Defence Lawyers, Our Unrecognized Superheroes?

by Meera Persaud, guest blogger

The most admired superheroes are usually courageous and persevere despite the odds. Interestingly, these characteristics are also readily apparent in defence lawyers. For example, when balancing their ethical duty to the client against not misleading the court, defence lawyers need to be courageous and have strength of character.[1] Thus, defence lawyers are arguably our modern day superheroes. However, defence lawyers are not recognized as superheroes because of misunderstandings that surround their ethical duties such as, “how can you defend a guilty client”?![2] Society has failed to realize that defence lawyers are like superheroes as they engage in ethical battles seeking to uphold and deliver justice.

Duty to the Client

The duty to the client is the core ethical duty underlying the defence lawyer’s role. A defence lawyer must be loyal to the client’s cause and be a zealous advocate. Defence lawyers must continue to persevere even when the facts of the case are not in their favour. Like superheroes, defence lawyers engage in risk-taking behavior by fulfilling their duty of loyalty. The risk is the negative stigma associated with representing clients that have been accused of criminal offences, such as child molestation or murder. Furthermore, in meeting this duty, which includes “to protect the client as far as possible from being convicted”,[3] the lawyer demonstrates courage because of the difficulty of going against majoritarian societal views. These views include that there are only two types of people: protagonist and antagonist. The former deserves justice and the latter deserves punishment. However, defence lawyers rise above these societal views, refrain from discrimination and deliver justice to the one, which they ultimately owe a duty to, the client.

Moral Separation

As neutral agents, defence lawyers obligations include representing the client’s interest without considering the morality of the client’s conduct and ensuring that their own personal morals do not interfere with their representation. In order to be effective advocates, defence lawyers must refrain from projecting their morals onto their client. These moral conflicts occur due to the internalization of societal views. For example, society tends to equate the statuses of “accused” and “convicted”. However, by recognizing the difference in these statuses and separating moral from professional judgment, defence lawyers understand the need to advocate for these vulnerable, pre-judged members of society. As a result of this moral separation, defence lawyers remain big picture oriented by remembering that everyone deserves advocacy and justice.

For example, Superman’s morals never prevented him from continually protecting Lex Luthor. Lex’s conduct was contrary to what Superman promoted and Lex’s behaviors were not positively viewed in society. However, by recognizing the bigger picture of promoting the greater good and owing a duty to those who are vulnerable, regardless of his past indiscretions, Superman continued to save Lex. Similarly, defence lawyers in protecting “rounders” or clients with a history of past convictions keep in mind the bigger picture, which is the administration of justice. These lawyers continue to represent their clients despite their appalling acts. Thus, defence counsels are superheroes because in suppressing their moral judgments, they seek to be the best advocates and uphold the cardinal rule of the profession, which is that everyone deserves representation.

Misleading the Court

Defence lawyers also have an ethical duty not to mislead the court. The obligations underlying this duty are commonly misunderstood. For example, defending someone with a criminal history does not constitute misleading the court. R v Tuckiar explained the importance of the duty to the client when weighed against not misleading the court. The Court stated that the duty “was by no means weakened by the character of his client”.[4] Batman embodied this principle as he pledged his duty to Gotham City and continued to protect it, despite it being filled with crime and corruption. His duty to the city was not lessened because the character of the city had weakened. Similarly, defence lawyers mirror this heroic commitment in the legal realm. By upholding justice and their duty to their client, and courageously taking actions not to mislead the court, they are ensuring that everyone is equal before the law.

Conclusion

Overall, defence lawyers have been misunderstood in society. These lawyers ensure the morally innocent are not imprisoned and that their presumption of innocence is guaranteed. In a sense, they are giving effect to the guaranteed rights and freedoms entrenched in our Charter.. They do not allow for the ad hoc application of the law based on society’s conflation of the term “accused” and “convicted”. Defence lawyers ensure that their client’s cause is being duly recognized. It could be argued that in this role, defence lawyers are the most ethical lawyers because they uphold the administration of justice even when societal beliefs are against them. However, for now it would simply be best to give them the recognition they deserve as our modern day superheroes.


[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham: LexisNexis Canada, 2012) at 461.

[2] Ibid.

[3] The Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01(1).

[4] R Tuckiar (1934), [1934] HCA 49 at page 346, ALR (CN) 447.

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. The Grand Jury’s performance indicates that society does understand and accept the work of defence lawyers. Until approximately 1976, Ontario had a grand jury. If there was an election for a jury trial, after committal for trial at a preliminary inquiry, the case had to be allowed to go on to trial by the grand jury.
    From 1966 to 1976, I was an Assistant Crown Attorney at the Toronto Crown Attorney’s office. I acted as counsel to the grand jury several times. It was made up 7 citizens, sitting for 2 weeks, during which time they would hear the Crown’s evidence on approximately 70 cases. They would decide whether a case had a “true bill of indictment,” which allowed it to go on to trial, or a “no bill.” “No bills” meant that, that was the end of the prosecution, even though a judge at a preliminary inquiry had decided that the Crown’s evidence justified a trial—that there was a case of probable guilt.
    The Crown’s purpose at the grand jury was to answer any questions about the law, and not to argue whether a case should be “true billed” or “no billed.” The Crown would present the evidence, then let the grand jury decide the fate of the case.
    In my experience, grand juries “no billed” approximately 10 percent of the cases put to them. They appreciated the importance of avoiding a wrongful conviction as much as the need to avoid a wrongful acquittal. And, although they could have asked, they never asked the police officers who testified before them about the background of the accused, e.g., did he/she have a criminal record. I was therefore always impressed by the performance of the grand jury—a body of ordinary citizens. Its abolition may have been a mistake.
    Therefore, don’t be so certain in asserting what society thinks or understands about the work of criminal defence lawyers without substantial reliable evidence.
    To read more about the grand jury, see: “The role of the grand jury re-evaluated” (1972), 18 Criminal Reports, New Series (CRNS) 41, by Eugene Ewaschuk (now Mr. Justice Ewaschuk of the Superior Court of Ontario). — Ken Chasse member, LSUC (1966), LSBC (1978).

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