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Law, Tolerance and Society
Truth and the Client’s Interest
Frederick Ochieng’-Odhiambo tells us why truth is sometimes sacrificed to law.
The relationship between law and justice, or between legality and morality, is of much interest within philosophy in general, and philosophy of law in particular. This article discusses the two with respect to the duties of defense attorneys.
Some people tend to be leery of lawyers – especially defense attorneys – on ethical grounds, the argument being that they are devoid of sound morals. In his Gulliver’s Travels, Jonathan Swift grumbles that lawyers are “a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid.” In short, they distort truth for monetary gain; they are interested in neither objectivity nor morality.
The distinction between law and justice was underscored by that very eminent lawyer Lord Denning in his book The Road to Justice. He quotes William Temple, former Archbishop of Canterbury, who in opening an address to lawyers said: “I cannot say that I know much about law, having been far more interested in justice.” Compare this to a law lecturer, who in addressing a class of students said: “I can only tell you what the law is. If you are interested in justice, you had better go to a school of divinity.”
The extreme implication would be that there is no connection between law and justice. But that there is some connection is common sense. Indeed, the aim of the practice of law is to guide procedures that protect justice. Lawyers take an oath of office to protect the course of justice at all times, without fear, favour or bias. From a moral standpoint, the prevalence of justice is a good desired by all, and not only lawyers. Therefore to argue that law and morality have nothing in common seems to be going too far. However, to also insist that law is wholly moral or just is also not accurate. For example, a poor person who steals a packet of biscuits from a supermarket may be condemned to six months in prison, while a bank manager who has embezzled millions may get a one year suspended sentence. Although this is done legally, is it fair or just?
The implication of this rhetorical question is that it might be legal even though morally repugnant. What is important is our disappointment that ‘justice in law’ was not just. That this can be so leaves little doubt that there can sometimes be morally-unsatisfactory legal practice. This article traces the cause of this inadequacy to two principles of legal practice.
Two Principles of Legal Practice
The purpose of the law courts, the backbone of the legal system, is first and foremost to establish whether the accused has actually done what they are alleged to have done. This is reflected by the fact that witnesses are required to take an oath that their testimony will be the whole truth and nothing but the truth. The principle of truth is therefore cardinal in the administration of the law.
Notwithstanding this, defense attorneys must often be concerned with something other than the truth. They also operate on the basis of another principle – the principle of their client’s interest. It follows that the duty of a defense attorney is twofold. As an official of the court, he is sworn to advance the truth; but as a defense attorney, he is also sworn to give priority to the interests of his client. In situations where these two principles align, the defense attorney’s dual obligation to the court and to his client will generally not be problematic. Yet this is not always the case, as seen in instances where the client’s interest may require saying less than the whole truth, for example. (This amounts to lying, for lying is not only saying what is not true, it is also misleadingly saying less than what is true.)
Both conceptual and practical difficulties arise in situations where the two principles are incompatible. So we must ask, what is a defense attorney to do? On the face of it, he or she must choose between two alternatives: to compromise the principle of truth to an extent that removes the conflict with the client’s interest, or else to compromise the client’s interest.
The former alternative is often more convenient to a defense attorney. Indeed, in legal practice today, it is generally becoming fashionable, for financial reasons perhaps, that defense attorneys pay really keen attention to their clients’ interests. On balance therefore, a good number of defense attorneys would find the first alternative preferable, and compromise the truth.
Whatever reasons may be offered for adopting this alternative, it does not augur well for justice. Adjusting the truth implies moving from truth to untruth; from ‘saying the whole truth’ to ‘saying less than the whole truth’. But in any meaningful conception of justice, the virtue of truthfulness is so cardinal that to negate or ignore it amounts to crippling justice. So for the sake of justice, the second alternative must be preferred, since it gives priority to the truth. The defense attorney is and remains an official of the law court, and he owes his highest duty to justice. His role is to present his client’s case as well as he possibly can; but the ideal goal of the legal process is to arrive at the truth, not to serve the selfish interests of the protagonists. The defense attorney should morally therefore never sell out truth to serve his client’s interest. However, the defense attorney who opts for the second alternative, of compromising his client’s interests, finds himself in an awkward situation. This is because, as an advocate for the client, the client’s interest is paramount. So a defense attorney is faced with an apparent dilemma when he is required to chose between truth and the client’s interest, but morally is required to promote both.
