#13083 - Duty To The Client Specific Responsibilities In Criminal Matters - Ethics

Duty to the client: Specific Responsibilities in Criminal Matters

• Duties to the court owed by defence council

  • Duty of the defence is to protect the client from conviction except by a competent tribunal and upon admissible evidence sufficient to support a conviction Tuckiar v The King

    • Do the opinions of defence counsel matter? “The fundamental misconception which affects the public approach to the art of the advocate and which supplies the basis for the mistrust with which the ordinary man views the profession is the inability of the public to realise that the sincerity of the advocate is not in question.” Justice Barry, “The Ethics of Advocacy” (1941) 15 Australian Law Journal

    • As long as you don’t actively mislead the court, you can sit on information in a criminal case if the prosecution doesn’t bring it up.

    • Note: no reason why a solicitor can’t act for the same client in a criminal and civil matter.

  • Defending guilty clients

    • Summary:

      • CAN’T

        • Can’t falsely attribute guilty to someone else ASCR 20.2.2 LPCRB 79(b)

        • Can’t set up an inconsistent defence ASCR 20.2.2(ii); LPCRB 79(c)

        • Can’t allow the accused to given inconsistent evidence ASCR 20.2.3; LPCR 79(h)

      • CAN

        • Ensuring prosecution proves its case LPCR 79(d)

        • Arguing not guilty for some legal reason (eg insanity) ASCR 20.2.2(iv); LPCR 79(f)

        • Arguing there is another reason against conviction ASCR 20.2.2(v); LPCR 79(g)

      • So, you’re entitled to act for a client in a criminal matter who is guilty so long as you don’t allow your client to perjure themselves, and as long as you don’t put propositions to court which are contrary to what you know.

    • LPCR 79 A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:

      • (a) should, subject to the client accepting the constraints set out in sub-rules (b) to (h) but not otherwise, continue to act in the client’s defence;

      • (b) must not falsely suggest that some other person committed the offence charged;

      • (c) must not set up an affirmative case inconsistent with the confession;

      • (d) must ensure that the prosecution is put to proof of its case;

      • (e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

      • (f) may argue that for some reason of law the client is not guilty of the offence charged;

      • (g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged; and

      • (h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

      • *And remember, conduct rules regarding delinquent clients from last week LPCR 78-81)

    • ASCR 20.2 A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty: Tuckiar v the King

      • 20.2.1 may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;

      • 20.2.2 in cases where the solicitor continues to act for the client:

        • (i) must not falsely suggest that some other person committed the offence charged;

        • (ii) must not set up an affirmative case inconsistent with the confession;

          • don’t get them in the witness box

        • (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

        • (iv) may argue that for some reason of law the client is not guilty of the offence charged; and

        • (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged;

      • 20.2.3 must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence

      • Note: this principles are designed to retain, for even the ‘guilty’ client, some representation before the court, in the interests of ensuring that the continuing prosecution is as fair as possible.

        • Even hesitant clients usually consent to disclosure of a lie when they realise that if they don’t do so their advocate will have to withdraw 20.1.5 and 20.2.3

        • Should an advocate pretend they known nothing after hearing a confession, they would forever after leave themselves vulnerable to blackmail b the client.

    • Withdrawing from case summary:

      • Depends on timing and consent

        • ASCR 20.2.1: Solicitor may cease to act if there is enough time for another solicitor to take over the case properly

        • LPCR 79: Barrister should continue to act unless they can return the brief under r 101 if the circumstances are compelling and sufficient time for another lawyer to take over

      • Possible consequences for legal aid: NOTE: Victoria Legal Aid must be informed of a confession and will usually terminate aid at that point, if the trial continues!

  • Innocent clients pleading guilty

    • LPCRB 40A: It is the duty of a barrister representing a person charged with a criminal offence:

      • (a) to advise the client generally about any plea to the charge; and

      • (b) to make clear that the client has the responsibility for and complete freedom of choosing the pleas to be entered.

    • LPCRB 40B: For the purpose of fulfilling the duty in rule 40A, a barrister may, in an appropriate case, advise the client in strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the court as a mitigating factor to the extent that the client is viewed by the court as cooperating in the criminal justice process.

    • LPCRB 40C: Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister;

      • (a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge;

      • (b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence;

      • (c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead guilty; and

      • (d) may otherwise continue to represent the client

  • ASCR summary

    • Solicitor representing a client must exercise independent judgment after appropriate consideration of client or instructing solicitor’s instructions (ie must not be mere mouthpiece) 17.1

    • Solicitor must become surety for the client’s bail 17.4

    • Solicitor must not, in the presence of any parties or solicitors, deal with a court on terms of impersonal familiarity which may give the appearance of special favour with the court 18.1

    • Must not knowingly mislead the court 19

    • Must make full disclosure in ex parte 19

    • Must inform court of binding authorirty, if none – any authority by an Australian appellate court and any apllicable legislation known to the solicitor on point at appropriate time in hearing 19

    • If client or witness called on behalf of client lies, falsified document or suppressed material evidence or procured another to do any of these MUST advise client that the court should be informed and seek authority to do so AND MUST refuse to continue to take part in case if authority not given, but may not inform court without authority 20.1

    • If client confesses guilt but pleas not guilty (see above) 20

    • Must not abuse court process 21

    • Solicitor must not prevent witness from conferring with opponent 23

    • Must not coach witness, encourage false evidence be given 24

    • Must not confer with multiple lay witnesses about contentious issues 25

    • Must not confer with witness while under cross-examination 26

    • Solicitor not to be advocate in hearing if required to give evidence 27

    • Must not publish any material which may prejudice fair trial or administration of justice 28

  • ‘Cab-rank’ principle

    • LPCRB 21. A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practise if:

      • (a) the brief is within the barrister’s capacity, skill and experience;

      • (b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence;

      • (c) the fee offered on the brief is acceptable to the barrister; and

      • (d) the barrister is not obliged or permitted to refuse the brief under Rules 95, 97, 98 or 99.

    • LPCRB 22. A barrister must not set the level of an acceptable fee, for the purposes of Rule 21(c), higher than the barrister would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be deterred from continuing to offer the brief to the barrister.

    • LPCRB 23. A barrister must not require that any other particular legal practitioner be instructed or briefed so as in any way to impose that requirement as a condition of the barrister accepting any brief or instructions. 24. A barrister must not make or have any arrangement with any person in connection with any aspect of the barrister’s practice which imposes any obligation on the barrister of such a kind as may prevent the barrister from:

      • (a) accepting any brief to appear for reasons other than those provided by the exceptions to the cab-rank principle in Rules 95, 97,98 or 99; or

      • (b) competing with any other legal practitioner for...