A LAWYER'S REDEMPTION

A LAWYER’S REDEMPTION

A young lawyer was at risk of being late for court. It was a road traffic case – ‘causing death by dangerous driving’ – and the judge hearing the case was a stickler for punctuality. He was driving as quickly as he could within the speed limit to make sure he got to the court on time.

His notes for his address to the court were open on the passenger seat beside him.

He was a very junior practitioner in his law firm and as this appearance was ‘for mention’ only he was there to say that his firm had taken instructions and was considering entering a plea at the earliest opportunity pending receipt of the remainder of the prosecution case against his client. Depending on the outcome of this hearing, and any further negotiation with the prosecution, the likelihood if it was to proceed to trial was that a more senior practitioner would take over conduct of the trial perhaps with him as junior counsel sitting alongside his senior at the bar table. It was quite a big step up given that he had only just finished law school and had only been admitted to the bar a couple of months previously. He was anxious to make a good impression at this relatively minor hearing in the hope of more courtroom experience to come. He was conscious that for this he needed to keep his mistakes to a minimum. So it was crucial that he did not arrive late for this hearing.

The morning peak hour traffic was dense and a series of red lights against him, and a blanket of fog across the city, was slowing him down and in so doing threatening his court room punctuality. The city centre, and the courtroom precinct, was still at least 20-30 minutes away. He was cutting it fine. He looked at his watch. In less than half an hour his case was listed to begin. He’d better put his foot down.

He’d studied hard for his law degree later in life as a mature age student. It had been a hard slog eking out a living as a part time accountant while studying in his late 20s for his degree and practicing diploma towards what he hoped would be a full career as a criminal courtroom lawyer.

He glanced sideways at his preparation notes. They began:

‘If it please the court, my name is [give first and surname] and I appear for the defendant in this case. …’

As a novice lawyer he had learnt this spiel off parrot fashion. To kick start what he hoped would be a lucid, confident, and authoritative address to the court when his turn came. This was to be his first court room address proper. Previously he had made short token appearances requesting new remand dates – court appearances dates - for clients in the earlier stages of their criminal proceedings and this one appearance was a step up from that. He’d better get it right. It was understood that lesser mistakes were par for the course when learning the advocacy ropes – but it was important not to let these mistakes get too serious or frequent.

As he approached a busy intersection on the outskirts of the city centre he judged that a gap in the traffic on the busy main road transecting the side road he was on was just wide enough for him to get through. He put his foot down. As he crossed he caught a glimpse in his peripheral vision. Mostly motor traffic closing in on both sides and a fleeting glimpse of what he thought might have been a cyclist ahead of this traffic. It was only a fleeting glimpse which barely registered on him.

He arrived at the court precinct, hastily parked his car, ran up the stairs into the building, passed though the courtroom security check, and arrived at the bar table in the nick of time.

He heaved a sigh of relief. On time. His appearance – his legal career – was still on track.

The hearing went well. The prosecution was going ahead with the charge. The prosecutor apologised to the court, and ‘his friend’, for the delay in forwarding the outstanding evidence. They were still awaiting forensic evidence needed for their case and would forward it on asap. He would, he assured the court, take further instructions from his client once the additional prosecution evidence arrived and be in a position, then, to decide on a plea within the time limit needed to be eligible for an early guilty plea if that was warranted. He had done well. When he got back to his chambers he told his superiors of what had happened in the proceeding (without mentioning the punctuality close shave) and was gratified with their response to this. After work he and some fellow lawyers had a few celebratory drinks in a nearby city pub to celebrate his success.

His career, and life in general, was definitely on the up and up.

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So it came as a tremendous shock to him the following morning when he opened up the daily paper in the coffee shop he went to for his regular pre-work cappuccino to see an article that set his pulse racing.

The article was headed, ‘Cyclist killed in freak accident’. He read on. A cyclist had been killed the day before when he suddenly braked losing control of the bike in a way which saw him veer unexpectedly into traffic on the opposite side of the road causing him a fatal injury. According to the report a car travelling at speed had continued across an intersection without stopping for a stop sign causing motor traffic and the cyclist on a main highway to break and divert suddenly in a way which caused the death of the cyclist. The police were, the report said, calling for the driver who failed to stop at the stop sign to come forward to assist their enquiries. They were calling on anyone with dash cam footage of the incident to come forward.

