Guilty and/or Not Guilty

Cracked trials ... Last minute change of plea from guilty to not guilty ... Consequences for the financial interests of lawyers ... Judges know about lawyers' financially driven shenanigans, but they keep shtum ... Tulkinghorn on how the system is mulcted 

Former Justice Michael Kirby: tactfully did not mention judges who preferred to punish the client, rather than the lawyer

IN 2011 former High Court Justice Michael Kirby said: 

"Most Australians, and certainly most lawyers, believe that corruption in the sense of taking financial bribes, is a rare phenomenon in this country, certainly in the judiciary." 

Australian judicial corruption is far more subtle than taking bribes.

It originates in the close links between bench and bar, that are a feature of the adversarial system. Judges tend to support lawyer financial interests at the expense of client interests.

If questionable behaviour is detected by the public, the judiciary can always maintain that it is up to legal services commissioners or law societies or bar associations or disciplinary tribunals to do something about it. 

Whether the tendency is getting better or worse is a moot point, and unlikely to be the subject of many learned legal dissertations.

Kirbs himself said in 1996:

"Virtually every second Monday in the Court of Appeal, in motions, I saw shocking cases of practitioner neglect which, in my own youth, would have been brusquely refused relief. My usual solution was to provide relief, but to refer the papers to the professional body and order the practitioner, not the party, to pay the costs. Rarely, if ever, did it seem appropriate to punish the client." 

Kirbs tactfully did not supply a list of judges who did. 

In the criminal courts our judges, former practicing lawyers for the most part, know exactly what financially motivated shenanigans the lawyers are getting up to in front of them, but go along with it.

The shenanigans start early on. Prospective lawyers don't want to be officially appointed (as it were) to be a defendant's lawyer until the fee is secured, because getting oneself "unappointed" can be messy and difficult.

On the other hand, there are plenty of hungrier defence lawyer sharks out there who will swipe one's client if given half a chance, whether the fee is yet secured, or not.

If the first lawyer decides to chance it and officially go on the record, then judicial co-operation in adjourning the case until the fee is secured, can be called for. For example:

"An honest older lawyer in the US who rarely did court work wanted a postponement of a case for his  own convenience. He explained why to the prosecutor who said 'That's all right ... you just tell the judge you haven't been able to get hold of your witness Mr Green'.

'But I haven't got a witness Mr Green,' said the lawyer. The prosecutor looked incredulously at the older lawyer's white hairs and said, 'Don't you know? It means you haven't been paid. Any Judge will give you an adjournment on that.'

In Washington DC, in years past, a lawyer still waiting for his fee would come into court and demand an adjournment 'pursuant to Rule 1 of this court'." 

(The Lawyers, by Martin Mayer, published by Harper and Row, 1967.) 

Prof. Tague: barristers never accused of being the cause of "cracked trials" In Australia a (spurious) need to "take further instructions [or] give the client legal advice" may be invoked . 

In the event that the client is legally aided, the situation gets more complex. 

In 2008 in a Melbourne University law review article Guilty Pleas Or Trials: Which Does The Barrister Prefer? Professor Peter W. Tague of the Georgetown University Law Center wrote:

" ... barristers are not saints. They know, for example, how to mulct legal aid to increase their remuneration."

Once again, the judges usually have a fair idea what is going on, but keep quiet.

The worst scenario involves first manipulating the defendant to plead "not guilty", and then manipulating the defendant to plead guilty at the most financially advantageous stage for the lawyers (which will be day one or day two of the trial). 

A "cracked trial" means a case which was scheduled to take several days at least, but which actually finished on the first or second day.

Tague tells us that the term "cracked trial" is not used in Australia, but it is evident that there are plenty of cracked trials here. Tague refers to 2005 statistics, saying:

"Of the reasons for a cracked trial, the most prominent is the defendant's belated guilty plea - this was the reason in 81 per cent of cracked trials in the Crown Court in London, in 15 per cent of cracked trials in the County Court of Victoria,  and in 44 per cent of cracked trials in the District Court of New South Wales." 

Tague adds:

"Studies canvassing the many reasons defendants plead guilty at the last moment never accuse the barrister of being the nefarious cause." 

Victoria's Sentencing Advisory Council issued a report in 2007. Referring to legal aid cases (at page 22) it said:

"Under the current guidelines, the most remunerative course of action for the solicitor and barrister representing a defendant who intends to plead guilty would be to enter a guilty plea on the first or second day of the trial ... Some participants in this inquiry suggested that defendants' plea decisions also might be affected by their legal advisers' financial interest in obtaining the highest remuneration available to them for the matter." 

That description of the "course of action" does not set out its full nefariousness.

The client has to plead "not guilty" in order for the case to be put in the trials basket, then at trial, relatively early on, be made to do a quick turn in the opposite direction.

Real truth or real guilt seems to be a minor consideration in this exercise. And loss of the sentencing discount (because of the late guilty plea) while it might worry the client, won't worry the barrister quite so much.  

