Guilty pleas or trials: which does the barrister prefer?

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Tague, Peter W.
• Published date: 01 April 2008
• Author: Tague, Peter W.

[Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favour guilty pleas, it is not accurate with respect to barristers in England. This is because the latter's selfish incentives--to maximise income and avoid sanction--incline them to prefer trials over guilty, pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, this article concludes that, as in England. barristers' incentives lead them to prefer trials. Thus, when barristers in Melbourne or Sydney recommend a guilty plea, they are arguably thinking of the defendant's interest rather than their own.]

CONTENTS I Introduction II Temptations III Maximising Compensation A Obtaining Briefs B Solicitors' Expectations about Barristers' Performance C Fees D Cracked Trials IV Sanctions Deterring Self-Interested Behaviour V Trials when Guilty Pleas Are Appropriate VI Conclusion I INTRODUCTION

Many criminal defendants plead guilty at or shortly before trial. Their reasons vary. A defendant, for example, may have exhausted the resources that they can expend to fight the charge(s). Another, awash with remorse, might finally admit culpability. A third might buckle from the tension while awaiting the case's resolution. Another might learn that a witness previously expected not to testify against them will do so. A fifth, despite having adamantly insisted upon a trial, might plead guilty on the strong advice of their legal advocate. (1) It is this last defendant, and their legal advocate, who are the subjects of this article.

What led the advocate to persuade the fifth defendant to change their plea to guilty? Were the advocate's motives paternalistic in that the defendant had to be convinced that a jury would surely convict, with the repercussion of a much harsher sentence than that which would follow a guilty plea? (2) Or was the advocate covertly advancing their own personal interests without regard to the defendant's?

Overlooking that first motive, bewildered defendants and incensed critics have accused barristers in England's Crown Court and attorneys in the United States of manipulating defendants into pleading guilty in order to satisfy advocates' own interests, even at their clients' expense. (3) If this accusation were true, advocates would be betraying their clients, and plea negotiations would be a sham given that the advocate would be acting as the prosecutor's covert ally rather than as the defendant's protector.

While this accusation is false when aimed at barristers in England, (4) it could be accurate when applied to attorneys in certain jurisdictions in the US who are chosen to represent defendants in publicly-funded cases. (5) As no advocate would admit to sacrificing their client to pursue their own interests, the question is one which can only be approached by examining the advocate's incentives. If the advocate thought only of themself, would they prefer a guilty plea or a trial? In England's Crown Court and in some but not all jurisdictions in the US, advocates' incentives incline them to prefer a trial. It follows, arguably, that when a barrister in England recommends a guilty plea, the barrister must believe that that plea is the better choice for the defendant since it is not personally the more advantageous choice. In recommending a guilty plea, then, the barrister properly subordinates their interests to those of the client.

Intriguingly, barristers in Melbourne and Sydney have escaped the criticism levelled at their counterparts in England and the US. In conversations with judges, barristers, solicitors, academics and others in those two cities, (6) no-one accused them of covertly soliciting guilty pleas to further their own ends. In the literature there is little more than a hint that barristers might be suspected of pursuing their interests when recommending guilty pleas. (7) Why in Australia is this issue so exotic that it has never been studied? Are barristers in Melbourne and Sydney more virtuous than advocates in the other two countries? Or, as in England's Crown Court, does the structure of practice align barristers' interests closely with those of defendants?

The advocate's two selfish interests that are constant are to maximise remuneration and to avoid sanction. (8) Although practice arrangements differ somewhat between Melbourne and Sydney, if barristers in those two cities were to pursue those two selfish goals, the structure of their practice disposes them to prefer trials no less than their counterparts in the Crown Court, (9) and that preference is arguably the strongest in Melbourne. (10)

This article is arranged as follows. Part II illustrates how the structure of practice in the US and in England's Crown Court could induce advocates to prefer guilty pleas over trials. The discussion then turns to the incentives of barristers. (American attorneys are not included in this discussion because the salient parts of practice that generate their incentives are quite different from the structure of practice for English and Australian barristers.) Parts III and IV analyse those two selfish interests of barristers in the Australian cities, with particular emphasis upon practice in Melbourne. (11) Part V addresses the inverse problem: as barristers benefit more from trials than guilty pleas, might they refrain from advising defendants to plead guilty when the expected value of such a plea exceeds that of a trial?

