Over the past year, we’ve seen several instances where lawyers have faced pressure when they defended unpopular clients, either from the mass media or, worse, from lawyer associations. This issue has arisen, for instance, in the context of the Manu Sharma case, the Nithari murders, and when lawyers in U.P. ‘banned’ legal representation for those accused of crimes of terrorism. These episodes resulted in some commentary in the media, as reflected in posts on this blog here, and here. More recently, V. Venkatesan drew attention to the analysis offered by AG Noorani which appeared in the EPW.
The issue has arisen again, thanks to the Bombay Metropolitan Magistrate Court Bar Association’s resolution barring its members from representing Mohd. Ajmal Kasab, the sole surviving assailant in the Mumbai attacks of November 26. This recent post collates some of the commentary inspired by the episode.
The normative arguments involved – at least for lawyers well-schooled in the demands of the rule of the law – are clear enough. Here is a piece that appeared in Livemint yesterday which profiles several such individuals who take on the thankless task of actually defending such unpopular clients. It documents the challenges that such lawyers face, which regrettably includes hostility from people who should know better: their professional colleagues.
(hat tip: Anuradha RV)
Well, the work of a defence lawyer is not so well understood by the general public and it is tragic that the Bar does things like resolving not to represent a terror accused. By doing so, they simply endorse erroneous perceptions resident in the minds of the general public.
Now, people are likely to assume that lawyers in general are willing to distort the truth with respect to defence of ordinary criminals, but that lawyers are not willing to distort the truth for the defence of suspected terrorists. To be credited with this level of discretion is hardly gratifying to the legal profession.
If the Mumbai Bar is not done with passing resolutions, I have a suggestion for them. Two, rather.
First, they should resolve to ask the prosecution in this specific case to recruit the finest attorney in the country to argue for the prosecution. If any part of the Bar’s reluctance to defend the terror accused was based on a poor assessment of the prosecution, the Bar will do well to ask the prosecution to measure up.
Next, the Bar should identity the most truthful attorney they have and depute him to defend the terror accused.
Certainly, should the strategy of a defence lawyer be that of ‘truthfulness’ at all times, I wonder if it matters that his client is one charged with an assault on the State.
Well, I just hope that these Bar resolutions are primarily addressed at some pending Bar elections and they do not reflect a real decision.
Just came across the following link to a post by counsel advising Radovan Karadzic:
http://opiniojuris.org/2008/12/15/why-i-am-advising-radovan-karadzic/
(Hat Tip to http://legaldevelopments.blogspot.com
which drew my attention to this link)
What if the lawyer, in the course of interviewing client and studying the case file etc, has reason to believe that the client is guilty? What ought a lawyer to do in such circumstances? Should she desist from acting for the client immediately? And if she does so, should she inform the court of her reasons for backing out? Or would that be a violation of client confidentiality norms?
Or should she still go ahead and defend the client to the best of her ability, till such a time as a court/jury rules on it?
What do the standard professional ethics courses suggest that a lawyer do under such circumstances?
Well, if you actually are engaged to represent a person who, you discover, has concealed evidence from the police, you have a duty to not withhold evidence from the State (in your capacity as a subject of the State) and also a duty to not breach attorney-client privelege (in your capacity as an attorney for the accused). The balancing act gets you a million dollar prize because nobody has fully articulated on what exactly is the balance.
Remember, if a person is not actually charged of any wrongdoing by the police but that the investigation is merely in progress, you cannot invoke the attorney-client privelege at all (contrary to what Hollywood, ‘The Practice’, ‘Law and Order’ or ‘Boston Legal’ tell us) as instead of a attorney-client privelege, the communication could unravel into a conspiracy if you do not turn over the evidence to the police.
And, the textbook examples say so much – the person confesses to you that he used a certain weapon to commit a crime and that he has concealed it from the gaze of the police. And, lets say, in Court, the prosecution clearly acknowledges that they are unable to locate the weapon used for the commission of the crime, but are able to successfully establish motive before the Court. As part of your representation to the client, you cannnot say anything to the Court that will indicate that you are concealing your derived knowledge from the Court.
Even while your client instructs you to defend his innocence, you have a greater duty to the Court and are forbidden from making any representation to the Court that you do not consider to be true. You merely take the established route – the prosecution has failed to discharge its burden of proof.
The two paras above, like I said earlier, are textbook prescriptions.
I, for one, trust in the ‘truthfulness’ doctrine. It is practically discarded in India as outdated but I can tell you that there is a profound sanctity to one’s work as a defence counsel only when he steadfastedly sticks to the ‘truthfulness’ principle. And by the way, its fully feasible and indeed possible, to be a fan of ‘truthfulness’ and a zealous defender of your client. The prosecution rarely benefits from the ‘truthfulness’ of the defence counsel. And a Court’s willingness to declare that the prosecution has met its burden of proof beyond a reasonable doubt is considerably threatened, in practice, by a ‘truthful’ defence lawyer.
