A common ethical problem for criminal lawyers is whether it is permissible to represent a client on a guilty plea, which by definition requires the client to admit guilt in open court, even though the client maintains innocence in private. There are various arguments for and against, which are set out in the text Ethics and Canadian Criminal Law, by Michel Proulx and David Layton. Many lawyers and judges oppose counsel acting in such circumstances. One concern is that the client may in fact be innocent, meaning that counsel is aiding in a miscarriage of justice. Another is that this sort of guilty plea misrepresents to the court that the client feels remorse. The leading case arguing against counsel acting for the client on such a plea is R. v. K.(S.) (1995) 99 C.C.C. (3d) 376 (Ont. C.A.). By contrast, Proulx and Layton suggest that in some limited cases a lawyer may be justified in acting, most especially where there is a strong factual basis for concluding that the client is guilty and counsel does not submit to the court that the plea reflects remorse. But this is a minority view.
A possible alternative for counsel where a client insists on pleading guilty but privately asserts innocence is to conduct what is called a Fegan-plea, named after the decision in R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.). This involves the client pleading not guilty. But the defence permits the Crown to lead its entire case by way of a statement of fact, without the need to present any live witnesses. No defence is called, and the inevitable result is that the defendant is found guilty. This process allows the defendant to gain some sentence discount for saving the time and expense of a trial but avoids a suggestion of false contrition. In June, the British Columbia Court of Appeal endorsed the Fegan-plea in a case called R. v. Duong.
In both Fegan and Duong, this unusual manner of conducting the trial was held out as a means of permitting what is in effect a guilty plea without giving up the right to appeal in relation to pre-trial rulings. If, instead of proceeding by way of Fegan-plea, the defendant simply pleads guilty after having lost the pre-trial rulings, the right of appeal will usually be extinguished. The defendant will only be able to proceed with the appeal where he or she can show that the plea was made without an appreciation of its legal impact. In effect, the defendant will need to meet a test similar to that discussed in the case of Harmon, reviewed in the previous Gibbons Fowler Nathanson blog entry. In Duong itself, the defendant met this test and was permitted to proceed with the appeal. The easier route, of course, as suggested in Duong, is to enter a Fegan-plea and thus be assured of preserving the right to appeal.
The Fegan-plea is thus not typically seen as a method by which a client can avoid a trial and gain some of the benefits of a guilty plea without actually admitting guilt. Yet surely there is nothing wrong with using a Fegan-plea for this purpose. It accords, in effect at least, with the approach taken in other jurisdictions. In the United States, for instance, defendants are permitted to plead guilty without admitting in court to the facts underlying the offence. This is called an Alford-plea, after the judgment in North Carolina v. Alford, 400 U.S. 25 (1970). Different again, yet similar in ultimate effect, is the position in the U.K., where s. 11.5 of the Bar Code of Conduct's Written Standards for the Conduct of Professional Work expressly allows a lawyer to act for a client on a guilty plea despite the client's private protestations of innocence. Restrictions on counsel doing so are somewhat similar to those recommended by Proulx and Layton.
To read the Duong case click here.
To read North Carolina v. Alford click here.
To read s. 11.5 of the U.K. Written Standards for the Conduct of Professional Work click here.
