Guilty Pleas or Trials: Which Does the Barrister Prefer?

Tague, Peter W., Melbourne University Law Review

[Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favour guilty pleas, it is not accurate with respect to barristers in England. This is because the latter's selfish incentives--to maximise income and avoid sanction--incline them to prefer trials over guilty, pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, this article concludes that, as in England. barristers' incentives lead them to prefer trials. Thus, when barristers in Melbourne or Sydney recommend a guilty plea, they are arguably thinking of the defendant's interest rather than their own.]

CONTENTS

I      Introduction
II     Temptations
III    Maximising Compensation
          A  Obtaining Briefs
          B  Solicitors' Expectations about Barristers' Performance
          C  Fees
          D  Cracked Trials
IV    Sanctions Deterring Self-Interested Behaviour
V     Trials when Guilty Pleas Are Appropriate
VI    Conclusion

I INTRODUCTION

Many criminal defendants plead guilty at or shortly before trial. Their reasons vary. A defendant, for example, may have exhausted the resources that they can expend to fight the charge(s). Another, awash with remorse, might finally admit culpability. A third might buckle from the tension while awaiting the case's resolution. Another might learn that a witness previously expected not to testify against them will do so. A fifth, despite having adamantly insisted upon a trial, might plead guilty on the strong advice of their legal advocate. (1) It is this last defendant, and their legal advocate, who are the subjects of this article.

What led the advocate to persuade the fifth defendant to change their plea to guilty? Were the advocate's motives paternalistic in that the defendant had to be convinced that a jury would surely convict, with the repercussion of a much harsher sentence than that which would follow a guilty plea? (2) Or was the advocate covertly advancing their own personal interests without regard to the defendant's?

Overlooking that first motive, bewildered defendants and incensed critics have accused barristers in England's Crown Court and attorneys in the United States of manipulating defendants into pleading guilty in order to satisfy advocates' own interests, even at their clients' expense. (3) If this accusation were true, advocates would be betraying their clients, and plea negotiations would be a sham given that the advocate would be acting as the prosecutor's covert ally rather than as the defendant's protector.

While this accusation is false when aimed at barristers in England, (4) it could be accurate when applied to attorneys in certain jurisdictions in the US who are chosen to represent defendants in publicly-funded cases. (5) As no advocate would admit to sacrificing their client to pursue their own interests, the question is one which can only be approached by examining the advocate's incentives. If the advocate thought only of themself, would they prefer a guilty plea or a trial? In England's Crown Court and in some but not all jurisdictions in the US, advocates' incentives incline them to prefer a trial. It follows, arguably, that when a barrister in England recommends a guilty plea, the barrister must believe that that plea is the better choice for the defendant since it is not personally the more advantageous choice. In recommending a guilty plea, then, the barrister properly subordinates their interests to those of the client.

Intriguingly, barristers in Melbourne and Sydney have escaped the criticism levelled at their counterparts in England and the US. In conversations with judges, barristers, solicitors, academics and others in those two cities, (6) no-one accused them of covertly soliciting guilty pleas to further their own ends. In the literature there is little more than a hint that barristers might be suspected of pursuing their interests when recommending guilty pleas. (7) Why in Australia is this issue so exotic that it has never been studied? Are barristers in Melbourne and Sydney more virtuous than advocates in the other two countries? Or, as in England's Crown Court, does the structure of practice align barristers' interests closely with those of defendants?

The advocate's two selfish interests that are constant are to maximise remuneration and to avoid sanction. (8) Although practice arrangements differ somewhat between Melbourne and Sydney, if barristers in those two cities were to pursue those two selfish goals, the structure of their practice disposes them to prefer trials no less than their counterparts in the Crown Court, (9) and that preference is arguably the strongest in Melbourne. (10)

This article is arranged as follows. Part II illustrates how the structure of practice in the US and in England's Crown Court could induce advocates to prefer guilty pleas over trials. The discussion then turns to the incentives of barristers. (American attorneys are not included in this discussion because the salient parts of practice that generate their incentives are quite different from the structure of practice for English and Australian barristers.) Parts III and IV analyse those two selfish interests of barristers in the Australian cities, with particular emphasis upon practice in Melbourne. (11) Part V addresses the inverse problem: as barristers benefit more from trials than guilty pleas, might they refrain from advising defendants to plead guilty when the expected value of such a plea exceeds that of a trial?

