THE CLIENT WHO SAYS "I'M NOT GUILTY, BUT I WILL PLEAD GUILTY" An ethical dilemma which arises from time to time is where a client's instructions are to the effect of "I'm not guilty, but I will plead guilty". Can a practitioner act where such an instruction is given? The situation is an uncomfortable one. It is even more uncomfortable when defence counsel forms the view that the client has a defence. In my view, while the practitioner may withdraw pursuant to LPCR r 27(1)(f), they are not obliged to withdraw and can continue to act in the event that the client pleads guilty.26 Of course, the first obligation of the practitioner in this situation is to ascertain why the client has formed the view that they are not guilty. Often, that view is erroneous and, following careful discussion with defence counsel, the client comes to this realisation. Sometimes, the reason for pleading guilty, when the client believes that they are not guilty, has more to do with matters which, while important to the client, should have no bearing upon their decision to plead guilty. Matters such as the expense of paying for a trial lawyer, and the (understandable) desire to get the matter 'over and done with', are commonly proffered by a client in this position. The question of cost is, for many, a serious one. Defence counsel will be aware that there are a number of other reasons as to why some clients proclaim their innocence notwithstanding their intention to plead guilty. An example is those clients who, although aware that they are in fact guilty, want to convey their innocence to those close to them. This sometimes occurs when a person is charged with an odious or embarrassing offence (such as a sexual offence against a child); or for fear that there will be adverse familial consequences if they do not. Other clients are realists. While, in their own minds, they believe that they are innocent, they can see that the evidence is stacked against them, and that the prospects of acquittal are slim. These clients may want to, in effect, 'cut their losses' in terms of sentence by pleading guilty. A practitioner should, as far as possible, attempt to understand the client's reasoning for doing so, emphasising to the client the practitioner's ethical duty of confidentiality.27 In the end, where a client is of sound mind, defence counsel is able to ethically represent a client who claims innocence but wishes to enter a plea of guilty; however, they must not do so
unless: 1. advice has been given that the client should not plead guilty unless they have actually committed the offence(s) charged; 2. the client has a completely free choice to plead guilty or not guilty to the charge(s); 3. they understand that the plea is an admission to 'all the world' that they have committed the offence(s), the consequences of which the client will have to live with for (perhaps) the rest of his or her life; 4. the client will be sentenced by a court upon the basis that they have committed all of the elements of the offence(s); and 5. defence counsel explains to the client that no evidence can be tendered, and no submissions can be made, which are inconsistent with an admission to the elements of the offence(s). There are a number of helpful cases which expand upon this ethical dilemma. In particular the cases of Meissner v The Queen (1995) 184 CLR 132; R v Allison [2003] QCA 125; R v MacKenzie [2000] QCA 324 and R v Turner (1970) 54 Crim App R 352. The various discussions in these cases highlight the importance that the law has attached to a plea of guilty as admission of all the elements of the offence. When in open court, in the hope of obtaining a more lenient sentence, an accused - who is of full age and mind and who, of their free choice - pleads guilty, despite maintaining their innocence, he or she cannot later complain that a miscarriage of justice has occurred. CHARGE BARGAINING NEGOTIATIONS – NEGOTIATOR AND CONCILIATOR An important part of the role of defence counsel is to negotiate pleas with prosecuting police officers or lawyers at the Department of Public Prosecutions. This is relevant where defence counsel has been instructed that their client will enter a plea of guilty to some of the charges laid against them, or where a client would be prepared to plead guilty to an alternative charge (or charges). Little has been said or written about defence counsel's ethical obligations during this process. However, in accordance with a practitioner's duty to act honestly and courteously in all dealings with clients, other practitioners and other
persons involved in a matter, where the practitioner acts for a client,28 a practitioner must not willfully mislead the other party during charge bargaining negotiations.29 Further, even where a negotiation with the prosecution has been reached to either a charge or a proposed penalty, the client must be informed that any agreement does not bind the court.30 PREPARATION AND PRESENTATION OF A PLEA – PLEADER, HISTORIAN AND SOCIAL COMMENTATOR In addition to the ethical obligations already touched upon, a clear understanding of the purpose of a plea in mitigation, the expectations of practitioners when dealing with sentencing materials, and the necessity of making a submissions on the appropriate penalty which defence counsel says should be imposed upon their client, are important ethical issues to consider during the preparation and presentation of a plea. PURPOSE OF PLEAS IN MITIGATION A plea in mitigation must not be used for the purpose of making a submission that is merely scandalous or calculated to vilify or insult any person.31 Nor can defence counsel attribute to another person the commission of an offence unless there are facts or circumstances which reasonably support such an attribution.32 These rules are relevant because, from time to time during my time as a trial judge, I heard pleas in mitigation during which gratuitous and unnecessary criticisms of people somehow associated with the case were made, or criminal conduct was alleged against a person without any factual basis to support such allegation.33 ETHICAL OBLIGATIONS REGARDING SENTENCING MATERIALS There is neither a positive duty upon defence counsel to disclose to a court a client's criminal history, nor an obligation to inform the court of any factual matter adverse to his or her interests.34 However, defence counsel must not assert, during the course of a plea in mitigation, that his or her client has no record.35 If the prosecution tenders a criminal history which is wrong, defence counsel is not obliged to correct it; however, defence counsel cannot assert that the erroneous record is accurate.36 Similarly, if there is a criminal history, but it is incomplete to defence counsel's knowledge, defence counsel is not obliged to inform the court of the complete record, but
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