Blaming over-zealous police or irresponsible prosecutors for miscarriages of justice makes for a simple and straightforward narrative, writes Daniel Newman. As with most things, though, the reality is more complicated, and defence lawyers may also have a role to play. This being the case, the neat binary opposition we so rely on in criminal justice is somewhat obscured.
For those of a left-liberal bent keen to enforce due process values, we cannot simply take the side of the defence against the prosecution. We must detach the lawyer from their client and stand up for those suspected and accused of crimes by supporting their pursuit of justice from all practitioners. However, this separation is not a simple fissure to achieve because the defendant and their representation are intrinsically entangled together.
In the criminal justice system, defendants are largely rendered dependant upon lawyers – it is an inherently alienating institution. The criminal process presents a self-referential system, with an array of specific hearings, complex procedural rules and arcane language, quite detached from the real world. Defendants become dummy players in the course of doing criminal justice; discouraged from active participation, they are effectively silenced through their lack of understanding as to what is happening to them. In these circumstances, defendants are definitively established as clients – reliant upon lawyers.
Access to justice, then, becomes access to lawyers, usually provided by legal aid – so, in essence, the production of justice can be reduced to the lawyer-client relationship. Clients, and society, must trust that these lawyers will show commitment to their clients, pursuing active defence to put their interests first.
Less remuneration, less justice
If lawyers are simply going through the motions, offering an altogether more passive defence, they act to deny rather than facilitate justice. Sadly, it is this negative view of lawyers that my recent empirical research highlighted.
I conducted a year-long ethnographic study to investigate the everyday reality of the lawyer-client relationship with three criminal defence firms working in and around the Magistrates’ Court of a large English city.
Though I attempted to select firms with a radical reputation for client-centeredness, they presented a practice that was anything but. I was subject to an unending barrage of critical comments about clients, poking fun at their supposed lack of intelligence, questioning the moral fortitude of their perceived class and routinely assuming factual guilt.
These bad attitudes transmitted into behaviour. Lawyers devoted as little time as possible to their clients’ cases, talking over them and cutting short their stories, regularly pushing them toward early guilty pleas and sabotaging those that got through to trial by neglecting to properly prepare. At one time or another, every lawyer displayed such an approach. They showed me a fundamentally lawyer-centred practice.
According to the lawyers themselves, declining legal aid revenue was to blame. Contemporary Britain can be increasingly characterised by an ideology of consumerism – the market is all. This is reflected by governments of left and right pursuing neo-liberal policies, subjecting welfare to the vagaries of the profit motive. Under this commodification of state provision, public services are reduced to the status of products to be bought and sold. This means that obligations of the state to care for the common good of its citizenry are challenged as they are exposed to the full force of capitalism and the drive to reduce prices by delivering standardised products that can be quickly, cheaply and routinely dispensed to a mass of consumers.
The result has been a widespread restructuring of this branch of the profession and an orientation away from rather old-fashioned notions of service, firms that prioritise the client, toward a factory model, which passes clients along a mass-production assembly line.
The move to fixed fees, and the decline in real terms of the level of these fees (with loss of attendant extras, such as waiting at police stations) can be directly implicated in a process whereby lawyers coming to treat clients as sausage meat to be processed. Lawyers feel they need to act this way in order to survive.
There is certainly some veracity in this line, as lawyers are placed into circumstances of moral ambiguity. Some options might serve the client but lose the lawyer money while others could claw the lawyer some money back but not be in the clients’ best interests, meaning lawyers are forced into making choices – whether or not they are fully conscious of such dilemmas.
As a result, when lawyers become disincentivised by reduced funding for their work, they are actively induced to provide a different, lesser product. On one level then, access to justice could be improved by improving remuneration, increasing the reward lawyers receive for their various inputs of time and effort, thus encouraging more. This is certainly the Law Society’s solution for overcoming the current malaise; they suggest that present contracts are not fit for purpose and should be reassessed by an independent pay review body.
At the same time, singling out legal aid may provide too easy an answer. We are regularly reminded that these lawyers preside over the largest legal aid bill in history and, despite lagging behind their professional brethren in other areas of law, still earn more than the average wage many strive for.
Beyond this, more money cannot automatically be assumed to herald an upturn in standards in and of itself. While lesser remuneration might precipitate ever-greater declines in the service provided, it is possible that improving the situation will take more than financial reward.
As professionals engaged by the state to protect the rights of its citizens, criminal legal aid lawyers lay claim to a moralistic notion of public service. This involves a principled commitment to serve society, accepting a responsibility that extends beyond their immediate clients. The professional is supposed to pertain to Pythagorean standards, eschewing any connection between work and wealth, occupying a privileged position above the pettiness of the class systems and the division of labour that taints the masses.
While fully realising that ideal is, of course, unrealistic in the face of cold, hard reality, it is still within such grand values that those of us arguing for justice try to frame the debate. More so, it is the imagery that such lawyers often appeal to in attempting to justify themselves.
To whatever degree is realistic then, these lawyers should not allow financial matters to push them to mistreat and neglect their clients; their role is to resist such pressures as much as possible in the name of justice. However, I have seen with my own eyes that they do not always so this – in fact, it was a miniscule exception to the norm if it did occur at all. When the profit motive is induced, they lose their moral compass and values shift away from those we expect and should demand.
Has reduced remuneration cause this moral decline? Has it actually just exacerbated an underlying trend? Or, has it merely acted as a justification for something knowingly unacceptable? I would suggest that there is most likely a circular relationship between diminished funding and sullied morals. Regardless of which came first, my suggestion for improving the situation would be the same: increase and enhance ethical training for such lawyers. Those lawyers who would be funded by the state to uphold the most fundamental principles of justice must spend more time reflecting on the meaning of their practice, exploring its social significance.
This may involve rewriting an organisational culture that has come to legitimise the sustaining of unpleasant attitudes and behaviour in the name of necessity – a means to an end in ensuring that the profession can still do some good despite structural opposition. The vague pleasantries found in professional remits including items such as public service commitment, integrity and fairness currently act but to retain the privileged position of these lawyers and exempt them from responsibility. Values are detached from what they should represent, empty in practical terms; relegated to a theoretical argument by which to preserve the status quo.
A mirror to the profession
Any discussion of realigning the values of practitioner, then, must move beyond the syllabuses of law schools or the strictures of professional bodies. There is a need to overcome a narrow and positivistic legal education that develops a managerialist outlook, under which it is natural to elevate the tangible facts of profits above the fleeting experiences of clients. In these circumstances, ethics become functional rather than moralistic; a tick-box activity which simply equates them to compliance with professional codes. Law schools might better integrate themselves in the local community, fostering face-to-face relationships with those they would serve. Talk of an annual legal MOT for those in practice need to be made to include an element of client relations – forcing lawyers to engage with feedback from some of those they have represented. Legal ethics must be made into a living, breathing concern and, in so doing, the essentially aspirational quality of their content can be drawn out.
To these ends, research such as my own should function as reflexive learning, holding up a mirror to the profession.
On seeing the disgraceful way that clients can be treated, lawyers must question their own practice. If they genuinely do not see themselves in such a portrayal, the onus falls on them to support their colleagues because those that do recognise their practice require ethical renewal. The profession is supposed to be a vocation, not just a job.
As a calling, such lawyers should spend less time passing the buck and more taking responsibility for their own actions.