When engaging a criminal defence lawyer, clients are sometimes unsure about how much to say at the first meeting – concerned that telling their lawyers everything all at once could make it harder to achieve the best possible outcome.
Indeed, in serious cases, lawyers may not obtain full instructions from their clients until they have received the statements and other materials upon which the prosecution relies, and until both they and their clients have gone through those materials.
So, what are the rules that affect how a lawyer can deal with information from clients?
Legal professional privilege
The client/solicitor relationship is one of the most fundamental of our legal system.
As such, principles have been established so that clients can provide full and frank disclosure to their lawyer without fear that this information will be used against them.
Chief of these principles is ‘legal professional privilege’ also known as ‘client legal privilege’ which protects conversations between lawyers and clients. In the words of Dean J in Baker v Campbell (1983) 153 CLR 52:
“That general principle represents some protection of the citizen – particularly the weak, the unintelligent and the ill-informed citizen – against the leviathan of the modern state. Without it, there can be no assurance that those in need of independent legal advice to cope with the demands and intricacies of modern law will be able to obtain it without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents.”
Legal professional privilege protects against the disclosure of communications between client and lawyer made for the dominant purpose of seeking or providing legal advice or for use in anticipated legal proceedings.
This means your lawyer is generally prohibited from disclosing communications made for the purpose of your cases, subject to the exceptions outlined below.
Privilege applies to both verbal and written communications between a lawyer and his or her client; whether in person, over the phone, by mail or over the internet – so it’s a broad protection which seeks to facilitate free communication between the parties.
Exceptions to client legal privilege
There are, however, a number of exceptions to client legal privilege that you need to be aware of.
In NSW, sections 121 to 126 of the Evidence Act provide a number of situations where client legal privilege does not apply to the admissibility of evidence, which are:
121 – Where the client has died or where disclosure is necessary to enforce a court order,
122 – Where the client waives privilege, or consents to the lawyer disclosing information or producing materials, or where the client acts in a manner inconsistent with maintaining the privilege (eg discloses to others),
123 – Where a defendant is giving evidence in criminal proceedings, unless it is a a confidential communication or document between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person.
124 – Where two or more clients have jointly retained a lawyer in civil proceeding and one or more of them wishes to disclose a confidential communication or contents of a confidential document,
126 – Certain information necessary to understand material to which privilege does not apply as a result of the preceding sections.
What if I’m actually guilty but want to plead not-guilty?
There are some circumstances where being too frank with your lawyer may limit how they can advocate for you inside the courtroom.
And it should be said that if you are indeed guilty, pleading that way will entitle you to a guilty plea discount – which could result in a less serious type of penalty than if your were to plead not guilty and be found guilty. For example, an early plea of guilty could result in a penalty such as an intensive correction order or community correction order instead of a prison sentence.
However, an experienced criminal defence lawyer will be able to ask you questions in a way that reduces the risk of future prejudice.
If you do admit to the offence, but wish to plead not-guilty to it – your lawyer will be limited in how he or she can present your case in court.
This is because all lawyers are required to abide by professional ethics and conduct rules which can limit the questions that can be asked in certain situations, and the way cases can be argued.
The rules do not prohibit lawyers from representing clients who admit their guilt to their lawyer; however, lawyers are strictly prohibited from lying or knowingly misleading the court on behalf of their clients.
A lawyer who knows their client is guilty can still ‘put the prosecution to proof’; which means they can ask questions of prosecution witnesses and make submissions to the court to the effect that the prosecution has failed to prove each of the ‘essential elements’ (or ingredients) of the charge case beyond a reasonable doubt, and that their client should therefore be acquitted.
But again, the lawyer will not be able to elicit false or misleading evidence, or make false or misleading submissions to the court.
For example, a lawyer to whom you admit your guilt can assist by questioning and challenging prosecution witnesses. But he or she cannot allow you or another person to tell lies on the witness stand. If this nevertheless occurs, the lawyer would be well advised to submit to the court that he or she is ‘embarrassed’ and withdraw from the case.
Often honesty is preferable, as you may be guilty of a lesser offence than the one you have been charged with, in which case your lawyer can push for the charge to be downgraded, or tailor your defence to ensure you are found not guilty of the charged offence in court.
So it’s a bit of a tricky area, but experienced defence lawyers are well-aware of the rules, the pitfalls and how to act in the best interests of their clients whilst abiding by their other ethical obligations.
If you don’t feel your lawyer can adequately represent you – whether this is because you have told them something you shouldn’t have, or you believe they are not suitably experienced, or for another reason – it may be in your interest to obtain new legal representation.
Changing lawyers is a simple process, and when making that decision you should always bear in mind that choosing the right lawyer may be one of the most important decisions you ever make, and that you should always be looking out for your own best interests.
If you want to change lawyers, you will normally need to sign an ‘authority to uplift’. Your new lawyer will be able to provide you with this document, and can send it to your previous lawyer on your behalf in order to obtain the materials they have.
If you have unpaid fees with your previous lawyer, it is advisable that you pay these to enable a smooth transfer and ensure your previous lawyer doesn’t seek to exercise a ‘lien’ over your materials – which means to refuse to forward your materials on to your new lawyer.
Going to Court?
If you are going to court and require expert advice from experienced, specialist criminal defence lawyers, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference.
Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.