Legislation Belongs to the Parliament, and Only Then Comes the Court: A Critique of the Supreme Court's 12th Criminal Division Resolution of 2017

The Supreme Court's 12th Criminal Division Resolution of 2017 held that in mandatory defense cases, if a defendant appeals after a first-instance judgment without retaining counsel, the first-instance retained or appointed counsel has the obligation to draft and submit specific grounds of appeal for the defendant. Because this resolution deviates from current defense practice in Taiwan and will have a profound impact on Taiwan's attorney system and the litigation rights of defendants, this article is written to offer a critique.

The relationship between a defendant and their lawyer is a private-law mandate relationship. In principle, based on the spirit of private autonomy, the parties agree upon each other's rights and obligations in accordance with contractual freedom, which is then supplementarily adjusted by relevant laws such as the Attorney Regulation Act, the Code of Criminal Procedure, and the Civil Code. Therefore, if a defendant has requested in advance during retention that the lawyer draft the grounds of appeal after the pronouncement of judgment, there is certainly no doubt that the lawyer has such an obligation under the contract. However, in the absence of such an agreement, one must explore relevant laws such as the Attorney Regulation Act, the Code of Criminal Procedure, and the Civil Code to clarify the ambiguity. In comparison, public defenders are obligated under Article 17 of the Public Defender Act—which provides: "Where a case defended by a public defender is appealed, the public defender shall, upon the defendant's request, draft a statement of reasons for appeal or a reply on their behalf"—to draft a statement of reasons for appeal upon the defendant's request. This demonstrates that an express statutory provision is required to impose upon retained or appointed counsel the obligation to draft a statement of reasons for appeal for the defendant.

While Article 361, Paragraph 2 of the Code of Criminal Procedure provides that when a defendant appeals against a first-instance judgment, they must submit a written statement setting forth specific grounds of appeal, the subject regulated by this provision is the defendant rather than defense counsel, and it cannot serve as the legal basis for imposing obligations on first-instance retained or appointed counsel. Furthermore, neither the Attorney Regulation Act nor the Civil Code contains provisions similar to Article 17 of the Public Defender Act. Therefore, the obligation asserted by this resolution—that retained or appointed counsel in mandatory defense cases must draft a statement of reasons for appeal for the defendant—fundamentally lacks direct legal basis. Consequently, the Supreme Court had no choice but to indirectly derive this obligation through the interpretation of Articles 30 and 346 of the Code of Criminal Procedure.

Article 30 of the Code of Criminal Procedure provides that when retaining defense counsel, a power of attorney shall be submitted, which, after the institution of prosecution, shall be submitted to the court at each instance. The reason for this provision is that a public-law relationship is established between the defendant and the court due to the pendency of litigation, whereas the relationship with the retained defense counsel is one of private-law mandate and does not take effect against the court. Therefore, this provision requires the defendant to submit a power of attorney in writing to the court at each instance to indicate to the court their intention to retain a specific lawyer for their defense. Thus, the subject regulated by this article remains the defendant, not defense counsel. Regardless of whether the term "instance" in this provision refers to the conclusion of the first-instance judgment or the transfer of the case after appeal, because the subject upon which the obligation is imposed is limited to the defendant, neither textual nor teleological interpretation can give rise to an obligation for defense counsel.

As for Article 346 of the Code of Criminal Procedure, it provides that the agent or defense counsel of the court of origin "may" appeal for the benefit of the defendant. This is an authorization for the agent or defense counsel of the court of origin to appeal for the defendant's benefit; in other words, it is an empowering norm. Being an empowerment, it naturally does not generate an obligation. Since the proviso of this article stipulates that defense counsel's appeal shall not be contrary to the defendant's explicit intent, the Supreme Court has consistently held that this article is intended to save effort and expense and prevent delays by allowing original defense counsel to appeal in the defendant's name and as the defendant's agent. This shows that the provision actually governs the defendant's right of appeal. Precisely because the litigation relationship is extinguished upon the pronouncement of the first-instance judgment, the status of the original defense counsel loses its attached basis, making it necessary to expressly authorize the original defense counsel to act as an agent for appeal here. Otherwise, if the status of the original defense counsel were still ongoing, they would inherently be required to assist the defendant in filing an appeal within the statutory period; why would there be any need to enact this specific provision?

The rationale behind Article 17 of the Public Defender Act—which stipulates that public defenders have the obligation to draft statements of reasons for appeal upon the defendant's request—is the same. Therefore, whether based on textual interpretation or normative purpose, it is similarly impossible to derive from Article 346 of the Code of Criminal Procedure the obligation for first-instance retained or appointed counsel to draft grounds of appeal for the defendant.

In summary, neither Article 30 nor Article 346 of the Code of Criminal Procedure has ever required first-instance retained or appointed counsel to draft grounds of appeal. This resolution attaches to these two provisions to engage in judicial legislation and create this obligation. Its purpose is to ensure that the scope of rights and responsibilities of defense counsel across various instances in mandatory defense cases can be seamlessly connected without gaps, thereby substantiating the defendant's reliance on defense. While the intention is undoubtedly benevolent, the consequences of judicial legislation may well exceed the Supreme Court's expectations:

Pursuant to the principle of legal reservation under Article 23 of the Constitution, any restriction on people's rights or imposition of obligations must have a clear legal basis. Although the legal profession possesses a public-interest nature, lawyers are still protected by this principle. By means of this resolution, and in the absence of a clear legal basis, the Supreme Court has imposed upon first-instance defense counsel the obligation to draft statements of reasons for appeal for defendants, which clearly violates the principle of legal reservation.

