Can Lawyers Defend a Not Guilty Plea if Client Says They're Guilty?

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Jennifer J

Active Member
14 April 2014
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Can a lawyer defend a not guilty plea in criminal law if the person told their lawyer they did the crime? Curious!
 

lawanswers

Moderator
Staff member
6 April 2014
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Moderator Comment
This question was posted to the @LawAnswersAU Twitter account and generated active discussion. Commentary varied from "no" to "This will be a slim exception to a cornerstone ethical rule. Lawyers cannot mislead the Court." to "You'll find it is possible as indicated above. Lim circumstances. See, Rule 15.2.2 PCPR (Vic)".

An extract from the quoted Victorian Solicitors' Rules (Professional Conduct and Practice Rules 2005 (Vic)) is as follows:

15.1 A practitioner whose client informs the practitioner, before judgment or decision, that
the client has lied in a material particular to the court or has procured another person
to lie to the court or has falsified or procured another person to falsify in any way a
document which has been tendered:

15.1.1A must advise the client that, unless the court is informed of the lie or
falsification, the practitioner must not take any further part in the case,
and request authority so to inform the court;
15.1.1 must refuse to take any further part in the case unless the client
authorises the practitioner to inform the court of the lie or falsification:
15.1.2 must promptly inform the court of the lie or falsification upon the client
authorising the practitioner to do so; but
15.1.3 must not otherwise inform the court of the lie or falsification.
15.2 A practitioner whose client in criminal proceedings confesses acts alleged by the
prosecution to the practitioner but maintains a plea of not guilty:

15.2.1 may cease to act, if there is enough time for another practitioner to take
over the case properly before the hearing, and the client does not insist
on the practitioner continuing to appear for the client;
15.2.2 in cases where the practitioner continues to act for the client:
(a) must not falsely suggest that some other person committed the
acts;
(b) must not set up an affirmative case inconsistent with the
confession;
(c) may argue that the evidence as a whole does not prove that the
client is guilty of the offence charged;
(d) may argue that for some reason of law the client is not guilty of
the offence charged; or
(e) may argue that for any other reason not prohibited by (a) and (b)
the client should not be convicted of the offence charged.
15.3 A practitioner whose client informs the practitioner that the client intends to disobey
a court's order must:

15.3.1 advise the client against that course and warn the client of its dangers;
15.3.2 not advise the client how to carry out or conceal that course;
15.3.3 not inform the court or the opponent of the client's intention unless:
(a) the client has authorised the practitioner to do so beforehand; or
(b) the practitioner believes on reasonable grounds that the client's
conduct constitutes a threat to any person's safety.


Please note that Solicitors' Rules can vary by state and territory. You can find the NSW Solicitors Rules' for Guilty and Delinquent Clients here.
 
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