The other day, I successfully defended a husband from imposition of a domestic violence order for protection sought by his spouse. His spouse alleges that my client physically abused her and threatened her in another state. As a result, she moved to Washington with their two children. She petitioned for a protection order in Washington even though my client is not a Washington resident. The court dismissed her petition, finding that it did not have personal jurisdiction over my client. She can seek an order in the other state if she chooses.

As I was leaving the court house, I had a brief conversation with a representative of Domestic Violence and Sexual Assault Services (DV/SAS). DV/SAS had aided the wife in making the petition with the court although she was ultimately represented by an attorney. The representative told me, in so many words, that she questions my understanding of the domestic violence problem. It is this comment that I write about because the comment betrays a complete lack of understanding of the role of an attorney in our system of justice.

The DV/SAS representative is incorrect. It is true that I have lately found myself representing the viewpoint of the alleged domestic violence perpetrator more often than usual, mostly because of my public defense representation. (It should be obvious that many more criminal defendants are alleged DV perpetrators than alleged DV victims.) However, this has not changed my understanding of the DV problem nor my ability to aid those in need of protection (as evidenced by recent successes in doing so). I have simply been playing my role as an attorney. I wish to explain this role.

Ideally, our system of justice would allow most people to represent themselves in it. But, for reasons beyond the scope of this post, our laws and judicial procedures are too complicated for most people to understand without the training and experience of a lawyer. Without professional legal assistance, a litigant is at a severe disadvantage. Worse, the risk of a miscarriage of justice caused by the court not understanding the relevant facts and pertinent law in the case becomes intolerable. So, attorneys are not just necessary to help litigants but are necessary to insure the justice system works properly.

Given the importance of the attorney’s assistance in our system of justice, there are several rules designed to be sure that this assistance is as effective as possible. One of those rules requires me to advocate my client’s position (not what I think is in my client’s best interest) without betraying at all my own feelings about this position. We used to say that a lawyer must advocate “zealously” for his client, although we have backed off from that word. When speaking confidentially, I advise my client on what I believe is the best course of action for that client. But, if my client disagrees with my advice, I adopt my client’s position.

As an important aside, there are limits to what I just said. I am not allowed to employ legal procedure or take positions that are not in good faith. I cannot, for instance, file an action or make a motion that is “frivolous” or to harass or cause delay or extra costs. I cannot aid my client in doing something illegal, and I can and do withdraw from representations requiring me to advocate for a position that is repugnant to me. But short of that, I represent my client as if his or her position is my own.

Our legal system demands as much from me. Unless the parties agree to a resolution of a legal dispute, that resolution must result from each side advocating completely its side of the case to a neutral decision-maker. If the legal representative for one of the parties does not advocate that party’s position completely, then there is a real risk that the neutral decision-maker will not get all of the information necessary to make the right decision. A miscarriage of justice can result.

Now imagine that all lawyers routinely looked into each potential client’s circumstances before they took a case. In the domestic violence context, imagine that lawyers determined for themselves whether or not the allegations of domestic violence are true. In this imaginary world, if the lawyer decides that these allegations may be true, then he refuses the representation. It is worth mentioning that I often do not know for sure what the real facts are in the case. This is especially true in a domestic violence situation. It is often clear that one (or both) of the two sides is lying. Often it is difficult to know for sure which party it is.

So in our imaginary world, a person accused of domestic violence may never be able to get legal assistance in his case. Worse, this would be true because the lawyers would have usurped the role of the judge in determining the truth of the allegations. Yet, each lawyer would do so without the benefit of complete advocacy to that lawyer of the two positions. There would be grave risk of the miscarriage of justice I spoke of earlier without the matter ever getting to the judge. Consequently, our system depends on lawyers who will set aside their own opinions and advocate those of their clients.

But, what should the lawyers do, you may ask, if it is clear that the client is in the wrong? The most extreme example of this is the case where the client admits to the wrongdoing, in this case being a domestic violence perpetrator. This situation is tricky and requires an understanding of two principles.

First, a lawyer cannot adequately represent a client if that client is not free to tell the truth to the lawyer without fear of some sort of negative ramification. We honor this principle in several ways. Importantly, lawyers are not allowed to divulge 'the client’s confidences, including the client’s guilt of wrong doing, unless the client agrees. The lawyer cannot even be compelled to divulge those confidences, a protection called the attorney-client privilege.

But, this is not enough. If lawyers always withdrew upon learning these damning facts from the client, then the client would fear losing competent legal representation, and this fear would impair the free flow of information to the attorney and would impair the attorney’s ability to represent the client. So the principle stated above requires the attorney to not judge the client but rather to continue to act as his advocate so that the real judge can make the right decision.

Now, the second principle that comes into play when a client admits wrongdoing is that the lawyer cannot deceive the court or any other party. For example, the lawyer cannot introduce testimony the lawyer knows is false or make arguments based on representations of facts the lawyers knows to be false. There are a tricky set of rules that involve the interplay of the lawyer’s duty to the client and the integrity of the judicial process, especially in criminal cases where the defendant’s constitutional rights enter the mix. But suffice it to say that a lawyer’s ability to advocate for a client’s position has important limits.

As a practical matter, however, lawyers find themselves required to advocate positions they do not entirely believe themselves. A good lawyer, one who is best serving our system of justice, advocates for his client without others even knowing the lawyer’s personal opinion. So the DV/SAS representative really does not know my position on the case we were discussing. But perhaps if she had heard me advocating for recent clients seeking protection orders, she might have thought differently.