When determining the defense strategy, how to deal with the three pairs of relationships, namely, promoting the progress of the rule of law and respecting the client's wishes, improving the lawyer's social influence and protecting the client's legitimate interests, and the defender's suggestion and the client's decision, is the touchstone to test whether the lawyer implements the principle of maximizing the client's interests, and also the yardstick to measure the lawyer's professional ethics.
(a) Promoting the progress of the rule of law and respecting the wishes of the parties concerned.
Every legal person, including lawyers, has a dream of unity and the early realization of the rule of law. Under the guidance of this dream, "promoting the progress of the rule of law by cases" has become a fashionable proposition of legal persons at present.
Formally speaking, the rule of law refers to the rule of law, which requires strict implementation of the laws that have been formulated. The implementation of the law must be reflected in the handling of specific cases according to law. In this sense, promoting the law by case is a pragmatic and rational attitude, which should be fully affirmed.
This kind of voice is often heard in some specific cases, especially in the process of dealing with "famous cases". I remember that in the "Pu Zhiqiang case" which was widely concerned by lawyers, some lawyers expressed great dissatisfaction and even indignation in the face of Pu Zhiqiang's guilty attitude. They thought that the Pu Zhiqiang case was an innocent case. As a benchmark figure of "human rights lawyer", Pu Zhiqiang should not plead guilty, but should fight to the end to promote the progress of the rule of law in China.
This involves a question, how to choose between promoting the progress of the rule of law and respecting the wishes of the parties, which comes first? We must first understand how to promote the progress of the rule of law by cases, and whether to create a whirlpool of public opinion in the process of handling cases, embarrassing the authorities and promoting the progress of the rule of law? Does the concession of the parties to the authorities mean that the rule of law has been destroyed?
As mentioned above, the rule of law is the rule of rules, and the interests of social subjects are behind the rules. In criminal proceedings, the parties are judges who maximize their own interests, and they have the right to plead guilty or not. In order to maximize their own interests, the parties have the freedom to plead guilty protected by law. The legal duty of a defender is to put forward materials and opinions to prove the innocence, lightness or reduction or exemption of criminal responsibility of a criminal suspect or defendant according to facts and laws, and to safeguard the legitimate rights and interests of the criminal suspect or defendant.
When the defender asks the client to give up his choice for the seemingly lofty ideal of the so-called "progress of the rule of law" and fight against public power by not pleading guilty, it is essentially an illegal spiritual coercion to the client. This kind of behavior will not only sacrifice the interests of the client, but also violate the lawyer's professional ethics, which in itself is the destruction and betrayal of the law.
In the process of criminal defense, lawyers should fully respect the wishes of the parties and should not try to replace or even force the parties to make certain choices. When a lawyer respects the client's wishes and protects the client's interests to the maximum extent, it is a success in itself and a social progress.
Lawyers ask the parties to go against their will in individual cases to strive for the progress of the rule of law. If they really want to promote the rule of law in this way, the nationalist thinking behind lawyers is very worrying. Because the core of the rule of law is human rights, human rights naturally resist invading its territory in the name of the collective, and pursuing the rule of law in an anti-rule-of-law and anti-human rights way is tantamount to seeking fish from a tree.
(two) to improve the social influence of lawyers and protect the legitimate rights and interests of the parties.
The relationship between promoting the progress of the rule of law and respecting the wishes of the parties is closely related to the relationship between the social influence of lawyers and the legitimate interests of the parties.
Soldiers who don't want to be generals are not good soldiers. Similarly, lawyers who don't want to be famous barristers are not good lawyers. At present, there are at least two external standards for well-known barristers in China: one is wide social influence, and the other is wide source of cases and high fees. The cases of well-known barristers are rich in sources and high in fees, mainly due to their social influence.
To become a well-known barrister, we must first improve social visibility and influence, which is already the knowledge of the legal profession. How to improve their popularity and influence, I think this is a question that every lawyer has thought or is thinking about. There are many ways to enhance the social influence of lawyers. It is the most traditional method to make good use of professional ability, handle every case with high quality, gradually establish a reputation and constantly improve your popularity in the professional field, but it is also a method that pays more and has less results.
So someone invented a shortcut to fame quickly. After accepting the case, they tried their best to expose the "shady" of the public security organs in the case through online hype, and molded themselves into a warrior who fought against the dark public power for fairness and justice, for the rule of law in the country, so as to attract the attention of the media and the audience. Since the parties to the case have been arbitrarily wronged by public power, it is necessary to conduct a thorough innocence defense in court.
