rules-of-court switzerland legal-representation
What can a lawyer do if the client wants to be acquitted of everything despite serious evidence?
<p>Alex the accused has been charged with a series of crimes. The list of charges is long (beating up his wife, speeding while drunk, trafficking...) and for most crimes, the evidence presented by the state attorney is very strong.</p>
<p>Dave the defense attorney, seeing the evidence, suggests his client should follow the &quot;I'm sorry, it will never happen again&quot; strategy to get a small, maybe even suspended sentence. But Alex is very stubborn and sympathizes with the &quot;Reichsbürger&quot;-Movement, so he asks his attorney to plead for innocence, saying that it's <em>his</em> wife, so he can do with her what he wants, and traffic laws, given he is a good driver, won't apply to him etc.</p>
<p>Dave is very certain that with this strategy, Alex will not only be convicted and given not only a long prison sentence, but maybe even a long-term preventive detention.</p>
<p>What can Dave do to follow the wishes of his client while still representing him as best as he can?</p>

<p>In several civil law systems, including in Switzerland, the involvement of a defence lawyer can be mandatory, <em>even against the will of the accused</em>.
If the accused does not appoint a lawyer, a duty lawyer must be appointed by the director of the proceeding (the prosecutor or the judge depending on the stage of the proceedings). The obligation to have a lawyer may extend to important civil cases in some countries before higher courts to avoid wasting judicial resources. In criminal cases, this is also to ensure the accused's rights  to a competent, diligent and effective defence.</p>
<p>The accused is responsible for the costs of the lawyer, within their financial circumstances and subject to government legal aids, if they are found responsible for procedural costs. All lawyers at bar in a canton are required to accept mandates assigned to them due to obligatory provisions of law, provided that they are competent to do so.</p>
<p>This is regulated by art. 130 to 135 of the federal Criminal Procedure Code, in particular,</p>
<blockquote>
<ol start="130">
<li>A defence lawyer must be appointed to represent the accused if:</li>
</ol>
<ul>
<li>a. the period on remand including the period when under arrest has    continued for more than 10 days;</li>
<li>b. the offence concerned carries a    custodial sentence of more than a year or a custodial measure or may result in expulsion from
Switzerland;</li>
<li>c. the accused is unable to    safeguard his or her interests in the proceedings adequately due to    his or her physical or mental
condition or for other reasons, and his    or her statutory
representative is unable to do so either;</li>
<li>d. the prosecuting lawyer is appearing in person before the court of first    instance or the court of appeal;</li>
<li>e. accelerated proceedings (Art. 358–362) are being conducted.</li>
</ul>
</blockquote>
<p>Essentially, all serious offences are subject to this obligation.</p>
<p>Until now this is not a direct answer to the question posed, but it is a factor that shows the relationship between the lawyer and the client is not a simple one.</p>
<hr />
<p>Now going back to your question. In Switzerland, or indeed in most legal systems, the lawyer is to ensure that the accused receives a competent, diligent and effective defense. Indeed, if the public prosecutor or the judge believes or reasonably ought to have believed the defence is clearly incompetent or otherwise negligent in their professional duties, the proceedings must be suspended until a suitable defence is appointed by choice of the accused or by the proceeding director.</p>
<blockquote>
<p>so he asks his attorney to plead for innocence, saying that it's his wife, so he can do with her what he wants, and traffic laws, given he is a good driver, won't apply to him etc.</p>
</blockquote>
<p>The lawyer is a professional that must exercise their professional judgement.