II TEMPTATIONS

Advocates should be trusted to subordinate their interests to those of the criminal defendant. However, if an advocate did pursue their own self-interest without regard to the defendant's interests, how would they calculate the personal benefits of a guilty plea or a trial? If the advocate benefited from one plea and the defendant from the other, could the advocate disguise their quest to advance self-interest at the defendant's expense? In this Part, we consider the temptations for attorneys in the US and barristers in England's Crown Court to prefer guilty pleas over trials. According to critics, this is a preference advocates cannot resist. (12) Interestingly, critics have failed to recognise that barristers might be tempted to prefer a trial when a guilty plea is actually the defendant's better choice. It is this second temptation that is more likely to seduce barristers in Melbourne and Sydney. (13)

In publicly-funded cases in the US, selection and compensation tempt attorneys to prefer guilty pleas. Unlike barristers in England and Australia, American attorneys are not chosen to represent indigent defendants by an intermediary (the solicitor) who also represents the defendant and has an interest in selecting an able, loyal advocate. Instead, in those jurisdictions where judges or court officials select the attorney, attorneys may fear being denied appointments in the future if they do not deliver a guilty plea in a case the judge thinks should be ended in that way. (14)

Similarly, compensatory schemes in publicly-funded cases create an incentive for attorneys to end cases by guilty plea. Attorneys with a contract to represent a certain percentage of the jurisdiction's indigent defendants for a bulk fee, for example, maximise their monetary yield per case by avoiding trials and ending cases by guilty pleas. (15) Jurisdictions that instead pay an hourly rate typically cap the overall amount the attorney can earn. (16) As their effort approaches that ceiling, attorneys are tempted to end the case by guilty plea to avoid piercing the cap (and earning nothing more). (17)

In comparison, self-interested behaviour by barristers in England's Crown Court might be found in the 'cracked trial', 'double-booking' and the 'returned brief', which are facilitated by the complexity of the compensatory scheme in publicly-funded cases. The term 'cracked trial' refers to a case scheduled for trial that ends on that day. (18) Of the reasons for a cracked trial, the most prominent is the defendant's belated guilty plea--this was the reason in 81 per cent of cracked trials in the Crown Court in London, (19) in 15 per cent of cracked trials in the County Court of Victoria (20) and in 44 per cent of cracked trials in the District Court of New South Wales. (21) Cracked trials are reviled for wasting expensive preparation by judges, and by the prosecution and defence, as well as for inconveniencing witnesses. (22) Studies canvassing the many reasons defendants plead guilty at the last moment never accuse the barrister of being the nefarious cause. (23) Might a selfish pursuit of a barrister's interests nonetheless precipitate these guilty pleas?

'Double-booking' and the brief that is 'returned' (or 'flicked' in the Australian argot) work hand in glove. They are no less troubling than the cracked trial and may contribute to late guilty pleas. A barrister 'double-books' by accepting the defence of defendants charged separately but on the same or overlapping days. This ensures that the barrister has remunerative work. If one trial begins, the barrister must 'return' the brief of the other to the instructing solicitor for that defendant. By returning the second brief, the barrister upends the value of the estimable cab rank rule, which (with certain exceptions) requires barristers to accept any brief no matter how odious the crime, the defendant or the defence. (24) In many cases, however, the barrister in England's Crown Court reneges on this obligation and returns the defendant's brief to the instructing solicitor because the solicitor must then find a substitute. (25) The results are twofold: first, the barrister who juggles two briefs may not be properly prepared to defend in the trial of the brief kept; and, secondly, one of the two defendants is denied the help of a barrister who that defendant may have come to trust. (26)

In order to recognise how the cracked trial, double-booking and the returned brief might fit a self-interested barrister's agenda to pursue guilty pleas, the way in which barristers are compensated in publicly-funded cases must be understood. In England's Crown Court, the elaborate fee structure can create a preference for guilty pleas. The 'basic fee' (27) under what was formerly the Graduated Fee Scheme ('GFS') includes the case's preparation and the first day of trial. (28) That fee varies with two factors: (i) how and when the case ends; and (ii) the seriousness of the charges. (29) Of the ways to end the case, a guilty plea earns the least, with a higher but identical fee paid for a trial and a cracked trial. (30) Every serious crime is then placed in one of nine categories, with different basic fees for different categories. (31) Finally, barristers rarely earn anything for preparing a brief that they later return. (32)

With this information, barristers can determine precisely how much they can earn depending upon a case's resolution. Consider how temptation arises. Finishing a case on a Friday, a barrister plans to use Monday and Tuesday to prepare for a trial of a serious crime with a high basic fee that is set to begin on Wednesday. Late on Friday, the barrister learns that a different solicitor wants to brief them for a two-day trial starting on Monday with a lower basic fee than Wednesday's. Does the barrister accept? Monday's brief will provide an unexpected boost in the barrister's earnings, but if Monday's trial were to leak into Wednesday--and the barrister is keenly aware that trial estimates are unreliable--the barrister must return Wednesday's brief. The obvious solution of rescheduling one of the cases is rarely available. (33)

When one trial is not postponed, the barrister knows that if Monday's case does not end as predicted, they will lose the higher basic fee for Wednesday's case and also risk jeopardising their relationship with that solicitor (who must scramble to find another barrister). (34) Cracking Monday's trial, by contrast, carries only a minor risk of irritating the solicitor. If Monday's defendant was unhappy about pleading guilty, the solicitor would find a way to placate them because this solicitor, to avoid searching over the weekend for a replacement, needs the barrister more than a trial. In this setting the barrister, thinking selfishly, knows to take Monday's brief and encourage that defendant to plead guilty, thereby pocketing a cracked trial fee without losing Wednesday's fee. (35)

Do attorneys in the US and barristers in the Crown Court succumb to their different temptations to extract guilty pleas from reluctant defendants? They adamantly deny the accusation, (36) but would one expect otherwise? No advocate would admit subordinating their defendant's interests in order to further their own.

