Telling the truth: what to say in negotiations and court

David McIlroy - Colour

Ecclesiastes 3:1,7b: 'There is a time for everything, and a season for every activity under heaven: … a time to be silent and a time to speak'.

Most lawyers, and not just Christian ones, have a ready answer to the question: how do you defend someone you know to be guilty?  The Bar Code of Conduct prevents barristers in a criminal case from advancing a positive case on behalf of someone who has told their barrister that that they are guilty of an offence (provided that the barrister is sure that the client has understood each of the elements of the offence and that no defence of duress, provocation or self-defence is available to the client).  Outside of that situation, the responsibility of the barrister, after advising, as strongly as is appropriate, about the prospects of success, is to represent the client in accordance with the client's instructions. 

Suppose our questioner is not satisfied with that answer: how do you defend someone you know to be guilty?; not someone who has told you they are guilty, but someone against whom the evidence of guilt is overwhelming.  The answer is two-fold.  First, unless the lawyer was present at the scene of the crime (in which case you shouldn't be acting in the first place!), the lawyer does not know for certain that the client is guilty.  At most, the lawyer has a strong suspicion of the client's guilty.  Second, lawyers have a distinct but limited role to play within the legal process.  In the criminal courtroom, it is the role of the magistrates or the jury to decide whether the defendant is guilty or innocent.  It is the role of the prosecutor to present, fairly, all the evidence which tends to show the defendant's guilt.  It is the role of the defendant's lawyer to put his client's version of events to the prosecution witnesses and to present the evidence which tends to show the defendant is innocent.  For the defendant's lawyer to pre-empt the question of guilt and innocence is for that lawyer to stop playing their role and to usurp a different role.  It is a bit like the dental nurse taking over from the dentist and starting to drill your teeth!  British legal systems work on the basis that justice is best served if defendants are properly represented by competent lawyers who present cases on their behalf.

For Christian lawyers taking part in the criminal justice system, acting as a defence lawyer means praying and trusting that God will work through this fallible process so that justice will be done, at least most of the time, and trusting God to deal with the consequences of the injustices which occasionally occur.

That role of the lawyer is not incompatible with being a Christian.  Job spoke in Job 16:19-21 of having an advocate on high pleading with God as a man pleads for his friend.  Paul in Titus 3:13 commends Zenas the lawyer.  The Council of Bars and Law Societies of Europe, in paragraph 2.2 of its Code of Conduct for Lawyers, announces that a lawyer's personal honour, honesty and integrity should be beyond doubt.

If you aren't persuaded by the answers to the questions set out above, I suggest that you don't take up criminal defence work as part of your legal career.  Imagine, though, that our questioner comes back with a broader question about the responsibilities of a Christian lawyer, which affects most if not all areas of legal practice: what should you say to the other side when conducting negotiations or litigation against them?

In answering this question, understanding the role of the lawyer is also key.  The role of the lawyer in negotiations or in presenting a case in court is to represent the client. Lawyers act as their client's agents. Lawyers act as an eloquent voice enabling their client's perspective to be considered at its strongest. Legal professional privilege exists to allow open communication between lawyers and their clients about all issues.  Lawyers have no authority to release confidential information without their client's agreement.

However, Christian and non-Christian lawyers alike are not allowed to present to the other side a case which is inconsistent with what they have been told in confidence by their client.  Imagine my client is a property developer who wants to buy a plot of land.  He tells me that he is going to build 12 flats on the land once he has bought it.  Once I know that information, I cannot go to the seller and tell him that my client has no plans to build anything on the land once he has bought it.  If I am asked a direct question on the issue, I must not give a misleading answer.

Different situations require different degrees of openness.  Fundamental to the English legal system is the process of disclosure (formerly 'discovery').  At this stage of litigation each party is obliged to disclose to the other side all the documents relevant to the case which it has in its possession, whether those documents support its own case or are helpful to its opponents' case.  Christian lawyers must encourage their clients to co-operate fully with this process.

In litigation, lawyers owe a duty not to mislead the court.  This means that a lawyer must always make sure that the court is aware of the relevant law, even if that law is apparently unhelpful to their client.  It means that a lawyer will not allow a case to be presented which is contrary to material evidence which has not been disclosed to the other side and to the court.  A lawyer must not deceive or knowingly or recklessly mislead the court. 

How a Christian lawyer should approach negotiations out of court is more complex.  Again, much depends on the context.  There is a duty of full disclosure which applies to negotiations in the context of divorce. Commercial negotiations, on the other hand, are generally conducted on an arms length basis.  If both sides are represented by lawyers, the lawyers for one side can usually rely on the other side's lawyers to ask all the relevant questions.  In negotiations, therefore, sometimes there is a duty of full and frank disclosure, sometimes there is not. 

What Christian lawyers can encourage their clients to do in all negotiations is to listen to the other side's point of view and to be willing to consider settlement in a broader context rather than just insisting on their strict or technical legal entitlements.

At the time of writing Dr David McIlroy was a practising barrister and the author of 'A Biblical View of Law and Justice' (2004) and 'A Trinitarian Theology of Law' (2009).  You could buy copies of either book at a discount by e-mailing him at david@bedfordhill.co.uk.

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