They are also a 'servant of the law' and a 'collaborator in the administration of justice' and bear responsibility for the correct functioning of the justice system (Federal Court rulings <a href="http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F106-IA-100%3Ade&amp;lang=de&amp;type=show_document" rel="noreferrer">106 IA 100</a>, <a href="http://relevancy.bger.ch/php/clir/http/index.php?lang=de&amp;type=show_document&amp;page=1&amp;from_date=&amp;to_date=&amp;from_year=1954&amp;to_year=2023&amp;sort=relevance&amp;insertion_date=&amp;from_date_push=&amp;top_subcollection_clir=bge&amp;query_words=&amp;part=all&amp;de_fr=&amp;de_it=&amp;fr_de=&amp;fr_it=&amp;it_de=&amp;it_fr=&amp;orig=&amp;translation=&amp;rank=0&amp;highlight_docid=atf%3A%2F%2F130-II-270%3Ade&amp;number_of_ranks=0&amp;azaclir=clir#page270" rel="noreferrer">130 II 270</a>). In general, they are not allowed to induce the justice and the authorities in error.</p>
<p>Thus, they cannot simply present baseless arguments before the judicial authorities.</p>
<blockquote>
<p>Dave is very certain that with this strategy, Alex will not only be convicted to a long prison sentence, but maybe even to a long-term preventive detention.</p>
<p>What can Dave do to follow the wish of his client while still representing him as best as he can?</p>
</blockquote>
<p>If the lawyer is convinced that the strategy imposed by the client is clearly contrary to the client's interest, they may decide to withdraw from the mandate, if they can do so without seriously prejudicing the client's interest. This is the case when the accused had chosen their own lawyer, who under contractual law must follow the client's instructions and the recourse to avoid unprofessional conducts is withdrawal.</p>
<p>For the duty defence lawyers, the accused cannot waive the right to a defence lawyer, indeed, it is an obligation on the accused, the lawyer and the judicial authority. While the law provides for replacement of the lawyer if the mutual trust between the lawyer and the client is seriously compromised, this is not simply so because the client says so. Loss of confidence on subjective grounds alone does not constitute a reason to change a duty lawyers unless the attitude of the lawyer is seriously prejudicial to the interests of the accused (Federal Court ruling
<a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F04-06-2012-1B_307-2012&amp;lang=de&amp;type=show_document&amp;zoom=YES&amp;" rel="noreferrer">1B_307/2012</a>).</p>
<p>For lack of a better analogy, the duty defence lawyer would proceed to represent the interests of the accused as if the accused was mentally deficient or otherwise incompetent (not that the accused is recognized as so with respect to their criminal responsibility, but that the accused is unable, or in this case unwilling, to cooperate fully with the lawyer on their own defence).</p>
<p>The duty lawyer can impose their own defence strategy and <em>must</em> do so if they sincerely believe it is in the best interests of their client (<a href="https://www.penalex.ch/faq-avocats/mon-avocat-doffice-peut-il-mimposer-sa-strategie/" rel="noreferrer">https://www.penalex.ch/faq-avocats/mon-avocat-doffice-peut-il-mimposer-sa-strategie/</a>).</p>
<p>Of course, the accused still has a right to be directly heard by the court, but such right is not unlimited. They can make their own representations and may note their disagreement with the defence counsel, but the accused does not have the right just ramble for two hours in the court. As it is not an adversarial system, the decision maker will take all circumstances into account and the disagreements between the client and their own counsel (despite being imposed by the law and the state) are not as much of an issue as in an adversarial common law trial.</p>
<hr />
<p>Note that an acquitted accused may still be found responsible for procedural costs (including for any obligatory defence fees) if they had deliberately caused the penal procedure to be opened unlawfully or wrongfully (even if &quot;criminally&quot; not guilty), or that they had deliberately made the proceeding more difficult (e.g. through multiple unjustified requests to change lawyers, or indeed possibly, presenting the arguments of Reichsbürger with insistence).</p>
<hr />
<p>Other consulted references:</p>
<p>L'avocat dans la défense pénale : de l'obligation de dire la vérité à un droit de mentir, Flavien Morard <a href="https://sui-generis.ch/article/view/sg.53/661" rel="noreferrer">https://sui-generis.ch/article/view/sg.53/661</a></p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>Defence counsel needs to make clear the permissible scope of argument that they can make, consistent with the lawyer's ethical obligations to the profession and to the court.</p>
<p>The arguments that the accused is asking for are beyond what would be acceptable for defence counsel to make: they have no basis in law.</p>
<p>If the accused insists, defence counsel will be forced to withdraw as counsel. See <em>R. v. Cunningham</em>, 2010 SCC 10 at <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7849/index.do" rel="noreferrer">paras. 48-49</a>:</p>
<blockquote>
<p>... Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.  Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations... or if the accused refuses to accept counsel’s advice on an important trial issue...</p>
