s Charter of Rights and Freedoms are not legal rights per se—they are more fundamental human rights and freedoms that the law protects. When a society begins to devalue the protection of these rights in the criminal process, we erode the intensity to which we value rights more generally. In this sense, seeing a criminally guilty person’s rights upheld ensures respect and protection for other rights claims perhaps more relatable to oneself, albeit different in nature.
Society also ought to appreciate that, to the extent they feel they will never be captured by a criminal investigation, criminal adjudication nonetheless impacts them in ways taken for granted. Consider more innocuous offences where a person may interact with the state, such as for a traffic violation. Your section 8 and 9 Charter rights protect you from unreasonable search and seizure, and detention, respectively. Criminal cases have both outlined the limits of police powers during these interactions, as well as reinforced an attitude about law enforcement that respects a citizen’s liberty. It is not difficult to see examples the world over where a different attitude about police power and the appropriate exercise of state authority operates absent this rights-based pillar, creating corruption and abuse. Consequently, human flourishing is undermined. As such, while most people may never find themselves facing criminal allegations, they have a shared legitimate interest with the accused person and the protection of their individual and due process rights. These are the class of interests the lawyer must act to protect in order to ethically fulfill their role in the process.
The foregoing argues why defence lawyers are morally justified in defending criminally accused persons, and why society has a shared interest in seeing an accused’s rights protected. The lawyer is able to escape an ambivalent view of role morality in the criminal context by internalizing the first principles which underpin the law, and a client’s legitimate interests—those being the protection of due process and constitutional rights. Adopting this view demonstrates why a defence lawyer, having this insight, is also obligated to defend a client in all circumstances where they are competent to do so. It is not the client which is on trial, it is a system of rights and principles that bear potential consequences far beyond any individual accused person.