Should A Lawyer Represent A Guilty Man? By Oliver Omoredia

“Lawyers are liars!” This represents the view of the
larger population of society about lawyers. A view drawn from the
conclusion that a lawyer’s duty is to misrepresent facts to suit
his client for whom he intends to win at all
costs.

The position of a defence counsel in criminal proceeding is even
the more precarious and is sometimes even seen as condemnable. Many
wonder why an Accused person caught in the act of committing a
crime should spend years on trial with the aim of “proving” that he
committed the crime he was caught committing. Clearly, to these
people, it takes a man without conscience or a sense of morality to
be a lawyer to a “guilty man”. Despite these widely held views, a
close inspection of a lawyer’s duty and calling vis-à-vis the rules
regulating his professional conduct, makes it apparent that such
views are misplaced and very far from serving the true object of
justice.

As a preliminary question, one may ask; under law, who is a
guilty man? This question is succinctly answered by our most
essential body of law: our constitution. Section 36 (5) of
the Constitution of the Federal Republic of Nigeria 1999 (As
Amended) Every person charged with a criminal offence is
presumed innocent until proven to be guilty! In other words, under
law, no man is guilty until he is proven to be guilty! This is the
first rule upon which a legal practitioner is called to represent
an Accused most would regard as guilty. A legal practitioner never
represents a guilty man! He only represents an innocent man who may
or may not be proven guilty! Whether a person was caught in the act
may only lend credence to the ease with which his guilt will be
proven, it does not in itself conclusively establish guilt. If this
doesn’t make sense, then does it make sense that four young boys
were gruesomely murdered by an angry mob who believed beyond doubt
that they were caught in the act of crime, only to later find out
they were innocent? Indeed, it only makes sense for this
presumption of innocence to continue to free several guilty men
than for the application of the opposite argument to lead to the
condemnation of an innocent man.

Therefore, there is no guilty man; only a man whom the law is
trying to establish his guilt. In the process of proving his guilt
it would be greatly unfair that Prosecution knows the law, the
Judge knows the law, but the person to whom it is sought to be
applied does not! It would be too much injustice to proceed from a
temple of justice. To this end, the innocent man whose guilt the
law seeks to establish, becomes entitled to get a person who also
knows the law. A lawyer!

However, what if the lawyer personally knows the Accused person
is guilty? He is caught in between his job and his sense of
morality. At this stage the conflict resolution for a properly
trained lawyer is simple: He must be a lawyer! Not a lawyer that
lies but a lawyer that is professional in conduct and guided by the
Rules of his profession! Now let us look at what the Rules tell a
lawyer to do in such situation.

The Rules of Professional Conduct for Legal
Practitioners 2007 states under Rules 24.
(1):

“It is the duty of a lawyer to accept any briefs in the Court in
which he professes to practice provided the proper professional fee
is offered unless there are special circumstances which justify his
refusal.”

In interpreting this provision of the Rules, the opinion of Obi
Okoye, a learned author on the subject of Professional Ethics and
whose text is recommended material at the Nigerian Law School, is
incisive and he says:

” a legal practitioner is obliged to accept the brief from the
client….(he) is not only bound to accept the brief, he should put
his best in discharging his responsibilities towards the cause. The
rationale behind this rule is that legal practitioners should not
pick and choose briefs they should handle in court. As officers of
the court, they are not at liberty to select the cases to appear in
since the primary duty of a legal practitioner appearing in a case
in court is to assist the court in arriving at a just decision.

The fact that a case is unpopular or that a client has a very
bad criminal record or public record or that the legal practitioner
believes that the accused person is guilty, may not justify his
refusal to accept the client’s
case.        (This) …cab rank
rule is mostly applied in criminal cases to prevent accused persons
from being denied legal representation by lawyers owing to their
bad record… “

It is highly unprofessional therefore for a legal practitioner
to reject a client’s case, and more particularly in a criminal
trial, just because he believes the client is guilty. A lawyer’s
calling is to render service to all. As a Medical Doctor should
treat a patient before him irrespective of whether he caused his
sickness or is a robber, a lawyer must render legal service to all
before him and put his personal sentiments away when he acts
professionally.

