“doctrine of mental reservation”

Franco Tarulli posts a thoughtful and link-rich post which ponders: is it ever acceptable for a lawyer to lie to the court?  Thankfully, the consensus position (and the correct one, IMHO) is no, it is never acceptable for a laywer to lie in such circumstances (frankly, it's difficult to imagine circumstances, outside of in extremis theoreticals which would ethically permit a lawyer to lie).  That there are lawyers who think it is necessary to have this discussion should give other members of the profession pause - that they need to rely on bizarre constructions such as that which forms the title of this post should give the moving lawyers pause (but appears not to).  As Tarulli states,

While a lawyer should always act in ways that advance the client’s interests, he or she lawyer should also act so as to strengthen public confidence both in the role of the profession and in the judicial system at large.

Indeed.

Comments

[Mike H]

"While a lawyer should always act in ways that advance the client’s interests, he or she lawyer should also act so as to strengthen public confidence both in the role of the profession and in the judicial system at large."

For those in the profession who specialize in criminal work, this is an impossible balancing act. Often, the client has a very narrow view of what constitutes his/her interests: nothing less than an acquittal. Gaining acquittals for guilty clients does not strengthen public confidence in the profession or the judiciary. The adage that every accused is entitled to the best defense possible creates an irreconcilable dilemma for defense lawyers, if we use Tarulli's ethical premise as a governing principle of conduct.

[Franco Tarulli]

Thanks, to both Bob and Mike for the replies to my post.

Mike, while I take your point, if a client has that narrow a view of his or her own best interests, then his or her best interests lie in managing their expectations.

The client's best interests aren't properly stated with reference to his or her most fervently wished-for result.

The client's best interests are more accurately stated in saying that they are entitled to the benefits of a fair trial, with all that entails. That means that all proper investigations are carried out on the accused's behalf, full disclosure of the prosecution's case is obtained in accordance with what the accused is entitled to at law, that only constitutionally obtained evidence is placed before the tribunal, that the trial proceeds before a tribunal that is impartial, that the law is applied correctly, etc.

When criminal defence counsel ensures that the client receives a fair trial, and that the client receives all the benefits that he or she is entitled to at law, then the client's best interests will have been served.

The result (an acquittal or lesser sentence) is in the hands of the tribunal, and counsel are powerless beyond our legal knowledge and powers of persuasion. Facts, as they say, are stubborn things.

Acting in a way that strengthens confidence in the profession and the judicial system means, among other things, that we have to educate the public about why we make the prosecution prove the allegations against the accused, and the reason for the high standard of proof.

While the public might not like to see a guilty accused go free, I suggest that most thinking people understand that our society depends on a functioning legal system and that our system depends on an aggressive legal profession that vigilantly guards the interests of an accused. The alternative is totalitarianism.

The principle that I've articulated might not be an easy balancing act, but if good lawyering were easy, everyone would do it.

[Mike H]

Franco:

I’m hard pressed to take issue with your eloquent response, but at the same time, I still feel you’ve come up short in resolving the professional conundrum faced by those who practice criminal law.

I’ve had several instances in my career as a law enforcement officer where defence counsel privately confided in me that they were convinced of the guilt of their clients, but nevertheless ran trials anyway. On one of these occasions, I lost my cool after the trial, and directed a short, angry tirade at the lawyer, who by this time was sheepish and nearly apologetic over the outcome (an acquittal for his client). The accused in the matter was a young man who was facing a very serious charge. There was never any question of his guilt. The decision to run a trial was based solely on challenging the admissibility of inculpatory statements made by the accused to me. He elected trial by judge alone, which meant that the judge, having presided over the voir dire, also knew the accused had committed the offence for which he was before the court. The judge threw out the statements (his reasoning for doing so was absurd), and even though there was still evidence of the guilt of the accused that did not rely on the statements, he found the accused not guilty. In all probability, it was his way of ensuring that no one could say he hadn’t erased the taint of the accused person’s admission of guilt from his decision making process.

We have created a criminal justice system that perversely attaches no stigma of immoral behaviour to an accused person who knows he/she is guilty yet refuses to plead guilty, and in many cases, is found not guilty at trial. This allows for the occurrence of trials like the one I described above. Many defence lawyers and judges are not troubled by this, and see nothing ethically wrong in a lawyer attempting to garner an acquittal for an accused whom the lawyer knows is guilty. A criminal trial is supposed to be a process devoted to a search for the truth. Yet in cases like the one I experienced, the truth became a casualty the moment the accused answered “Not guilty,” when asked to enter his plea, and his lawyer was fully complicit in perpetrating a lie upon the justice system. His client was guilty of the offence before I had any knowledge it had occurred, much less initiated steps to investigate it. You and I, as participants in the system, may have arrived at an acceptance (exceedingly grudging, in my case) of the necessary evil of sometimes acquitting the guilty as a consequence of technical, good faith errors on the part of the police. It is unrealistic, however, to expect a majority of the public to see it that way.