Judging from all kinds of famous cases that have aroused our concern and heated discussion in recent years, due to the hype and operational mistakes of lawyers, some cases that could have been sentenced to probation or exemption from punishment were sentenced to real punishment, some cases that could have been sentenced to light punishment were sentenced to heavy punishment, and some cases that might not have been sentenced to immediate execution were sentenced to immediate execution.
In these cases, some lawyers tried to improve their popularity and social status by speculating on the cases, but the result was that they harmed the interests of the parties, some even damaged their own image, and even damaged the overall image of the lawyer industry. I always think that this practice violates the lawyer's professional ethics and deviates from the principle of maximizing the interests of the parties in legal services, which should be avoided when lawyers choose defense strategies.
With the development of the media, the information between legal service providers and consumers is becoming more and more symmetrical, and the parties' awareness of the lawyer industry and its legal services is getting higher and higher. Lawyers with real social influence in the future must be those who wholeheartedly use their professional skills to maximize the interests of their clients, rather than those who want to hype themselves at the expense of the interests of their clients. There will be more and more consistency between improving the influence of lawyers and protecting the legitimate interests of clients.
(3) The defender puts forward a proposal and the parties make a decision.
A few years ago, many lawyers thought that lawyers could defend independently from their clients. If the party pleads guilty and the lawyer thinks that he is innocent, he can independently defend his innocence; If the client does not plead guilty, the lawyer thinks it constitutes a crime, and the lawyer can defend the guilty independently.
Now this misconception has been basically corrected. It is recognized that the lawyer's right of defense comes from the entrustment of the parties, and the lawyer's right of defense belongs to the rights of the parties. Compared with the client, the independence of lawyer's defense only means that the defender can't completely take the client as the center and can refuse the illegal request of the client.
Since the lawyer's right of defense belongs to the party's right of defense, it means that in the formulation of defense strategy, the lawyer's role is only to put forward the plan, and the decision-making power of strategy choice lies with the party. While forming this new understanding of lawyers' right to defense, there seems to be another extreme phenomenon. From a professional point of view, some cases have obvious mistakes in strategy selection, which leads to unexpected litigation results that are not conducive to the parties. For this result, some lawyers believe that lawyers are only the staff assistants of the parties engaged in criminal proceedings, and the parties themselves choose to adopt such defense strategies. The responsibility for the bad consequences lies not in the lawyer, but in the wonderful work of the parties.
This is the relationship between the counsel's proposal and the parties' decision. How should we view the relationship between the two? First of all, we have to ask, why do the parties hire lawyers and why do they hire defenders to defend them? The reason is very clear, very clear, for the parties, lawyers are professionals and criminal defense lawyers are experts in criminal defense. Therefore, to hire a lawyer as a defender in a criminal case is equivalent to seeing a doctor when a patient is sick.
There are obvious asymmetries in legal and medical knowledge and experience between lawyers and clients, and between doctors and patients. Although in theory, clients and patients have the right to decide, their right to decide is based on the professional analysis opinions of lawyers and doctors. Without professional analysis, there is no choice, and there is no best choice for the parties and patients.
In reality, few clients and patients will explicitly reject the treatment plan and defense strategy put forward by lawyers and doctors, because lawyers and doctors are professionals with obvious knowledge and experience advantages in law and medical care before clients and patients. When they choose lawyers or doctors, they will have obvious dependence and trust in their careers.
When clients and patients trust lawyers and doctors, whether lawyers and doctors can put forward the most favorable defense and medical programs and strategies depends on their experience, knowledge and professional ethics. The genius of a high-level lawyer and doctor is precisely that he can put forward the most beneficial defense and medical plan for the parties and patients to choose from under the constraints of realistic conditions.
For a failed defense and a failed innocent defense, lawyers should not shift the responsibility to the client, but should deeply reflect on whether their lack of knowledge and experience led to the wrong strategy, or even whether they were selfish in handling cases, and finally chose a defense strategy that was not conducive to the client.
The choice of defense strategy is directly related to the outcome of the case, the interests of the defendant, and even the life of the defendant. After taking over a case, every defender needs to seriously think about how to determine the defense strategy in order to maximize the interests of the parties.