A Defense Lawyer in Conflict

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Conventional wisdom has it that any defense lawyer obviously wants to win every case. Why would he/she not wish to do so? After all, they can point to their record and garner more clients, in addition to enjoying personal, professional satisfaction. This is false wisdom, however, wisdom that serves a lawyer’s client poorly, for the client then gives the benefit of the doubt to his own lawyer on the overall legal strategy.

The concept of “lawyer strategy” is considered hallowed ground in the legal profession. Obviously, the lawyer is the professional who understands the law and the legal players involved in any case. Therefore, questioning the lawyer regarding his actions and tactics is considered an affront. The client does not have full information and therefore should not be interfering in the strategy.

“If you cannot trust your own lawyer, who can you trust?”

What is missing in this assessment is that lawyers are looking over their shoulders at how a legal outcome will enhance/hurt their careers.

A simple example should illustrate the problem of conflict of interest beyond that required to be reported for ethical reasons, and why a lawyer would fail to provide vigorous defense of a client, or even betray a client to further their own career, or to prevent career damage.

The legal community is close-knit. Local legal professionals know each other, the smaller the community the greater the intimacy. That intimacy has career implications.

Let us imagine that client Bob comes to lawyer Jim in need of defense against a charge of hosting a party with illegal drug use in his apartment. Lawyer Jim takes the case and, during his subsequent investigation, discovers that the son of a prominent judge in whose courtroom Jim routinely practices had organized the party without Bob’s knowledge. To date, this fact remains unknown other than to Lawyer Jim and his client. Let us further realize that a vigorous defense of Jim will require exposure of the circumstances.

From this simplified case it is obvious that a conflict now arises for the defense lawyer. He will be responsible for embarrassing an important member of the judiciary, possibly altering the lives of the judge’s entire family. With such exposure, Lawyer Jim will start to fly “at radar height” in the legal community. That distinction will not serve him well.

But Lawyer Jim has an option, as the judge and every other lawyer are aware of. Jim can use his persuasive skills to convince client Bob that a plea bargain is in his best interest when, in fact, it likely isn’t. The plea bargain can take many forms. The point is that avoiding exoneration of the client can avoid pain for people in Lawyer Jim’s influential circle, while the only price to be paid is by the client, right along with his hourly billings.

This is what a Swiss lawyer meant when he explained that, “In Switzerland, it is the weakest link that is found guilty.”

Understanding the negative impact that a trial/exposure might have on his future, Lawyer Jim will direct his efforts toward inspiring client Bob. This inspiration can take many forms. For example, Lawyer Jim might enquire about Bob’s family and their history. He might suggest to Bob that a trial might induce the prosecution to look into heretofore unexplored areas of, for example, drug use by other family members, or tax issues, or any other problems that best remain unexplored. Lawyer Jim simply wants to “protect” his client’s overall interests, he will gladly explain.

The above example is admittedly blatant and simplistic, but the point has ubiquitous application. The smaller the legal community, and the denser the branching of interconnected personal and professional relationships, the greater the likelihood of what should be extraneous influences coming to impact a defense lawyer to negative effect for the client. Objective, vigorous defense is most likely to occur when a defense lawyer has no dog that can be bitten in the fight.

It is difficult enough being involved in a legal dispute, without questioning one’s own lawyer. Unfortunately it is prudent to have someone looking out for a defendant’s interests beside the paid lawyer. Perhaps a family member who is not timid, or a trusted friend of the same temperament.

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