Advice and Instructions
In the formal interviews, many lawyers discussed their role as facilitators, allowing clients to act as informed agents of their own destiny. In making these claims, these lawyers appeared to revert to the social agenda stressed in the attitudes chapter.
Most lawyers presented themselves as concerned with helping people achieve what they wanted. This position tallies with the ‘classical' picture of lawyering, long and widely disseminated (McConville et al, 1994: 18-19). It has been suggested that lawyers, and their professional bodies, have worked hard to foster a public image that emphasises their humanity and selflessness (Fennell, 1980: 22-24). So it is that Thomas and Mungham (1983: 134-35) are able to examine the outpourings of the Law Society, identifying their self-descriptions of a profession premised upon service, public protection, trust and being much more than a business transaction. For Thomas and Mungham (1983: 135), this is underlined by the supposition that, ‘the Law Society is anxious to distinguish between professional services and business, to promote so vigorously an altruistic conception of the lawyer/client relationship'. So it is that the professional code of conduct (Lord Chancellor's Department, 2001: 4) describes a lawyers' function, whereby the ‘primary duty of a professional employee is to protect the interests of the client... A professional employee shall provide the client with fearless, vigorous and effective defence'.In relation to the direction in which cases proceed, lawyers have two vital roles to fulfil in order to meet these ideals: they must give advice and take instructions. This forms a basic standard of competence, recognised by the Law Society (2011: 7) in their duty solicitor accreditation, wherein lawyers must ‘allow the client to explain his or her position... give appropriate advice to the client in a form that assists them to decide upon the best course of action'.
The onus, then, is on working for the client, allowing them to make decisions. As such, this advice must not extend beyond informative guidance. Thus, the professional code of conduct (Lord Chancellor’s Department, 2001: 4) reminds lawyers that, ‘a professional employee should not put a client under pressure to plead guilty’.Practitioner guides present similar messages. This can be seen in advice centred on police station interactions, as that provided by Cape (2006b: 4-5), which instructs lawyers that:
A lawyer must treat the interests ofthe client as paramount... While, for example, a client may be advised in strong terms of the advantages of admitting an offence to the police, whether to do so is a matter for the client and the lawyer should not impose any undue pressure to accept their advice. After all, it is the client who has to live with the consequences.
This attitude is also to be found in work focused on the courts, as that offered by Ede and Edwards (2008: 92) which insists that, ‘your client must take the decision; you must assist him to reach it by advice’. Lawyers are, in other words, responsible for ensuring that clients make informed decisions.
Such is the stance that lawyers took in the formal interviews, and they were adamant that they would not cross this boundary. This position can be appreciated in the following quotes:
I think everyone needs to know that in that court, no matter what else is going on, we are actually speaking for them. We might be the only person speaking on their behalf, but they know that they’ve got a voice, and that we’re working as hard as we can to get their case acquitted for them. Our role? Everything - explaining the procedures to them, lots of them need that; explain to them what I think is likely to happen - be their legal adviser.
(Denise, solicitor, Radcliffe and Musk, INT)
Well, you always have to advise clients properly, go through the evidence with them, and tell them what your view is on how the witnesses will come across, if you can get any indication of that, how many witnesses there are, what you think the strengths are in their evidence, what you think the weaknesses are, so you always need to advise them on all of that.
Then you can advise them on their own - what they’re saying, whether it’s consistent with what they’re saying in interview, whether there are any problems with what they’re saying. So you, kind of, have to go through it with them but they have to make the final decision and if they want a trial then they should have a trial.(Ronette, solicitor, Radcliffe and Musk, INT)
However, in her practitioner guide, Davies (2007: 34-39) notes that lawyers must tread a fine line:
If you suspect your client is not telling you the truth... you may want to give him robust advice... but do not ‘lean’ on the person. There is a fine line between robust explanation and leaning. It is not your case it is his.
