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Alex the accused has been charged with a series of crimes. The list of charges is long (beating up his wife, speeding while drunk, trafficking...) and for most crimes, the evidence presented by the state attorney is very strong.

Dave the defense attorney, seeing the evidence, suggests his client should follow the "I'm sorry, it will never happen again" strategy to get a small, maybe even suspended sentence. But Alex is very stubborn and sympathizes with the "Reichsbürger"-Movement, 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.

Dave is very certain that with this strategy, Alex will not only be convicted and given not only a long prison sentence, but maybe even a long-term preventive detention.

What can Dave do to follow the wishes of his client while still representing him as best as he can?

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Mar 5, 2023 at 9:12

7 Answers 7

38

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,

  1. 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

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  • I think imposing their own defence strategy will be easier on theory than in practise. I'm afraid using a "I'm sorry, it will never happen again" strategy would be an uphill battle with an non-cooperative client
    – Ángel
    Mar 4, 2023 at 0:13
  • 1
    @Ángel Indeed, it would be a difficult situation for both the lawyer and the client (and the judge). In case of significant conflicts with an unreasonable duty client, the defence lawyer would likely be relegated to a role of special advocate to ensure that procedures are followed properly by the prosecution and the law is applied correctly, instead of the role of a zealous defender of the client per se.
    – xngtng
    Mar 4, 2023 at 0:53
  • In this example, the client seems to have clearly articulated his interests. Those interests may be unusual, but they are clear. Does the lawyer have a duty to his client's interests, or to what he feels those interests ought to be?
    – fectin
    Mar 4, 2023 at 19:12
  • @fectin The lawyer cannot support the view of the client here, because they're beyond any legal reasoning in a constitutional state. (Nobody is above the law, and Women cannot be owned)
    – PMF
    Mar 5, 2023 at 7:39
21

Defence counsel needs to make clear the permissible scope of argument that they can make, consistent with the lawyer's ethical obligations to the profession and to the court.

The arguments that the accused is asking for are beyond what would be acceptable for defence counsel to make: they have no basis in law.

If the accused insists, defence counsel will be forced to withdraw as counsel. See R. v. Cunningham, 2010 SCC 10 at paras. 48-49:

... Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations... or if the accused refuses to accept counsel’s advice on an important trial issue...

If withdrawal is sought for an ethical reason, then the court must grant withdrawal. ... Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.

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  • 6
    Would that mean, that in an extreme case, the accused looses his right for legal counsel and would need to defend himself? Because if he insists on his view, another attorney would have the same problem.
    – PMF
    Mar 1, 2023 at 11:57
  • 10
    @PMF Please note that this answer may not apply to your question as it's related to Canadian Law and not Swiss law (Which are completely different in legal approach and therefor would have different rules as to what lawyers can and cannot do with respect to clients when the lawyer cannot provide the client with the legal defense requested).
    – hszmv
    Mar 1, 2023 at 12:24
12

In the USA, my daughter (who is quite good at this) believes the key skill for a criminal defense attorney is convincing their clients to do the things that will result in the best possible outcome. Let's be clear: the client has absolute power to testify in their own defense and to plead not guilty. But being good at your job means convincing them to do things they might normally not want to. A phrase my daughter leans on is "it isn't about whether you are guilty or not, it's about what we can get a jury to believe."

The standard for defense is to mount a zealous defense of the client. I think that quitting the case just to pass the problem off to a different attorney is a cop out. It accomplishes nothing. In the example presented, you would go to trial and call the defendant as a witness, but not make any claims that are not supported by law.

If it were an easy job, anyone could do it.

1
  • 3
    Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Mar 2, 2023 at 7:41
10

The duty to the client is secondary to the duty to the court

Barristers in Australia are governed by the Legal Profession Uniform Conduct (Barristers) Rules in the state or territory where they are working. Rules 79 to 82 deal with “Delinquent or guilty clients”.

Summarising, a barrister who:

  • becomes aware that their client or a witness has lied or materially misled the court must take no further part in the case until they get the client’s permission to reveal that to the court.
  • is representing a guilty client who maintains a plea of not guilty must have the client agree that they will:
    • not falsely suggest someone else did it
    • not set up an alternative case inconsistent with the confession
    • require the prosecution to prove the case
    • be able to argue that evidence as a whole does not prove guilt
    • be able to argue that some element of the law means the case is not proven. An actual element not one the client made up
    • be able to argue for not guilty for any other reason not inconstant with the above
    • no longer be able to act if the client insists on giving evidence denying guilt or requires making a statement suggesting the client is innocent.

