DIFFICULT MORAL QUESTIONS

Question 177: Must a lawyer seek an acquittal against a client’s best interests?

I am a criminal defense lawyer and was retained by a man charged with assaulting and injuring a police officer. Working on the case, I noticed that the client seemed irrational and I became convinced that he was incapable of acting in his own interests. I obtained a ruling from the court that he was not competent to stand trial. The court committed him to a mental hospital, where he was forced to take medication. After a few months, his mental condition improved a great deal and he was certified competent for trial.

My client insists on pleading not guilty, because, he says, only an acquittal will keep his record clean. His story is that, though he may have been behaving strangely, he was not violating any law when the officer stopped him, said something about drugs, forced him to get down on all fours on the sidewalk, and began beating him about the head and shoulders. He claims that he fought back only in self-defense (he pulled one of the officer’s legs so that he lost his balance, fell, and broke his wrist). I advised the client to plead not guilty by reason of insanity, but he refused and also refused to plead guilty to a lesser charge.

At trial, he may be convicted. If so, in view of his previously clean record, he probably will be put on probation, under which he will be compelled to continue treatment and medication. But I now think we could win an acquittal, even without using an insanity defense, because the testimony of a witness—a sidewalk vendor mentioned in the police report—probably will help us more than it will help the prosecution. If acquitted, though, the client will walk out of the courthouse, cease medication, deteriorate mentally, become unable to care for himself, and perhaps become a serious danger to others.

The trial is scheduled, and professional ethics tells me I should try to win an acquittal. But is that really right? Whether or not my client is guilty, his conviction most probably would be in his own best interests and in the interests of society at large, while his acquittal would serve neither. I could withdraw, but that would only saddle someone else with the problem, because the public defender then would face the same dilemma. So, I am thinking of not calling the sidewalk vendor and not cross-examining him if the prosecution calls him.

Analysis:

This question calls for the application of the norms regarding promise breaking and fraud. While it can be reasonable to make an exception to most rules of professional ethics, the questioner’s argument for not abiding by the client’s objective and seeking his acquittal is unsound. If the questioner, rather than fulfilling the role of legal advocate for this client, presumes to act as arbitrator and promoter of his and society’s best interests, he or she will betray and defraud the client. Moreover, in doing this, the questioner also would violate the duty of defense attorneys to play their role in seeking justice on the basis of truth through the process of criminal law.

The reply could be along the following lines:

Like the norms of any code of law, most norms of professional ethics include various exceptions and, even with those exceptions taken into account, are not absolutely binding. Sometimes the common good of the profession as a whole or of the larger society it serves requires a lawyer to make an exception to some norm of professional ethics, and occasionally such an exception might even be justified to prevent some great harm to the professional himself or herself, or to someone else. Still, there is a strong presumption in favor of conforming to the norms of professional ethics, and no exception is justified without cogent reasons. In the case described, the argument for making an exception to the rule that you should abide by your client’s objective and try to win his acquittal seems to me extremely weak.³⁹²

To begin with, the argument for not seeking an acquittal is based partly on your judgment that a conviction most probably would be in your client’s best interests, while an acquittal would not be. There are two sets of problems with that.

First, how can you be so confident about the client’s future behavior should he be acquitted? Even if you have been trained in psychology and sociology, experts’ predictions frequently are mistaken in matters of this sort. Although you have some grounds for thinking that, if acquitted, your client would discontinue treatment and medication, he might decide to continue with them. Then too, even if it were certain that your client, left to himself, would “become unable to care for himself, and perhaps become a serious danger to others,” the question would remain: Must he be left to himself? After an acquittal, you might try to maintain friendly communication with him, and, as a friend, you might be able to cooperate with one or more of his relatives or neighbors in persuading him to accept whatever help he needs.

Second, how can you be so confident conviction will benefit this client? His concern to keep his record clean is reasonable, for even if he were placed on probation, his status as a convicted criminal could be a serious burden to him. Then too, if compelled to accept continued treatment and medication while on probation, he might not cooperate fully, and so might be even less ready than now to live without supervision when the probation ended, as eventually it would. Furthermore, contrary to your expectations, if convicted he might be sentenced to prison, and conditions there might greatly harm him.

As a defense attorney you have undertaken to serve, not as the steward of society’s best interests or even of your client’s best interests in general, but as the advocate of his legitimate objective in a particular legal process. He claims he acted in self-defense, and he refuses to plead not guilty by reason of insanity. You have no way of knowing he is lying or mistaken; his psychological problems certainly should not be regarded as grounds for believing he did assault the officer. Indeed, you do not question his innocence. Legally, the state must prove him guilty beyond a reasonable doubt, and he is entitled to representation by a lawyer who will zealously protect his rights and win his acquittal unless the state really can overcome the presumption that he is innocent. Therefore, in failing to seek an acquittal, you would violate his right to present his case. In short, you would betray and defraud your client if you abandoned your role as his legal advocate and assumed a different one: that of arbitrator of his and society’s best interests.

Furthermore, abandoning your role would injure the common good of the citizens of your state. To deal with crimes and allegations of crimes, they need a criminal process in which truth is brought to light and justice achieved through the conscientious cooperation of the various participants—jury, judge, prosecutor, witnesses, and defense counsel. To the extent that participants do not fulfill their assigned roles, they deprive their fellow citizens of the just process society needs. If in this case you were justified in doing less than your best, within the limits of relevant legal and moral norms, to win your client’s acquittal, all lawyers in more or less similar cases would be justified in acting similarly on the basis of their personal judgments about what would be good for their clients and society at large. Clients would never know whether their lawyers were trying to serve their interests as they themselves understand them or were substituting their own judgments and choices. Society could not count on defense attorneys to fulfill their assigned role in the process of criminal law. Instead, the process would be undercut, as lawyers unilaterally decided what was best for their clients and society.

In view of these prospective consequences of doing the sort of thing you propose, you cannot soundly argue that you should omit questioning the sidewalk vendor so that your client will be convicted. That argument, like all consequentialist arguments, is plausible only if one focuses on a limited set of possible consequences and ignores others, some of them as likely to eventuate as those focused upon.

In sum, seek an acquittal. Since only God knows the future, you have no way of knowing that doing otherwise would be in your client’s or society’s best interests. Therefore, do your job, trust God to do his, and be confident that everything will turn out right—if not in this world, at least in the next.

392. See American Bar Association, Model Rules of Professional Conduct (1993), Rule 1.2 (a).