The truthfulness of the barristers' denial is supported by the structure of practice in the Crown Court. In England, barristers' two overarching incentives of maximising remuneration and avoiding sanction incline them to prefer trials over guilty pleas. (37) Similarly, in Melbourne and Sydney those two incentives create an even stronger preference for trials over guilty pleas, even though trials crack, briefs are rarely returned, double-booking is said to occur less often, and the compensatory schemes are much simpler than England's GFS.

The next Part examines the first of the barrister's two incentives in representing defendants--maximising income--chiefly in the context of practice in Melbourne. Part 1V addresses the other incentive, that of avoiding sanctions.

III MAXIMISING COMPENSATION

In order to examine whether the incentive of maximising remuneration inclines barristers in Melbourne and Sydney to prefer trials, we will consider several factors. This Part begins by asking how fledgling barristers acquire work. Answering that question involves becoming familiar with the path to becoming a barrister. The discussion then shifts to what solicitors expect from barristers and the sort of reputation barristers want to develop--do they strive to become known as advocates, negotiators or as something else? The fees paid to barristers by defendants and by legal aid are then examined--does compensation favour trials or guilty pleas? Although those three topics suggest that barristers prefer trials, there remains the nagging concern about cracked trials. Consequently, we will also consider this question: if the barrister prefers trials, why does the barrister recommend that the defendant wait to plead guilty on the day of trial?

A Obtaining Briefs

At the inception of their careers, barristers in England obtain work in a different way from their counterparts in Melbourne and Sydney. This difference can be traced to the barrister's route to the Bar. While barristers in both countries undergo similar preparatory steps to become a barrister (with respect to education and pupillage), in England one chooses at the outset to become either a barrister or a solicitor. This rigid distinction between the two forms of work does not exist in Australia, where every barrister is not only a solicitor but almost invariably practised as one, often for many years, before switching to the Bar. (38) However, despite this difference, the manner in which barristers in both countries obtain work fuels a preference for trials.

Practising first as a solicitor has two salutary ramifications for new barristers in Melbourne and Sydney. First, barristers know what solicitors expect of them because the barrister was once a solicitor. Secondly, new barristers in the Australian cities do not depend upon the barristers' clerk to find work for them. (39) They do not leave the safety of a salary and benefits as an employed associate unless they are confident of receiving briefs from their former firm. (40) They also expect to receive briefs from other solicitors who know their work as advocates, since the new barrister would have defended clients as a solicitor in the Magistrates' or Local Court and possibly even in the County or District Court. (41)

In England, by contrast, few new barristers will have the same contacts and must therefore rely on the barristers' clerk for work. In a successful criminal chambers, the clerk will have much to distribute, including briefs returned by other barristers in the chambers and briefs received from solicitors who authorise the clerk to choose the barrister. When not known by solicitors, new barristers are in a perilous position if the clerk is not pleased by their efforts, for they risk being denied briefs by their only source. The goal of new barristers, then, is to free themselves from relying on the clerk. In order to have briefs sent to them by solicitors, barristers must become known for their prowess as litigators, and to do this barristers need trials. (42)

New barristers in Melbourne and Sydney would have already attained a respectable reputation for advocacy, one developed while litigating as solicitors. (43) Nonetheless, new barristers in Melbourne and Sydney have an important reason to try cases and to excel at doing so. Solicitors test how new barristers will behave by briefing them in legal aid cases. Solicitors do not want to risk upsetting a client who pays their and the barrister's fees until they are satisfied that the barrister will perform as they demand and as the client expects. In order to graduate to better paying work, barristers must become competent advocates and provide the sort of service that solicitors want. Consequently, while new Australian barristers may obtain work in a different manner from their English counterparts, both ways result in a preference for trials.

B Solicitors' Expectations about Barristers 'Performance

Solicitors in Melbourne expect the barristers they brief to have a different relationship with them (and with the defendant) than solicitors expect of barristers in England. The barrister in England's Crown Court is comparatively detached from the defendant and their defence. The trial is the first contested proceeding in the prosecution. Administrative hearings occur after the case graduates from the magistrates' court to the Crown Court, but the barrister briefed for trial will not always appear at them. An inexperienced barrister will often carry various briefs held by more senior barristers in their chambers to these proceedings to announce the defendant's plea, settle evidentiary matters and list the case for trial if the defendant pleads not guilty. (44) In publicly-funded cases, the barrister briefed for trial will confer with the defendant very infrequently, perhaps only once, and (owing to the plethora of returned briefs) will often do so in a hurried conference that occurs on the day of the trial or guilty plea. (45) Irrespective of when the barrister receives the brief (although this usually occurs only shortly before that proceeding), the …

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Publication information: Article title: Guilty Pleas or Trials: Which Does the Barrister Prefer?. Contributors: Tague, Peter W. - Author. Journal title: Melbourne University Law Review. Volume: 32. Issue: 1 Publication date: April 2008. Page number: 242+. © 2008 Melbourne University Law Review. COPYRIGHT 2008 Gale Group.

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