While a legal practitioner is not to reject the brief of a
“guilty man” on the grounds that he knows he is guilty, this should
not be mistaken to mean that he has been placed with the burden of
perverting the cause of justice. A legal practitioner for an
Accused ensures a fair trial and in doing so has a duty to the
court; the temple of justice before whom he appears as minister. He
should only do what is honourably accepted in professional
regards.

The above submissions were capture by the Supreme Court in
UDOFIA V. THE STATE (1988) LPELR-3305(SC) where
the court Per Oputa, J.S.C held that:

“Every person accused of crime has a right to a fair trial,
including persons whose conduct, reputation, or alleged violations
may be the subject of public unpopularity or clamour. This places a
duty of service on the legal profession and, where particular
employment is declined the refusal of the brief or to undertake a
defence may not be justified merely on account of belief in the
guilt of the accused, or repugnance towards him or to the crime or
offence charged… The following appear in bold relief: – 1. Every
person accused of crime has a right to a fair trial. 2. Persons
whose crimes are so heinous that they constitute a shock to the
accepted norms of behaviour are also entitled to a fair trial. 3. A
legal practitioner should not refuse to defend such people. 4. When
a legal practitioner does accept such brief, and in fact any brief,
he should urge any and everything that can be honourably urged in
favour of the accused. 5. He should collect the facts, weigh them
and put them across to the Court courageously and fearlessly. This
is the advocate’s noble duty to render efficient, honest and
conscientious service; to put across his own side of the case with
all the force at his command, so that the trial Judge would be able
to consider both sides and decide where the justice of the case
lies. 6. It is the paramount duty of a defence counsel to defend
the accused – which means to ensure that an accused person is never
left unrepresented at any stage of the trial. If counsel for the
defence has obviously and scandalously not discharged his duty to
the accused he is defending, I do not know how one can call the
trial fair.”

The above quote of the apex court on the issue, puts this
discussion in proper perspective and answers the subject of this
write-up beyond peradventure. However, to further consolidate the
point (and I do urge you follow this point through) , I further
refer to the quote of One of the greatest proponents of legal
ethics and advocacy, Lord Denning MR in the case
of Rondel v. Worsley (1967) I QB 443 which was
cited with approval by the Court of Appeal in Free Ent
(Nig) Ltd v G.T.O.S.A (1998) 1 NWLR (Pt. 532) Pg 1 @ 21-2 Paras. E
– C, per Per Onalaja JCA thus:

By the ethics of this profession, the credo of which was clearly
stated in Rondel v. Worsley (1967) I QB 443 wherein LORD DENNING
MR, the greatest MASTER of THE ROLLS OF ENGLAND in this century
observed as follows: – “As an advocate, he is a Minister of Justice
equally with the Judge. He has a monopoly of audience in the higher
courts. No one save he can address the JUDGE, unless it be a
litigant in person. This carries with it a corresponding
responsibility. He must accept that brief and do all he honourably
can on behalf of his client. I say “all he honourably can” because
his duty is not only to his client. He has a duty to the court
which is paramount. It is a mistake to suppose that he is the mouth
piece of his client to say what he wants or his tool to do what he
directs. He is none of these things. He owes allegiance to a higher
cause. It is the cause of truth and justice. He must not
consciously mis-state the facts. He must not knowingly conceal the
truth. He must not unjustly make a charge of fraud, that is,
without evidence to support it. He must produce all the relevant
authorities even those that are against him. He must see that his
client discloses, if ordered, the relevant documents, even those
that are fatal to his case. He must disregard the most specific
instructions of his client if they conflict with his duty to the
court. The code which requires a barrister to do all this is not a
code of law. It is a code of honour. If he breaks it, he is
offending against the rules of profession and is subject to its
discipline. But he cannot be sued in a court of law. Such being his
duty to the court the barrister must be able to do it fearlessly.
He has time and time again to choose between his duty to his client
and his duty to the court. This is a conflict often difficult to
resolve and he should not be under pressure to decide wrongly if a
barrister is to be able to do his duty fearlessly and
independently, he must not be subject to the threat of an action
for negligence.”