These norms reflect the important plea bargaining case of Turner.[V] In this judgment, the Court of Appeal developed what can be seen as a set of rules for plea negotiation, chief among which was the recognition that, in some situations, defence counsel might encourage clients to plead guilty and, in so doing, provide advice in strong terms. The extent to which this plays off due process principles against competing crime control practices is highlighted by McConville (2002: 354-60). Lawyers are implicated within a functionally crime control system and, thereon, tasked with transmitting certain systematic imperatives, including the sentence discount for pleading guilty. However, this system concomitantly attempts to maintain its legitimacy by claiming that this does not amount to improper pressure, and that the plea remains voluntary and premised upon factual guilt.
That there is a form of improper pressure implies that some manner of pressure is acceptable creating a situation rife with ambiguity over just how much is too much. This grey area is evident in returning to the practitioner guide of Ede and Edwards (2008: 99), which implores:
Do not necessarily accept your client's denial at face value: enquire as to his reasons. Ifthe prosecution evidence appears strong, challenge your client with it...
Cross-examine him as robustly as appropriate... Do not let your client think you are hostile or no longer on his side.Their text suggests that lawyers might conceivably be so forceful as to risk the client forgetting that the lawyer is working for them. This eventuality appeared to be accepted by many lawyers in this study. In interview, 23 out of the 35 lawyers, from all firms, discussed interactions with clients in which it would not have been unreasonable for the latter to have felt some level of uncertainty, as in the following:
If he'd said he wanted to go not guilty, I'd have said: ‘If you think you are going to win a trial on this you are stark raving bonkers'. Oh, God, yeah, I'd be frank with him. I would have said: ‘You are crazy'.
(Shelly, solicitor, Radcliffe and Musk, INT)
You have to make sure that they have a voice if they want particular things said but also try to not let them run it. So you say: ‘Look, I think this approach is slightly better, let's do it this way'. That kind of thing.
(Denise, solicitor, Radcliffe and Musk, INT)
While such an approach might be sympathetically described as ‘firm' or ‘robust', an alternative perspective was offered by a Radford Hope solicitor, Leland, during the participant observation:
I would love to see Bob [solicitor] dealing with a client like this. He doesn't like it when they have their own opinions on what they should do. Bob does not take instructions and give advice, he gives advice and gives instructions. Anything else is a big waste of time. He'd have gone mad with that client, climbing up the walls at all the time it'd take! A lot of solicitors are like that.
(Leland, solicitor, Radford Hope, IC)
In contrast to the interviews, and the general presentation of the profession, lawyers were regularly seen throughout the participant observation giving both advice and instructions. This represented an ethos that can be appreciated from the following quotes in which lawyers from all three firms refer to situations in which their clients would not change their pleas to guilty:
That client, he's a difficult one.
He insists on going to trial. He won't take it, he just won't take instructions.(Ed, senior partner, Swining MacSage, IC)
I thought he was going to agree then. He's so frustrating, he just won't listen!
(Harold, partner, Radford Hope, IC)
Pressure from solicitor is not necessarily wrong if client is being unreasonable... needless to say, my advice is usually fairly robust!
(Leo, senior partner, Radcliffe and Musk, EM)
The following examples show situations in which the lawyer was giving instructions to the client. Each dialogue is a snippet from a conversation in which the lawyer was persuading the client to change their pleas to guilty. Both clients were reluctant but each lawyer was insistent. The clients eventually agreed to plead guilty, though without admitting to the lawyer that they had done the acts they were charged with:
[Client] No, I'm staying not guilty, Leo.
[Lawyer] Well, it's your choice. But you really have to choose to plead. There's no way you'd win a trial.
[Client] I want to give it a go, though, isn't it?
[Lawyer] Listen to me, just plead guilty.
(Travis Birt, client, and Leo, senior partner, Radcliffe and Musk, OR)
[Client] I want to say not guilty. I didn't take anything.
[Lawyer] Right, look, you need to stop messing about. Just put your hands up to it. [Client] But, I didn't.
[Lawyer] I'm reading it, and it says to me that you did it. That's what anyone would think who saw it. It's what they'll think in there. You might as well just admit it.
(Callum Ferguson, client, and Bob, solicitor, Radford Hope, OR)
The role of the lawyer in my study, then, should be seen to have extended beyond giving advice. They exerted a greater influence, appearing to overstep the role traditionally ascribed to them; sometimes the lawyer decided the direction of the case.