<p>If withdrawal is sought for an ethical reason, then the court must grant withdrawal. ... Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations.  It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.</p>
</blockquote>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>In the USA, my daughter (who is quite good at this) believes the key skill for a criminal defense attorney is convincing their clients to do the things that will result in the best possible outcome.  Let's be clear:  the client has absolute power to testify in their own defense and to plead not guilty.  But being good at your job means convincing them to do things they might normally not want to.  A phrase my daughter leans on is &quot;it isn't about whether you are guilty or not, it's about what we can get a jury to believe.&quot;</p>
<p>The standard for defense is to mount a <strong>zealous</strong> defense of the client.  I think that quitting the case just to pass the problem off to a different attorney is a cop out.  It accomplishes nothing.  In the example presented, you would go to trial and call the defendant as a witness, but not make any claims that are not supported by law.</p>
<p>If it were an easy job, anyone could do it.</p>

<h2>The duty to the client is secondary to the duty to the court</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>Barristers in Australia are governed by the <a href="https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0243#sec.79" rel="nofollow noreferrer">Legal Profession Uniform Conduct (Barristers) Rules</a> in the state or territory where they are working. Rules 79 to 82 deal with “Delinquent or guilty clients”.</p>
<p>Summarising, a barrister who:</p>
<ul>
<li>becomes aware that their client or a witness has lied or materially misled the court must take no further part in the case until they get the client’s permission to reveal that to the court.</li>
<li>is representing a guilty client who maintains a plea of not guilty must have the client agree that they will:
<ul>
<li>not falsely suggest someone else did it</li>
<li>not set up an alternative case inconsistent with the confession</li>
<li>require the prosecution to prove the case</li>
<li>be able to argue that evidence as a whole does not prove guilt</li>
<li>be able to argue that some element of the law means the case is not proven. An actual element not one the client made up</li>
<li>be able to argue for not guilty for any other reason not inconstant with the above</li>
<li>no longer be able to act if the client insists on giving evidence denying guilt or requires making a statement suggesting the client is innocent.</li>
</ul>
</li>
</ul>
<p>If the client doesn't not agree and the barrister is therefore unable to act, they make a submission to the court that they cannot continue because of an ethical conflict and the judge discharges them. This usually happens after the judge has spoken to the client and explained the difficulties they will face if they persist in this course of action.</p>

<p>Typically most lawyers would ask the judge for permission to be removed from the case following the revelation that the lawyer cannot offer a competent defense.  I'm not familiar with Swiss legal and ethical practices, so this process may depend on the body in Swiss law that has the power of lawyer accreditation and their legal and ethical standards and practices.  As Switzerland is a Federal nation, this could mean having to go to the individual Canton (the equivalent of a State in the U.S. or a Province in Canada) which could mean there is no blanket answer for this question as the rules would change depending on who is doing the prosecuting.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>A very similar situation has actually happened in the case of <a href="https://www.oyez.org/cases/2017/16-8255" rel="nofollow noreferrer"><em>McCoy v. Louisiana</em></a>, except that the defendant (McCoy) was facing the death penalty. His lawyer wanted to admit guilt and push for a life sentence, but McCoy insisted that he was innocent. They were unable to come to an agreement before trial, and the court was unwilling to let the attorney withdraw (by this point, McCoy had already gotten rid of his previous lawyer).</p>
<p>At trial, the lawyer admitted his client's guilt during opening arguments, and tried to make a case for leniency on the basis of diminished capacity. Possibly because McCoy was uncooperative, or possibly because the jury just didn't buy it, this went poorly, and the defendant was sentenced to death.</p>
<p>On appeal, the Supreme Court reversed, holding that the lawyer was not at liberty to make such a decision on behalf of his client. The majority held that the right to assistance of counsel implicitly includes the autonomy to make one's own decisions about the overall objectives and direction of the defense, including whether or not to admit guilt.</p>
<p>The court then went on to characterize a lawyer violating the defendant's autonomy in this way as &quot;structural error.&quot; This means that a defendant whose lawyer behaves in such a manner is entitled to a new trial as of right, without having to prove a substantial likelihood of a different outcome.</p>
