'Mannerly Lawyers'

In his "Case Against Lawyers, Mannerly and Morally" (Opinion, Aug. 9), Fenton Bresler, an English barrister, attacks American lawyers for "identifying" too closely with their clients. If Bresler is typical of other barristers, then his most powerful message is one he did not intend: Do not run afoul of the law in jolly old England, for you surely will not find vigorous legal representation.

Bresler writes that he has twice had clients who admitted their guilt to him but who nonetheless wanted to "escape" conviction. Bresler told both unfortunate souls that he could only represent them if they entered guilty pleas. He hypothesizes that many U.S. lawyers would have tried to "figure out a way to have (the clients) acquitted." I hope so.

A criminal case does not end if a defendant tells his counsel that he "did it." As a former public defender, I represented scores of clients who did the acts with which they were charged. But I was their lawyer, not their judge. I frequently advised defendants to plead guilty. But if a client (even one who "did it") wanted a trial by jury, he got one. The right to a jury trial is guaranteed by our Seventh Amendment. It is not limited to the "innocent."

Bresler would afford jury trials only to those defendants who loudly proclaim their innocence. Yet, cases are often tried with defendants who are ready to acknowledge guilt. We have an adversary system. Sometimes a case will go to trial because the prosecutor has not offered a bargain worth taking. In death penalty cases, for example, there may be no incentive to plead guilty unless the prosecutor offers to remove the possibility of that ultimate penalty.

Most criminal defendants are, in fact, guilty. Bresler's rule would require many defendants to lie to their lawyers just to obtain a trial. Defendants should be encouraged, not discouraged, to disclose facts to their counsel. Not that a confession to a lawyer has no implications. It may mean that a client cannot take the stand and testify at his trial, for no one has a license to present testimony known to be false. But a client's confession does not mean that a lawyer should cross examine the prosecutor's witnesses any less vigorously.

Bresler's "case" contains one encouraging note. He quotes from a best seller, "Anatomy of a Murder," to hint that American lawyers improperly suggest testimony to defendants. Our attorneys must be doing competent and ethical work if the strongest attack upon them is based upon a fictional account written by a former prosecutor.


Clinical Assistant Professor of Law


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