The Moral Dilemma of being a Lawyer- A tale of Lawyers and Liars

Author: Sai Dharshan K S

Ever since the dawn of civilisation humanity has been guided by ‘the right’ and ‘the wrong’. The right-wrong saga has been historic, reigning at the pinnacle of every human civilization. From the right came the moral, from the moral came Justice and from Justice came Law.

Despite being used interchangeably, Justice and law are far from the same. Laws are means to achieve Justice while Lawyers are the ones who facilitate this through the institution of the Judiciary. However, this process might not be as straightforward as it is on paper. The said means might not always lead to the desired end.

The ethical and moral aspect of being a lawyer has been contentious in our society ever since the advent of the Judiciary. In the field of legal ethics, the amorality theory states that Lawyers aren’t responsible for what they do as long as they are representing their clients within the law. This opens up a wide range of conundrums. Is it moral for a lawyer to defend a murderer or a molester just because he’s doing it by the law book?

Evidently, it is both immoral and illegal for a layman to defend or support the acts of such criminals, why then are lawyers any different? While that makes perfect sense this is precisely where the majority overlooks a very key detail.

Under both international and Indian law, at the beginning of a criminal trial, innocence is always presumed. The very reason courts were created in the first place was to pronounce guilt or establish innocence and until such pronouncement, the accused party is always presumed to be innocent.  Such presumption is not a mere formality but rather a matter of necessity. This ensures that no innocent is prosecuted for a crime unless his guilt is proven beyond all reasonable doubt.

From society’s point of view, an abnormally rich businessman, a shady politician, or an ex-gang leader would always seem guilty of the offense they’ve been accused of but they too deserve a fair trial. There is every chance they didn’t actually commit the crime. If lawyers refrain from defending those whom ‘the society’ believes are guilty the very institution of courts would be meaningless. Lawyers who defend people accused of heinous crimes often face the heat for doing so but it is important to understand that the accused person isn’t considered a perpetuator of that particular crime until the court pronounces him or her as one. There is every possibility that he or she was wrongfully accused of the crime and thus has every right to quality legal aid.

With that out of the way, let’s address the elephant in the room. Should Lawyers defend those they know for sure are guilty? Often criminals tend to confess their crimes beforehand to their lawyers. Unlike the previous case where the question of guilt was left to the court and the lawyer simply had to argue to their best ability, in this instance, the lawyer is well aware that his or her client is guilty.

It is important to note that in many instances criminals do not confess the whole truth to their lawyers but in some occasions they do. What must a lawyer do in such a case? From a legal standpoint, there is still nothing wrong with a lawyer defending such a person. The attorney-client privilege shields a lawyer from having to share with a third party anything his client might have confessed to him in private. A lawyer, just as a therapist, cannot be forced to reveal confidential information about their clients. Similar privileges are also available to spouses who are legally exempted from having to share with third parties what their spouse might have revealed to them in private.

It must be duly noted that even in this scenario a lawyer can only defend their client through the available means of law. It is certainly illegal and punishable for a lawyer to go out of the legal framework and defend their client by misleading the court or taking part in other unethical practices like witness tampering or bribery.

The question here is whether a lawyer should, even whilst perfectly abiding by the law book, represent a guilty person. Shouldn’t the lawyer just run away to the nearest police station and tell the cops everything they know for the greater good of the society?

At this particular junction, it’s pivotal to understand that law is a very precise endeavour. The accused might have confessed their crime not just to their lawyer but to the entire court but the case is still far from over. One might wonder, if the accused has confessed to having committed the crime shouldn’t the court just put them behind bars and move on to the next case? Not at the very least.

Criminal law consists of two major pillars, actus reus and mens rea. Actus reus refers to the criminal act in itself such as murder or assault while mens rea refers to the criminal motive behind such an act. For the accused to be pronounced guilty both actus reus and mens rea would have to be proven by a lawyer in the court of law. The accused confessing to the crime is of no avail in itself as the motive behind the accused’s act would have to be ascertained as well.

For instance, say a burglar enters a person’s house with a fully loaded gun and points it at him. In the heat of the moment the person at whom the gun is being pointed at, believing his life to be in danger, throws a kitchen knife at the burglar. The next thing he knows, the burglar is dead. In this instance, the court wouldn’t necessarily convict the person of murdering the burglar. Thus, this person still needs a lawyer to prove his innocence even though he can be considered ‘guilty’ on the surface level.

In many cases, despite the accused confessing, their lawyer might still save them from conviction or at least grant them a lesser sentence on grounds of self-defence, mental incapacity, being a minor, etc… Often litigation involves deliberating on the subtler aspects of law. As emphasized before, law is a very precise endeavour. Thus, in most instances, there is nothing immoral about a lawyer defending such a person and the heat lawyers face for taking up such cases is definitely unsolicited.

However, it must be duly acknowledged that lawyers do use and, on certain occasions, create minute loopholes within the law just to protect their guilty clients. Lost in the meaningless need to win lawyers tend to forget the very purpose of this great institution- Justice!

Nothing could possibly justify that. These lawyers might be legally shielded but are most certainly morally wrong. Just as a wise man once said, morality is all about knowing where to draw the line. 

“Morality, like art, means drawing a line someplace” - Oscar Wilde

SAI DHARSHAN

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