How can you represent a guilty person?
Because it’s not a defence lawyer’s job to decide guilt or innocence, and doing so isn’t what the role requires. Under the Australian Solicitors’ Conduct Rules (rule 3.1), a solicitor’s duty to the court and the administration of justice is paramount, ahead of the duty to any client. That duty doesn’t stop a lawyer acting for someone who may be, or has admitted to being, guilty: it shapes how they can act. A lawyer can always test whether the prosecution has actually proven its case; what changes is whether they can also put forward a positive case of innocence.
You’re a criminal defence lawyer, hey?
When someone finds out we’re criminal defence lawyers, all attention seems to somehow shift away from the gripping tales being told by the accountant and on to us.
Immediately people start thinking about the courtroom dramas they have seen on television. The initial impression is divided; usually it’s based on some misguided sense of what being a lawyer actually involves.
The same questions always come up:
How can you represent a guilty person?
Don’t you just lie for your clients?
What if they tell you that they did it?
What if you know they did it?
From an uninformed perspective, these sorts of questions are natural. You might think to yourself “how can someone represent someone who punched a stranger in the face on a night out?”
Why does everyone facing a charge get a lawyer?
Having defence lawyers is a vital part of our system of justice. Where there are people, there is room for human corruption and error, and some of it doesn’t look brazen at the time: is it acceptable for a police officer to search someone at 3am because they look “dodgy”? What about promising someone bail and the return of seized cash if they agree to an interview?
Criminal defence lawyers help balance the scales. Without them, the prosecution’s version of events would go untested, and every charge would end in a conviction almost by default. The presumption of innocence would have nothing behind it.
Solicitors are bound by the Australian Solicitors’ Conduct Rules, the professional conduct rules that apply to every solicitor in Queensland. Alongside the paramount duty to the court (rule 3.1), rule 19.1 says a solicitor must not deceive or knowingly or recklessly mislead the court. That rule is often overlooked or dismissed by people who assume all lawyers are up to no good, and TV and film haven’t helped. But while there are exceptions (the Lawyer X scandal in Victoria is the standing cautionary tale), the professional conduct rules exist precisely because a lawyer’s duty to the court comes first.
What can a lawyer do if a client admits guilt but wants a trial?
Once a client has told us they “did it”, our options narrow considerably. Queensland Law Society’s own guidance on this exact scenario (rule 20.2 of the Conduct Rules) sets out what happens next: we can advise the client to plead guilty, or, if they still want a trial, we can continue to act, but only within firm limits. We must not falsely suggest someone else committed the offence, and we can’t set up a case that’s inconsistent with what the client has told us. What we can still do is put the prosecution to proof: test the strength of its evidence, cross-examine its witnesses, and argue any legal basis on which the client shouldn’t be convicted.
For example, if a client told us he punched the complainant, we can’t cross-examine the complainant and put it to them that our client didn’t throw the punch, because we know that’s false. What we can do is ask, “there were a lot of people in the fight, could you have been mistaken about who actually punched you?”, testing the identification evidence without asserting something we know isn’t true.
If a client insists on giving evidence denying guilt, or wants us to actively assert their innocence, we can no longer act for them in that trial. That’s not a loophole in the rules; it’s the line the rules draw.
What if a lawyer suspects, but hasn’t been told, a client is guilty?
A suspicion is a different thing entirely from an admission, and the rules treat it that way. Our job isn’t to decide if a client is guilty or innocent; it’s to critically analyse the evidence and identify what the prosecution can and can’t prove. If a client maintains their innocence, we don’t second-guess that. Our role is to advise on the strength of the case against them, explain their options, and then act on their instructions, testing the prosecution case as thoroughly as we can and leaving the ultimate decision on guilt to a magistrate, judge or jury.
So how can we represent a guilty person?
Our job is to appear in court and represent our client to the best of our ability within those rules; not to judge them for what they might have done. We put the client’s case as carefully and forcefully as the prosecution puts its own, and if the outcome isn’t right, we appeal it, because the system depends on everyone being treated equally before the law.
If you’re facing a charge, whatever the evidence against you looks like, contact us for confidential advice about where you actually stand, available 24/7 for urgent matters.
This article is general legal information, not advice about your situation.
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