In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and ‘Ethical Indeterminacy’ in Criminal Defence Work
| Date | 01 December 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00402.x |
| Published date | 01 December 2007 |
| Author | Cyrus Tata |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 4, DECEMBER 2007
ISSN: 0263-323X, pp. 489±519
In the Interests of Clients or Commerce?
Legal Aid, Supply, Demand, and `Ethical Indeterminacy'
in Criminal Defence Work
Cyrus Tata*
As a professional, a lawyer's first duty is to serve the client's best
interests, before simple monetary gain. In criminal defence work, this
duty has been questioned in the debate about the causes of growth in
legal aid spending: is it driven by lawyers (suppliers) inducing
unnecessary demand for their services or are they merely responding
to increased demand? Research reported here found clear evidence of
a change in the handling of cases in response to new payment struc-
tures, though in ways unexpected by the policy's proponents. The
paper develops the concept of `ethical indeterminacy' as a way of
understanding how defence lawyers seek to reconcile the interests of
commerce and clients. Ethical indeterminacy suggests that where
different courses of action could each be said to benefit the client, the
lawyer will tend to advise the client to decide in the lawyer's own
interests. Ethical indeterminacy is mediated by a range of competing
conceptions of `quality' and `need'. The paper goes on to question the
very distinction between `supply' and `demand' in the provision of
legal services.
489
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Centre for Sentencing Research, Law School, Strathclyde University,
Glasgow G4 OLT, Scotland
Cyrus.Tata@strath.ac.uk
I wish to thank the following people for their insightful comments on, and advice about
this paper and the ideas contained in it: Lynn Mather, Tamara Goriely, Richard
Moorhead, Ed Cape, Elaine Samuel, John Flood, Peter Duff, Julian Webb, Roger Bowles,
Lee Bridges, and the anonymous reviewers of this paper. I also wish to acknowledge
Frank Stephen with whom I led the research discussed here; as well as Giorgio Fazio,
Alex Christie, and Lorraine Sweeney, each of whom worked on different aspects of the
study discussed here. I also wish to thank all of the prosecution and defence practitioners,
members of the judiciary, officials, and representatives of client groups who assisted with
access to data, or, agreed to be surveyed, or, interviewed.
INTRODUCTION
Do lawyers place the interests of clients before their own self-interest? The
client service ethic is commonly regarded as one of the most important
distinctions between lawyers as professionals rather than mere business-
people.
1
Yet research into lawyer±(non-corporate) client relations has,
broadly-speaking, suggested that this picture is misleading: lawyers,
motivated by (or at least well aware of) their own self-interest, and justified
by a weary cynicism about most clients, use a variety of techniques to
influence and/or dominate clients.
2
In the criminal sphere, (where control of
clients by lawyers has been identified most acutely), legal aid policy officials
have been heavily influenced by a reading of the `supplier-induced demand
thesis'
3
which suggests that lawyers (suppliers) tend to induce demand and
carry out non-essential work for their own financial gain. Governments have
employed this thesis to allege that lawyers `milk' the legal aid system, for
example, by encouraging clients to plead guilty at the last minute because it
is in the financial self-interest of lawyers to do so. The supplier-induced
490
1 The notion of putting the client's interest before one's own is crucial to professional
claims and the key distinction from commerce. `Professionalism is not concerned
with self-interest, but with the welfare of the client': T.H. Marshall, `The Recent
History of Professionalism in Relation to Social Structure and Social Policy' (1939) 5
Cnd. J. of Economics and Political Science 325±40, cited by G. Munhgam and P.A.
Thomas, `Solicitors and Clients: Altruism or Self-Interest?' in The Sociology of the
Professions, eds. R. Dingwall and P. Lewis (1983) 130±51, at 136.
2 See for example: A. Blumberg, Criminal Justice (1967); J. Baldwin and M.
McConville, Negotiated Justice (1977); A. Bottoms and J. McClean, Defendants in
the Criminal Process (1976); M. McConville, J. Hodgson, L. Bridges, A. Pavlovic,
Standing Accused (1994); T. Goriely, P. McCrone, P. Duff, C. Tata, A. Henry, M.
Knapp, B. Lancaster, A. Sherr, The Public Defence Solicitors' Office: An Independent
Evaluation (2001); C. Tata, T. Goriely, P. Duff, A. Henry, P. McCrone, M. Knapp,
`Does Mode of Delivery Make a Difference to Criminal Case Outcomes and Client
Satisfaction?' (2004) 50 Crim. Law Rev. 120±35; R. Ericson and P. Baranek, The
Ordering of Justice (1982); A. Mulcahy, `The Justifications of ``Justice''' (1994) 34
Brit. J. of Crim. 411±30; D. Rosenthal, Lawyers and Clients ± Who's in Charge?
(1974); A. Sarat and W. Felstiner, Divorce Lawyers and their Clients (1995); C.
Smart, The Ties that Bind (1984); L. Mather, C. McEwen, R. Maiman, Divorce
Lawyers at Work (2001); L. Mather, Plea Bargaining or Trial? (1979); R. Flemming,
`Client Games' (1986) 11 Am. Bar Foundation Research J. 253±77.
3G.Bevan, `Has there been supplier-induced demand for legal aid?' (1996) 15 Civil
Justice Q. 98±114; A. McGuire, J. Henderson, G. Mooney, The Economics of Health
Care (1998); A. Gray, P. Fenn, N. Rickman, An Empirical Analysis of Standard Fees
in Magistrates' Court Cases (1999a); A. Gray, P. Fenn, N. Rickman, `Controlling
Lawyers Costs through Standard Fees: an economic analysis' in Access to Criminal
Justice, eds. D. Wall and R. Young (1999b) 192±216; A. Gray, N. Rickman, P. Fenn,
`Professional autonomy and the cost of legal aid' (1999c) 51 Oxford Economic
Papers 545±58; A. Gray, `The Reform of Legal Aid' (1994) 10 Oxford Rev. of
Economic Policy 51±67. Although Bevan's analysis did not concentrate on criminal
defence work, it has nonetheless been used by governments in their search for
answers to the causes of growth in criminal legal aid expenditure.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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