His legal mind kicked in with his panic over possible implications of this tragedy for his possible culpability under the newly passed much stricter road traffic legislation that had recently come into law and the potentially catastrophic effect it would have on the rest of his life including his career.

He was numb with anxiety on reading this report. He could feel panic rising within him. Under the new legislation he could at worst be up on a ‘causing death or harm by negligent driving charge’. Failing that it might be an ‘aggravated driving without due care’ charge. Or, if the latter, he may be able to bring it down to ‘driving without due care’. And the one he most feared, the newly introduced ‘causing death or harm by careless use of vehicle’- an offence carrying prison sentences of 5-7 years as well as loss of driving licence – was an alarming possibility as well. His panic reached a high pitch. He ordered another cappuccino.

‘I didn’t see any stop sign’ he said aloud under his breath to himself. ‘I was totally unaware of any injury to a cyclist’ he told himself – again softly aloud.

Still, it might not be as bad for him as he feared. His anxiety lessened slightly.

Maybe the stop sign was not visible – perhaps because of the fog. And because it was fully or partially obscured by foliage or whatever. And the fact that he was well clear of the intersection when the tragedy occurred would be a help. He would be looking at ‘driving without due care’ possibly. He might have been speeding. But it wouldn’t have been by much. And if there was no evidence of speeding he had nothing to worry about. It was true he had a few drinks with friends the night before but none of that would have been enough for him to be at risk of DUI. And, in any case, there was no evidence of how much alcohol was in his blood stream so he could put that one aside. He was comforted by this thought. His anxiety eased further. He’d be OK. He’d get a good criminal lawyer to get him off the hook. He wouldn’t try and represent himself. He recalled the adage: ‘He who represents himself in court has a fool for a client’. He’d often joked about it. Now the adage was bereft of humour for him.

The newspaper article was a terrible shock to him. As was the television coverage of the same. As a responsible citizen it was certainly his duty to come forward as requested he knew. All the more so since he was an officer of the law. All this was fresh in his mind from his recent legal training. But he also knew that the new much stricter road traffic legislation that shifted the emphasis away from alleged culpable behaviour and onto its consequences meant that in this case where there had been a fatality he could be in serious legal trouble. Ironically, he knew from the client he represented in court the day before what the relevant sections of the legislation had to say on the subject.

He ran through the possible charges in his mind again. If he came forward almost certainly ‘driving without due care’. He had carelessly failed to see the stop sign and judge the gap in traffic on the main highway. If his driving was, indeed, a major causal factor in the bicycle accident – and it may well have been – he had been unlucky enough for this to cause a fatality and that meant he was for the high jump even though his carelessness was at the lesser end of the scale. Possibly aggravated driving without due care if it turned out that his driving wasn’t a main causal factor and there was evidence he was speeding. He couldn’t remember but he was in a hurry and may have gone over the speed limit to clear the traffic gap in his haste to get to the court on time. He had had the few beers – several actually – the night before to wish him well in his first substantial court appearance as a lawyer. That might be damaging if this surfaced in an enquiry. Now he was at risk of being in court as a defendant. The thought sent a shiver down his spine. Some of that alcohol might still have been in his system. Still, he had not been breathalysed and even if he came forward now – some twelve hours later – the risk of a DUI finding was minimal he told himself. No strong liquor had been involved. He could honestly say that he believed he was within the alcohol limit. And if there was no forensic proof of excessive drinking that was all that counted.

The media report suggested there were probably few witnesses to his driving on that night. The fog was a help here. It could be suggested on cross examination that the witnesses had at best a substantially fog obscured view of what happened and that any testimony against him was unreliable. 

All this raced through his mind as a sustained panic set in undermining his better judgement. His dream successful appearance as a lawyer was turning into a nightmare. ‘Stay calm’ he told himself aloud. ‘Stay calm’.

He was so distressed he rang in sick to the office. A dreadful migraine he told them. He was already lying he told himself. He wondered if he was starting on a slippery slope of deceit he wouldn’t be able to back away from.

If he came forward and it went against him it could severely damage – and perhaps end – his career as a criminal lawyer. Apart from the risk of a criminal conviction if he was charged he would have to lodge a ‘show cause event’ notification of possible unfitness to practice law with the Law Society. If the ‘show cause’ notification went against him this would be the mechanism for limiting or extinguishing his right to practice as a lawyer if it came to that.

