Some guilty clients form the view early in a retainer that, if they try to convince their lawyer of their innocence, their lawyer will work harder and bend the rules to help them. Experienced, competent and ethical criminal defence lawyers see right through this. It is not a matter for a lawyer to determine the guilt or innocence of their client. That is a matter for a Jury. Rather, the lawyer acts in accordance with the evidence. The best criminal lawyers will not ask their client any questions in relation to the allegations until they have read the Brief of Evidence. It may be that the evidence contained in the Brief is overwhelming and that the advice they provide to their client is to negotiate a plea. It may be that there are real holes in the evidence, which might give rise to a viable defence. Regardless of whether the client is in fact guilty, they are entitled to test the evidence presented against them and to challenge the overwhelming power of the State to convict them beyond all reasonable doubt. It is a fundamental right that applies to all equally – whether they are guilty or innocent.
It is also the duty of a criminal defence lawyer to competently represent every client who retains them to act on their behalf. However, the paramount duty that a lawyer has is to the Court. The duty to the Court requires that they act ethically when representing their clients, regardless of whether their client pleads guilty or not guilty. On occasion, lawyers will encounter ethical dilemmas which, more often than not, involve clients who are likely guilty of the offence. The following are a few ethical and moral dilemmas, and challenges, faced by lawyers when acting for guilty clients:
1. The Cold Hard Truth
‘Advising your client to plead guilty
Not all guilty clients are bad people and not all criminal offences are committed with malice. The hardest cases arise where the client is generally a good law-abiding person, facing the criminal courts for the first time. They might be the hard-working tradie who checked his phone whilst driving and caused a serious collision. They might be a person recovering from trauma, who has developed a drug problem and fallen into crime as a way to feed their insatiable addiction.
Telling a client that they have to plead guilty because the evidence is overwhelming, and there is no realistic defence, is really hard and can be very upsetting for the client and their family. Many shock jocks and hard-line conservatives criticise lawyers for running trials in circumstances where the media consider the person to already be guilty. However, there is hardly any public acknowledgement of the 70% plus of cases where we advise our client that they should plead guilty and they do, sparing the victims and courts time and trauma. Telling a client the cold hard truth of their matter is a requirement of properly and competently acting for them. Some clients accept the advice and understand the basis for it. Others are in denial, want to run baseless defences, or want to buy more time. But each of them will have had the advice. The decision whether to follow it is up to them.
2. How can you represent someone you know is guilty?
First, we should note that it is a very unusual situation indeed where a client will walk into their lawyer’s office and tell them that they have committed the offence, but they intend to plead not guilty. As outlined previously, most clients want their lawyers to believe in their innocence because they reckon (quite wrongly) that we will work harder for them if we believe that they are innocent. The decision of whether to plead guilty or not guilty is a decision for the client alone.
Even if a client has been told that they should consider a plea of guilty, a lawyer can still act for them in a trial where they plead ‘not guilty’ so long as they don’t mislead the Court. This is an important ethical rule that should never be traversed. It is not misleading to the Court for a client to plead ‘not guilty’ when they in fact know that they are guilty because they are entitled to put the Prosecution to proof. They may also be in a situation where they acknowledge that they are guilty of some of the offences charged but not others. Their lawyers can cross-examine witnesses, run legal arguments and close to a jury that there is insufficient evidence upon which to convict without misleading the Court. Of course, a lawyer cannot argue matters before a Court when they know that what they are saying is wrong. For example, they cannot tell the jury that the client was not at the scene of the crime when the client has told their lawyer that they were at the scene. However, they can say that there is insufficient evidence in the prosecution case upon which to find beyond all reasonable doubt that the accused as at the scene. It is an important distinction.
Also important to note is the fact that representing a guilty client, who pleads not guilty, is not about condoning what they did or being complicit in covering it up. Rather, it is about putting the all-mighty State to proof and challenging the evidence so that, if the client is convicted, it was beyond all reasonable doubt and after a robust defence. Challenging the overwhelming power of the State is essential to democracy and criminal defence lawyers are the gate keepers who ensure that the State is always held to its proof. We can tell you that, sometimes, it is a thankless task.
3. The Manipulative Client
‘A manipulative client is a poor historian’.
