Control

The notion that lawyers persuade clients to plead guilty has become a prominent concern of socio-legal literature addressing the lawyer-client relationship. Indeed, Mulcahy (1994: 411) suggests that, ‘few aspects of the criminal justice system have generated more controversy than plea negotiations...

control; an imbalance of power allows lawyers to dominate clients. That thesis forms the backbone of much sociological enquiry into the professions generally. In this manner, Johnson (1972: 45) suggests that the professions are premised upon defining both the needs of the consumer and how those needs should be met. Similarly, for Hughes (1958: 79) professionals can be identified seeking to ‘presume to tell society what is good and right for the individual and for society at large in some aspect of life... set the very terms in which people may think about this aspect of life'. Professionals hold a monopoly of specialist knowledge, which ensures their hierarchical superiority over those clients dependent on their services. With this consideration in mind, White (1990: 861) looks at lawyers, in particular, and con­templates the origins of the word client, highlighting that it derives from the Latin cluere - to be named, to hear oneself named. Ancient Rome saw those under the patronage of patricians labelled clientem; they were known by the names of their patron. This perspective duly informs her understanding of the lawyer-client rela­tionship; the former can subordinate the latter, with lawyers substituting clients' interests with their own.

This situation has well been documented with regard to divorce lawyers. For Mather at al (1995: 306-07), clients are reduced to the status of passengers. Their study is premised upon lawyers' reports of their dealings with clients, positioning the lawyers as taxi drivers who choose the route along which they take their fare.

A pair of ethnographic studies into legal aid lawyers more generally presents similar sentiments: lawyers rarely ask clients what they want to do. In Israel, Bogoch and Danet (1984: 270) find lawyers reluctant to listen sympathetically to clients' stories, repeatedly challenging their version of events. These authors suggest that lawyers' interests are pitted against those of the clients, as the former use language to control the latter's presentation of cases. A similar process is outlined by Hostika (1979: 607) with regard to the situation in the United States:

The general picture that emerges from this analysis is one of lawyer control over the pro­cess of interaction, reflected in control over the definition of the situation; that is, the description ofwhat happened, the evaluation ofwhat ought to happen, and the prescrip­tion of what is going to happen.

As such, clients' problems become routinised, stereotyped into standard defini­tions of maximum convenience to lawyers. This echoes research into the criminal process wherein Cunningham (1991-92: 1299) describes lawyers as ‘oppressors', silencing those below them, engaged in the routine domination of clients. In Carlen's (1976: 91-92) assessment of the Magistrates' Courts, their central purpose is to maintain social control, treating those who pass through them with neither humanity nor justice, presenting ‘a secretive, collusive but creative information game whose rules were forever being adapted to further the interests of the profes­sional contestants'.

It is in these circumstances that Worrall (1990: 22) is able to claim that clients' feelings and emotions are objectified by lawyers who bestow upon them a mere ‘unitary value' as a ‘privileged discourse is constructed from the broken utterances of the powerless'. Based on her interviews with female offenders, it appears that lawyers are able to make decisions for clients, controlling the direction a case takes in the criminal process. This has been demonstrated as a widespread phenomenon in the research conducted by Baldwin and McConville (1977: 83-100). Many of the Crown Court defendants they talked to did not perceive themselves to be genuine parties in the decision-making process, feeling estranged from the lawyer who was supposedly representing them. In the majority of cases involving late guilty pleas, Baldwin and McConville (1977: 45) identify pressure from lawyers as a major influ­ence behind the change and, in a large number of these examples, they claim ‘evi­dence that the advice counsel gave was of such a nature that no reasonable person could say that it was fair or proper that the final decision to plead guilty was made voluntarily'.

This ‘routine dependence' on guilty pleas in the criminal courts is explored by McConville et al (1994: 182-210) who largely attribute them to the earlier cited presumption of guilt lawyers adhere to.

