Is the Best Defence a Good Offence?

by Emily Gallagher, guest blogger

The greatest criminal defence attorneys may best protect and serve their clients by taking an offensive approach to mounting a client’s defence. The point at which that intersects with the ethics of the profession is difficult to determine. Comparing the work of defence attorneys to football coaches provides interesting insights into the mechanics of the profession. In defending a client, should a lawyer run a play that strengthens their defensive line or mount an aggressive offence?

Does A Good Defence Start with a Great Coach?

A good lawyer gives advice, but at what point does that advice become training? Ethically, “counsel can only use certain means of defence, […] those means which do not involve knowingly misleading the court”.[1] A criminal defence attorney cannot present a defence they know to be untrue. Defence counsel can also be prohibited from taking a specific course of action because of statements made by their client. Further, they can explain to their client these limitations and can suggest that they could ‘always change their mind’. This may serve as ‘educating’ the client about what he or she should say to their attorney regarding the case. Some attorneys do not even engage in discussion with the client before seeing the evidence that the Crown has collected. This lets them know exactly how to approach the client at a subsequent meeting, essentially ‘informing’ the client what course of action they should take.

Knowing the right play to run is paramount, but a good coach will never call a play that’s a bad move for the player. Good defence attorneys should not mount a defence that they know is untrue, it is unethical and it is misleading the court. They should not serve as tutors of the law, as it undermines the justice system. Defence attorneys can, and have a duty to, advise their clients. It is beyond the ethical scope of the profession to coach a client about what they should do or say.

It’s What You Do Before the Season Even Begins that Leads to a Championship

In mounting a defence, the key is preparation of both the case and of the client. In contrast to the coaching approach discussed above, it is the duty of the defence attorney to act zealously on behalf of the client. This means investigating every piece of evidence, interviewing witnesses and building a strong case in the client’s defence. This way, should the case go to trial, the defence attorney is prepared and ready to provide a thorough defence. Also, it allows the client to understand and appreciate the strengths and weaknesses of the case before making a decision about how to proceed. The work done during the pre-season is not just for show; it can set the groundwork for everything that follows.

Further, counsel for the defence must avoid pre-judging their client’s guilt or innocence as this may cloud a lawyer’s judgement. “The adversary system assumes that the judge and jury will do the judging and that defence counsel will do the defending”.[2] In meeting with a prospective client it is important to reserve judgement and, to all extents possible, maintain that reservation for the length of the retainer. Just like a game is not decided until the final score is announced, so too is a client innocent until a judge pronounces otherwise.

Offence Sells Tickets But Defence Wins Championships

The Crown may have a good case, and defence counsel is usually not representing a media darling, but preparing and executing a good defence keeps the justice system just. “This broad partisan duty to the client is essential to the proper functioning of the adversary system”.[3] In defending a client zealously, a criminal defence attorney plays an important role in preventing the wrongful conviction of the innocent. By raising interesting and novel arguments they advance the boundaries of the law. Even when a ‘win’ comes from a technicality, this fumble helps both the judiciary and the legislature to ‘plug the gaps’ of our justice system. Also, it is the duty of defence attorneys to test the quality and strength of a case presented by the Crown. This holds the Crown accountable to a very high standard. Without resolute and determined defence attorneys, it is possible that the criminal law would encroach upon the rights of citizens. Continuous challenges against the system, help to strengthen our system, not weaken it. Often the spotlight is on the Crown, but it is the work done by defence attorneys behind the scenes that really champions the rights of the people.

The Coach Knows When to Tell the QB to Take a Knee

At the end of the day, the greatest of defence attorneys will know when it is in the best interest of their client to advise them to get out of the game and take a plea deal. It is the duty of a criminal lawyer to “appropriately negotiate a guilty plea and sentence for a client who faces inevitable conviction at trial, or for a client who simply wishes to acknowledge guilt”.[4] It may be tempting to pursue a trial avenue because of the monetary compensation, but that is generally not in the best interest of the client. A trial is expensive and time consuming, and those consequences need to be weighed in light of the evidence and the seriousness of the charges. In the event of a blowout, or a runaway game, it may be time to hang up the towel and pull the star from the show.

A good defence attorney shares many traits with a good football coach. They know how the game is played, they have influence over and guide the players, and they are looking for a good clean match between the state and the accused. A great defence attorney is never going to win a Grey Cup, but they are quite possibly the true champions of criminal law.


[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham, ON: LexisNexis, 2012) at 463.

[2] Ibid. at 462.

[3] Ibid. at 461.

[4] Ibid. at 475.

The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.

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Comments

  1. Good points made. But: (1) how did the word “attorney” become part of this essay? And (2) the next chapter should be a comparison between the concepts that justify these principles of “western justice,” with those used in more “collectivist” societies that put less emphasis on individualism and more on the “collective good.” The result is, less concern about wrongful convictions and more concern about wrongful acquittals. Can that be justified? Or are such societies wrong in their approach to guilt, and the greater emphasis they give to the purposes of sentencing in serving the “collective good”? And, (3) when the ability of medical science to change “bad people” into “good people” without undue coercion is greatly increased, should we in proportionate response, bring our system of criminal justice more into line with such “collectivist” systems? And, (4) do our law schools require their students to think about such comparisons when justifying western concepts of criminal justice and defence by Canadian lawyers and American attorneys? — Ken Chasse, an old criminal lawyer; LSUC (1966) & LSBC (1978).

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