If the client doesn't not agree and the barrister is therefore unable to act, they make a submission to the court that they cannot continue because of an ethical conflict and the judge discharges them. This usually happens after the judge has spoken to the client and explained the difficulties they will face if they persist in this course of action.

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  • 1
    "must have the client agree that they will" Does "they" refer to the barrister or the client? "not set up an alternative case inconsistent with the confession" What confession? Mar 3, 2023 at 22:14
  • 1
    can you clarify how a barrister could "take no further part in the case" without making it obvious they are doing so because their client has lied?
    – simpleuser
    Mar 4, 2023 at 3:21
  • @simpleuser they tell the judge they cannot continue because of an ethical rule.
    – Dale M
    Mar 4, 2023 at 23:04
  • The decisive statement is: A barrister cannot defend a guilty client who claims to be not guilty but only because of an element of law that the client made up.
    – gnasher729
    Mar 5, 2023 at 19:45
5

Typically most lawyers would ask the judge for permission to be removed from the case following the revelation that the lawyer cannot offer a competent defense. I'm not familiar with Swiss legal and ethical practices, so this process may depend on the body in Swiss law that has the power of lawyer accreditation and their legal and ethical standards and practices. As Switzerland is a Federal nation, this could mean having to go to the individual Canton (the equivalent of a State in the U.S. or a Province in Canada) which could mean there is no blanket answer for this question as the rules would change depending on who is doing the prosecuting.

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  • 2
    About the last sentence: This should have been much simplified now, as in 2011 a new federal process law ("Strafprozessordnung") came into force, making the criminal prosecution and court process uniform in most respects. Previously, that was indeed a big problem.
    – PMF
    Mar 1, 2023 at 13:05
  • 1
    @PMF I'll defer to you. I'm not Swiss (I have read a lot about Swiss government, but that's a high level read.). The answer was more to assist in possible areas to look, as I doubt I could find the rules for lawyers in a language I can read online.
    – hszmv
    Mar 1, 2023 at 13:14
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A very similar situation has actually happened in the case of McCoy v. Louisiana, except that the defendant (McCoy) was facing the death penalty. His lawyer wanted to admit guilt and push for a life sentence, but McCoy insisted that he was innocent. They were unable to come to an agreement before trial, and the court was unwilling to let the attorney withdraw (by this point, McCoy had already gotten rid of his previous lawyer).

At trial, the lawyer admitted his client's guilt during opening arguments, and tried to make a case for leniency on the basis of diminished capacity. Possibly because McCoy was uncooperative, or possibly because the jury just didn't buy it, this went poorly, and the defendant was sentenced to death.

On appeal, the Supreme Court reversed, holding that the lawyer was not at liberty to make such a decision on behalf of his client. The majority held that the right to assistance of counsel implicitly includes the autonomy to make one's own decisions about the overall objectives and direction of the defense, including whether or not to admit guilt.

The court then went on to characterize a lawyer violating the defendant's autonomy in this way as "structural error." This means that a defendant whose lawyer behaves in such a manner is entitled to a new trial as of right, without having to prove a substantial likelihood of a different outcome.

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In the Netherlands, and I guess elsewhere it'd be similar, the lawyer would do his utmost to find a flaw in the proceedings in order to get the case thrown out.

That way there would be an acquittal, the client would walk free (at least for now, an appeal may change that), and the lawyer would get a reputation of being able to get his clients out of a pickle, meaning they're more likely to get nicely paying cases in the future.

IOW the lawyer would not so much try to win the case by going against the evidence or appealing to the good heart of the judge (so no, "my client is basically a good person, your honour, she'll never do it again") but dispute the admissability of evidence, the legality of a search warrant, maybe even the fact that their client was kept in pre-trial lockup 5 seconds longer than the law allows, technicalities like that which in the Netherlands very very frequently lead to people walking free when the case appears to be certain to lead to a conviction when looking at the evidence presented.

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  • Wouldn’t a (competent) lawyer seek to do things like exclude potentially inadmissible evidence against their client regardless of the rest of their legal strategy?
    – Sneftel
    Mar 4, 2023 at 17:47
  • @Sneftel probably, but in the Dutch system at least it's become the norm to go for that rather than actually trying to win the case on merits.
    – jwenting
    Mar 4, 2023 at 17:57
  • But then how does this address the OP’s question, about the client and the lawyer disagreeing on strategy?
    – Sneftel
    Mar 4, 2023 at 18:00
  • 1
    “The lawyer would do his utmost” - are you saying the lawyer would work harder for this particular client? If yes, would the lawyers bill be higher?
    – gnasher729
    Mar 6, 2023 at 9:06

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