If you have never worked in the legal profession, but have been charged with a criminal offence, it can be difficult to know who should represent you and what they should be doing. In Victoria, the ethical duties of your criminal lawyer is governed by Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (ACSR). If you do not have the time to read through the ACSR, read below to gain an understanding of the key ethical responsibilities your criminal lawyer should uphold when representing you.
Duty to the Court
Whilst lawyers have an ethical duty to you as their client to act in your best interest, they have a paramount interest to the court. This is because lawyers are deemed officers of the court, meaning they have a duty to ensure integrity of, and compliance with, the spirit of the law. The most common instance where this duty is challenged is when a client confesses their guilt to their criminal lawyer. There is are misconception about what pleading guilty to your lawyer actually means for you. If you admit guilt to your lawyer, they then become restricted in the arguments that can be made to the Court in your defence. If you wish to plead ‘not guilty’, they cannot positively suggest that you did not commit the offence. Instead, their argument will be limited to suggesting that the prosecution has insufficient evidence to prove the charges made against you. A criminal lawyer’s duty to the court prevents them from being able to make claims inconsistent with your confession.
Your lawyer must also not engage in conduct that demonstrates that the lawyer is not a fit and proper person to practise law or which is likely to: – Be prejudicial to, or diminish public confidence in, the administration of justice or conduct that would bring the profession into disrepute.
When representing you, your lawyer cannot use the court system for improper purposes. Meaning, they cannot make baseless accusations in your defence.
Duty of Disclosure
Your criminal lawyer is also under an obligation to disclose in writing how much they will charge you and about other expenses before they start working for you. Once you have agreed to use a particular criminal lawyer, they should also send you regular invoices for their services, outlining the work they have performed for your case and the charges for such services.
If there is any significant change to the information originally disclosed to you, your lawyer must disclose this new information to their client when the change occurs or as soon as practicable thereafter
Duty to Maintain Confidentiality
Confidentiality is a fundamental element of the lawyer-client relationship, as a client must be able to fully and frankly disclose all material information to the lawyer in order to receive proper legal advice. This means that your criminal lawyers have a duty to keep the documentation, correspondence, and conversations between you and them confidential and can only be disclosed in limited situations. The confidential information can be discussed with other lawyers at the law practice and/or a barrister engaged by the practice.
If your lawyer has knowledge of other crimes you committed they are not allowed to disclose such information to the court unless instructed by client who fully understands the consequences of disclosure. Further, if your lawyer knows or suspects that the prosecution is unaware of the client’s previous conviction, must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer
Duty to Avoid a Conflict of Interest
Lawyers have a general fiduciary duty to give undivided loyalty to their clients without the potential for a conflict of interest. A conflict of interest can arise if your lawyer acts:
- for a party where you have a personal interest in the matter
- for two or more parties in the one matter
- against a former client, or
- against a party represented by a family member.
If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the client’s interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act unless an exception applies.
Duty to Follow Your Instructions
A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement. However, a lawyer must follow their client’s instructions as long as it is lawful, proper and competent. In cases where they disagree with your instructions, they are unable to undertake any action on your behalf without consent.
Galbally Parker Criminal Defence Lawyers
If you are under arrest and looking for an ethical criminal defence lawyer, contact our office. Our team has experience in a range of different areas of the law, including, but not limited to, organised crime, criminal appeals, assault, murder and manslaughter, drug offences, fraud, and customs offences.
