Hard Questions and Innocent Clients: The Normative Framework of the Three Hardest Questions, and the Plea Bargaining Problem
22 Pages Posted: 2 Apr 2016 Last revised: 19 Apr 2016
Date Written: March 31, 2016
What makes an ethical question “hard”? Monroe Freedman’s “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” assessed hard questions about discrediting truthful witnesses, presenting perjured testimony and providing advice that may prompt the client to lie. It also, however, created a framework for analyzing ethical problems, for knowing when a question is hard, and both what has to be done to answer a hard question and to defend the answer. This paper articulates that framework. It argues that hard questions arise from unresolvable conflicts either between the lawyer’s professional and personal moral obligations, or between different aspects of the lawyer’s professional duties – the duty of fidelity to law and the duty to be a loyal and zealous advocate for a client. The question requires the lawyer to make a choice in which a moral obligation will have to be sacrificed for another one to be fulfilled. While Freedman answers the hard questions he identifies, his point is ultimately that a lawyer must make a conscientious choice as to how to respond to a hard question in the specific circumstances in which the question arises, and be prepared to defend that choice.
The paper further develops this analysis by applying the framework to argue that one of the hardest questions for criminal defence lawyers is whether or not to advise a client to accept a plea, where the client ought to have a reasonable chance of acquittal if receiving a fair trial on the merits, but the plea is clearly in the client’s best interests given the potential sentence and the improbability of receiving a fair trial.
Keywords: ethics, plea bargaining
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