Can my lawyer still defend me if they know I’m guilty?

Like most other professions, criminal lawyers have to abide by high ethical standards and codes of conduct that are determined by the regulatory body in the state they practice.

In NSW, that body is called the Law Society of New South Wales.

The ethical standards do not prevent criminal lawyers from representing a client they know is guilty, but the lawyer will not be able to lie or knowingly mislead the court on their client’s behalf.

If you are guilty of a criminal or traffic offence, and you advise your lawyer of this, they will still be able to represent you.

They can help you in a number of different ways, but it depends on whether you choose to plead guilty to the offence, or you still want to plead not guilty.

What happens if I plead guilty?

If you admit your guilt and decide to plead guilty, your criminal lawyer can help you to get the best possible result by:

• persuading the prosecution to reduce the number charges,
• pushing for more lenient charges, for example reducing a charge of ‘assault occasioning actual bodily harm’ to ‘common assault’, or reducing ‘drug supply’ to ‘drug possession’;
• negotiating less serious ‘facts’, which are the details of the offence that are handed-up to the court.

This can place you in a better position at the time that you are sentenced, which can significantly reduce the penalty. It can even help you to get a ‘section 10 dismissal or conditional release order‘ – which means that you are guilty but a criminal conviction is not recorded against you.

In addition to reducing the seriousness of the charges, your lawyer can help you strengthen your case by assisting you to obtain character references, and draft a letter of apology.

Indicating that you have taken measures to address any underlying issues that may have led to the offence being committed can improve the chances of the judge or magistrate looking on you favourably.

Your lawyer may advise you to see a counsellor, or undertake a drug and/or alcohol rehabilitation program such as MERIT, if applicable, and help you obtain reports for the court.

If you have been charged with a driving offence, your lawyer can help you find and enrol in a traffic offender program in your area.

What if I still want to plead not guilty?

It is not considered advisable for a criminal lawyer to defend a not guilty charge if you have admitted your guilt, and it will not usually be in your best interests as a client if they do so.

If your lawyer is aware that you are guilty and you want to defend the charges against you, your best solution is to find another lawyer to represent you.

This is because a lawyer who is aware of your guilt can only defend you by ‘putting the prosecution to proof’.

This means that your lawyer can try to force the prosecution to prove their case beyond a reasonable doubt, but he or she will not be able to tell the court that you are innocent.

Due to the ethical obligations and professional standards that lawyers abide by, your lawyer is also unable to allow facts that they know are false to be produced in evidence, nor can they make submissions that they know are false.

Experienced criminal lawyers will invariably make the decision to withdraw from the case in this situation.

Even if your lawyer is willing to proceed, knowing that you have admitted your guilt will affect their ability to defend you effectively in court, and you are better off finding another lawyer.

Given the penalties for criminal and even traffic offences, you would want to do everything you can to give yourself the best chance of success in your case.