Clients’ Choice
An informed client, then, was deemed able to make a choice - within certain parameters - as to the direction in which their case proceeded. As such, 31 out of 35 lawyers described how choice rested with the client.
Lawyers prepared clients so that they could properly make this choice, as evinced by the following quotes:Our job is to advise on the options open - at the end of the day it's up to the client which course of action he takes, we simply allow them to make that choice. You could say we are officers of the court - that sounds very grand.
(Jerry, Crown Court clerk, Swining MacSage, INT) Whether they choose to take your advice or not is up to them. You have to make sure they are making informed decisions, so you advise them. You advise them ofthe consequences of the various options that might be available to them; you never make a decision for them.
(Eileen, solicitor, Radcliffe and Musk, INT) Lawyers from all firms were adamant that, in fulfilling this duty, they provided nothing stronger than advice. They were attuned to accusations of their exerting a greater influence but did not see validity in this course of questioning. The lack of response it elicited made me feel increasingly awkward in pursuing this topic as the course of the interviews went on. As a result, the most demonstrative discussions were with those working in the firm that was my initial interview site, Radclijfe and Musk. That said, a majority of lawyers from all firms - 23 out of the 35 - presented views to the effect that they did not push a client to plead guilty, albeit that most put the point tersely. Some of the more effusive denials can be seen in these examples:
I’ve not come across lawyers pushing their clients. There might be people that are doing it, but no that’s not something I’ve really come across here, I don’t think. I have advised people of the strength of the evidence, and on the credit that they’d get for a guilty plea, but I also think that you can get yourself into quite dangerous territory if you start telling people to plead guilty to things that they haven’t done.
(Ronette, solicitor, Radcliffe and Musk, INT)
The way I present the case to them will leave them in no doubt as to what my favourite choice is and I will also say: ‘Look, you have got to be realistic, it’s got to be your decision, it’s your case; it’s your ass on the line’. And I quite often use that line with clients and say: ‘It is your decision; you tell me what you want me to do’. Even if I don’t think that’s the right way to go.
(Leo, senior partner, Radcliffe and Musk, INT) I don’t see lawyers dominating clients. Not for me, personally, no. I always think it’s important to allow clients to understand that my job is to advise them, not tell them what to do. I advise them what might be the best course but I make it very clear that any decision is their own and I’m only there to facilitate them understanding what they’re doing. I just don’t feel it’s a situation where we should dominate the client.
(Teresa, solicitor, Radcliffe and Musk, INT) Several lawyers went on to emphasise how they would put the prosecution to proof if this is what the client wanted, even when they did not believe this to be in what they deemed to be the latter's best interests. These lawyers explained that, in such circumstances, they had discharged their professional responsibility by ensuring that the clients had made an informed choice:
There will be some where you really feel that it’s not in their interest to pursue this and they are going to end up in far more trouble at the end of it because of their inability to face up to their problems. But, I think, if you are doing your job properly you say that, ‘well if you want to fight this that’s fine, as long as you’re aware’. Your job is to make them aware of the consequences but it’s their choice. And if you have to go to a trial where you know they are going to be found guilty, that’s what you do because it’s down to them not to you. It’s their life and their case.
(Shelly, solicitor, Radcliffe and Musk, INT)
We shouldn’t ever try to influence them unduly - you have to give clients advice, and clients have to understand that if evidence is very strong against them.
And they have to be advised on credit for a guilty plea, for example. But, at the end ofthe day, you just have to act on their instructions, so people that say they are not guilty despite overwhelming evidence still ought to have a trial. I think, most of the time, we just do what the client instructs us to do.(Ronette, solicitor, Radcliffe and Musk, INT)
With the client apparently given the choice, lawyers were thereon tasked with ensuring that they had the opportunity to progress in the direction they wanted. In order to allow this, lawyers had to mediate with other individuals involved in the criminal justice system, including the agents of the prosecution.
Prosecutors
Some lawyers asserted that most clients wanted to plead guilty, especially after being advised of their position. Though just under half made no comment about this issue, some 21 out of 35 lawyers, from all firms, described this as the reality of the situation, as reflected in this quote:
When you think of a criminal solicitor you just think of people who don’t ever accept anything. And certainly all my friends always think that everything is contested and everything always results in a trial. Whereas, actually, probably 95 per cent of the cases end up as guilty pleas.
(Annie, solicitor, Radcliffe and Musk, INT)
In these circumstances, some lawyers explained that the client’s choice was only infrequently concerned with finding grounds to contest a charge. It was said to be more likely that this involved finding an acceptable basis on which to plead guilty. This entailed the lawyers negotiating with the prosecution, and engaging in some manner of plea bargaining. While many seemed uncomfortable discussing this, around two-thirds of lawyers from across the firms - 24 out of the 35 interviewed - highlighted bargaining as a significant feature of their practice. This is depicted in the following quotes:
I think there are times when plea bargaining is the most sensible course for all concerned.
You are looking at a way to resolve it in the best possible way for the client, but that probably means that there's some scope for negotiation rather than necessarily pushing everything to trial and arguing. Because, quite often in trials, you end up with everything coming out which can be terrible for the defendant. Whereas, ifyou can agree that they just accept x, y and z and it's just read out in very short pithy terms, it can be much better.(Shelly, solicitor, Radcliffe and Musk, INT)
If you walk in with an attitude that it's ‘them and us' then it's going to go nowhere.
I've seen it in the past. If you've got a hostile relationship with a police officer it's going to get you nowhere. I certainly know that you can strike better deals with officers... Negotiation is very important. I think a good relationship with police officers is very important because, if you're hostile, it's going to affect the result you get for your client. Most clients are sensible enough to see that, in fairness - it's just the odd one or two who complain! If a client ever questions that, I have to say: ‘Look, if I didn't get on with these officers I wouldn't have half the information in this case that I have got'.
(Maddie, police station clerk, Radcliffe and Musk, INT)
In this vein, 30 out of 35 lawyers stressed the importance of their relationship with the prosecutor, as can be seen in the following:
I think it's very important. I think that often, some defence solicitors and some prosecutors forget what our roles are. Some defence solicitors think that our role is to ‘get people off, so to speak, some prosecutors think it's about getting convictions. That's not how I see it; I see my role as being there to protect my client's legal interests. The majority of prosecutors respond very well if you go and speak to them one-on-one. If you speak to them one-on-one then you develop a relationship. Often you can try to negotiate so, even on cases which seem lost, you can sometimes get surprising results.
(Laura, solicitor, Swining MacSage, INT)
You do have to get on together; solicitors should try to work with the prosecutors. They're not the enemy. Defence solicitors would be stupid to act like they were. It would only harm their client's case and reduce their chances of making an acceptable deal.
(Harry, solicitor, Radford Hope, INT)
It's good to get on with the prosecutors and you do notice if you get a good relationship with particular prosecutors then it is easier to negotiate things with them. There are some prosecutors that just aren't approachable and that you just can't really negotiate with and that's awful because that doesn't really benefit the client either.
(Ronette, solicitor, Radcliffe and Musk, INT)
These good relations with the prosecution were claimed as crucial in allowing clients to follow the course they chose. Indeed, many lawyers suggested that they fostered such relations for the benefit of the client.
When it came to outcomes, then, these lawyers described a healthy lawyer-client relationship. Lawyers from all firms claimed that they worked to give voice to their clients, to allow them to make informed choices. Even good relations with prosecutors - though some clients found them objectionable - were said to function for the clients. However, a different perspective is offered in the following section, which presents data from the participant observation.
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