Criminal solicitors “losing moral compass” – and not just because of falling legal aid pay

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Crime: lawyers pushing clients toward early guilty pleas

Defence lawyers bear partial responsibility for miscarriages of justice, and better ethics training and spending time with ordinary people are as likely to reverse “moral decline” as boosting pay, according to new research.

Writing in a collection of essays published last week by The Justice Gap, No Defence: lawyers and miscarriages of justice, Cardiff Law School academic, Dr Daniel Newman, said his empirical research with three criminal defence firms working in and around the magistrates’ court of a large city showed that while falling legal aid rates had undermined incentives to provide quality service, singling out legal aid may “provide too easy an answer”.

He suggested that the profit motive leads lawyers to lose their “moral compass”, recounting 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”.

Significantly, in light of the outcry over claims that the government’s proposed price competitive tendering (PCT) plans would incentivise lawyers to recommend guilty pleas, Dr Newman said: “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”.

An explanation, which had “some veracity” was a move within society – including the legal profession – away from “old-fashioned notions of service” which ultimately resulted in clients receiving a “lesser product” from defence lawyers operating a “factory model”.

There was a “most likely a circular relationship between diminished funding and sullied morals”, he speculated. But simply raising remuneration was not the only answer, he said.

“My suggestion for improving the situation would be… 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.”

The recommendation mirrors a proposal made by the Legal Education and Training Review, which reported last month. It advised bringing a stronger focus on professional ethics throughout education and training.

Dr Newman continued that beyond a “managerialist outlook” encouraged by law schools or the “tick-box activity” of conduct regulation, client relations and feedback should be promoted, for instance in an “annual legal MOT”.

Further, “law schools might better integrate themselves in the local community, fostering face-to-face relationships with those they would serve”, he suggested.

He concluded: “As a calling, such lawyers should spend less time passing the buck and more taking responsibility for their own actions.”

Readers Comments

• James Vine says:

  July 10, 2013 at 7:58 am

  Throughout my 35 years of practising as a criminal lawyer, I have always suffered from the crippling disadvantage of not being an academic, thus am too inept to comment on such a learned tome. Except to say this.
  What a load of insulting and patronising twaddle.
  (Sorry Neil!)

  Reply
• Andrew Havery says:

  July 10, 2013 at 8:22 am

  Moronic & ill-informed. Stay in academia where you are safe from the real world.

  Reply
• Rhys Davies says:

  July 10, 2013 at 9:06 am

  Dr Newman certainly didn’t evaluate my firm where have very good community ties and provide high quality advice with integrity. There are factory firms out there but it is poor research that generalises from limited empirical data.

  Reply
• Richard Baker says:

  July 10, 2013 at 12:39 pm

  Dr Newman’s research is flawed. He researched three firms. How old were the Solicitors he was dealing with? How close to retirement? Their cynicism is not typical of Solicitors in Coventry and Warwickshire, where I can assure you we fight for our clients, and prepare for trials.

  Reply
• Chris Johnson says:

  July 10, 2013 at 2:55 pm

  This research doesn’t equate with my own considerable experience of criminal work. We could not do the job if we didn’t adhere to a strict code of ethics, and certainly where I practice we do not live in some rarified social stratosphere but take part in the local community. As for “pushing clients towards guilty pleas and sabotaging those who got through to trial by neglecting properly to prepare”, nothing could be further from the truth. Is the author mistaking good robust analysis of the evidence and realistic advice on the prospects of success for something else?

  Reply
• Rhona Light says:

  July 10, 2013 at 3:20 pm

  Dr Newman has done a study of city firms providing criminal legal aid. Has he any idea of the massive overheads these firms face? Of course they need to consider their professional fees – otherwise the bills don’t get paid.

  But the bottom line is that if these firms were not providing the service the clients would go elsewhere. Clients are savvy enough to realise it is what the solicitor does in Court that matters.

  He is making serous allegations about not firms not properly preparing for trials and encouraging early pleas. Could it just be that actually these were very able Solicitors who could see that a guilty plea was going to be the end result? Sometimes clients need to be told that they don’t ‘have a hope in hell’ whatever they say. It is called a reality check.

  As for trial preparation – could this be the difference between what a practising Solicitor knows is needed and what a textbook academic believes is needed?

  Reply
• Jeremy Hawthorn says:

  July 10, 2013 at 3:39 pm

  You could write the same article about social workers, doctors and dare I say it academics. Some of the jargon is inept: what is a ‘disinterred (sic) servant of the community’ and what are Pythagorean standards’? But as in any profession some of the criticism will stick. At least on the very next page of the essay collection there is a QC saying “there is no doubt in my mind that there are still many dedicated solicitors and barristers who work extremely hard to provide their
  clients with a service every bit as good as
  they would if they were paid privately.”

  Reply
• Philip Mahoney says:

  July 10, 2013 at 8:40 pm

  Any study based on a sample of three is worthless.

  And whilst I’d love to spend hours in tranquil zen-like contemplation of my role in the justice system and the fundamental meaning of things, I do, sadly, have a job which requires that I must spend my time doing actual work representing my clients (who, I suspect, would be somewhat aggrieved if I explained to them that the time I could have spent preparing their trial was actually spent meditating on the beauty of a lotus flower).

  As regards not listening to clients or talking over them, I can only presume Dr Newman was too busy doing something very important indeed in academia to learn about the Criminal Procedure Rule changes which now require the Defence to disclose at the very first hearing, usually about twenty minutes after being handed a bundle of evidence, what the real issues in the case are, to identify which witnesses need to be called and which can be agreed under section 9, whether there will be any legal arguments, and so on. If you are dealing with 5 clients in a remand court list, it is simply impossible to do this if you spend two hours with every client listening with a sympathetic ear and a concerned frown to every detail of their lives up to that point.

  In fact, you know what? I’m fed up with the whole thing. In the dozen years I’ve been practicing I’ve watched successive governments eat away at the ability of the defence to properly take instructions and prepare witnesses, only for an academic to swan in at the end of it and go “yeah, you’re doing it all wrong.” I’ve had enough of trying to defend vulnerable, sometimes poorly-educated, frequently mentally ill people accused of serious offences in the face of a Ministry of Justice that clearly considers the presumption of innocence to be a tiresome anachronism.

  Instead, I want a job where I can get a nice grant to publish sloppy, poorly researched papers drawing generalised conclusions from too-small samples and making pie-in-the-sky-level unfeasible recommendations about how to make everything better. That sounds much more fun than actually working for a living.

  Reply

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