Reflections On Ethical Considerations For Counsel In The Preparation Of The Defence In A Criminal Case

I Introduction

Much of the ethical guidance in the Law Society of Ontario Rules of Professional Conduct, focuses on particular ethical issues which have received much attention in the literature. These issues have included such matters as the lawyer's duty when the accused admits the factual and mental elements necessary to constitute the offence, and what the lawyer's duty is when the accused declares that he intends to take the stand and to lie.

While these discussions are helpful, they provide little guidance to the practising lawyer on the approach which should be taken to the more usual ethical challenges faced by defence counsel, with respect to:

the manner of interviewing the accused, the use of Crown disclosure by the accused in preparing a defence, the provision of legal advice by counsel to the accused with respect to possible defences, the extent to which counsel, or the accused, control the conduct of the defence, and the proper role of the defence counsel in advising an accused who is committed to an implausible version of the facts which lacks support in the evidence and appears doomed to fail. In this article I have attempted to summarize the various ethical principles which govern the defence counsel's conduct, and to provide, for the reader's consideration, a particular approach to the preparation of the defence which endeavours to satisfy the various ethical constraints upon the defence, while assuring the greatest likelihood of success in conducting the defence.

II The Governing Ethical Rules in the Law Society of Ontario Rules of Professional Conduct

The ethical rules governing the defence may be summarized as follows: Rule 5.1-1 provides that when acting as an advocate, a lawyer "shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect." Rule 3.2-7 states that a lawyer shall not a) "knowingly assist in or encourage any dishonestly, fraud, crime or illegal conduct"; b) "do or omit to do anything that the lawyer ought to know assists in, encourages or facilitates any dishonesty, fraud, crime, or illegal conduct by a client or any other person"; or, c) "advise a client or any other person on how to violate the law and avoid punishment". Rule 3.7-7(b) requires that a lawyer withdraw from representing a client if the client's instructions require the lawyer to act contrary to the Rules of Professional Conduct or by-laws under the Law Society Act, "subject to the rules about criminal proceedings and the direction of the tribunal". Pursuant to the commentary under Rule 5.1-1 "admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this". The rule provides that "if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false". Similarly, the lawyer may not "set up an affirmative case inconsistent with such admissions" such as by calling evidence in support of an alibi inconsistent with the accused's admission. When the accused has admitted the factual and mental elements of the crime the lawyer is entitled to "test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that". Rule 5.1-2 requires that a lawyer shall not "knowingly assist or permit the client to do anything the lawyer considers to be dishonest or dishonourable,1 knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law ... suppressing what ought to be disclosed, or otherwise assisting in a fraud, crime or illegal conduct,2 or knowingly permit a witness or party to be presented in a false or misleading way..." .3 Rule 3.2-2 provides that "when advising clients, a lawyer shall be honest and candid".4 The accused is entitled to review, and make proper use of, Crown disclosure and it is impermissible for the Crown to suggest that the accused's evidence is unreliable on the grounds that, prior to testifying, the accused had the opportunity to review all of the evidence against him.5

In practical terms, what is the best way for the defence counsel to approach the interview of the client, and the gathering of information to prepare a defence in a manner which complies with all of the above Rules of Professional Conduct? How does the lawyer comply with the obligation to provide candid legal advice to the client, without knowingly or unknowingly assisting an unscrupulous client to concoct a contrived defence based on the lawyer's legal advice?

It is the thesis of this article that, when properly approached, the lawyer can ensure that the factual defences available to the accused are fully and properly explored, in such a manner that they are most likely true (and therefore able to withstand attack if the accused testifies), do not result in a court being factually misled by a client who testifies, and therefore will result in the best possible chance of an affirmative defence that is led by the client resulting in his acquittal.

III When should the Client Be Interviewed – Before or After Disclosure is Received?

Although it is now almost 50 years old, some of the best advice on how to approach the defence of a criminal case is found in the 1969 Law Society of Upper Canada Special Lectures including the article "Preparation for Trial" by G. Arthur Martin. Mr. Martin emphasizes the importance of the client as the initial source of information in preparing a defence, even if some aspects of the client's position may be, at first blush, unlikely or suspect. As Mr. Martin states:

"I am old fashioned enough to believe that in a criminal case the client is an important, perhaps the most important, source of information. Sometimes he will tell you things that are not true. Sometimes the information he gives you will cause you to waste your time and strength in searching for non-existent witnesses. Even so, your time has not been entirely wasted and even the knowledge of your client, so acquired, all forms part of the total picture you have at the end of your pre-trial preparation.

Notwithstanding so many years spent in defending criminal cases I am still, at heart, a believer. I happen to believe that there are more innocent people charged with crimes than is commonly supposed. I have heard many unlikely stories in my time. Some of them, surprisingly turned out to be true.

When I first talk to the client I let him tell me everything he thinks is important. The story as it comes to you in the first instance is likely to be rambling, disjointed, and full of irrelevant detail. You have to assemble this information as best you can and supplement it by his answers to the questions you put to him based on such knowledge as you have about the case at the time. ....

Later on, when you have arrived at a stage of the proceedings, usually after the preliminary hearing, when your knowledge of the case is fairly complete, you should take a detailed statement from your client. Since you now have a much greater knowledge of the case you will want in a statement to obtain his explanation for certain events, conversations, and perhaps his failure to do certain things".6

Although Mr.Martin expressed this view at a time that pre-dates the extensive disclosure received pursuant to R. v. Stinchcombe, the wisdom in this approach, I believe, is in showing the client right from the beginning that you...