In today’s society, with such media intensity, and the need for every person to have an opinion on everything… ever. So it can be easy then for people to look at this title and think; absolutely not, people who are guilty should be punished with the full force of the law. We need to throw the book at them. Criminal defence lawyers are despicable, who can sleep at night knowing they have assisted the scum of earth walk free from justice. This view is understandable for someone who lacks knowledge of the complex legal ethics and principles that Australia follows, but it actually is not all that true. Sure, as Jesse from Breaking Bad put’s it there are criminal lawyers, and there are CRIMINAL lawyers. Unfortunately, there are criminal defence lawyers who are unethical and even unlawful in the way they defend their clients, who range from being petty thugs to members of organised crime families. Even more unfortunate is how they taint the reputation of other honest criminal defence lawyers who are just attempting to protect the principles of law.
These principles are some of the most well-known, yet often forgotten aspects of the Australian legal system. That everyone is equal before the law, and that everyone has the right to a fair trial. A common misconception is that people are entitled to legal representation. As can be seen in the case of Dietrich v. The Queen, this is not the case. This does lead to the debate of whether or not this compromises a defendants opportunity to have a fair trial, yet legally, there is no right entitling you to legal representation.
But if you do find yourself indicted and needing representation, would you not want the best available representation, who will passionately defend your case? Of course you would, there is no question about it. 9/10 people would want the same. Everyone wants to be defended but still, we criticise the defenders for defending people who we have pre-determined to be guilty. We view them as filling their pockets with money while they keep criminals on the streets. And that could be quite accurate particularly with some lawyers. BUT, this article isn’t “Why do criminal defence lawyers deserve praise”, this is why guilty people deserve the best advocacy, and at the crux of it, they do.
Australian law follows the adversarial system; two sides argue their case against a neutral third party. The onus of proof remains on the prosecuting party (which in criminal law, is the state), while the defendant remains innocent until proven guilty. This is crucial to understanding my rhetoric. Lawyers are expected under legal ethics, to represent their parties interests zealously.
Literally, the second a criminal defence lawyer does not represent his clients’ interests (which is to get the minimal punishment available) to the best of his ability, he has effectively robbed his client of his opportunity for a free trial. In addition to this, he has tainted the legal system of ethics. Lawyers owe obligations to their clients guaranteeing their advocacy to the best of their abilities. This should be regardless of guilt or innocence. In the courtroom, everyone is equal before the law, and everyone is innocent before proven guilty.
And there is no downside for criminal defence lawyers to zealously and vehemently defend their client. If they fail, and they’re client is convicted, then they have upheld their obligation to their client to defend their case to the best of their ability and they’re client would most likely appreciate their tenacious efforts. If they win, then the case against the defendant was obviously not strong enough, and the legal principle of the adversary system is upheld. An even better case, is that an innocent person is allowed to go free. One of the most profound examples of criminal defence in a trial (and is also fictitious) is Atticus Finch’s zealous defence of black man Tom Robinson. This iconic case from “To Kill A Mockingbird”, is the epitome of honourable criminal defence. Atticus against all societal expectations honours his legal obligation to his client, and offers a brilliant defence for Mr Robinson, and I think everyone would agree, the defence that should have won the case, but was overruled by the racist jury. That’s a different article for a different day. But could you imagine a legal system where everyone was represented with the enthusiasm and competency of Atticus Finch? That is a legal system you could have confidence in.
Apart from the fact that criminal defence lawyers owe an ethical obligation of zealous advocacy, they also have an expectation to uphold the entirety of legal principles and ethics as a systems. A barrister’s job is to argue a client’s case, and this is a fundamental aspect of the adversarial system. To block or not give a defendant the best advocacy, reduces the adversary system, the defence barristers obligation to his client, and the fundamental basis of law; everyone is equal before the law. This is why guilty people deserve the best advocacy.