This Week in Legal Ethics – Duty of Defence Counsel

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LegalEthicsBannerBy Melanie Hodges Neufeld

In light of recent high profile criminal cases – both nationally and locally – I’d like to highlight the duty of defence counsel. The Public Legal Education Association (PLEA) has useful information on Victims of Crime that includes a description of defense counsel:

A lawyer who represents a person charged with a criminal offence is known as a defence lawyer. It is the defence lawyer’s job to ensure that the rights of the accused are protected throughout the criminal process. An accused person has a right to full disclosure of the case against them, including evidence that will be produced in court and statements of witnesses and victims. The defence lawyer may negotiate to have the charges withdrawn or to allow the accused to plead to a lesser charge. They may also explore the possibility of alternative measures for their client.

At trial, a defence lawyer must question the evidence, including the evidence of witnesses, put forward by the prosecution, examine the importance or relevance of that evidence, and explore other possible interpretations. The defence lawyer must do so within the limits of the law and according to ethical standards.

So, what are the ethical standards? Our Code of Professional Conduct in Chapter 4 : The Lawyer as Advocate states the following:

4.01(1) When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.

The commentary to this rule adds the following (emphasis added by me):

[1]          In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

[3]          The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.

Specifically, the commentary states the following with respect to defence counsel:

[9]          When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer’s private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent.

[10]        Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of the indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.

4.01(2) lists what a lawyer must not do when acting as an advocate, including:

(b)          knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable;

(e)          knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;

(f)           knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument or the provisions of a statute or like authority;

(g)          knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal;

(h)          make suggestions to a witness recklessly or knowing them to be false;

(k)          knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another;

(m)         needlessly abuse, hector or harass a witness;

The commentary for this rule adds:

[4]          When examining a witness, a lawyer may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition.

There are numerous texts on legal ethics that can help clarify these rules further. For example, Lawyers’ Ethics and Professional Regulation (1) has a section on the ethical duties of defence counsel and ethics in advocacy. The section on cross-examination is particularly helpful as it highlights R v. Lyttle, in which the Supreme Court articulates the scope of an advocate’s ethical conduct in the context of cross-examination of an opposing witness. This text and others are available in print through our library. Please check our catalogue for titles.

Ethics and Criminal Law (2) is another useful text that we conveniently offer as an ebook in our Irwin Law’s e-Library in the Members’ Section.

 

Citations:

  1. Alice Wooley. Richard Devlin, & Brent Cotter, et al, eds, Lawyers’ Ethics and Professional Regulation, 2nd ed (Markham: LexisNexis Canada, 2012).
  2. Michel Proulx & David Layton, Ethics and Canadian Criminal Law, 2nd ed (Toronto: Irwin Law, 2015).

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