II TEMPTATIONS

Advocates should be trusted to subordinate their interests to those of the criminal defendant. However, if an advocate did pursue their own self-interest without regard to the defendant's interests, how would they calculate the personal benefits of a guilty plea or a trial? If the advocate benefited from one plea and the defendant from the other, could the advocate disguise their quest to advance self-interest at the defendant's expense? In this Part, we consider the temptations for attorneys in the US and barristers in England's Crown Court to prefer guilty pleas over trials. According to critics, this is a preference advocates cannot resist. (12) Interestingly, critics have failed to recognise that barristers might be tempted to prefer a trial when a guilty plea is actually the defendant's better choice. It is this second temptation that is more likely to seduce barristers in Melbourne and Sydney. (13)

In publicly-funded cases in the US, selection and compensation tempt attorneys to prefer guilty pleas. Unlike barristers in England and Australia, American attorneys are not chosen to represent indigent defendants by an intermediary (the solicitor) who also represents the defendant and has an interest in selecting an able, loyal advocate. Instead, in those jurisdictions where judges or court officials select the attorney, attorneys may fear being denied appointments in the future if they do not deliver a guilty plea in a case the judge thinks should be ended in that way. (14)

Similarly, compensatory schemes in publicly-funded cases create an incentive for attorneys to end cases by guilty plea. Attorneys with a contract to represent a certain percentage of the jurisdiction's indigent defendants for a bulk fee, for example, maximise their monetary yield per case by avoiding trials and ending cases by guilty pleas. (15) Jurisdictions that instead pay an hourly rate typically cap the overall amount the attorney can earn. (16) As their effort approaches that ceiling, attorneys are tempted to end the case by guilty plea to avoid piercing the cap (and earning nothing more). (17)

In comparison, self-interested behaviour by barristers in England's Crown Court might be found in the 'cracked trial', 'double-booking' and the 'returned brief', which are facilitated by the complexity of the compensatory scheme in publicly-funded cases. The term 'cracked trial' refers to a case scheduled for trial that ends on that day. (18) Of the reasons for a cracked trial, the most prominent is the defendant's belated guilty plea--this was the reason in 81 per cent of cracked trials in the Crown Court in London, (19) in 15 per cent of cracked trials in the County Court of Victoria (20) and in 44 per cent of cracked trials in the District Court of New South Wales. (21) Cracked trials are reviled for wasting expensive preparation by judges, and by the prosecution and defence, as well as for inconveniencing witnesses. (22) Studies canvassing the many reasons defendants plead guilty at the last moment never accuse the barrister of being the nefarious cause. (23) Might a selfish pursuit of a barrister's interests nonetheless precipitate these guilty pleas?

'Double-booking' and the brief that is 'returned' (or 'flicked' in the Australian argot) work hand in glove. They are no less troubling than the cracked trial and may contribute to late guilty pleas. A barrister 'double-books' by accepting the defence of defendants charged separately but on the same or overlapping days. This ensures that the barrister has remunerative work. If one trial begins, the barrister must 'return' the brief of the other to the instructing solicitor for that defendant. By returning the second brief, the barrister upends the value of the estimable cab rank rule, which (with certain exceptions) requires barristers to accept any brief no matter how odious the crime, the defendant or the defence. (24) In many cases, however, the barrister in England's Crown Court reneges on this obligation and returns the defendant's brief to the instructing solicitor because the solicitor must then find a substitute. (25) The results are twofold: first, the barrister who juggles two briefs may not be properly prepared to...