One of the most common questions asked of the legal profession is, how can a criminal lawyer defend someone who is guilty?

There appears to be view that a criminal defence lawyer uses technical arguments or legal loopholes to free persons who are ostensibly guilty of offences. Further, a prevailing view in the community is that most accused criminals face serious allegations such as murder or sexual offences.

However, there are strict rules in place that govern the how legal practitioners conduct themselves when faced with such a dilemma.

Can a Criminal Lawyer Defend Someone They Know is Guilty?

A criminal lawyer can defend someone they know is guilty as long as they do not lie or knowingly mislead the court.

The Law Society of New South Wales governs the conduct of legal professionals and regulates their ethical standards. You can read the statement of ethics by clicking here.

If you tell your lawyer that you are guilty of a criminal offence, they can still represent you. However, if you wish to plead ‘not guilty’ then your lawyer cannot positively suggest that you did not commit the offence. Rather, they can only suggest that the prosecution have not proved the elements of the offence beyond reasonable doubt.

Can Lawyers Refuse to Defend Someone?

Lawyers can refuse to defend someone unless a court refuses to grant them leave to withdraw from the matter.

Common reasons why a criminal lawyer would not defend someone are if there is a conflict of interest (eg. the solicitor has previously represented or given advice to the opposite party), or where they have prior commitments or where the case is beyond their expertise.

However, once a lawyer has started acting for a client, they generally cannot stop acting unless they have a sufficient reason. The Law Society can make a finding of ‘unsatisfactory professional conduct’ and take disciplinary action if appropriate.

The Solicitors Rules set out that if a client admits their guilt to a lawyer but still wishes to plead not guilty, the lawyer must either:

  • stop acting for the client, as long as there is enough time for the client to find someone else to represent them, or the client does not insist on the solicitor continuing to represent them; or
  • continue to act for the client, but they cannot suggest that someone else committed the offence; or set up a case inconsistent with the confession

A criminal lawyer can still defend the client by arguing that the evidence does not prove the elements of the offence beyond reasonable doubt.

If the client gives evidence denying guilt or makes a statement claiming their innocence, the solicitor must stop acting for them.

The NSW Barristers’ Rules have similar provisions.

How Can a Criminal Lawyer Defend Someone They Think is Guilty?

A criminal lawyer can defend someone they think is guilty because there is a difference between “legal guilt” and “factual guilt”. It is not the job of a criminal defence lawyer to make a judgement as to their client’s guilt. A lawyer must provide a vigorous defence regardless of the crime their client is accused of or the evidence against them.

The criminal justice system is built on the concept of a person being presumed innocent until their guilt is proved “beyond a reasonable doubt”. This is a very high standard intended to make conviction difficult. This means that a criminal trial is about whether the prosecution have met this standard, as opposed to whether a person has actually committed an offence.

Pleading Guilty

If a person decides to plead guilty, your criminal lawyer can undertake the following actions to obtain the best outcome:

  • negotiating with police to reduce the number charges. This can involve the ‘rolling up’ of a number of sequences;
  • negotiating with the prosecution for less serious charges. For example, a charge of assault occasioning actual bodily harm can sometimes be reduced to a common assault charge. Likewise, a drug supply offence can be reduced to drug possession;
  • amending the fact sheet to minimise the details of the offence.

By undertaking these actions, your prospects at minimising your penalty at sentence will be significantly increased. Outcomes such as a section 10 dismissal or conditional release order – which means that no criminal conviction is recorded – will become much more likely.

A lawyer can also prepare your subjective case by assisting you to obtain character references, an apology letter and any medical or psychological reports.

Undertaking a drug and/or alcohol rehabilitation program can also be beneficial. If you have been charged with a traffic offence, you will also need to enrol in a traffic offender program.

Pleading Not Guilty

If you have admitted to your lawyer that you are guilty of the offence, but you still want to plead not guilty, it will usually be in your best interests to retain new lawyers.

This is because for them to continue representing you, they can only argue that the prosecution has not proved the offence beyond reasonable doubt.

This means that your criminal lawyer cannot positively tell the court that you are innocent.

The ethical and professional standards that govern the conduct of solicitors sets out that your lawyer cannot allow facts they know are false to be produced in evidence, nor can they make submissions that they know are false.

An experienced criminal lawyer will generally withdraw from the case if faced with this dilemma. Given the significant penalties for criminal offences, it is advisable to be represented by a criminal lawyer who put the defence forward.