If a barrister cannot convince his client to act on his advice, should not the lawyer still effect and respect the client's instructions?

Question

_{Source: p 33-34, The Art of the Advocate (1993) by Richard Du Cann QC.
Please advise me how I can abridge the quote below to reduce this post's length.}

The Legal Aid and Advice Act has made the services of both solicitor and barrister available to all those whose incomes do not allow them to go to a solicitor privately. The basic idea of the scheme, that lawyers' fees should be paid by the State and not by private individuals, was first proposed in 1657. Now, over 300 years later, this is beginning to come about. It is the greatest single Step towards ensuring equality before the courts ever taken in this country. But it has set a problem which has not yet been resolved. In 1866 Mr Justice Blackburn said:

[1.] It would be unprofessional for counsel to undertake the conduct of a cause giving up all discretion as to how he should conduct it. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client.

[2.] For centuries, relying on the honouring of this obligation, the courts have acted on the certain presumption that the advocate bears full responsibility for every course adopted before them. But Mr Justice Blackburn went on:

[3.] counsel cannot induce his client to act on his advice, the proper course is to return his brief.

[4.] What if the brief comes sanctified by the careful scrutiny of the Aid Committee, and the barrister decides that cause of action is disclosed? To return the brief will seem to deny the client the right the Act is designed to give. Yet this must be his course of action. Once the advocate allows himself to give up his freedom of action by permitting his decisions to be by one previously made by the executive he absolves himself from his responsibility to the courts and will become no more than an arm of the executive, and his status as a fearless and independent champion of the rights of the individual will disappear completely. Whatever criticisms have been made of him this title he has always held. If he is to deserve attention from the Judiciary and to command respect from the public this title he must continue to hold, for it is only by so doing that he can justify his existence.

What have I misunderstood, because 3 and 4 appear wrong? Lawyers can cease representing clients, but not because the lawyer disagrees with the client (as 3 and 4 imply) because even then, the lawyer must still effect and respect the client's instructions (if they are legal).

Answer 1

You are confusing 'barrister' (which is in the quote) with 'lawyer'(which is in your question). It is a solicitor's responsibility to act as legal representative to the client, and that is not altered just because he disagrees with his client (though of course he must not assist the client to commit perjury, for example). The barrister's job is to conduct the trial in the way he thinks best, and he bears the responsibility if it goes wrong; if the client (solicitor or lay) instructs him to go against his better judgment, he must (according to both Blackburn J and Du Cann) return the brief.

This is not just an obsolete quibble : I myself have seen a QC ask in cross-examination questions when he plainly did not want to but was acting on explicit instructions (the client was a newspaper that wanted to have something for tomorrow's edition). The Judge, in finding against the newspaper, flayed the unfortunate QC, who had previously been widely expected to fill the next vacancy on the Bench: he never did. Note that the questions were not illegal or improper; they did not advance the case, and the QC's fault was allowing his client to dictate how he conducted the case.

Answer 2

I'm not sure I entirely agree. It seems to me that asking questions which do not advance the case is improper. It is a waste of court time - and potentially misleading too. Obviously, a barrister cannot be made to do either - and if "instructed" to, should return the brief. What if solicitor, client and barrister disagree on whether they should advance a weak but arguable case? Many barristers subscribe to the "turd theory" (the gist of which - even a small turd makes an otherwise delicious cake inedible). This may be good advice, but what if their instructions insist the weak point is argued? To me, the Blackburn view must refer to unarguable or improper points. Allowing barristers to return briefs because they didn't wish to argue proper points would make the cab rank rule an irrelevance. Barristers would still have to accept briefs on the cab rank. They could then propose an obviously flawed strategy and return the brief when the client disagreed.