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(Hypothetical)

Rob is charged with a crime. His lawyer, upon receiving discovery, realises that they are very unlikely to win the trial if they plead not guilty, that the best course of action for Rob is to plead guilty and get a sentence discount.

But the lawyer knows that Rob has money and wants to suck it out of him, especially that he knows Rob will be jailed anyway. So he encourages Rob to plead not guilty by saying they have good chances to win.

What would be the best way for Rob to detect that, if any possible?

Are there any working protections in place that would secure Rob from going on trial with unscrupulous lawyers like that? Or can they always get away with it?

(Any jurisdiction)

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Such an action by the lawyer is certainly unethical, but there is no automatic or routine mechanism to detect it and give better advice to Rob, at least not in the US. Rob could get a second opinion, but criminal defendants do not often do this, and there is no requirement to do so.

If the situation is extreme, it might be reported, after the fact, and the lawyer sanctioned. But no one is ever required to do a plea bargain, and there is always a chance, even if only a very small one, that a jury will acquit. Whether to try for a trial is a judgement call. That makes it hard to deal with the unethical intention, which the lawyer presumably did not tell anyone about.

Rob's only practical protection is to pick a lawyer with a good reputation for not doing that sort of thing, and reputations can be misleading. If Rob does not have money he may not be able to choose at all, but then the lawyer will not be tempted to go to trial to "suck money out of" Rob, because there will be none to suck. In that case the lawyer may, indeed, be tempted not to go to trial when (rarely) that would be in Rob's best interest. Rob would have little protection against that.

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  • "criminal defendants do not often do this": I am struck by the thought that those who can't afford a lawyer in the first place, who are therefore represented by a public defender, also cannot do it, since the right to an attorney provided at the government's expense surely does not extend to a second opinion provided at the government's expense. The answer's last paragraph is also of limited or no applicability to defendants in such financial circumstances.
    – phoog
    Dec 8 '20 at 14:58
  • @phoog The question assumes that the defendant has money to hire a private lawyer, and thus the ability to choose. Indeed that is the unethical lawyer's motive. Thus the answer is not addressed to those using a PD. A public defender is probably motivated to close as many cases as possible in a short time, so if anything an unethical PD is tempted not to go to trial when there is a reasonable chance of success that a private firm might take. If Rob cannot pay a lawyer, he has fewer choices and less protection from an unethical lawyer. Dec 8 '20 at 15:07
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In the U.S. this is a good way for Rob's lawyer to get himself disbarred. The American Bar Association has rules of professional conduct, including a list of duties to clients. The hypothetical scenario would violate a lawyer's duty to avoid self-dealing, where they are pursuing their own interests (financial) over their client's interests (legal counsel) as well as a duty to effective assistance of counsel, where the lawyer is duty bound to provide the most effective assistance to his/her client. In the above scenario, not only will pleading Guilty be in the client's financial interests (Going to trial is very expensive) but also in the client's legal interest (something like 90% of criminal cases in the U.S. do not make it to trial, and most guilty convictions are a result of plea bargaining). The prosecutor will "reward" a person for not taking the matter to trial by asking for more lenient sentences or even dropping more serious (and usually more difficult to prove) charges while keeping the ones that are easier to prove but less serious. Judges will also be more likely to accept this because, like the prosecutor, you're not wasting everyone's time pretending you didn't do it. Suffice it to say, in the U.S. if you take the matter all the way to a jury trial handing down the verdict, you will get a harsher sentence (you can plea out any time before the jury starts deliberating, though the prosecution will likely not offer as sweet a deal as they would if you pled before trial).

The best way to detect this is to get another lawyer who is independent of the first to take a look at the case and offer advice. Lawyers have a professional duty to report any misconduct they see (with the exception of attorney-client privilege superseding this... if the facts of the matter will make the client look bad, they must get client's permission... if the lawyer is the client, they can't report at all!) and that which is learnt through participation in Bar-sanctioned substance abuse programs.

While there are avenues such as lawsuits over professional misconduct the client can sue the attorney for, this is ultimately something the lawyer can get disbarred for if egregious enough or at the very least have his/her license to practice law revoked. It should be pointed out that the Bar is not a government entity in the U.S. but a professional society, as U.S. lawyers would rather self-regulate than let the government do it for them. This isn't the only industry that self-regulates (The U.S. film industry's rating system is an industry self-regulation) and in most cases they tend to be less burdened than the government in what they have to do to justify punishment and what kinds of punishment they can enforce.

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  • Everything in this answer is accurate to the best of my understanding. But how likely is it in practice that a 2nd independent lawyer will review a criminal defense case that is not high-profile, or that such an unethical action will lead to disbarment or sanction if it is not grossly outrageous, but merely a bit over the line? Dec 8 '20 at 15:17
  • Disbarment is rare, with 1,000-ish cases happening in a year. Sanctions and civil action are much more common. I don't know how often the second eyes happens, but it need not happen as soon as damage is done... and cases often shift attorneys if they go into appeals, especially if a state case goes to a federal appeals case as the trial lawer might not be on the Federal Bar and I think each circut has it's own Bar. SCOTUS has it's own special Bar as well. Finally, you can have more than one lawyer at initial trial, such as the famous OJ Simpson Dream Team.
    – hszmv
    Dec 8 '20 at 15:28
  • There is no question that what the lawyer does in unethical. There is no question that they risk getting disbarred if that gets detected. It's all understood. I only find your second paragraph to be straight on point here.
    – Greendrake
    Dec 8 '20 at 22:34

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