Globalisation has seemingly transported these values, as we witness something akin to the Americanisation of legal jurisdictions around the world. Indeed, Mulcahy (1994: 426) highlights the trend to be present in this country, with lawyers more closely allied to the prosecutor than their client. When discussing plea bar­gains, Mulcahy (1994: 412) suggests that, ‘legal practitioners involved in these negotiations are more concerned with punishing the guilty than with safeguarding defendants rights... these representations represent common attitudes and a co­operative ethos among local practitioners’. His fieldwork was reported in 1994. Conducted some 15 years later, my own research confirms that this trend has con­tinued, notwithstanding the efforts that have been made in the interim to promote active defence such as introducing the police station accreditation scheme (see Edwards, 2008). My own research also found that guilty pleas are favoured for financial reasons. In the preceding chapters, lawyers claimed that increasingly restrictive legal aid remuneration placed economic pressures on them. Under fixed fees, a guilty plea meant they were paid the same for a single court appearance as for a handful. Accordingly, it was most profitable for them to conclude cases quickly when most were terminated by a guilty plea anyway.

Of course, now we don’t get paid for travelling and waiting we have to make sure we recoup our costs somehow, so we have to get through as many cases as quickly as we can.

(Harold, partner, Radford Hope, IC)

As a result of the changes the government have made to legal aid, we have got to, really, make sure that we get in and out of the case as quickly as possible.

(Ed, senior partner, Swining MacSage, IC)

It pays to have someone who can just deal with guilty pleas, so we have Donna [solicitor] who can just churn them out. That’s how you make the money.

(Leo, senior partner, Radcliffe and Musk, IC)

In addition, this factor was alluded to by a handful of the lawyers in the formal interviews, as evident from the following:

Obviously if we can get a case dealt with quickly, then that can be advantageous and I don’t think that we generally want to adjourn cases as we will rack up costs. Because we are on a fixed fee and it doesn’t really matter whether it’s, say, three hearings or four hear­ings; we get paid the same.

(Thomas, partner, Swining MacSage, INT)

Ofcourse, it’s an advantage to get things dealt with quickly, particularly in the Magistrates’ Court. You have to be happy ifyou can conclude a case early as those are the ones you can make money on. It’s the cases that drag on, going nowhere, where clients can, perhaps, be seen to be messing around, which you want to nip in the bud.

(Ben, partner, Radcliffe and Musk, INT)

I do feel under pressure to cut corners, we all do in this line of business now. That’s accepted... Solicitors are turning up at court regularly and carving everything up, because it’s not in their interest to take things to trial because, with the limited resources they have within their firm, it’s far more expedient to get people to plead and move on to something else.

(Jerry, police station clerk, Swining MacSage, INT)

Some lawyers were willing to use the clients to achieve their own ends. In reporting the most common complaints made by clients against lawyers, Gibb (2007) has located this aspect at the forefront, as clients ‘feel alienated by jargon and frustrated at their levels of control’.

A solicitor from Radcliffe and Musk, Eileen, recognised this as a bone of conten­tion in her interview:

One of the biggest complaints you will ever get from clients, is the feeling that: one, they are not being listened to; two, they are being brow-beaten into making a particular deci­sion, and; three, that it wasn’t explained to them, they didn’t understand.

(Eileen, solicitor, Radcliffe and Musk, INT)

In this research, I did not discuss with lawyers whether I could talk to their clients and, as such, it would have been wrong of me to question them. However, I was often left alone with clients and allowed them to lead conversations. This involved occasions when lawyers had persuaded them to plead guilty and they shared with me their disgruntlement. In the following examples, the lawyers from Sausage Factory and Radical firms respectively had gone out to finalise the terms of a deal with the prosecutor:

The thing is, they’re lying. And I have to plead guilty to something that’s a lie. It’s not fair.

(Jason Gillespie, client, Swining MacSage, IC)

I hate this. This is how it is. You know I’m telling the truth right? But I have to pretend, just go with them. It’s shit, mate, sorry to say.

(Doug Bollinger, client, Radford Hope, IC)

There was also one memorable occasion in which a Swining MacSage partner, Thomas, had been attempting to persuade a client to plead guilty to criminal dam­age. The client had been resistant, but Thomas was persistent and thought he had convinced the client. However, when the clerk asked for the client’s pleas and Thomas said ‘guilty’, the angry client retorted:

Mate, you’re sacked. I’d rather represent myself. You don’t listen to me. Not guilty! I did not do it!

(Adam Voges, client, Swining MacSage, OR)

The participant observation data in this research, then, reiterates that which has characterised much of the existing socio-legal literature: lawyers had extended their role beyond giving advice. I interpreted the practices I saw as a form of domination.