Right to Counsel Defended By Four Lawyers: Empirical Studies on Lawyers’ Diverse Roles in the Taiwanese Compulsory Defense Cases

In Taiwan, the right to counsel is clearly stipulated in Article 31 of the criminal procedural law, where a criminal defendant has the right to legal representation in severe crimes and disadvantaged conditions, including physical and mental disability, mid-to-low income, aboriginal identity and/or other socioeconomic disadvantages recognized by the presiding judge. In practice, however, four different types of legal counsel may be retained by the defendants in need: regular lawyers, legal aid lawyers, voluntary counsel and public defenders. Do different lawyers perform differently in compulsory defense cases? Using both quantitative and qualitative data, this paper makes two claims. First, in terms of case outcomes, lawyers paid by the government perform only slightly differently from those in the regular legal services market on the metrics of guilty/innocent and the length of sentence. The court, nevertheless, drastically relies on public defenders and legal aid lawyers, both financially supported by the government, to represent disadvantaged criminal defendants. Second, in terms of professional autonomy, public defenders, voluntary counsel and legal aid lawyers experience different degrees of court dominance, which affects the volume of caseload and the lawyers’ willingness to participate in the compulsory defense system. The public defenders, as government lawyers stationed in court, experience the least autonomy from judicial administration, but intriguingly develop an autonomy free from clientele and market pressure. Data used in this paper include (a) a database composed of 27,692 cases from the first two instances of the Taiwanese judiciary from 2013 to 2023, and (b) in-depth interviews with 65 legal practitioners in Taiwan, including 2 judges, 9 public defenders, and 54 lawyers (45 lawyers were interviewed in 2018 and 9 lawyer were interviewed in 2024).