The above decision has been followed and adopted in
T. Oseni v. Brossettee Nig. Ltd. (1981) Jan/March CCRCJ 310-320,
The Shell Petroleum Development Company of Nig, Ltd v. Chief George
Uzoaru & 3 Ors (For themselves and as representing the UMUNNAKA
UKWU Village of OGUTA) (1994) 9 NWLR (Pt. 366) page 51,
OPUTA,J.S.C.’s BOOK OUR TEMPLE OF JUSTICE.
      
                  

These past months, I have noted with concern that some lawyers
have been intimidated by the media, and even booed at public fora
for defending some persons in the “corrupt political class”. Such
conduct by the members of the public is sheer ignorance and a
betrayal of proper understanding of the calling of a lawyer’s
profession. A lawyer as a professional does not and should not act
on the sentiments of the public in the execution of his duties but
should apply the law and ensure its application is proper towards
his client in every case he conducts while upholding his most
paramount duty to the cause of justice. A lawyer is not a liar, He
only ensures the other party properly elicits the truth!

IN CONCLUSION

While a lawyer can professionally, and is in fact encouraged to,
represent a guilty man, He need not be a liar covering up or
misrepresenting facts to do so. Representing a guilty man is not
unprofessional but misrepresenting facts to the court is.
Therefore, as response to the “lawyers are liars” rhetoric, I adopt
the position of Honorable Justice Belgore JCA (As
he then was) in P.I.P.C.S. Ltd v. Vlachos (2008) 4 NWLR
(Pt. 1076) 1 at P. 17, when he said

“Counsel must be conscientious in the performance of their
duties. They owe it a duty to assist the court to arrive at a just
decision and they must not set out to confuse the court in order to
satisfy their clients for a paltry sum. Unless lawyers perform
their duties by the dictate of their calling and conscience, the
public (layman’s) perception of lawyers as liars will never
change. I must state, and with all emphasis, that lawyers
are not liars, but honourable gentlemen who are trained to assist
litigants and the court. Their first duty is to the court as
ministers in the temple of justice.”

OLIVER OMOREDIA ESQ. ASSOCIATE OBIAGWU & OBIAGWU
LLP

08100193573, oliveromoredia@yahoo.com

“Lawyers are liars!” This represents the view of the
larger population of society about lawyers. A view drawn from the
conclusion that a lawyer’s duty is to misrepresent facts to suit
his client for whom he intends to win at all
costs.

The position of a defence counsel in criminal proceeding is even
the more precarious and is sometimes even seen as condemnable. Many
wonder why an Accused person caught in the act of committing a
crime should spend years on trial with the aim of “proving” that he
committed the crime he was caught committing. Clearly, to these
people, it takes a man without conscience or a sense of morality to
be a lawyer to a “guilty man”. Despite these widely held views, a
close inspection of a lawyer’s duty and calling vis-à-vis the rules
regulating his professional conduct, makes it apparent that such
views are misplaced and very far from serving the true object of
justice.

As a preliminary question, one may ask; under law, who is a
guilty man? This question is succinctly answered by our most
essential body of law: our constitution. Section 36 (5) of
the Constitution of the Federal Republic of Nigeria 1999 (As
Amended) Every person charged with a criminal offence is
presumed innocent until proven to be guilty! In other words, under
law, no man is guilty until he is proven to be guilty! This is the
first rule upon which a legal practitioner is called to represent
an Accused most would regard as guilty. A legal practitioner never
represents a guilty man! He only represents an innocent man who may
or may not be proven guilty! Whether a person was caught in the act
may only lend credence to the ease with which his guilt will be
proven, it does not in itself conclusively establish guilt. If this
doesn’t make sense, then does it make sense that four young boys
were gruesomely murdered by an angry mob who believed beyond doubt
that they were caught in the act of crime, only to later find out
they were innocent? Indeed, it only makes sense for this
presumption of innocence to continue to free several guilty men
than for the application of the opposite argument to lead to the
condemnation of an innocent man.

Therefore, there is no guilty man; only a man whom the law is
trying to establish his guilt. In the process of proving his guilt
it would be greatly unfair that Prosecution knows the law, the
Judge knows the law, but the person to whom it is sought to be
applied does not! It would be too much injustice to proceed from a
temple of justice. To this end, the innocent man whose guilt the
law seeks to establish, becomes entitled to get a person who also
knows the law. A lawyer!