Judicial practice has consistently held that once a court renders a final judgment, the litigation relationship for that instance is extinguished, and the effect of retaining defense counsel for that instance ceases to exist (referencing [please verify citation]). If a defendant files an appeal, it constitutes the commencement of the pendency of another instance, giving rise to a new litigation relationship with the appellate court, and a new power of attorney must be resubmitted to the appellate court (referencing Supreme Court 103 Tai-Shang-Tzu No. 614 Criminal Judgment). Domestic lawyers have consistently operated under this view, considering defense to cease upon the pronouncement of judgment and calculating their fees accordingly. Clients also understand that if they wish to retain their first-instance lawyer for an appeal, a new retainer is required; if they are dissatisfied with the first-instance lawyer's performance, they may also retain someone else after the judgment.

Such a practice is consistent with Article 36 of the Attorney Regulation Act: "An attorney shall not initiate a lawsuit, appeal, or interlocutory appeal that is manifestly groundless on behalf of a party." The reason Article 36 of the Attorney Regulation Act is framed this way focuses on the independence of lawyers in the performance of their duties, explicitly stating that lawyers are not hired guns of parties and must independently judge the case based on their own professionalism and conscience. Therefore, if a lawyer considers a party's lawsuit, appeal, or interlocutory appeal to be manifestly groundless, or even contrary to the defendant's interests, they have the right to refuse the retainer. Article 91(e) of the Universal Declaration on the Independence of Justice also explicitly provides that lawyers have the right to accept or refuse clients based on reasonable personal or professional grounds ("Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including: (e) The right to accept or refuse a client or a brief on reasonable personal or professional grounds.").

Therefore, if first-instance defense counsel, based on professional judgment, considers that the first-instance judgment contains no errors or that the defendant's appeal is manifestly groundless, they have the right to refuse to accept the second-instance defense. This resolution's requirement that first-instance defense counsel must draft grounds of appeal for the second instance for the defendant will inevitably infringe upon the sphere of a lawyer's professional judgment. If a lawyer refuses to draft grounds of appeal for the defendant based on professional judgment, it would constitute a breach of obligation under this resolution, potentially exposing them to disciplinary action and claims for damages by the party. This further conflicts with Article 16(c) of the United Nations Basic Principles on the Role of Lawyers: "Governments shall ensure that lawyers ... (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics." This further illustrates the severity of the damage this resolution inflicts upon the attorney system.

Situations where a defendant files an appeal without retaining their first-instance defense counsel usually arise because the relationship between the client and counsel has already deteriorated, mutual trust has been lost, and they part ways after the first-instance judgment. Compelling the first-instance lawyer to draft grounds of appeal for the defendant at this time, forcing an unnatural pairing, is unfair to both parties. The defendant will worry that the lawyer will write something perfunctory that might harm their appeal, and the lawyer will suffer from a lack of working enthusiasm (especially for lawyers who have lost trust in the defendant due to being deceived, insulted, facing communication difficulties, or having their legal fees overdue, among other reasons). While this resolution might save the second-instance court the trouble of appointing defense counsel anew for defendants who did not retain counsel upon appeal, it fails to ensure that defendants receive substantial and effective assistance from defense counsel when submitting grounds of appeal, while exacting a heavy price by damaging the attorney system.

To look further ahead, the retainers currently charged by lawyers to clients on a per-instance basis typically do not include the costs of drafting grounds of appeal. As a result of this resolution, lawyers will inevitably factor the labor and expenses of drafting grounds of appeal into their calculation of first-instance defense fees in the future. The resulting impact will be a general increase in first-instance legal fees down the line.

When issuing this resolution, the Supreme Court may have thought it was merely asking lawyers to draft a document and nothing more, failing to realize that it severely damages the attorney system, may have adverse effects on defendants' litigation rights, and could even stimulate a rise in attorney fees. These consequences, which the Supreme Court may not have considered, clearly demonstrate the potential threat that resolutions of the Supreme Court's civil and criminal divisions pose to the separation of powers and democratic constitutionalism.

Whether first-instance lawyers have an obligation to draft grounds of appeal for defendants is intimately intertwined with the attorney system, defense practice, and even defendants' litigation rights; it affects the whole body by a mere hair and is fundamentally a policy issue. According to democratic principles, it should be thoroughly debated in parliamentary public hearings through the extensive solicitation of diverse viewpoints from bar associations, academia, and other relevant groups to form the best decision, rather than being decided behind closed doors by judges lacking democratic legitimacy under the guise of unifying legal interpretations.

The Supreme Court has previously issued numerous resolutions criticized for usurping parliamentary authority (the most famous example being the modification of statutory duties into substantial influence through a resolution regarding the determination standards for official duties under the Anti-Corruption Act). Render unto Caesar the things that are Caesar's, and unto God the things that are God's; legislation should be left to the parliament, and only then comes the court to enforce the law. It is time to thoroughly review the resolution system.

※ This article was published in the Apple Daily on September 22, 2017