Outcomes - Control and Choice

In this discussion, it has been shown that lawyers were able to exert great influence over clients and the decisions made in cases. This went beyond their traditional role of providing advice, as lawyers appeared to give the instructions that are supposedly the domain of clients.

Two divergent images emerged from each of the opening sections of this chapter. In the interviews, many lawyers claimed to give voice to clients, while the partici­pant observation showed most speaking over the clients. The choices I witnessed, then, owed more to the direction of the lawyers than the clients. Their claims to the contrary might be considered the deception or fantasy ascribed in previous chap­ters, as the reality was that clients seemed to be controlled. This is a powerful supposition that demands further consideration.

In so doing, it is perhaps useful to turn to Habermas (1999: 88-89) and his ‘ideal speech situation'. This device plays a central role in his early philosophy and his attempts to develop an understanding of social interactions. It presents a model by which only reciprocity and communication can provide for a genuine discussion. This idea is premised upon principles of truthfulness, legitimacy, mutual under­standing and, perhaps most significantly, the right to speak. As such, Habermas (1999: 89) states that the following rules must apply to achieve ideal speech:

1. Every subject with the competence to speak and act is allowed to take part in a discourse.

2a Everyone is allowed to question any assertion whatever.

2b. Everyone is allowed to introduce any assertion whatever into the discourse.

2c. Everyone is allowed to express his attitudes, desires and needs.

3. No speaker may be prevented, by internal or external coercion, from exercising his rights as laid down in (1) and (2).

If each of these points is met then there will be a free dialogue. There would be no fear of coercion, and any discrepancies in power, prestige or confidence has no bearing. Free speech allows a true consensus to be reached. Were this discussion to simply draw on my formal interview data, the lawyers might have successfully argued for their achieving this ideal speech situation through activating numbers one and two. However, that would not tally with my experience from the partici­pant observation, where lawyers regularly breached the prohibition set out in num­ber three. Overall, then, there was a situation that appeared far from ideal.

However, it should be noted that the ideal speech situation is a concept rife with problems. That ideal might never exist. It has been shown that there will always be gaps in any ideal speech situation, gaps that allow coercion to operate (Flyvberg, 1998: 215-19). For Rae (1975: 1293-94), the idea that such consensus could ever be reached was misplaced; if a decision had to be made, there was always an implicit threat that this might be carried out were consensus not reached. As such, McGann (2005: 4-9) posits that the ideal speech situation and its vision of consensus are logi­cally impossible. Further, society can be considered filled with individually struc­tured ‘fields', each bounded by their own rules and thereon possessed of particular conceptions of what constitutes legitimate opinion (Bourdieu and Wacquant, 1992: 94-100). Within these fields, there will always be experts and those expected to defer to them.

It might, then, be considered natural, even inherent, that lawyers should shape the choice for their clients. Research conducted four decades ago leads Carlen (1974: 101-03) to observe that the Magistrates' Court develops ‘remedial routines for the maintenance of control' as the criminal justice system uses situational rules to manage what defendants said.

However, her research took place when working class clients represented a dis­tinct minority, and she acknowledges that this group might be more vulnerable and contradict her conclusions. So it is that McConville et al (1994: 130) contest her supposition, stating that their subsequent research ‘gives little support to the con­ception of lawyers as altruistic professionals giving effect to the wishes of autono­mous clients or... translating the needs of clients into the meta-language of the law'. Lawyers, rather, can be seen as ‘stealing conflicts, taking the wants of clients and setting them aside if they deviate from their own (Christie, 1977: 4). A mediated choice is scant little choice at all if it entails lawyers denying clients a vocabulary of their own. In this way, clients in my research were silenced and lawyers able to take advantage of them. All of this enabled lawyers to work primarily for themselves and not for the clients.

It is in these circumstances that many lawyers could follow a tactic such as the ‘coded’ bail application. It was more difficult for lawyers to persuade clients against bail applications than it was not guilty pleas, and there was a lot less work required in a speech than in a trial.

McGrath [client] is on my back and moaning. He wants me to make a bail application, and it’s hopeless. Luckily, it’s Judge-in-Chambers, and the client isn’t present, so I’ve written a coded application. Make sure the judge knows I’m only doing it because the client is pushing me so much. You can’t really do it in the Magistrates’ Court with the client there, but I will in front of a judge. Just so he knows I’m not a complete dickhead.

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

[Lawyer One] Can I say: ‘I am instructed’? So they know I don’t mean it.

[Lawyer Two] No! You can’t be that obvious.

[Lawyer One] But I don’t want to do it, it’s hopeless. She won’t listen though. I won’t make it too obvious - I just don’t want to look like an idiot.

(Laura, solicitor, and Nadine, partner, Swining MacSage, OR)

These were, then, bail applications crafted for the lawyers’ needs rather than those of the clients; they served the dual purpose of saving face while maintaining busi­ness. A similar situation can be seen when some lawyers used unpromising trials as a chance to practise their skills. These lawyers did not feel the need to try, simply using the speeches and cross-examinations as a form of exercise, as described by lawyers from Sausage Factory and Radical firms respectively:

It was fun, it didn’t matter, he was probably going to get convicted, so I could let go a bit. It was good practice, that’s why they give you trials that don’t matter when you’re starting out, so you can make your mistakes there.

(Laura, solicitor, Swining MacSage, IC)

When there’s no pressure on a case, you can relax, and have some fun. It’s when there’s a case that you’ve actually got a chance of winning, where they might expect a result, that’s when you feel pressure. When it’s a hopeless case, you can just enjoy. It doesn’t matter if you lose a hopeless case.

(Leland, solicitor, Radford Hope, IC)

Each of these instances conveys the potential that lawyers had to abuse the trust placed in them.

It has been noted by Galanter (2005: 3-15) that those who must deal with the legal profession are often left wary; there is a lay perception that lawyers can get away with whatever they like. He suggests that lawyer jokes constitute a safe means to vent frustrations, without fear of recrimination from this influential group. Building on this base of distrust and ill-favour, Murphy (2009) offers a means to conceptualise client experiences by dint of a power and control wheel. This is one of numerous adaptations of the original power and control wheels developed for domestic abuse, known as Duluth models (see Pope and Ferraro, 2006). A warning has been issued by Dutton and Corvo (2006: 477-79), cautioning that these wheels can be misused to narrow-mindedly ignore wider, sociological issues in favour of focusing on the acts of abuse itself. However, these authors acknowledge that these wheels do form a vital starting point for debate, as a means to highlight problems not yet popularly accepted. In application to the lawyer-client relationship, the wheel posits that the control lawyers could wield as a result of the imbalance of power between them and their clients can constitute a form of psychological abuse. From this perspective, lawyers did not simply abuse trust but, in a grimly real sense, they abused their clients. Various strategies that were witnessed in the participant observation would be construed as client abuse under Murphy's (2009) wheel. These encompass factors from the preceding chapters on attitudes and behaviour as well as the present one on outcomes, including: acting like the boss; making the big decisions; playing mind games; using vague, ambiguous and ineffective lan­guage; exaggerating the harmful outcomes to the client; pressuring the client to accept a plea deal, and; ignoring client's instructions, decisions and best interests.

By focusing on outcomes - particularly the question of choice - we are able to see that the lawyer-client relationship could be figuratively, even literally, described as an abusive one. In process as in outcomes, this research has cast a negative light over these lawyers and access to justice. In the final chapter, I move to summarise what has been seen and reflect on the wider implications this may hold.