Legal Ethics and the Two Principles
Let’s consider this conflict from the perspective of legal ethics. Legal ethics is the branch of moral philosophy which concerns the duties a member of the legal profession owes to the public, the court, his professional brethren, and his client. It offers guidelines to which lawyers ought to adhere when carrying out their professional duties. R.L. Wise says in his Legal Ethics that the legal profession’s ethics contains nine canons, which he summarizes as follows:
Canon 1: A lawyer should assist in maintaining the integrity and competence of the legal profession.
Canon 2: A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.
Canon 3: A lawyer should assist in preventing the unauthorized practice of law.
Canon 4: A lawyer should preserve the confidences and secrets of a client.
Canon 5: A lawyer should exercise independent professional judgement on behalf of the client.
Canon 6: A lawyer should represent a client competently.
Canon 7: A lawyer should represent a client zealously within the bounds of the law.
Canon 8: A lawyer should assist in improving the legal system.
Canon 9: A lawyer should avoid even the appearance of professional impropriety.
Presupposed in these canons are the virtues of honesty and fairness, and by extension that of truthfulness. Indeed the phraseology of the canons point to this: there are phrases such as: “maintaining integrity and competence” (canon 1). It is also apparent that the nine canons oblige the defense attorney to take into account the client’s interest, defending and safeguarding it. Canons 4, 5, 6 and 7 are quite explicit on this. Indeed, the principles of truth and of the client’s interest form the basis of legal ethics. The important question is, in cases of conflict, which of the two principles should override the other?
One might be persuaded that for the sake of justice, the principle of truth must be primary. However, examination of the canons indicates that those concerned with the lawyer-client relationship have more weight: more emphasis seems placed on the protection of the client’s interest. This seems counterintuitive, so a careful consideration is necessary.
Generally speaking, a defense attorney is supposed to defend his client to the best of his ability without contravening the principles of legal ethics. (The attorney who in defending his client goes against legal ethics could be accused of professional impropriety (canon 9), and also of not maintaining the integrity and competence of the legal profession (canon 1). The defense attorney is supposed to exercise independent professional judgement on behalf of the client (canon 5) and at the same time represent that client competently and zealously within the bounds of the law (canons 6 and 7). To achieve this, a special relationship between the attorney and the client is mandated. Generally, a defense attorney cannot defend his client competently and zealously unless he knows the truth concerning the case. Consequently, his client is usually wise to tell the defense attorney everything about the case. This provides the rationale of the fourth canon, which places an obligation on attorneys to preserve the confidences and secrets of their clients. ‘Confidences’ refers to information protected by the lawyer-client privilege under law; while ‘secrets’ are defined as other information gained in the professional relationship, the disclosure of which would likely be embarrassing or detrimental to the client, and therefore which the client would want to be held as confidential.
Canon 4 ensures that clients are able to confide in attorneys, and that the attorneys are able to obtain confidences from clients. It enables the defense attorney to be fully informed, and also encourages the layman to seek legal representation and advice. But however desirable these objectives may be, canon 4 also marks the point where the principle of truth and that of client’s interest can diverge, as it allows for dishonesty on the part of lawyers: it gives them a canonical protection from not telling some truths, if such truths would be detrimental to their client. This therefore makes it quite difficult to criticize an attorney for not telling the whole truth sometimes. Here, the principle of client confidentiality seems to override the principle of truth.
