Lawyer’s ethics: “I told my lawyer that I’m guilty.”

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The article Lawyer’s ethics: “I told my lawyer that I’m guilty.” is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.

Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.

Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.

Discussion Between Lawyer and ClientCriminal lawyers are often asked ‘What do you do if your client tells you that they’re guilty.’  There seems to be a general misconception by those not usually involved in the criminal justice system that this poses some kind of ethical dilemma for a criminal lawyer. That is not usually the case.

Lawyers are bound by strict rules of ethics. While your criminal lawyer can continue to represent you if you tell them that you are guilty of the offence, you must be aware that your admission of guilt will then dictate how your lawyer can assist you.

What if I told my lawyer that I’m guilty, but that I want to plead not guilty?

Your lawyer can continue to act on your behalf.

However, if your lawyer continues to act on your behalf with knowledge of your guilt, they are then restricted in the arguments that can be made to the Court in your defence. These rules are set out in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

For example, your lawyer can argue to the Court on your behalf that:

  • The evidence as a whole does not prove that you are guilty of the offence; or
  • That for some reason of law you are not guilty of the offence.

But your lawyer must not:

  • Suggest to the Court that someone else committed the offence;
  • Set up a case in argument that is inconsistent with your confession;
  • Allow facts they know to be false to be produced in evidence; or
  • Make any submissions on your behalf that they know are false.

The rules of ethics are very clear.

If you confess your guilt to your lawyer but you continue to insist on giving evidence to the Court denying your guilt, or that your lawyer make a positive statement to the Court that you are innocent, your lawyer must cease to act on your behalf.

If you tell your lawyer you’re guilty, but you wish to plead not guilty, your lawyer can suggest that you obtain alternative legal representation and cease to act on your behalf. In practice, that is usually the case.

How can a criminal lawyer help me if I admit the offences and want to plead guilty?

Many people make admissions to their lawyer in their first lawyer/client interview, and the vast majority of criminal law cases involve the conduct of a guilty plea.

If you admit your guilt to your lawyer, an experienced criminal lawyer will then explain to you the many ways in which expert legal representation can assist you to obtain the best outcome in terms of the ultimate penalty.

It may be that you have already made full admissions to police in your record of interview. Or that you admit some or most of what is alleged against you by police, but there is some dispute that remains to be resolved. This dispute is often about the exact facts of what happened, or a question about what the most appropriate charges are to plead guilty to.

If you decide to plead guilty, an experienced criminal lawyer can assist you by negotiating the charges and police summary with the prosecution to resolve your case in the best possible way.

The criminal lawyer’s role is then to inform the Court about your personal circumstances and your history so that the Court is aware of precisely who they are sentencing, and not just what they have done.

Your lawyer will ask you about matters such as:

  • Your background such as schooling and work history
  • Your mental health
  • Any substance abuse issues
  • Your plans for the future
  • The role that you played in the offence
  • Events leading up to the offence
  • Whether the offence was premeditated or spur of the moment
  • The presence of any situational pressures
  • Whether you were subject to the influence of others
  • The amount of damage caused by the offence
  • Level of intoxication at the time (if any)
  • What has happened since the offence

Your lawyer can provide you with professional advice about effective character references and letters of support that can be provided to the Court on your behalf.

If it is appropriate, a treatment or rehabilitation plan can be organised prior to the finalisation of your matter, and a report obtained from your counsellor as to your positive engagement in counselling since the offence.

Arrangements can also be made for restitution, such as payment for any damage caused to property by the offending, or reimbursement for money fraudulently obtained.

If it is your first offence, your lawyer may discuss with you the possibility of Diversion. If the charges are appropriate, you lawyer may prepare a submission to police that you be considered for the Diversion Program. The benefit of Diversion is that if ultimately granted by the Court, the charge will not appear on your criminal record.

A good plea takes account of all of the available information gathered by you and your lawyer and uses it to tell your unique story so that the most convincing narrative can be presented to the Court on your behalf. And a well conducted plea that informs the Court about you, and your particular circumstances, can make a significant difference to the ultimate penalty.

If you tell your criminal lawyer that you are guilty, and that you have decided to plead guilty, expert legal representation will assist you to obtain the best possible outcome. Contact Doogue + George for clear and pragmatic legal advice (03) 9670 5111.
Date Published: 3 June 2020

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