Article by Giorgos
Kazoleas, Lawyer
Lawyers have the right to refuse to undertake a case when it
conflicts with their moral principles, their dignity and conscience. Both the
Code of Lawyers in Greece and the Code of Lawyers 'Ethics in Cyprus provide the
legal framework to support this choice.
The Greek Legislation
The lawyer's right to refuse the defense of a specific
defendant in a criminal trial clearly follows from the wording of article 37 of
the Lawyers' Code (Law 4194/2013). According to paragraph 1 of this article,
the lawyer has an obligation to undertake any case, unless it is manifestly
unfounded, not amenable to defense, conflicts with the interests of other
clients or goes against his/her principles. According to paragraph 2, the
lawyer must undertake the defense of any accused, if requested by the judicial
authorities, subject to paragraph 1.
The reasons for refusing to undertake a case are expanded by
article 6 of the Greek Code of Ethics of the Legal Profession. According to
this:
Lawyers have an obligation to undertake any case assigned to
them, if there is a way to defend it. However, they have the right to refuse
the defense of a case:
a) If in their opinion it is illegal or patently unfair.
b) If with the information provided by the client it is
certain that the trial will be lost.
c) If it is directed against a relative or very friendly
person.
d) If in a similar case, handled before this one, they had
supported opposing views, which were accepted by irrevocable decisions by
Courts or Administrative Authorities.
e) If for the defense of the case they are going to
contradict published opinions, theories, interpretations or positions on the
same legal issue.
f) If they do not have enough time to properly prepare and
defend the case.
In criminal cases where the defendant is alleged to have
committed particularly heinous acts with great social and criminal
condemnation, the phenomenon of lawyers' reluctance to undertake his/her
defense is often observed. In such cases, the Court ex officio appoints an
advocate from the list of the competent Bar Association. However, even in this
case, the lawyer appointed ex officio has the right to refuse his/her
appointment according to the above provisions in article 37 of the Bar Code.
There are several cases in the judicial annals in Greece,
where no lawyer wished to defend those accused of heinous crimes, mainly child
killers and pedophiles, as a result of which a lawyer was appointed by the
Court.
In the Greek island, Lesbos, in 2016, a lawyer representing
an accused of raping his minor children resigned during the interrogation
process. According to press reports at the time, the lawyer took over the
defense after being appointed by the Court, but when he read the defendant's
statement he was "disgusted" and quit. Subsequently, no other lawyer
accepted to undertake the case and a process of questioning 30 lawyers who were
on the list followed until a defense lawyer for the person accused of
pedophilia was finally found.
In another recent case, in March 2022, in the trial of the
second degree in the case of the brutal murder of a female student, after the
resignation of the defense counsel of one of the two defendants, the Court
started a process of ex officio appointment of new defenders, from the list of
the Athens Bar Association, however, there was a refusal to undertake defense
duties by three lawyers, who cited moral reasons and were even applauded by
those in the audience.
The lawyers' refusal was commented on by the prosecutor who,
according to all press posts, spoke of a shame for the legal system, invoking
the European Convention of Human Rights. This comment, in my opinion, was
ill-judged, as the list of available lawyers had not been exhausted and the
process had not reached a procedural impasse. The prosecutor's position
constituted an infringement of the right of lawyers to make use of Article 37
of the Lawyers' Code. No one and nothing can compel the advocate to undertake a
case, when it goes against his/her principles.
In addition to the cited reasons, the time at which the
lawyer's refusal/resignation is declared is also important. When this is
expressed at the beginning of the criminal proceedings, it must be accepted
without question. However, once a lawyer has begun to act on behalf of the
accused and the proceedings have progressed far enough, it is possible that the
waiver will be found to cause harm to the accused person's legal
interests.
The legal framework in Cyprus
In Cyprus jurisdiction, lawyers have the duty to undertake
the defense of any person accused of a crime, regardless of their personal
opinion as to the guilt or innocence of the accused (Regulations on the Ethics
of Lawyers, R.33 (11)).
However, the lawyer is free to undertake or refuse to
undertake cases without providing any justification, with the exception of
cases assigned to him/her by the Court, in which case the refusal must be
sufficiently justified. Although the lawyer must never undertake a case in
which he/she would not have moral freedom of action. (Regulations on Ethics of
Lawyers, R.33 (10)).
The above provision is similar to the regulation of the
Greek Code of Lawyers (art. 37), according to which, lawyers have an obligation
to undertake any case, unless it contradicts their principles.
Finally, the Rules of Conduct for Lawyers also provide for
the possibility for a lawyer to withdraw from a case (R.25): "When a
lawyer takes on a case, he/she may not withdraw, except because he/she mediated
a reasonable cause affecting his/her good reputation, his/her dignity or
his/her conscience or if he/she has mediated a breach by his/her client of any
moral or material obligation to him/her or disagreement as to the handling of
the case, or because of any other reasonable cause”.
Lawyer’s right in relation to the right of access to a lawyer
The right of access to a lawyer, especially in the context
of defense in a criminal trial, is a fundamental achievement of legal culture
and a condition for a fair trial as required by the European Convention on
Human Rights and the Charter of Fundamental Rights of the EU.
But also the right of the lawyer to refuse to undertake the
defense of an accused person under legal conditions may not be impaired or
limited. After all, judicial practice has shown that no cases have been
recorded internationally, in which there is not finally a lawyer willing to
defend even the most "undesirable" defendant.
One such case was of the notorious American serial killer,
kidnapper, rapist, burglar and necrophiliac, Ted Bundy, who was found guilty of
murdering several women during the 1970s, including little girls, and who
eventually sentenced to death three times and executed in the electric chair in
1989.
One of his chief lawyers, the criminologist John Henry
Browne, who had said for his client, Bundy, that he was the perfect example of
someone born evil, later wrote of his experience as a defender of hardened
criminals: "My father once said: 'To
keep our society free and democratic, someone has to do your job, and do it
well.' Then he paused and said: 'I am just really sorry it's you.' I feel
the same way".
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