Should You Ask if Your Client Did It?
On a recent episode of "How to Get Away with Murder," Professor Keating posits a question to her murder class: Should you ask the client if he committed the crime? Keating suggests that a defense attorney has to "lie" to the jury about a client's innocence, but that's not really the case.
The lawyer shouldn't be making a moral judgment; after all, some proportion of clients are bound to have actually done the thing they're accused of, so that goes with the territory. (You didn't think you'd be representing only innocent people, did you?)
But is there any utility to asking if your client "did it"?
Lawyers for clients facing a criminal charge or even a tort aren't remotely interested in playing the morality police. They just want to craft a competent defense for their clients, and that's fairly difficult if the client either doesn't say whether he or she did it, or whether he or she is lying about it. Asking whether the client actually committed the crime is essential to forming a strategy. If the client tells you, "I was never there," but the prosecution finds security camera footage indicating that he was, it will be hard for you to present an alibi.
Obviously, you can't lie, or encourage the client to lie, but you can make the prosecution (or the plaintiff) prove its case to the required degree -- and, in fact, this is an ethical duty placed on criminal defense lawyers. You know how they always say never ask a question unless you're sure of the answer? Well, you'll never be sure of the answers to questions you put to the other side's witnesses unless you know the truth, as it comes from the client's mouth.
Lay people are wary of divulging their guilt or liability to lawyers, and criminal defendants especially so. Suspects accused of a crime are understandably suspicious of the entire criminal justice system, they feel as though they're being unfairly railroaded, and they think everyone, from the police to the prosecutor, to the judge, and even you, is in cahoots.
The best thing you can do is assure your client that you're bound by the law not to divulge anything he says to anyone else. Whether the client believes you is a different story, and if the client is consistently dissembling, you might have to take action, including firing the client.
Knowing that your client factually committed the charged offense can present a problem if the client lies in court and says he didn't do it, or wasn't there, or says anything else that's not true. For this reason, the Just Cause Law Collective appears to advise criminal defendants not to be completely truthful with their lawyers, but that recommendation is a problem for the lawyer who has to come up with a good defense.
Ideally, you'd advise the client not to testify if he's going to say something that's not true, but if the client does testify and lies under oath, you've got a real problem (but not in California!). In ABA Model Rule jurisdictions, a lawyer owes an ethical duty to the client, but she also owes one to the tribunal and to the profession. This ethical triangle has been the subject of many law review articles in states requiring lawyers to pipe up and correct testimony they know to be false.
Does that mean the client should never tell you anything? Of course not. Your best judgment, and the particular facts of your situation will control your decision, but in the end, would you rather have all the information now, or be blindsided later on?
- When the Lawyer Knows the Client is Guilty: Legal Ethics, and Popular Culture (The Law Society of Upper Canada)
- How Can You Defend Those People? How Can You Defend Someone You Know Is Guilty? (Daily Kos)
- When Are You Required to Breach Confidentiality? (FindLaw's Strategist)
- Fla. Bar Ethics Proposal: Don't Tell Clients to Delete That Post (FindLaw's Strategist)
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