Defense lawyers’ duties to clients, courts, and society

Does a defense lawyer have to believe the client is innocent? My first reaction is no. If I were accused of a crime, I would want someone working hard on my behalf, rather than deciding for themselves that I don't deserve a defense. That reaction gives us a position to compare with the argument. It doesn't settle what the writer thinks.

The scholars in the first paragraph take a view close to that initial reaction. Courts decide guilt; lawyers represent defendants. The lawyer selects helpful facts, constructs sound arguments, and challenges the other side's reasoning. Think of the lawyer as giving the defendant the skills and resources to present a case the defendant couldn't present alone. On this account, the lawyer's personal opinion should not replace the client's position.

Then the writer pushes back. A defense lawyer owes duties to the defendant, but also to the court and society. The writer uses that second duty to place limits on advocacy: don't make assertions you know are false, and don't try to establish innocence when you're convinced the client is guilty.

We might question the move from not lying to deciding which arguments to make for a client. Wouldn't we want the court to decide guilt? That is a useful reaction because it identifies the actual disagreement. But we still need to understand the limits the writer proposes, rather than substitute our preferred legal system for this argument.

The treatment of guilty defendants is especially important. The writer does not say to abandon them or deny them all representation. A lawyer should assess the case as favorably as the facts permit, consider the facts on the other side, present circumstances that lessen blame, and seek whatever leniency the lawyer sincerely thinks is warranted. In other words, the representation changes: instead of claiming innocence the lawyer doesn't believe in, the lawyer argues for a supported, favorable treatment of the client.

If guilt is uncertain and the lawyer sincerely thinks the client may be innocent, the lawyer should try to prove innocence. Notice the level of belief required. The lawyer needn't be certain the client is innocent. A sincere belief that the client may be innocent is enough for this branch of the argument.

The ending tries to answer the worry that duties to society shortchange the defendant. It claims those duties ultimately help the client: the best defense comes from someone who has examined the facts and believes in the merits of the case. I might still ask what happens when no lawyer finds a proposed defense convincing. That is a challenge I could raise; the writer doesn't resolve every possible difficulty. The point here is the claimed compatibility of honest advocacy and effective representation.

The final distinction is between a mouthpiece and an advocate for the defendant's rights given the facts. Everyone's entitlement to a defense doesn't require every lawyer to accept every case or make every desired claim. So don't stop at the topic, defense lawyers, when stating the main point. Also don't go too far and say lawyers should represent only innocent people. The argument is about whether and how to represent clients while respecting both duties and the facts.