Yes, his dream successful appearance was definitely turning into a nightmare.

He resolved then and there to not come forward. It was just too risky. It was a case of weighing up a strictly ethical response on the one hand against the real possibility of his legal career going down the gurgler. If he kept schtum and there was no evidence to link him to the tragedy no one would ever know unless he told them. If no reliable witnesses had come forward, if there was no cam footage – if the police investigation was going nowhere – he could just wait it out and with any luck life would just go on as normal. After all – it was just a freak accident as the newspaper article had said with a tragic consequence. He could not be held responsible for a fateful tragedy as this was.

With this thought he took a tranquilizer and went to bed.

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After a fitful, restless sleep he awoke, had breakfast, and drove nervously ultra-carefully into the office.

As he drove in he was still tormented by his decision whether to come forward or not. If he didn’t come forward and his role in the accident became known he would be in even more serious trouble he knew.

He couldn’t make up his mind. Paralysed by indecision. `If he did come forward and there was a finding of serious criminal culpability against him then he would really be in trouble. But if he didn’t – and got caught our later – that would make his disgrace even worse. What if some evidence did surface making the guilty link between him and that terrible accident. If that happened dishonest, unethical, behaviour would be added to any criminal liability that might attach to his behaviour coming to court that morning.

His consternation became unbearable and so in desperation he decided to confide in a senior colleague in his law firm as to what to do. The colleague was his supervisor. He was operating on a restricted practicing certificate under supervision by a senior lawyer. This was routine practice for all new lawyers.

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‘Mary, just hold all my phone calls will you’, the senior colleague told the firm’s legal secretary. ‘Something urgent has cropped up.’ ‘I’ll be in my office talking to one of our lawyers about something’.

The senior colleague sat back in his chair and fingered his moustache deep in thought as to how to start. The young lawyer had come into his office in an obviously agitated state and he was contemplating the best way of settling him down before discussing what was obviously an urgent and distressing matter for him. 

‘Before we start would you like a coffee?

‘No thank you’.

‘Now, first of all, tell me what happened’.

His tone was gentle, avuncular, reassuring.

The young lawyer told him the whole saga without stopping.

‘I see, I see’, the senior colleague said thoughtfully.

‘And you haven’t approached the police at all at this stage?’

No, he hadn’t.

‘Have you discussed this with anyone else?’

‘No.’

‘Good. Good. At this point don’t. Not to anyone. Not even in the office here.’

‘Look, I do think you’ll have to come forward in response to the police request. But you need to do this asap and in the right way. I can’t advise or represent you because of the conflict of interest involved. But I’ll put you onto a criminal barrister friend of mine. He’s a good one for this sort of case. I’ll give him a ring shortly and send you over to him asap.

Try not to worry. From what you’ve told me it’s not the end of the world. It’s not just you. Half our practice here would have horror stories to tell – including me – and we’ve all survived. Just do what he tells you to do and you’ll be right. It may be a bit painful while it is being sorted out. But you’ll get there. There are plenty of pluses in what you have told me. The biggest obstacle is you going through a stop sign. You may be able to establish a visibility problem there. The fog will be a help. And with luck there will be other visibility factors. We can establish you did not knowingly leave the scene of an accident. There is no evidence from what you say of alcohol or speeding being involved. And I want you to know that I will continue to support you in this and that you have the whole law firm behind you on it. Soon it will just be a painful memory in a very happy legal future.

Anyway, see what my criminal barrister friend has to say about it.'

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In the end it was all sorted out in negotiations between the criminal barrister friend and police prosecutors in the first instance – and beyond that in the city magistrates court. It had been possible to establish a major visibility problem with the stop sign: that visibility was severely limited by the fog; and that at the relevant time the sign itself had been partially obscured by overhanging tree foliage.

In view of the strong mitigating and other factors the young lawyer pleaded guilty to the lesser charge of ‘driving without due care’ and went on to become a leading barrister in the independent criminal bar.

In all that time he never mentioned his own brush with the law to anyone outside a tight circle of friends and relatives.

Later in his career, in numerous Law Society professional development sessions where he spoke, he was tempted to point out to novice criminal lawyers that he was a much better lawyer for this traumatic experience.

But he never did.

By then society had become far too censorious for that.