In several civil law systems, including in Switzerland, the involvement of a defence lawyer can be mandatory, even against the will of the accused.
If the accused does not appoint a lawyer, a duty lawyer must be appointed by the director of the proceeding (the prosecutor or the judge depending on the stage of the proceedings). The obligation to have a lawyer may extend to important civil cases in some countries before higher courts to avoid wasting judicial resources. In criminal cases, this is also to ensure the accused's rights to a competent, diligent and effective defence.
The accused is responsible for the costs of the lawyer, within their financial circumstances and subject to government legal aids, if they are found responsible for procedural costs. All lawyers at bar in a canton are required to accept mandates assigned to them due to obligatory provisions of law, provided that they are competent to do so.
This is regulated by art. 130 to 135 of the federal Criminal Procedure Code, in particular,
- A defence lawyer must be appointed to represent the accused if:
- a. the period on remand including the period when under arrest has continued for more than 10 days;
- b. the offence concerned carries a custodial sentence of more than a year or a custodial measure or may result in expulsion from
Switzerland;
- c. the accused is unable to safeguard his or her interests in the proceedings adequately due to his or her physical or mental
condition or for other reasons, and his or her statutory
representative is unable to do so either;
- d. the prosecuting lawyer is appearing in person before the court of first instance or the court of appeal;
- e. accelerated proceedings (Art. 358–362) are being conducted.
Essentially, all serious offences are subject to this obligation.
Until now this is not a direct answer to the question posed, but it is a factor that shows the relationship between the lawyer and the client is not a simple one.
Now going back to your question. In Switzerland, or indeed in most legal systems, the lawyer is to ensure that the accused receives a competent, diligent and effective defense. Indeed, if the public prosecutor or the judge believes or reasonably ought to have believed the defence is clearly incompetent or otherwise negligent in their professional duties, the proceedings must be suspended until a suitable defence is appointed by choice of the accused or by the proceeding director.
so he asks his attorney to plead for innocence, saying that it's his wife, so he can do with her what he wants, and traffic laws, given he is a good driver, won't apply to him etc.
The lawyer is a professional that must exercise their professional judgement.
They are also a 'servant of the law' and a 'collaborator in the administration of justice' and bear responsibility for the correct functioning of the justice system (Federal Court rulings 106 IA 100, 130 II 270). In general, they are not allowed to induce the justice and the authorities in error.
Thus, they cannot simply present baseless arguments before the judicial authorities.
Dave is very certain that with this strategy, Alex will not only be convicted to a long prison sentence, but maybe even to a long-term preventive detention.
What can Dave do to follow the wish of his client while still representing him as best as he can?
If the lawyer is convinced that the strategy imposed by the client is clearly contrary to the client's interest, they may decide to withdraw from the mandate, if they can do so without seriously prejudicing the client's interest. This is the case when the accused had chosen their own lawyer, who under contractual law must follow the client's instructions and the recourse to avoid unprofessional conducts is withdrawal.
For the duty defence lawyers, the accused cannot waive the right to a defence lawyer, indeed, it is an obligation on the accused, the lawyer and the judicial authority. While the law provides for replacement of the lawyer if the mutual trust between the lawyer and the client is seriously compromised, this is not simply so because the client says so. Loss of confidence on subjective grounds alone does not constitute a reason to change a duty lawyers unless the attitude of the lawyer is seriously prejudicial to the interests of the accused (Federal Court ruling
1B_307/2012).
For lack of a better analogy, the duty defence lawyer would proceed to represent the interests of the accused as if the accused was mentally deficient or otherwise incompetent (not that the accused is recognized as so with respect to their criminal responsibility, but that the accused is unable, or in this case unwilling, to cooperate fully with the lawyer on their own defence).
The duty lawyer can impose their own defence strategy and must do so if they sincerely believe it is in the best interests of their client (https://www.penalex.ch/faq-avocats/mon-avocat-doffice-peut-il-mimposer-sa-strategie/).
Of course, the accused still has a right to be directly heard by the court, but such right is not unlimited. They can make their own representations and may note their disagreement with the defence counsel, but the accused does not have the right just ramble for two hours in the court. As it is not an adversarial system, the decision maker will take all circumstances into account and the disagreements between the client and their own counsel (despite being imposed by the law and the state) are not as much of an issue as in an adversarial common law trial.
Note that an acquitted accused may still be found responsible for procedural costs (including for any obligatory defence fees) if they had deliberately caused the penal procedure to be opened unlawfully or wrongfully (even if "criminally" not guilty), or that they had deliberately made the proceeding more difficult (e.g. through multiple unjustified requests to change lawyers, or indeed possibly, presenting the arguments of Reichsbürger with insistence).
Other consulted references:
L'avocat dans la défense pénale : de l'obligation de dire la vérité à un droit de mentir, Flavien Morard https://sui-generis.ch/article/view/sg.53/661
