Guilty Pleas and Barristers' Incentives: Lessons from England

Georgetown Journal of Legal Ethics, The, Spring 2007 by Tague, Peter W

Criminal defense lawyers in the United States sometimes pressure clients to plead guilty. The purpose could be defensible, even laudable: to eliminate the risk that the defendant, guilty or provably so, would be sanctioned much more harshly if convicted at trial.1 The purpose could also be pernicious: to advance the lawyer's interests when it would be "better" for the defendant to contest guilt.2

Barristers in England's Crown Court have been similarly accused of perfidy in pursuing their ends at the defendant's expense in counseling over the choice of plea.3 They do so, it is said,4 for various reasons, including the desire to maintain cordial relations with the prosecution and to avoid losing compensation if they cannot take a case to trial because of scheduling conflicts.

But these reasons misconceive the barrister's incentives. Indeed, barristers are less likely to sacrifice the defendant's interests than are American lawyers because the barrister's selfish interests are more congruent with those of the defendant than are the lawyer's.

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.5

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.6

Before addressing the barrister's and lawyer's interests in Parts III and IV, this Article 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.

I. THE BARRISTER AS AGENT

In Crown Court, the English court of general jurisdiction over criminal cases, the defendant is represented by a barrister and a solicitor. The solicitor prepares the defendant's defense; the barrister, based on the information received from the solicitor, advises the defendant about his plea. If the defendant pleads not guilty, the barrister advocates for the defendant in trial.7

Tension between the barrister and defendant begins with the barrister's selection and continues throughout his work as counselor and advocate. The potential conflict between them over the defendant's choice of plea, the subject of this Article, is a manifestation of the ubiquitous problem of agency costs. The defendant is the principal, the barrister the agent. The agent can thwart the principal's goals if their interests are not coterminous. The strain in their relationship resides in the need of many defendants to rely on the barrister to learn the choices that must be made-how to plead, for example, and whether to testify if the case is tried-and the relative benefits of each. In educating the defendant, the barrister could weigh the considerations to favor his ends over those of the defendant.

As the principal, then, the defendant's problems come in choosing an able and loyal agent and in ensuring that the agent acts as expected. Few criminal defendants will know whom to choose as an advocate. Once a barrister is chosen, through the process described immediately below, defendants are in no better position to evaluate and patrol the barrister's efforts. Their contacts are few.8 The defendant does not know how well the barrister has prepared, nor does the defendant attend the plea discussions held between his barrister and the barrister who prosecutes on behalf of the Crown,9 to assess his advocate's loyalty and negotiating skills.

The genius of the English system, in theory, is to provide an effective way to help the defendant, whether indigent or able to hire counsel, to overcome handicaps in selecting and monitoring the barrister.10 Interposed between the two is the solicitor, the defendant's primary agent, who has overall responsibility for the defense." The defendant chooses a solicitor who in turn selects a barrister and oversees his performance. The barrister is obliged to accept the solicitor's request to represent the defendant.12