The council referred to an English study, which said that barristers put their "financial motivations" to one side when advising on plea.  

"A similar concern prompted a study of the factors taken into consideration by English barristers when advising clients on the plea. The study surveyed London barristers to find out how they 'understand their incentives' when providing advice and concluded not only that many were unaware of the financial consequences for them of a defendant's plea decision, but also that respect for their professional duties and reputation outweighed any financial motivations that they might have had." 

Back in the real world, Tague's article goes into refreshing detai: 

"Finishing a case on a Friday, a barrister plans to use Monday and Tuesday to prepare for a trial of a serious crime with a high basic fee that is set to begin on Wednesday. Late on Friday, the barrister learns that a different solicitor wants to brief them for a two-day trial starting on Monday with a lower basic fee than Wednesday's. Does the barrister accept? Monday's brief will provide an unexpected boost in the barrister's earnings ..."

Tague assumes the barrister takes on the Monday trial with the intention of cracking it. 

"Cracking Monday's trial ... carries only a minor risk of irritating the solicitor. If Monday's defendant was unhappy about pleading guilty, the solicitor would find a way to placate them ... In this setting the barrister, thinking selfishly, knows to take Monday's brief and encourage that defendant to plead guilty, thereby pocketing a cracked trial fee without losing Wednesday's fee."

A related article by Prof. Teague is Guilty Pleas and Barristers' Incentives: Lessons from England. It refers to a study of Birmingham barristers, which found that: 

"In 23 of 151 cases defendants complained, without prompting, about being given 'no alternative' but to plead guilty and that their barrister had 'instructed' or 'ordered' or 'forced' or even on one occasion 'terrorised' them into pleading guilty."  

(See, Georgetown Journal of Legal Ethics, Spring 2007.)

David Byrne: suspicious of lawyers' control in litigation

One could object to the implicit assumption that clients are puppets with lawyers pulling the strings. It is usually, however, a justified assumption that is true in civil cases and criminal ones, given the adversarial structure of both of them.  

"Justice David Byrne QC ... Victoria's long-time deputy chief justice of the Supreme Court ... suspects lawyers take too much control in litigation and 'there's no incentive in our cost structure for lawyers to be more efficient' ... You depend so much on their own integrity that they will not just make a meal of it.'' 

At the moment there is a lot of brouhaha in England about lawyers rorting the legal aid system, with budget  cuts and other reforms being proposed.The judges are siding with the lawyers (of course):

See: Legal aid cuts will lead to more miscarriages of justice, top judges warn 

Harry Mount: cogent

A former barrister, Harry Mount, has drawn the ire of the profession with an article in The Spectator: 

"Take it from a former barrister: Chris Grayling is right to reform legal aid. There's only one problem with Chris Grayling's legal reforms - they don't go far enough." 

Faced with the cogency of Mount's excellent article a couple of legal bigwigs have counter attacked. 

In a video interview accessible the shadow justice secretary Sadiq Khan says: 

"There will now be a perverse incentive for a lawyer to advise his or her client to plead guilty because the amount of moneys they would receive if they plead not guilty will be the same." 

John Cooper QC says that by paying ... 

" ... the same fee whether their client pleads guilty or not guilty now this could lead to an appalling conflict of interest as far as the lawyers are concerned, making it expedient perhaps for a lawyer to advise a client to plead guilty early on so that it reflects better in the profit and loss account."

Put another way: these reforms could cause us to behave as badly as we already do.

With reasoning powers like that, one can see why these two lawyers are bigwigs in the legal world. 

Update on Wednesday, July 17, 2013 by Justinian

From Tulkinghorn, in response to comments (see below): 

If the article "presumes a level of control by barristers over the decision making of clients that rarely if ever exists" then how does one explain the study (referred to in the article) of the clients of Birmingham barristers which saw a lot of the clients (23 out of 151) saying (without prompting) that their barrister had bullied them as to the plea. Those figures created a minor sensation at the time, having been set out in a book.

Professor Tague tried to get the English bar to respond, but it wouldn’t.

Tague says:

"The Bar refused to respond to the author's attempts to learn the barristers' reaction to the defendants’ complaints (citing the lawyer-client privilege) and, disgracefully, tried to block the book’s publication."

There is no reason to assume that Birmingham barristers behave worse than Australian ones. Or is there?

A solution could be to create a requirement that judges take the clients aside and privately ask them if their barrister is pushing them into pleading guilty.

I suspect that the judges and barristers would go apoplectic at that suggestion, but Queensland magistrates have in the past been placed under a duty to check whether the police have pushed defendants into pleading guilty.

See the AIJA website for "Pleading Guilty Issues and Practices" and go to page 141 ...

Perhaps in Australia a law reform commission could conduct a survey of barristers' clients asking "did your barrister push you around on plea?"

Mmmmmmm?