I was listening to a interview of the ld. CJI on this issue and he made one interesting point. You need a lawyer to have a fair trial not just for the sake of Kasab, but for the sake of “the truth” in a broader sense. It might be obvious that Kasab did shoot people in CST and Marine Drive; but the facts which will come out in trial will also probably go to establish the conspiracy and the precise role of Kasab. Without legal representation for Kasab, it is highly unlikely for the actual facts to come before a court of law – and I am sure that none of the people supporting the “no-representation-for-kasab” bandwagon want any part of the conspiracy to be left uncovered. maybe this will convince those willing to see some reason?
I hope and pray that Kasab gets a lawyer. Something deep within me died, when I read laudatory news reports about how a criminal lawyer in Mumbai asked to be excused from representing the prime accused terrorist.
Mumbai’s criminal lawyers have apparently resolved not to represent the only terrorist who has been caught alive after he participated in the bloody carnage his team unleashed. And now, any lawyer who proposes to represent him is getting lynched and beaten up. A classic case of a breakdown in the rule of law.
Kasab is a vital link to solving the terror attack case. It is only a trial of charges against Kasab that would lead to a finding of guilt. It is the statements that he would make on oath that would lead us to the masterminds behind the massacre. Kasab was literally one of the foot-soldiers who literally kept pulling the trigger. The instructions to pull the trigger emanated from the masterminds who have to be brought to justice. It can only be a trial of Kasab that would give legitimacy to demands to hand over the masterminds.
A trial involves lawyers assisting a court as experts in law in reaching the right decision. Decisions of the trial court can be appealed to an appeal court, where again, lawyers assist the court in arriving at the right decision. Ultimately, the Supreme Court decides, and again, it needs assistance of lawyers for each side. Every conviction necessarily requires participation of lawyers at every stage of the proceedings.
Every lawyer is an officer of the court. His job is to assist the court. If no lawyer represents Kasab, his conviction would be suspect. Even the trials in the notorious Guantanamo Bay naval base in Cuba, where the United States has been terrorizing terror suspects has defence lawyers who represent the accused and participate in the justice delivery process.
It is only a trial by law that would lead to credibility in conviction. Public rage and popular vote to hang people without trial would increase the prospects of us becoming terror victims – if the policemen never had to prove guilt, they will forget how to detect guilt. If the policemen do not know how to detect guilt, there would be more terror attacks with impunity. For every 200 innocents killed, if one terror suspect is killed without trial, the odds would clearly rest in favour of those masterminding terror.
Kasab getting a lawyer will help working towards not ending up in this sad situation.
Dhananjay,
Thanks for the detailed response to my query:
You state:
“the person confesses to you that he used a certain weapon to commit a crime and that he has concealed it from the gaze of the police. And, lets say, in Court, the prosecution clearly acknowledges that they are unable to locate the weapon used for the commission of the crime, but are able to successfully establish motive before the Court. As part of your representation to the client, you cannnot say anything to the Court that will indicate that you are concealing your derived knowledge from the Court.
Even while your client instructs you to defend his innocence, you have a greater duty to the Court and are forbidden from making any representation to the Court that you do not consider to be true. You merely take the established route – the prosecution has failed to discharge its burden of proof.”
But this kind of reasoning begs a question: do you have a positive duty to disclose this fact (concealed weapon) to the court? Will your non disclosure as a lawyer amount to a falsehood and therefore a breach of your duty as an officer of the court? Lets assume that you, in your best judgment as a lawyer are convinced that with this evidence which clearly establishes the “actus reus” (i.e weapon), the person will most likely be convicted. You are also convinced (like most reasonable people are) that the non conviction of this client poses a grave threat to society (depending on how we articulate our justifications for the criminal justice system, we can debate on what kind of punitive or other measure ought to be meted out, once the conviction ensues). Don’t you have a positive duty to disclose to the court. Shouldn’t the public interest in putting away such a dangerous element outweigh client confidentiality norms?
And if we articulate such a broad based duty of the lawyer as above, then ought we to be really concerned about folks that take up cases on behalf of Kasab, Karadzic etc? In other words, let the lawyer take up the case. If the lawyer finds evidence to suggest guilt, he/she should have a positive duty to disclose to the court. And to this extent, I don’t think the right to client confidentiality ought to be treated as absolute and sacrosanct.
Or perhaps one could have a milder version of the above duty, where the lawyer merely backs out of the case and tells the court that she cannot represent the client anymore–without specifying any reason for doing so. That way, client confidentiality is maintained. But the lawyer is not forced to act in a matter, where the lawyer in question is convinced of the client’s guilt.
I say all of this based just on first principles and sans of any detailed understanding of the jurisprudence that has evolved around these issues. So would be very grateful for your insights–and those of others that wish to comment on this issue.
t