In defense of the difficult client

Every criminal lawyer is asked the question, usually over dinner, always with the same tilt of the head: how can you act for such people? The question assumes its own answer — that representation is endorsement, that the advocate who stands beside an accused man has adopted his deeds along with his brief. It is worth answering properly, because the answer is one of the load-bearing walls of the legal system, and because the question is being asked more loudly in Pakistan now than at any time we can remember.

Start with the Constitution. Article 10(1) gives every person arrested the right to consult and be defended by a legal practitioner of his choice. The right is not rationed by popularity. It does not distinguish between the sympathetic accused and the reviled one. It exists because the framers understood something the dinner-party question forgets: guilt is the output of a trial, not its input. Until the evidence has been led, tested, and weighed under the Qanun-e-Shahadat, 1984, nobody — not the investigating officer, not the anchor, not the advocate — actually knows. The lawyer who takes the unpopular brief is not vouching for the client. He is vouching for the process.

The bar's own tradition says the same thing more bluntly. The advocates of this country inherited from the English bar the cab-rank instinct: the brief within your competence, at your proper fee, is not to be refused because the client is odious or the cause unpopular [the precise position under the Pakistan Bar Council's Canons of Professional Conduct and Etiquette of Advocates, framed under the Legal Practitioners and Bar Councils Act, 1973 — TO BE VERIFIED BY REVIEWING LAWYER]. The tradition exists for a hard practical reason. If lawyers may decline clients on grounds of public anger, then public anger decides who gets a defence — and the state, which shapes public anger more than any other actor, acquires a veto over its opponents' counsel. The unpopular brief is where the adversarial system either works or quietly stops working.

What the worst case protects

Here is the part the question never reaches. When the state's evidence is tested hard in the worst case — the case where everyone has already decided — the testing protects every other case. The recovery witness who must actually have been present, the confession that must actually have been voluntary, the document that must actually be proved: these standards survive only if they are enforced when enforcing them is unpopular. Relax them for the man everyone hates and they will not be there for the man everyone has merely forgotten. A defence lawyer's real client, in the long run, is the standard of proof.

None of this makes the advocate the client's instrument. The duties run in a strict order, and the first duty is to the court. An advocate may test the prosecution's case to destruction; he may not build a false one. He may put the state to strict proof; he may not manufacture proof of his own, coach a witness, or advance a fact he knows to be untrue. The privilege that protects what a client tells his lawyer — Article 9 of the Qanun-e-Shahadat — itself carves out communications made in furtherance of an illegal purpose. The line is old, and clear, and it is what separates a defence from a conspiracy. We defend people. We do not join them.

The other kind of difficult

But the client who tests a lawyer is rarely the notorious one. The genuinely difficult client is the evasive one. The businessman who discloses four bank accounts and holds back the fifth. The director who has already given three statements — to the FIA, to a journalist, to his brother-in-law — none of which agree, before he first sits across from counsel. The seth who treats his own lawyer as one more counterparty to be managed, fed information in instalments, told what he needs to know.

This client does not understand what the privilege is for. It exists — and the law protects it precisely so — to make total candour safe. The prosecutor will find the fifth account; the only question is whether your own counsel finds it first. A defence can absorb almost any fact. What it cannot absorb is surprise: the document that appears mid-trial, contradicting a defence built in good faith on an incomplete story. When that happens the lawyer's credibility with the court — the slow-built asset that actually wins close cases — is spent on the spot, and it was spent by the client.

So our rule, stated at the first meeting, is simple. Tell us everything, including the parts that embarrass you, especially the parts that embarrass you. We will decide together what the law does with those facts. And expect disagreement: a lawyer who never tells you that you are wrong is not a counsellor but an employee, and you can hire cheaper employees. The clients who take this well tend to do better in court, and not by coincidence. Cases are lost on facts the lawyer met too late far more often than on facts the lawyer knew from the start.

What this means for you

If you are ever the unpopular client, know that the right to counsel of your choice is yours under Article 10(1), and insist on it early — the first forty-eight hours shape the record more than the next two years. If you are the client with the fifth bank account, disclose it at the first meeting; privilege exists so that you can. And if you are neither — merely a citizen wondering how lawyers act for such people — consider that the day the question stops being asked will be the day defences are being allocated by popularity. The difficult client has never been the threat to the system. Losing the lawyers willing to stand beside him is.