Why do some defence lawyers regard their clients as ‘a problem’?
How do lawyers treat their clients? For me, this question is at the heart of issues of access to criminal justice. Of course, lawyers do not need to like their clients or sympathise with them in order to offer high quality representation. Dr Daniel Newman on his research into the lawyer-client relationship
Indeed, there is the risk that too close an affinity between lawyers and clients can actually dilute a lawyer’s potency. All the same, the lawyer-client relationship is inherently a social one and the state of the lawyer-client relationship can be held up as a key indicator of procedural justice in the English criminal courts.
Access to criminal justice requires access to lawyers: the principle of the equality of arms means the criminal justice system presupposes roughly equal resources and expertise on both sides of the equation. The self-referential nature of the legal system, with its complex web of technical language and internal rules, acts to overwhelm and alienate defendants. In order that those suspected and accused of crimes can comprehend what is going on and, thus, properly be said to take part in their own cases, they need a lawyer to act as a translator. The court system removes the defendant from the criminal process in significant ways: they become definitively a client, losing the ability to be active players, as they are rendered reliant upon lawyers. They are locked into a process of legal dependency. Reducing justice to the exchange between lawyers and their clients means it is imperative to pay due attention to the social side of this relationship.
My social research into criminal legal aid lawyers involved a research method called ethnography, combining participant observation with formal interview. In short, I followed lawyers around then talked to them about their work. This took place with three firms in the same city over the course of one year. This is a small sample compared to the overall number of criminal lawyers in practice, one involving less than fifty lawyers in the same practice area. The approach taken, though, allowed for a deep engagement with criminal defence lawyers and, in academic terms, is considered one of the most significant engagements with practitioners in England and Wales in the past few decades. One of the most interesting findings of my research was how the accounts of the lawyer-client relationship I obtained from interviews and observation were so markedly different.
In interview, lawyers gave a glowing description of their relationship with clients. The lawyers felt they occupied a crucial position helping to deliver justice for all and thus saw themselves as noble professionals representing a public service ethos that one practitioner branded a ‘social agenda’. This social agenda entailed the lawyers claiming to practice for, what were often referred to as, ‘altruistic’ reasons, with lawyers stating that they ‘wanted to be on the side of the underdog’, ‘standing up for the vulnerable’ or ‘fighting for the little guy’.
The lawyers saw themselves as part of the welfare state, providing a vital public service; facilitating a public good. There was a clear theme running throughout the interviews that their work was ‘important to society’ and ‘supporting those who are forgotten by society’. In order to meet the social agenda, it was apparent that client-centred practice was the ideal these lawyers professed to adhere to. At some stage of the interviews every lawyer highlighted that their practice was solely focused on meeting the wants and needs of those suspected or accused of crime. Overall, then, the interviews presented client-centred practice across all the firms with lawyers who placed great stock in their public service role serving the vulnerable and needy.
In contrast, lawyers under observation displayed deeply negative feelings toward their clients. The lawyers treated clients as if they were idiots, with all at some point referring to an individual client by such condemnatory terms as ‘stupid’ or ‘moron’. Again and again, lawyers would comment on the ‘type’ of client, sneering about how ‘low’ or ‘vile’ clients were and that they were a ‘waste of space’.
While pleasant to a client’s face, lawyers were keen to communicate their distaste for the client when they were out of earshot. Lawyers would pass judgment on the clothes clients were wearing or the way they looked. Some clients were damned for the area they came from (‘have you seen what comes from that estate?’), others for their family (‘I wouldn’t expect anything different, I know his mother too…she’s a sight’).
Seeing clients as representatives of an ‘underclass’, lawyers were willing to condemn the moral culpability of those who presented themselves to them at court. Beyond simply believing clients guilty, I saw every lawyer push clients to plead guilty, in many cases despite the client asserting their innocence and wanting to plead not guilty. There are numerous reasons why a lawyer might convince their client to plead guilty, including systematic factors such as communicating the sentence discount, the expectation for guilty pleas and the Criminal Procedure Rules.
Another possibility is financial incentives, whereby it is efficient for a lawyer to conclude a case early with criminal legal aid increasingly a volume-based industry. As such, I saw defence lawyers effectively serving the interests of the state (not necessarily the client) in ensuring a conveyor-belt of guilty defendants. Overall, the lawyers under observation showed a practitioner-centred practice in which the clients were, at best, a bothersome irrelevance, and, at worst, a problem to be eliminated.
So, I was presented with was contradictory data, which led me to reflect on how to reconcile these differences. Many who have seen my research suggested that the lawyers were lying and I admit that this seems a common sense approach. The events shown in the observation are the reality of lawyer attitudes while their interviews represent an attempt at image management to cover up any malpractice. Lawyers would need to attend to the bad impression created by their practice. It would be easy for me to say that the lawyers had been lying but that seems unkind and simplistic so was not a satisfying way for me to leave this research.
I spent some time thinking through alternative explanations for the results I had. Ideally, any such explanation would allow us to progress the debate about how to improve the lawyer-client relationship and maximise access to criminal justice. Calling one side liars would only ever shut down dialogue and would be unhelpful in bringing about change.
I searched for a more useful explanation and think I found it in psychological theory; in particular the psychoanalysis of Freud and Jung. I used this theory to explore the attitudes that the lawyers were revealing towards their clients and found evidence of defence mechanisms on display. Of course, I am not making some clumsy attempt at diagnosing individual illness here. Rather, I have identified what – heuristically – could be considered an institutional pathology. I am proposing we use this psychoanalytic lens as a means to further understanding as to how the lawyer-client relationship functions.
I use Freudian theory to identify how his concepts of rationalisation and displacement can be viewed in the approach of the lawyers who were being studied. Rationalisation allows an individual to protect their ego from pain by fabricating a false narrative when the reality of a situation would be too damaging for their self-esteem. In regard to these lawyers, the limitations of the social agenda might be explained by it representing a fiction the lawyers told themselves to help soften the blow of their not being valued as professionals. The lawyers in my research were aware to the point of obsession that they were not paid as much as their peers from law school who went into other areas of practice, earned less than other professionals outside law and might actually be trumped by some tradespersons (the anger that on call plumbers could charge more than on call lawyers was disarming). Claiming that they did not practice for the money but for the respect of providing a social good meant the lawyers did not have to admit they were not paid the salary beholden of a professional and thus not financially valued as professionals.
However, that criminal practice invariably involves association with criminals meant that the lawyers were tarred by association, earning a low social standing with many looking down on these practitioners, judged as they were for taking part in, what we would call in sociological terms, ‘dirty work’.
Lawyers bemoaned the lack of respect they got for the hard work they put in – and were particularly aware that lawyers in commercial practice barely recognised them as the same profession. Displacement sheltered them from realisation of the failure of their social agenda to give them any standing of note. Such displacement involves transferring the pain and displeasure brought about by a dangerous object onto one considered safe. There were several targets that could have been identified for the lawyers’ ire if they were reeling against the undermining of their social agenda. These include the media who created a populist anti-defendant line, the public that bought into this and demanded action, the government that reflected this in their policy-making, judges who convict innocent defendants, prosecutors who bring unjustified charges and police who may lie. All contributed to the debasement of the practice of these lawyers by ensuring that those suspected and accused of crimes were generally looked down upon and little respect was given to those who represented them. These were powerful groups and largely beyond the reach of the lawyers when they were satisfying their emotional drives while displacement involves selecting a weak, vulnerable and readily accessible victim to cast as a scapegoat. Criminal clients provided the perfect soft target.
As a final consideration, Jung’s understanding of psychoanalysis offers a neat way to tie together the themes described. For Jung, an attitude can be understood as, ‘the readiness of the psyche to act or react in a certain way’. Jung states that attitudes are organised in pairs: one conscious, the other unconscious. Neurosis reflects an unresolved tension between opposing attitudes of the conscious and the unconscious. They arise when the conscious attitude cannot reconcile elements deemed important to the unconscious attitude. As a result, a duality emerges between abstractism and concretism. These represent two ways of thinking and feeling – the former more sophisticated, rational and logical, and the latter more primitive, based entirely on perception and feeling.
Following Jung, these lawyers suffered from a neurosis; a split between their consciously professing positive attitudes and unconsciously propagating negative attitudes. Lawyers were differentiating between the client and a client: the general and the particular. The client was that considered in abstract, regarded in theoretical terms through the lens of access to justice and, as such, reflecting the social agenda discussed in interview. On the other hand, a client was the concrete experience, that client dealt with in the here and now, connected with the pain and displeasure of their professional standing, which they subsequently appeared to resent under observation. When thinking objectively – detached and reasoning – the lawyer held positive attitudes towards the client. This is what happened in the interviews where lawyers were given time and space to reflect thoughtfully. It was only when lost in the moment – reacting to demanding situations, working on instinct – that the lawyers displayed these negative attitudes towards a client. It was thus that the observation showed the unfiltered image of the lawyers in action and without time for deep and meaningful pontification.
This process necessitated a further act of rationalisation on the part of these lawyers. To resolve the tension that separated the negative attitudes shown as lawyers engaged in their routine practice with the higher ideals signified within the positive attitudes, they were acting out an elaborate fantasy. In this way, lawyers were able to show complete disdain for their clients, while still able to assert to holding positive attitudes as long as they felt they were doing their best in the job. As a result, the lawyers could actually believe they held positive attitudes, allowing them to claim to be realising the social agenda and, therefore, meet the ideals set out by their egos. Lawyers were also able to feel proud and experience a sense of accomplishment. The rationalisation defence mechanism thus had a double value here, protecting the lawyers from the realisation that they had failed to achieve high remuneration or be valued for upholding the social agenda. The reality of their two failures was successfully rebutted keeping their egos free from pain or discomfort.
Returning to the idea that the lawyers may have been lying to me, then, this consideration makes it entirely reasonable to suppose that they were lying without realising it rather than being malicious or self-serving. They were not simply lying to me, though, they were lying to each other and, crucially, to themselves. I was treated as one of their own, which meant presenting a professional, positive attitude in theoretical terms but showing the opposite in reality. When given the opportunity to muse at length on their attitudes to clients, the lawyers were thinking in the abstract thus falsely convincing themselves that this abstract was something more than a self-justificatory myth. I also saw the concrete and, as a result, have been able to document the discrepancy that existed between the two. What becomes important going forward – and this the value of moving beyond easy answers such as lying lawyers – is that we can begin to make plans on how to ensure that lawyers do not develop such bad practices. Ideally, criminal legal aid lawyers would be paid better – but even that may not be enough to reverse such trends and, while addressing the unacceptable financial degradation of criminal legal aid is necessary to improve the quality of representation, it must be accompanied by improved ethical training for law students and practitioners. Lawyers must be hard-wired to take a client-centred approach. There is no need to adhere to the admittedly speculative psychoanalytic readings offered here to be concerned by the results of my research. It suggests a disconnect between the theory and the practice of law, a disjuncture that seems to be reflected in the mismatch between what lawyers say and what they do but is also a wider issue about the lack of communication or comprehension between the academic study of law and the pragmatic, messy, compromised world of legal practice.
This year, a practitioner colleague and I have launched a new undergraduate module to promote client-centred practice with an emphasis on training reflective practitioners. Teaching students to be reflective about the differences and to acquire skills that equip them for critical analysis of the criminal justice system and ethical practice within it may help to produce practitioners that are, not just skilled and insightful, but also ethical, reflective and resilient.
Students are taught that values are at the heart of the criminal process (e.g. who the criminal sanction works for, the lack of equality at how parties are treated in the criminal justice system). These prospective criminal lawyers are encouraged to recognise their own place in the power hierarchy of an adversarial system that pits the might of the state against an inherently vulnerable individual highlighting the importance of the legal aid lawyer. Crucially, through academic theory, empirical research and practical skills training, the cohort of this module are reminded again and again that their client is a human being. We do not teach criminal justice as an abstract collection of routines and procedures but as an active engagement with a human being in need. Our module is no panacea and we are not solving the problems of the legal profession. We are, though, hopefully helping to encourage a change in how law students are produced, one that contests traditional – rational – approaches to training lawyers that led to the kind of issues of detachment I identified in the first place as well as resisting the wider individualism of the neoliberal university. I do not believe we are alone here and the news I hear of increasing numbers of law schools building ethics into their undergraduate degrees is heartening as it these types of approaches that foreground due process, public service values that can ensure future criminal lawyers have the social importance of their role deeply ingrained into their professional mind-set from an early stage – creating a foundation that might prop up the rest of their careers.
On-going ethical training will also be needed once lawyers enter into practice. If it was more than a tick box exercise, regular monitoring of lawyer standards could be an effective means to test client commitment and remind lawyers of their duties. Lapsed values are not something for which we should necessarily seek to blame lawyers; this is something all kinds of practitioners from university lecturers to doctors can be guilty of when working in a demanding field. I am not trying to claim any sense of superiority over lawyers or suggest that they are an inherently problematic profession. Certainly, I do not assume that criminal lawyers fundamentally disdain their clients. I have a lot of respect for the important work criminal legal aid lawyers can do and believe the problems I have picked out are circumstantial, hence my trying to come up with ways to help improve the situation rather than just giving up and dismissing them.
This article first ran on November 1 2017
Author: Daniel Newman
Dr Newman is a cecturer in law at Cardiff School of Law and Politics and author of Legal Aid Lawyers and the Quest for Justice (Hart, 2013)