However, what if the lawyer personally knows the Accused person
is guilty? He is caught in between his job and his sense of
morality. At this stage the conflict resolution for a properly
trained lawyer is simple: He must be a lawyer! Not a lawyer that
lies but a lawyer that is professional in conduct and guided by the
Rules of his profession! Now let us look at what the Rules tell a
lawyer to do in such situation.

The Rules of Professional Conduct for Legal
Practitioners 2007 states under Rules 24.
(1):

“It is the duty of a lawyer to accept any briefs in the Court in
which he professes to practice provided the proper professional fee
is offered unless there are special circumstances which justify his
refusal.”

In interpreting this provision of the Rules, the opinion of Obi
Okoye, a learned author on the subject of Professional Ethics and
whose text is recommended material at the Nigerian Law School, is
incisive and he says:

” a legal practitioner is obliged to accept the brief from the
client….(he) is not only bound to accept the brief, he should put
his best in discharging his responsibilities towards the cause. The
rationale behind this rule is that legal practitioners should not
pick and choose briefs they should handle in court. As officers of
the court, they are not at liberty to select the cases to appear in
since the primary duty of a legal practitioner appearing in a case
in court is to assist the court in arriving at a just decision.

The fact that a case is unpopular or that a client has a very
bad criminal record or public record or that the legal practitioner
believes that the accused person is guilty, may not justify his
refusal to accept the client’s
case.        (This) …cab rank
rule is mostly applied in criminal cases to prevent accused persons
from being denied legal representation by lawyers owing to their
bad record… “

It is highly unprofessional therefore for a legal practitioner
to reject a client’s case, and more particularly in a criminal
trial, just because he believes the client is guilty. A lawyer’s
calling is to render service to all. As a Medical Doctor should
treat a patient before him irrespective of whether he caused his
sickness or is a robber, a lawyer must render legal service to all
before him and put his personal sentiments away when he acts
professionally.

While a legal practitioner is not to reject the brief of a
“guilty man” on the grounds that he knows he is guilty, this should
not be mistaken to mean that he has been placed with the burden of
perverting the cause of justice. A legal practitioner for an
Accused ensures a fair trial and in doing so has a duty to the
court; the temple of justice before whom he appears as minister. He
should only do what is honourably accepted in professional
regards.

The above submissions were capture by the Supreme Court in
UDOFIA V. THE STATE (1988) LPELR-3305(SC) where
the court Per Oputa, J.S.C held that:

“Every person accused of crime has a right to a fair trial,
including persons whose conduct, reputation, or alleged violations
may be the subject of public unpopularity or clamour. This places a
duty of service on the legal profession and, where particular
employment is declined the refusal of the brief or to undertake a
defence may not be justified merely on account of belief in the
guilt of the accused, or repugnance towards him or to the crime or
offence charged… The following appear in bold relief: – 1. Every
person accused of crime has a right to a fair trial. 2. Persons
whose crimes are so heinous that they constitute a shock to the
accepted norms of behaviour are also entitled to a fair trial. 3. A
legal practitioner should not refuse to defend such people. 4. When
a legal practitioner does accept such brief, and in fact any brief,
he should urge any and everything that can be honourably urged in
favour of the accused. 5. He should collect the facts, weigh them
and put them across to the Court courageously and fearlessly. This
is the advocate’s noble duty to render efficient, honest and
conscientious service; to put across his own side of the case with
all the force at his command, so that the trial Judge would be able
to consider both sides and decide where the justice of the case
lies. 6. It is the paramount duty of a defence counsel to defend
the accused – which means to ensure that an accused person is never
left unrepresented at any stage of the trial. If counsel for the
defence has obviously and scandalously not discharged his duty to
the accused he is defending, I do not know how one can call the
trial fair.”

