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When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of compensating barristers, together with the threat of sanction for misbehavior, actually inclines barristers to prefer a trial over a guilty plea. As a result, when recommending a guilty plea, the barrister is arguably trying to protect the defendant because he acts against his self-interest in doing so.

Could American jurisdictions borrow from English practice, so that the lawyer's interests are more coextensive with the defendant's when considering the defendant's plea? The answer is in general yes, even as the specifics of English arrangements defy adoption.

This article addresses the barrister's and lawyer's interests in Parts I and IV; however, it begins in Part I by explaining the barrister's relationship with the defendant. In doing so it uncovers the tension between the interests of each and indicates how, and how not, that tension is resolved to align their interests. Part II of this article considers the erroneous reasons why critics believe barristers ignore the defendant's interests to pursue their own. In conclusion, Part V considers lessons the American criminal system can learn from England about how to align the lawyer's interests with those of the defendant. Alignment is possible if the lawyer has as much incentive to try the case as to end it by guilty plea.

Publication Citation

20 Geo. J. Legal Ethics 287-320 (2007)