What lawyers do

Lawyers generally don’t have the best image among non-lawyer folk.  While some of this feeling results from the conduct of lawyers in relation to their clients and in their public life, at least a part of it stems from lack of sufficient understanding of what lawyers do and more importantly what they cannot do. Many a lawyer has been teased by a play on words suggesting that they are “liars” and they go about their daily business happily lying for their clients, without compunction, and without fear that there are consequences, if not in this world, certainly at some time in the unpredictable future!  Many a young student has been warned away from the profession for this reason. 

In this article and others following I hope to outline some of the rules which regulate the legal profession in Trinidad and Tobago with a view to explaining what lawyers actually do for a living.  In obtaining this living attorneys here are governed by a Legal Profession Act containing a Code of Ethics. They are also guided by traditions and customs some of which are of dubious origin but which are nonetheless followed by most lawyers rigidly. A lawyer is essentially an advocate of his client’s legal position.  A conveyancing attorney watches the interests of one of the parties to ensure that when the property is transferred the purchaser gets a good title and the vendor is paid the money for the sale. 

A probate lawyer seeks to ensure that the estate of the deceased person is divided up in the way it was intended by the will, or if there was no will, in the way the legislation provides that it should.  An attorney handling a divorce case looks to see that the client’s entitlement in terms of property, custody of or access to children, maintenance and so on is secured.  A criminal defence attorney must ensure that every defence which can legitimately be raised on behalf of his client is advanced and properly heard by the tribunal trying the case.   In the words of the Code an attorney must always act in the best interests of his client and endeavour by all fair and honourable means to obtain for him the benefit of any remedy or defence which is authorised by law.  

The key to understanding the lawyer’s role is to appreciate that he is an advocate of his client’s legal position.  He is neither required to believe in his client’s cause or support it.  He is duty bound to put it forward to the best of his ability.  The Code says that an attorney shall defend the interests of his client without fear of judicial disfavour or public unpopularity and without regard to unpleasant consequences to himself or any other person.  An attorney is therefore primarily concerned with upholding law. How then does the attorney uphold the law?  First he must know it.  Secondly he must be sufficiently brave and skilled to put it forward. Speaking of the task of a lawyer in court David Pannick QC in his book “Advocates” writes, “He earns his living propounding views to which does not necessarily subscribe, and which are sometimes anathema to him, on behalf of clients whose conduct may not interest him, will offend him, and can occasionally cause him outrage”. 

In that book Pannick also wrote: “The advocate does not endorse the views or beliefs of his client.  He is as Lord Macmillan explained, there to “present to the court all that can be said on behalf of his client’s case, all that his client would have said for himself if he had possessed the requisite skill and knowledge…His duty is to see that those whose business it is to judge do not do so without first hearing from him all that can possibly be urged on his side.” An attorney representing his client’s interest must do so fearlessly.  He must seek to use all fair and honourable means to obtain for his client every defence or remedy allowed by law.  In doing this however there are constraints on his conduct. He can never knowingly mislead the court.  So to deal with the typical question asked of lawyers, “so what happens if your client confesses to you or you know he is guilty?”  The answer is that there are rules which govern how attorneys act in that situation. 

The attorney must get clear instructions from the client on this and consider whether any defences or partial defences are available to him.  So for instance, if a person were to confess to killing another, it may be that the accused was acting in self defence at the time or there might have been some provocation or diminished capacity that would make the client guilty of manslaughter but not murder.  In the former case even though his client did the killing the law excuses him if he used reasonable force in defending himself.   The attorney’s job in the latter case would be to advise the client to plead guilty to that lesser charge and get together information to make a strong plea in mitigation to get the court to pass the most lenient sentence as the law would allow. Since the plea is for the client and not the lawyer to enter, the client whose conduct constitutes manslaughter may nonetheless decide that he wishes to plead not guilty.  The attorney would then have options as to what he can do.  One option would be to withdraw from representing the client and have someone else represent him. 

A second option is to continue to defend the client but there are restrictions on how that defence could then be conducted.  The attorney would not be able to advance that the client did not commit the act such as by putting forward an alibi.  The attorney would however be entitled to put the prosecution to proof.  He must make sure that only admissible or lawful evidence is allowed and test the prosecution witnesses in terms of what they may have heard or seen.  Were their observations impeded or in bad conditions or is the evidence unreliable and so on. The justification for this is that in our system of justice, generally, a person is presumed to be innocent until shown to be guilty by the prosecution.  Put another way the prosecution must prove someone is guilty before that person is convicted and do so to the extent that the jury is sure of the person’s guilt.  In reality then when the accused pleads “not guilty” he is not taken to be saying by this that he is in fact, not guilty, but rather that he is exercising this presumption of law in his favour and that it is for the prosecution to prove guilt.  In simple words the plea of not guilty means, “prove that I am guilty” and “make us sure of it”!
 
(To be continued)

Ronnie Boodoosingh
(The Law Association of
Trinidad and Tobago)