"What if I know that my client is guilty?"
The answer depends on whether a lawyer's knowledge or belief of their client's guilt arises from the evidence against them, or whether it's because the client has confessed their guilt to them.
What if a lawyer knows that their own client is guilty of the offence(s) for which they have been charged? This is a question that lawyers are often asked, although perhaps surprisingly not often by criminal clients.
If the evidence against the client is so strong
If the evidence against the client is extremely strong and their lawyer believes as a result of the evidence that a conviction is certain, then the lawyer should advise their client to plead guilty.
However, if the client listens to the lawyer's advice and is adamant that they will nevertheless plead not guilty, the lawyer must accept and follow their decision. It is an accused person’s right to plead not guilty, even if they did in fact commit the offence(s) they are charged with. The lawyer must not in any way seek to interfere with that right. Criminal defence lawyers have often represented clients who they have thought were guilty but who wished to plead not guilty. Sometimes, the client in such cases was right.
There is nothing wrong with defending a client who the lawyer believes is guilty, for the reasons set out below. Indeed, it is an ethical duty.
The first reason why it is perfectly ethical to defend a client who the lawyer knows or believes is guilty is that the lawyer is not the person whose role it is to decide whether or not the client is guilty. As Johnathan Goldberg has said, “a defending advocate is not there to stand in judgment upon his own client”. That role belongs to a judge or jury, as the case may be.
Assuming that no evidence is excluded from the trial, the judge or jury reaching the verdict will have all the evidence that the lawyer has to decide for themselves whether or not the client is guilty.
If the lawyer ever refuses to act for a client because they believe they are guilty, the lawyer is to a degree assuming the judge or jury’s role as being the decider of guilt.
What if my client tells me they are guilty?
Notwithstanding client confidentiality, if the client admitted his or her guilt to their lawyer, the obligation to not mislead the court would still apply. This obligation would alter how the lawyer can defend the client.
If the client tells the lawyer they are guilty the lawyer can still defend them, although the lawyer is not obliged to if someone else can be found in proper time to represent the client and the client does not insist the lawyer represents them. However, in defending the client the lawyer is not allowed to advance a positive case which the lawyer knows to be untrue.
This is scenario is dealt with in rule 20.2 of the Australian Solicitors Conduct Rules.
The lawyer can put the prosecution to proof (force them to prove their case) and argue that the evidence is not strong enough for their client to be convicted, or argue that the client's alleged conduct does not amount to a criminal offence for legal reasons. The lawyer can also try to weaken the evidence by cross-examining witnesses (without advancing a positive case), arguing that particular pieces of evidence prove little and so on. However, the lawyer is not permitted to submit to the court that the client has an alibi, has committed the offence in self-defence or advance some other evidence or explanation the lawyer knows to be false.
Read more:
https://sterlinglawqld.com/what-if-i-know-that-my-client-is-guilty