Illustration by Ian Morris

Should a lawyer ever refuse to act in an unpleasant case?

Recent examples have brought an old legal and philosophical question back to the fore
March 3, 2021

That everyone is entitled to legal advice is a proposition easy to commend in abstract terms. It will get a nod or even a cheer, and provides the defence that lawyers often invoke when faced with public disdain for their clients or areas of practice. 

But if you go from the general to the particular, the notion becomes more problematic. Some senior English barristers have recently been criticised for their readiness to work for rights-denying foreign governments. Earlier this century, certain American lawyers provided legal cover for the federal government to inflict torture. More recently, other American lawyers have anxiously sought appeals so prisoners can be put to death before any chance of clemency with a new president. 

To say that everyone is entitled to a lawyer is to say that repressive regimes should also be entitled to lawyers and that no opprobrium should attach to the lawyers involved. For, it would seem, even tyrants are entitled to legal advice. 

One example of this approach in England and Wales is the so-called cab-rank rule, which provides that barristers must work for anyone in a position to instruct them. But this rule only covers work for domestic clients or in domestic courts, and so does not provide a basis for barristers to ply their services around the world to any tyranny that will pay them. And the rule does not apply to solicitors, who comprise the majority of lawyers in the UK. 

Nor is it a complete defence to say that responsibility attaches only to the court and not the conscience of the lawyer. Of course, the hope is always that justice will prevail once a case is before a court, but relatively few cases ever get to trial. Most civil cases are settled even before a claim is made, and in criminal cases there is always considerable pressure for a defendant to plead guilty before trial begins. To have a “day in court”—where a tribunal swoops in to ensure a just outcome—is often not a serious option. Almost all litigation begins, and effectively ends, before a courtroom is reached. 

Accordingly, many of those wanting legal advice will be those hoping to avoid substantive hearings. The craft—and value—of a lawyer is in good part in preventing a case ever getting to a tribunal. Using law and procedure so as to obtain the desired result without a judge or a jury is what a skilled lawyer is there to do. And the mere fact that formidable resources are devoted to a prosecution increases the likelihood of a guilty plea—whether the defendant is guilty or not. Similar motivations will affect those bringing civil cases. 

Some injustices are therefore not inflicted by a court, but by lawyers. Choices made by lawyers as to who they will advise and represent will be the direct cause of unjust results, though they will seek to say that they should be free from any blame in the name of justice. Everyone is entitled to legal advice, you see. 

In other professions, there are rules providing that a professional should not knowingly do harm. Some (though not all) medical doctors, for example, will aver that participating in an execution by lethal injection would violate basic ethical commitments. Should the same not be true of the lawyer doing everything they can to ensure the very same executions go ahead?  

Or take the example of a multinational seeking to uphold a patent of a drug, so that it cannot be easily afforded by those who most need it. Or an insurance company relying on obscure case law to avoid paying out much-needed compensation. What’s going on is straightforward: human beings will suffer unnecessarily because of a lawyer discharging their job with skill. People will lose their lives, or live in pain, or otherwise be disadvantaged because a government or corporation will have access to more and better lawyers. 

But—and there is a crucial “but”—what is the alternative? Things could be worse if lawyers were not involved. Would it really be better for those facing severe punishments to be prosecuted without proper regard for the rules of evidence? Would it be better if governments did not have accurate advice as to their legal responsibilities? Perhaps the only thing worse than the bad and the powerful getting good legal advice would be for them to get poor legal advice, or even none at all.  They would still do awful things, but without the constraints of law. 

What matters is not so much the cases a lawyer chooses to take or the matters they choose to advise on. The profession of law, as in other things, is in the way it is done. Everyone is entitled to legal advice, but the rest of us are entitled to expect lawyers to get the law right and to not mislead a court. A lawyer may have any old client, but a lawyer cannot tell the court any old thing. Even a lawyer as partisan as Rudy Giuliani could not bring himself to mislead a court by alleging electoral fraud for his client Donald Trump, though both freely made such allegations outside of the courtroom.  

The ultimate problem, of course, is not about lawyers but the law. Lawyers—even those advising clients on how to torture—can only do what the law and its enforcement lets them get away with. Lawyers may be to blame for many things, but they are not usually to blame for the law. However, those people who do make and impose the law—the ones who could actually change it—are often more than happy for you to blame the lawyers. And when you blame lawyers for the law, somebody far more culpable escapes blame.