Should I tell my lawyer the truth, the whole truth and nothing but the truth? – Litigation, Mediation & Arbitration

When engaging a criminal defence lawyer, clients are sometimes
unsure about how much to say at the first meeting – concerned
that telling their lawyers everything all at once could make it
harder to achieve the best possible outcome.

Indeed, in serious cases, lawyers may not obtain full
instructions from their clients until they have received the
statements and other materials upon which the prosecution relies,
and until both they and their clients have gone through those
materials.

So what are the rules that affect

Legal professional privilege

The client/solicitor relationship is one of the most fundamental
of our legal system.

As such, principles have been established so that clients can
provide full and frank disclosure to their lawyer without fear that
this information will be used against them.

Chief of these principles is ‘legal professional
privilege’ also known as ‘client legal privilege’ which
protects conversations between lawyers and clients. In the words of
Dean J in Baker v Campbell (1983) 153 CLR 52:

“That general principle represents some protection of
the citizen – particularly the weak, the unintelligent and
the ill-informed citizen – against the leviathan of the
modern state. Without it, there can be no assurance that those in
need of independent legal advice to cope with the demands and
intricacies of modern law will be able to obtain it without the
risk of prejudice and damage by subsequent compulsory disclosure on
the demand of any administrative officer with some general
statutory authority to obtain information or seize
documents.”

Legal professional privilege protects against the disclosure of
communications between client and lawyer made for the dominant
purpose of seeking or providing legal advice or for use in
anticipated legal proceedings.

This means your lawyer is generally prohibited from disclosing
communications made for the purpose of your cases, subject to the
exceptions outlined below.

Privilege applies to both verbal and written communications
between a lawyer and his or her client; whether in person, over the
phone, by mail or over the internet – so it’s a broad
protection which seeks to facilitate free communication between the
parties.

Exceptions to client legal privilege

There are, however, a number of exceptions to client legal
privilege that you need to be aware of.

In NSW, sections 121 to 126 of the Evidence Act provide a number
of situations where client legal privilege does not apply to the
admissibility of evidence, which are:

121 – Where the client has died or where disclosure is
necessary to enforce a court order,

122 – Where the client waives privilege, or consents to
the lawyer disclosing information or producing materials, or where
the client acts in a manner inconsistent with maintaining the
privilege (eg discloses to others),

123 – Where a defendant is giving evidence in criminal
proceedings, unless it is a a confidential communication or
document between an associated defendant and a lawyer acting for
that person in connection with the prosecution of that person.

124 – Where two or more clients have jointly retained a
lawyer in civil proceeding and one or more of them wishes to
disclose a confidential communication or contents of a confidential
document,

125 – Where a communication is made or document prepared
in furtherance of a fraud, an offence or an act which would render
a party liable for a civil penalty, and

126 – Certain information necessary to understand
material to which privilege does not apply as a result of the
preceding sections.

What if I’m actually guilty but want to plead
not-guilty?

There are some circumstances where being too frank with your
lawyer may limit how they can advocate for you inside the
courtroom.

And it should be said that if you are indeed guilty, pleading
that way will entitle you to a
guilty plea discount – which could result in a less
serious type of penalty than if your were to plead not guilty and
be found guilty. For example, an early plea of guilty could result
in a penalty such as an
intensive correction order or
community correction order instead of a prison sentence.

However, an experienced criminal defence lawyer will be able to
ask you questions in a way that reduces the risk of future
prejudice.

If you do admit to the offence, but wish to plead not-guilty to
it – your lawyer will be limited in how he or she can present
your case in court.

This is because all lawyers are required to abide by
professional ethics and conduct rules which can limit the questions
that can be asked in certain situations, and the way cases can be
argued.

The rules do not prohibit lawyers from
representing clients who admit their guilt to their lawyer;
however, lawyers are strictly prohibited from lying or knowingly
mislead the court on their client’s behalf.

A lawyer who knows their client is guilty can still ‘put the
prosecution to proof’; which means they can ask questions of
prosecution witnesses and make submissions to the court to the
effect that the prosecution has failed to prove each of the
‘essential elements’ (or ingredients) of the charge case
beyond a reasonable doubt, and that their client should therefore
be acquitted.

But again, the lawyer will not be able to elicit false or
misleading evidence, or make false or misleading submissions to the
court.

For example, a lawyer to whom you admit your guilt can assist by
questioning and challenging prosecution witnesses. But he or she
cannot allow you or another person to tell lies on the witness
stand. If this nevertheless occurs, the lawyer would be well
advised to submit to the court that he or she is
’embarrassed’ and withdraw from the case.

Often honesty is preferable, as you may be guilty of a lesser
offence than the one you have been charged with, in which case your
lawyer can push for the charge to be downgraded, or tailor your
defence to ensure you are found not guilty of the charged offence
in court.

So it’s a bit of a tricky area, but experienced defence
lawyers are well-aware of the rules, the pitfalls and how to act in
the best interests of their clients whilst abiding by their other
ethical obligations.

Changing lawyers

If you don’t feel your lawyer can adequately represent you
– whether this is because you have told them something you
shouldn’t have, or you believe they are not suitably
experienced, or for another reason – it may be in your
interest to obtain new legal representation.

Changing lawyers is a simple process, and when making that
decision you should always bear in mind that choosing the right
lawyer may be one of the most important decisions you ever make,
and that you should always be looking out for your own best
interests.

If you want to change lawyers, you will normally need to sign an
‘authority to uplift’. Your new lawyer will be able to
provide you with this document, and can send it to your previous
lawyer on your behalf in order to obtain the materials they
have.

If you have unpaid fees with your previous lawyer, it is
advisable that you pay these to enable a smooth transfer and ensure
your previous lawyer doesn’t seek to exercise a ‘lien’
over your materials – which means to refuse to forward your
materials on to your new lawyer.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.