4. Defence Lawyers: The Ethics of Defending

That there is a place for ethics in the practice of law is evident, although these ethics have often been "legalized" as part of various disciplinary schemes or as a result of the respect for a fair trial. Ethics in the practice of defence are thus an interesting case of legal pluralism, mixing the law, professional standards and more timeless notions about the "right." At the very least, defending imposes certain standards of diligence. The innocent may be convicted because of sloppy defence work. This is an awesome responsibility, a responsibility for peoples' lives.

The other scenario, one in which the guilty gets away free because of problematic defence work, is also a significant concern. You will probably hear it at some point, someone telling you that they could not be a criminal defence lawyer because they "could not defend a murderer." This may of course in many cases be a petitio principi: the point is you will not actually know for sure that the person you are defending is guilty. Even their confession to you might in certain cases be treated with some suspicion. But what if you know, at least in the sense of being intimately convinced, that the accused is guilty? Of course, there may be a personal issue involved if you find that repugnant, but what are actually your duties as a lawyer and who do you owe them to? The fact that a person is guilty of course does not deprive them of the right to a fair trial, whose goal is also to ascertain in society and the victims' interests exactly what he is guilty of, and includes sentencing. Still, real questions are bound to arise if the defence is asked, for example, to conduct a defence at odds with what she knows about the accused. The adversarial system traditionally emphasizes a very high fidelity to the interests of one's client, but this is no entitlement to lie or, worse, cover up a crime. The lawyer also has duties to the courts and perhaps even to victims and society at large. One issue that has garnered considerable attention in the last decade is the extent to which defence lawyers should be able to adopt aggressive cross-examination tactics in sexual assault cases. 

In this session we will cover the question of professional standards and responsibility in criminal trials, including as they manifest themselves in popular culture. We will look at Canadian cases in which the issue has been examined.

Class preparation: