47 Pages Posted: 10 Nov 2008
This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.
Keywords: Courvoisier and Westerfield cases, legal ethics, legal defense, lawyering
Suggested Citation: Suggested Citation
Asimow, Michael and Weisberg, Richard, When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature. Southern California Interdisciplinary Law Journal, Vol. 18, p. 229, 2009; UCLA School of Law Research Paper No. 08-35; NYLS Clinical Research Institute Paper No. 09/10 #23. Available at SSRN: https://ssrn.com/abstract=1296838