I would not consider myself well served by my doctor if he were to announce that a life-saving treatment was available, but that he would not prescribe it because, well, it offends his sensibilities. I want options from my doctor. I want intelligent choices and an assessment of the risks and benefits of my options. Perhaps limping through the rest of my life with one leg would be awkward; but I might prefer that course to death. The choice is mine.
The doctor analogy is interesting because doctors are seldom presented with situations in which they might heal their patients by making other people sick. When they are faced with such situations, they generally don’t proceed without consent from the person who will be injured (consider, for example, bone marrow transplants).
When we defenders help our clients cooperate, we may improve their lives, but we make people’s lives worse as a direct result of our work. The problem is not that we are helping the government, but that we are hurting other people; despite the fact that the law smiles on defendants who make other people’s lives worse, we may refuse to participate.
The truth is that we are sometimes called upon to choose between our own interests and our clients’. If a client wants you to knowingly present false testimony, what do you do? If a client wants you to whack a witness, what do you do? If a client wants you to help him flee before trial, what do you do? Even though perjury, murder, or flight might be in the client’s best interest, you wouldn’t help him in those ways.
“But,” you might say, “those things are illegal.”
So what? Contrary to popular belief, we don’t give up our souls when we become lawyers. We don’t obligate ourselves to permit the government to define right and wrong for us. Some illegal things are ethical, and some legal things are unethical. If we feel something is unethical, we can refuse to do it whether the government approves of it or not.
First, suppose that the government passes a law saying that a criminal defendant might, by killing a person whom the government deems to have committed a crime, shorten his own sentence. Suppose further that the law provides that a killing in such circumstances is justified. Will you help a client legally murder a drug dealer? Or might you put your own ethics — your own “vision of yourself” — first and decline?
Suppose instead that you are opposed to the death penalty, and that a client facing prison has an opportunity, in exchange for the possibility of a lighter sentence, to testify in a trial in which the government seeks to kill a person. Will you help him do so? Or might you put your ethics first and decline to help the government put a person to death?
If your answer is that in one of those scenarios you might choose your own ethics over your client’s best interest, but that you wouldn’t otherwise refuse to help an accused person cooperate with the government, then we are haggling about the price.