Perhaps someone might argue that this is an overstatement, in that it overlooks certain conditions under which a lawyer may reveal the confidences or secrets of a client. According to Wise in Legal Ethics, these are as follows. A lawyer may reveal:
(a) Confidences and secrets with the expressed consent of the clients affected, but only after a full disclosure to them.
(b) Confidences and secrets when permitted under Disciplinary Rules, or required by law or by court order.
(c) The intention of his client to commit a crime, and the information necessary to prevent the crime.
(d) Confidences and secrets necessary to establish or collect his fees or defend himself against an accusation of wrongful conduct.
I think hardly anyone would immediately deny that under these conditions a defense attorney should reveal the confidences and secrets of his client. However, conditions (a), (c) and (d) hold only in quite a narrow range of circumstances. They don’t require the attorney to tell the full truth in cases where the client hasn’t asked him to, where he isn’t aware of the client intending to commit a future crime or where the attorney isn’t accused of any wrongful conduct or involved in a wrangle over fees. They don’t apply in most normal cases, in fact. The second condition, condition (b), seems to be quite a substantial check on untruthfulness, yet only makes sense in situations where the court is aware of the necessary confidences and secrets and therefore is able to request their disclosure. The irony is that this possibility is extremely remote, for in practice it is usually only either the attorney or the client who can bring this to the attention of the court. But it would not be in their interest to do so. This means that in most cases condition (b) is meaningless.
To further underscore the interest of the client overriding the interest of the truth, legal ethics emphasizes that if an attorney wants to withdraw from defending a client, he shall not do so without reasonably avoiding prejudice to his client, giving him due notice and time to employ another attorney, and delivering all papers and property due to him. Even when he withdraws, he still has an obligation to preserve the confidences and secrets gained in the professional relationship.
It therefore appears that a defense attorney has no apparent obligation to the court to present all the facts of the case. It seems perfectly possible for a defense attorney to sacrifice the principle of truth for the sake of the client’s interest without necessarily contravening legal ethics. This highlights the ambivalence of the relationship between legal and moral issues, or better, the relationship between law and justice.
Legal Dishonesty and Moral Dishonesty
From what has been said, a defense attorney could be held to be morally dishonest without necessarily being legally dishonest. If while defending his client an attorney knows very well that his client is actually guilty and keeps quiet about this fact, then that lawyer’s conduct may be construed to involve moral dishonesty. However, legal dishonesty would only be implied if the attorney tells the court what he knows or has every reason to believe is false. Legal dishonesty amounts to perjury, which is a criminal offence.
Though some aspects of legal dishonesty fall within the domain of moral dishonesty, they are not one and the same thing. Lawyers are well aware of this, and as a result can easily afford to be morally dishonest if and when it does not overlap with legal dishonesty. At any rate, in legal procedure prominence is given to legality rather than morality.
If in defending his client an attorney only gives favorable evidence which is true, but ignores incriminating evidence which is also true, then legal dishonesty is not involved. What the attorney says is true, so no perjury is committed. However, the fact that he has knowingly kept quiet about incriminating evidence constitutes moral dishonesty. Moral honesty requires that all relevant truths one is aware of be put on the table.
Due to the overriding principle of the client’s interest, it is possible for an attorney to not contravene legal ethics even though his conduct could be morally criticized. That lawyers have taken advantage of this weakness is reflected in the fact that prosecution and defense attorneys are usually viewed as diametrically opposed in their professional duties in English-speaking law courts. If all was well within the anglophone legal system – if too much emphasis were not laid on the client’s interest – then this opposition would not be so stark. The law courts are first and foremost supposed to establish the truth, so the goal or purpose of both the prosecution and the defense attorneys should be the same. But given the supervening principle of the client’s interest, this is generally not the case.
© Dr F. Ochieng’-Odhiambo 2010
Frederick Ochieng’-Odhiambo is in the Department of History and Philosophy at the University of the West Indies, Barbados.