If there is one development that lawyers are facing in the 21st century—even more so than artificial intelligence—it is the rise of the Internet and social media.
For a very long time, lawyers have had to deal with a disruptive factor in criminal investigations: the media trial, also known as the “people’s court.” So far, nothing new.
But one thing has completely changed the way this profession is practiced in recent years: social media.
While the media may have already covered certain stories from every angle, the fact remains that the framework was stricter—if only for the simple reason that the media is more likely to comply with the legal framework, with perhaps a few exceptions, than an anonymous user on their Facebook account.
Nowadays, as soon as a case attracts media attention, the attorney is faced not only with a wave of articles that more or less respect the presumption of innocence, but also with a storm of comments coming from all sides, across all platforms, many of which blithely constitute various criminal offenses ranging from defamation (Art. 173 of the Swiss Penal Code) to public incitement to commit a crime or to violence (Art. 259 of the Swiss Penal Code).
This is a major change for both the litigant and the attorney representing him or her.
And when a change occurs, questions inevitably arise about the role of the attorney in such circumstances.
While it is true that these cases may be tempting to some because of the publicity they can bring, the fundamental principle remains that of protecting the client’s interests.
And this principle may, in some cases, come up against excessive media coverage of a case, as well as statements that are, at best, unnecessary and, at worst, counterproductive.
While it must be acknowledged that there are situations in which a public defender is necessary—if only to restore a semblance of adversarial proceedings before a media-driven court that fails entirely to apply the basic rules of criminal procedure—it is equally fair to consider that, at times, the attorney’s arguments will hit a wall that prevents them from having any impact, and may even, from time to time, lead them to devise a defense strategy that will only push the defendant further into an abyss that is already far too deep.
Does this mean that the defense must remain silent when it represents a version that cannot be heard because it is immoral? Because it is inconceivable? Because the defendant is simply accused?
Maybe.
As regrettable as it may seem, it is perhaps sometimes better to reserve one’s arguments for those who are prepared to listen to them. Because there are times when it is not the right moment for a public defense—times when a lawyer’s words would only serve to amplify the wave of hatred, pain, and resentment.
Or perhaps, on the contrary, it is the lawyer’s role to give voice to the unspoken, regardless of the consequences. It is his duty to weather the storm—often alone—to reaffirm the fundamental principles of the rule of law.
He will then be the voice of the voiceless, the face of those we refuse to see, and he will bear on his shoulders the full weight of a suffocating defense. And he will do so without even being certain that he is acting in his client’s best interests, unable to go to sleep confident that he is fulfilling the primary duty imposed by the legal profession: to practice law with care and diligence (Art. 12(a) of the Swiss Lawyers Act).
The real challenge, then, lies in the impossibility of answering a question that seems simple on the surface: What is the lawyer’s role in the media storm?
No matter what solution the person facing this problem chooses, they will continue to be harshly criticized, rebuked, and mocked. Because no solution is perfectly satisfactory. Because no legal standard could perfectly resolve issues that also involve moral considerations.
However, if one truth remains, it is that there is neither honor nor integrity in excess. Unfortunately, human passions are rarely compatible with the virtue of temperance when tragedy strikes. But when a lawyer decides to don the robe, he accepts that he must face the misunderstanding and intolerance of public opinion, the rebukes of the court of public opinion, and the anger of anonymous bystanders. And this tacit acceptance of the rules of a game not enshrined in any legal code places a heavy responsibility upon him. This responsibility must never be that of preserving social peace. If the lawyer were to be its guarantor, it would be the rule of law that would suffer. No, this responsibility is solely to do everything possible to ensure that the person whose voice is no longer heard may once again have the right to speak out.
So while we may not be able to give a definitive answer to the above question, we can nevertheless counter it with another question that should help shed light on the matter: Is my statement helpful in defending my client? If the answer is yes, then no one can claim any legitimacy in dictating the proper course of action.
In the past, public condemnation took its most brutal form: physical violence. The legal framework has become more restrained—some might say more lenient—evolving from an eye-for-an-eye approach to torture, then to the death penalty, until it eventually “settled” for prison sentences. So, in the face of what appears to be viewed by a segment of society as an excess of magnanimity, public vengeance has found a new weapon: social exclusion, permanent dishonor, and exile from the human community. When it comes to wielding this weapon, nothing is more powerful than social media. The complexity of the world and our legal systems makes any meaningful attempt at a legal countermeasure nearly impossible. Lawyers must adapt to this change. They move forward with difficulty, feeling their way in the dark. But if this profession retains any strength, it is the strength of hope—the hope that a human being can change, that a judge will listen to them, the hope that society can evolve, and that humanity can grow.
Perhaps, after all, the lawyer has no role to play. Certainly not, in reality. He is not an actor in a play. So no, ultimately, the lawyer has no role to play in the media storm—only a profession to carry out with dignity.
