• 刑事律師:辯者無忌!|戴啟思
  • 2020-05-24    


"Just Doing My Job'-the Plight of the Criminal Lawyer

The courts are gradually re-opening. Public order cases that started with arrests at demonstrations and processions last year will soon come on before judges and magistrates for trial. If the experience of the trials from Occupy Central held not so long ago, there is likely to be noisy cheer-leading from the supporters of defendants and the supporters of the Police Force which will supply most of the witnesses for the prosecution.

If Occupy Central cases are a guide, the lawyers who represent the defendants and the prosecution will be labelled as 'yellow' or 'blue' as the case may be. They will be lauded or vilified depending on what role they play in court.

After court proceedings have ended and they put away their court dress, they sometimes find that they continue to be associated with their client's cause. That imputation often dogs them in their professional and private lives.

It is a rule of the profession that barristers must take clients as they find them, no matter how unpopular the individual or his cause. If a barrister were to turn down a request that they represent a defendant in a criminal trial only because he or she was 'blue' or 'yellow', as the case may be, that barrister would commit serious misconduct and be liable to penalties which could include seeing the barrister disbarred.

Once this rule is understood, the attribution of a client's cause to his or her lawyer is illogical. It is like saying that a surgeon who removes the appendix of an old-school communist must be a Marxist-Leninist.

It is one thing to have this rule for the profession which every barrister knows. It is another thing to educate the broader public about the role of lawyers and make sure that they do not suffer because they are seen as alter-egos of their clients.

The American Bar Association tries to explain this to the public. Its Modern Rules of Professional Conduct contains this explanatory statement.

'A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. '

However, as most people do not read guides to professional conduct, it is sometimes only when a lawyer is treated brutally for doing their job, and that makes the news, that people sit up and take notice.

A good example is the case of a U.S. lawyer practising in North Carolina in the 1950s. He was an ex-soldier with a good war record and a pillar of the community. He made two mistakes that upset the profoundly conservative mindset of the town in which he lived. He spoke to the Rotary Club about a Supreme Court case which conferred limited rights on black people and appeared sympathetic to the result. He also offered to represent some suspected communists before a tribunal which on a mission to purge North Carolina of state employees who were proved to be party members.

The lawyer was kicked out of various civic posts he held and his membership the golf club revoked his membership. Worst of all, the State Bar Association disbarred him because of minor professional misconduct it had conveniently discovered at the time he was being stripped of his various offices. The lawyer had to appeal to the state court to be reinstated. But the damage to his practice had been done by the time his licence to practice had been restored.

Governments have a special responsibility for seeing that lawyers are not harassed or penalised because they represent unpopular clients or causes.

Some lawyers can be a thorn in the side of a government because they represent clients who oppose official policies. They often succeed in embarrassing the government when they have a win in courts by exposing unlawful action or winning a criminal case.

If a government respects the Rule of Law, it must take bad days in court on the chin and promptly correct the consequences of judicially exposed unlawful action. It must not take out its frustrations on the lawyer, who is only doing his or her job.

Regrettably, some governments are bad losers. In some places in Asia, irritating lawyers are sometimes hounded out of the profession and even arrested, prosecuted and locked up for years for representing clients who give the government trouble.

A government's responsibility goes further than exercising self-restraint and not going after 'difficult' lawyers. It must ensure that lawyers are protected in broader society from being attacked because they are doing no more than their professional duty requires them to do.

If lawyers are not protected and are harassed and intimidated because of whom they represent, then you begin to dismantle the most critical support of the criminal justice system. That is the right to legal representation, guaranteed on paper by Article 35 Basic Law and Article 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

The right to legal representation is a key-perhaps the key-right because it unlocks all the other rights and privileges that are available to a criminal defendant. U.S. Supreme Court Justice Stevens explained it this way in a 1984 case:

'An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases "are necessities, not luxuries." Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be "of little avail…'

If defence lawyers are vilified for representing unpopular clients so that their reputation suffers and economic prospects dwindle, you will likely, in the long term, discourage able lawyers from taking up criminal cases. Why put up with offensive remark on the steps of the court or in the street and nasty attacks in social media when you could turn your talents to representing clients in commercial litigation and earn much more than your criminal counterpart?

The United Nations thought that the protection of lawyers from harassment so crucial that it published a statement called' Basic Principles on the Role of Lawyers' in 1990. The section called 'Guarantees for the functioning of Lawyers' contains these three statements of principle.

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

I am not confident that there will be adherence to all of these principles in the coming trial season. Passions are known to run high over protest cases, and there is a natural impulse that is hard to resist to 'have a go' at lawyers. However, the principles should be publicised so that the more thoughtful members of civil society may take heed and act on them.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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