Title

Ethics and the Criminal Defence Lawyer

Document Type

Article

Publication Date

2004

Abstract

What are the duties of lawyers who defend criminal cases? What are their ethical obligations, and what ethical limits are, or should be, imposed on their conduct in this role? Should the defence lawyer operate simply as the client’s mouthpiece, or always as an officer of the court, or as a zealous protector of rights? These possibilities will be explored below, but it is immediately apparent that there will be conflicts and ethical dilemmas to confront. Thus Monroe Freedman has claimed that the criminal defence lawyer operates on the horns of a trilemma—to accumulate as much knowledge as possible about the case, to hold it in confidence, and yet never to mislead the court. He argues that the adversarial system provides the best means for “advances in individual rights and liberties”, and regards zealous advocacy as central to achieving this aim. His conclusion is that the lawyer’s duty to his or her client is paramount. Before that can be accepted, we need to consider whether the position of the criminal defence lawyer is special, what bearing the shape of the criminal justice system has upon the issue, whether the professional codes deal with the important issues adequately, and what the bearing of neutral partisanship is upon the questions to be discussed.

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