Your client tells you they are “guilty” but wants to plead “not guilty”. What should you do?

This is the classic case in criminal law of potential conflict between your duty to the court and your duty to your client. I initially thought you would have to advise your client they must plead guilty or cease representing the client. But this is the wrong answer. Your client can still plead “not guilty”, you will just have to be careful not to mislead the court. The starting point is to know the substance of your duty to the court and your duty to your client.

Duty to the court

Section 33 of the Legal Profession Act 2004 (NSW) describes admitted lawyers as officers of the Supreme Court. At your admission ceremony you make an oath or affirmation that you will conduct yourself honestly as an officer of the court. Your duty to the court is enlivened from this moment forward. Rule 3.1 of the NSW Professional Conduct and Practice Rules 2013 also states “A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty”.

What the duty constitutes was a mess of ad-hoc judge made law until 1998 when Justice Ipp wrote an article titled “Lawyers’ Duties to the Court” published in the Law Quarterly Review. In the article, Justice Ipp clearly identified four broad categories of a lawyer’s duty to the court:

1.       A general duty of disclosure owed to the court;

2.       A general duty not the abuse the court’s process;

3.       A general duty not to corrupt the administration of justice; and

4.       A general duty to conduct cases efficiently and expeditiously.

The most important component of the duty to the court for our purposes is that lawyers must not mislead the court.

Duty to your client

I am not going to go thoroughly through all the duties a lawyer owes their client. If you would like a thorough guide I recommend G E Dal Pont’s Lawyers’ Professional Responsibility (5^th ed, Thomson Reuters, 2013). The main duties are as follows:

1.       Duty to be competent;

2.       Duty of loyalty and trust;

3.       Duty of confidentiality;

4.       Duty to promote quality and client care (communication with client); and

5.       Duty to promote access to justice.

The duty of confidentiality requires you to keep conversations between yourself and your client confidential, even in court. If the judge suspects you know your client is guilty, and asks you directly, an appropriate answer that does not breach your duty of confidentiality towards your client would be “my client instructs me that he wishes to plead not guilty”. If the judge probes you further, you could say “it would be a breach of confidentiality to my client to further answer your question”. Criminal judges are used to dealing with these situations and should recognise the professional difficulty you are in reconciling your duty to the court and duty to your client.

Conflict between the two duties

As a lawyer you will have many duties. Sometimes these duties will be conflicting. However, it is well established that in the event of a conflict between your duty to the court and other duties, your duty to the court is to prevail (Gianarelli v Wraith (1988) 165 CLR 543, 555-6, 572 (‘Gianarelli’)). In Gianarelli (at 556), Mason CJ identified that a lawyer’s duty to the court and duty to the client are not just in competition, but can come into full collision, and may require a lawyer to “‘act in a variety of ways to the possible disadvantage of his client … the duty to the court is paramount even if the client gives instructions to the contrary.”

In the leading British case, Rondel v Worsley [1969] 1 AC 191 (at 227), Lord Reid described the overriding duty to the court as follows:

‘[A]s an officer of the court concerned in the administration of justice [a legal practitioner] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.’

What to tell your client when they tell you they are “guilty” but want to plead “not guilty”

For criminal defence lawyers, the duties do not have to collide if you carefully manage the matter and advise your client. The following steps must be taken:

1.       Inform your client that you have a duty to the court and that you cannot mislead the court;

2.       Explain that you also have a number of duties to them as your client, including a duty of confidentiality; and

3.       Explain the ways in which the two duties may conflict at court and the ramifications.

The ramifications you must notify your client of are numerous;

1.       The manner in which you can conduct your client’s case will be severely limited so that the court is not mislead, as you will not be able to set up a case inconsistent with the confession;

2.       You will not be able to suggest another person committed the offence;

3.       You will not be able to call evidence in support of an alibi for the accused if it is inconsistent with the confession made to you;

4.       You will not be able to allow your client to deny the truth of the prosecution case in any respect inconsistent with you client’s confession of guilty to you; and

5.       Your best case will probably be to assert that the evidence on the whole does not prove beyond reasonable doubt your client is guilty of the offence. Case theories that rely merely on asserting the evidence is not sufficient are generally weak case theories.

Conclusion

You can represent a client who wants to plead “not guilty” even where the client has told you they are “guilty”. Professional rules may in fact dictate that you must continue to represent the client, particularly if there is limited time before court for your client to find alternative representation. If you are a junior lawyer caught in this situation, while the steps discussed above may be useful, it is important that you discuss options with counsel or seek the assistance of a more senior lawyer to guide you. It is not just your client’s freedom on the line, but your professional future too.