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Picture of <span>Suguru Takano</span>
Suguru Takano

Lawyers who do not advise silence

At the request of a person’s family member, a lawyer goes to see the person who has suddenly been arrested. What awaits the lawyer is an urgent question from the person who has been arrested, “What should I do when the interrogation starts tomorrow?” We, as their defense counsel, must be able to advise them appropriately.
There are two major choices. To speak or not to speak during the interrogation. In other words, to exercise the right to remain silent or not to exercise the right to remain silent. However, it seems that most lawyers still rarely advise their clients to exercise the right to remain silent.

Currently, bar association training programs (at least in all the training programs I have been involved in) teach that “silence is the principle (the starting point of consideration), and that a statement should be made only when it can be judged that the benefits of remaining silent are greater than those of waiving that right.” This way of thinking is also written in so-called manual books for lawyers.
However, when I am appointed as a defense counsel in the middle of a case, I often come across situations where I wonder why the defendant was not advised to remain silent. Please do not misunderstand me, as I do not intend to say that it is always right to remain silent in any case. In fact, I often advise my clients to make a statement during an interrogation after considering the advantages and disadvantages of silence. However, when advising a client to make a statement, you should be able to explain the reason properly if someone asks you later why you did not advised him or her to keep silent. Otherwise, advise them to continue to remain silent.

So why are there situations where lawyers do not advise silence? There are two possible cases. One is that the lawyers themselves are either unaware of the option of silence or do not consider it as a realistic option. This is appalling for a lawyer who is involved in a person’s life. We must constantly look back to see if there is any inadequacy in our own defense activities and update ourselves.
Another case occurs with those who have only been lawyers for a short time. While they themselves think it is best for clients to keep silent, when they consult with partner attorneys or senior members of the firm, they are told that “keeping silent is outrageous.” If their advice is based on a solid comparison of the advantages and disadvantages of keeping silent, there is no problem. However, in some cases, they may deny it simply because “[they] have never had anyone keep silent” or “[they] have never heard of such a thing as keeping silent.” Whether it is appropriate advice or criticism not worth listening to can only be determined after a thorough discussion with senior members of the firm. As lawyers involved in our clients’ lives, we should not shy away from the difficulty.

Finally, I would like to share this information with those who have had someone close to them arrested. I believe that a lawyer’s legal representation should be open to criticism. Only you, the clients, can do that. If your loved ones have not remained silent during an interrogation, why not ask the lawyer why he/she did not advise silence? Depending on the answer, you will know if you are receiving the best possible legal representation. (We often hear complaints from clients that they face difficulty contacting their lawyers who tell them that they are too busy, but this is out of the question.)