Experienced criminal lawyers have all had experiences with clients who try to manipulate the evidence, trick their lawyer into believing a lie, or give instructions to their lawyer that are neither based in fact nor in evidence. Some clients are so invested in convincing their lawyer that they are innocent that they, quite frankly, make things up to suit them. This is particularly so where a client has to provide an explanation in relation to some aspect of the evidence in order to properly mount a defence. For example, where a client is found with a large amount of cash, they may be charged with an offence where the only defence is for the client to provide evidence regarding how they lawfully acquired the cash. The manipulative client, more concerned with trying to recover the cash, may try to convince their lawyer that they lawfully acquired the money without having any evidence to back up the claim. Now, whilst a lawyer is required to follow their client’s competent instructions, they are not required to humiliate themselves in Court nor act as a mouthpiece for the client when they are (realistically) speaking complete garbage.
The guilty and manipulative client will try and find any way possible to get around the evidence in order to avoid reckoning with the reality that they are likely to be convicted and, in many instances, be sentenced to a period of imprisonment. Manipulative clients often create situations where the lawyer is placed in the uncomfortable position of having to advise them that they cannot act on the client’s instructions, because the instructions are not competent and the lawyer is concerned about misleading the Court or acting improperly with respect to an opponent. The key to managing manipulative clients is expectation management. The clients must be told, preferably in writing, about the lawyer’s obligations and about the nature of the evidence. The client must either accept the advice or cease the lawyer’s retainer, because when a client loses faith in their lawyer the fiduciary relationship (the relationship of trust) is over and the lawyer cannot continue to act. A lawyer should also always cease to act for the client when this predicament arises and cannot be resolved.
4. The Involvement of a Third Party
‘The other person in the room’
Unless the client is a child, impaired in some way or genuinely in need of emotional support, having a third person in the room when consulting a lawyer will always raise concerns. All experienced criminal lawyers have had situations where the spouse, friend or family member of a client appears too involved in the client’s criminal matter. They attend every conference and Court date. They want to know everything that occurs in the matter. They seem very invested in the outcome. In this case, the lawyer will wonder whether the third party is invested in order to protect their own interests (ie, were they involved in the offending and want to ensure that the client doesn’t disclose this to their lawyer as a possible defence?).
The first thing that an ethical lawyer will do is ask the third party to wait outside of the room. The reason being that legal professional privilege doesn’t cover third parties and discussions, at least initially, ought occur in private. The lawyer will then discuss the case with the client and ask the client questions about the third party to ensure that nothing untoward is occurring. Sometimes, particularly if the third party is a spouse, the lawyer will be concerned that the client is not being coerced or controlled in some way.
Once the third party enters the room, the lawyer must make clear that regardless of the third party’s interest in the case (and who is paying the fees), the client’s interests are the only thing that the lawyer is concerned about. It must be made very clear to the third party that the lawyer will not contravene privilege and that the third party must abide by the boundaries put in place. More often than not, the third party will back off. If not, the lawyer will need to consider how best to represent the client without causing risk to them, or their matter.
5. The Guilty Client who Walks Free
Once every so often, a criminal defence lawyer will do a brilliant job for the least deserving client. The client will be thrilled that they will walk away from a trial, having been acquitted, but probably knowing that they were guilty. The defence lawyer will probably know, or at least suspect, their guilt and see the client walk away and have mixed feelings about it. On the one hand, the system worked because it put the Prosecution to proof and the Prosecution failed at its task. More often than not, an accused is not acquitted because their criminal defence lawyer is amazing (even though many are) but because the Prosecution did not do its job properly. So a lawyer will be happy with their success, but also concerned that their client may go back out into the world and potentially offend again. Ultimately, the lawyer may never know what the client does or does not do once acquitted. However, the lawyer will know that the system isn’t perfect. No system is. But it does the best job it can and ultimately it is important to our system of justice, and our democracy, that the State is put to proof and the individual robustly represented and afforded their rights. It may not always feel great, but that is the life of a criminal defence lawyer.
How Galbally Parker can Help if You’ve Been Charged
Galbally Parker Lawyers pride ourselves on our ethical and experienced approach to our practice. It is important to know your rights and your lawyers obligations from the outset of your matter. If you required legal advice, please contact our office to speak with one of our criminal defence lawyers. Our team has expertise in a number of legal areas including assault, criminal damage, customs offences, intervention orders, and murder.