The above quote of the apex court on the issue, puts this
discussion in proper perspective and answers the subject of this
write-up beyond peradventure. However, to further consolidate the
point (and I do urge you follow this point through) , I further
refer to the quote of One of the greatest proponents of legal
ethics and advocacy, Lord Denning MR in the case
of Rondel v. Worsley (1967) I QB 443 which was
cited with approval by the Court of Appeal in Free Ent
(Nig) Ltd v G.T.O.S.A (1998) 1 NWLR (Pt. 532) Pg 1 @ 21-2 Paras. E
– C, per Per Onalaja JCA thus:

By the ethics of this profession, the credo of which was clearly
stated in Rondel v. Worsley (1967) I QB 443 wherein LORD DENNING
MR, the greatest MASTER of THE ROLLS OF ENGLAND in this century
observed as follows: – “As an advocate, he is a Minister of Justice
equally with the Judge. He has a monopoly of audience in the higher
courts. No one save he can address the JUDGE, unless it be a
litigant in person. This carries with it a corresponding
responsibility. He must accept that brief and do all he honourably
can on behalf of his client. I say “all he honourably can” because
his duty is not only to his client. He has a duty to the court
which is paramount. It is a mistake to suppose that he is the mouth
piece of his client to say what he wants or his tool to do what he
directs. He is none of these things. He owes allegiance to a higher
cause. It is the cause of truth and justice. He must not
consciously mis-state the facts. He must not knowingly conceal the
truth. He must not unjustly make a charge of fraud, that is,
without evidence to support it. He must produce all the relevant
authorities even those that are against him. He must see that his
client discloses, if ordered, the relevant documents, even those
that are fatal to his case. He must disregard the most specific
instructions of his client if they conflict with his duty to the
court. The code which requires a barrister to do all this is not a
code of law. It is a code of honour. If he breaks it, he is
offending against the rules of profession and is subject to its
discipline. But he cannot be sued in a court of law. Such being his
duty to the court the barrister must be able to do it fearlessly.
He has time and time again to choose between his duty to his client
and his duty to the court. This is a conflict often difficult to
resolve and he should not be under pressure to decide wrongly if a
barrister is to be able to do his duty fearlessly and
independently, he must not be subject to the threat of an action
for negligence.”

The above decision has been followed and adopted in
T. Oseni v. Brossettee Nig. Ltd. (1981) Jan/March CCRCJ 310-320,
The Shell Petroleum Development Company of Nig, Ltd v. Chief George
Uzoaru & 3 Ors (For themselves and as representing the UMUNNAKA
UKWU Village of OGUTA) (1994) 9 NWLR (Pt. 366) page 51,
OPUTA,J.S.C.’s BOOK OUR TEMPLE OF JUSTICE.
      
                  

These past months, I have noted with concern that some lawyers
have been intimidated by the media, and even booed at public fora
for defending some persons in the “corrupt political class”. Such
conduct by the members of the public is sheer ignorance and a
betrayal of proper understanding of the calling of a lawyer’s
profession. A lawyer as a professional does not and should not act
on the sentiments of the public in the execution of his duties but
should apply the law and ensure its application is proper towards
his client in every case he conducts while upholding his most
paramount duty to the cause of justice. A lawyer is not a liar, He
only ensures the other party properly elicits the truth!

IN CONCLUSION

While a lawyer can professionally, and is in fact encouraged to,
represent a guilty man, He need not be a liar covering up or
misrepresenting facts to do so. Representing a guilty man is not
unprofessional but misrepresenting facts to the court is.
Therefore, as response to the “lawyers are liars” rhetoric, I adopt
the position of Honorable Justice Belgore JCA (As
he then was) in P.I.P.C.S. Ltd v. Vlachos (2008) 4 NWLR
(Pt. 1076) 1 at P. 17, when he said

“Counsel must be conscientious in the performance of their
duties. They owe it a duty to assist the court to arrive at a just
decision and they must not set out to confuse the court in order to
satisfy their clients for a paltry sum. Unless lawyers perform
their duties by the dictate of their calling and conscience, the
public (layman’s) perception of lawyers as liars will never
change. I must state, and with all emphasis, that lawyers
are not liars, but honourable gentlemen who are trained to assist
litigants and the court. Their first duty is to the court as
ministers in the temple of justice.”

OLIVER OMOREDIA ESQ. ASSOCIATE OBIAGWU & OBIAGWU
LLP

08100193573, oliveromoredia@yahoo.com