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ETHICS, NEGLIGENCE AND CONFLICTS
This is titled Ethics but it isn’t really about ethics. It’s about Legal Ethics for Legal Aid Employees
specialising in Criminal law. Not everything that is legal is ethical, and not everything that is ethical
is legal.
WHY BOTHER TO ACT ETHICALLY?
I suggest three reasons.( I’m sure there are more)
1) Because a defined set of behaviours is demanded of us professionally and if
we do not follow them we run the risk of losing our professional standing, our
living,
and possibly facing criminal charges.
This is not a particularly noble reason , but it is a persuasive one.
2) Because the nature of our work as Criminal lawyers dealing with alleged
behaviours that are often horrific to most in our society means that we need a fairly
robust and replicable set of ethics to properly do our jobs.
3) Our clients and the courts trust us and delegate enormous responsibilities to us. We
want to act ethically and honourably because that’s why we took up law in the first
place.
FOUR CATEGORIES OF ETHICAL DUTY
1) To the Court and the Justice system.
2) To your client.
3) To Legal Aid.
4) To yourself.
There is no order to them. Sometimes one is paramount, sometimes another. ( I would suggest
that the obligation to yourself is the core value which informs your attitude to all the others).
Relevant written rules about legal ethics are contained in the Legal Aid Act (in particular Part 5 Div.
2), Harrison's conduct of the Legal Profession, and the Law Society Handbook. There is also
useful documentation in the Legal Aid Queensland Instrument of Delegation, Quality standards,
and the grants handbook, but please differentiate between Statute law, moral obligation, and
company rules. They sometimes represent three different sets of duties.
I am not going to quote lumps of written text to you. Ethical dilemmas arise in unusual
circumstances, and each one will be slightly different. What I hope to do is demonstrate that a
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series of broad principles can be applied to all the impossible situations we and our clients
occasionally find ourselves in.
PROTECTING YOURSELF FROM DANGER
I suggest five basic steps that should at least fireproof you against the more obvious dangers:1) Always get your instructions signed dated and witnessed.
2) Always keep dated file notes.
3) If your client wants to change their instructions in any way, be aware that you are
in dangerous territory.
4) Don't act for more than one client in the same case.
5) If in doubt, ask for help.
6) Don’t be afraid to withdraw from a case.
GENERAL ETHICAL BEHAVIOUR AS A DEFENCE LAWYER.
‘The criminal lawyer when representing her client should do for the client whatever the client could
legitimately do for themselves if they had the knowledge and ability to conduct their own case.’
Sounds great but in practical terms it isn’t much help in deciding what to do, so below are what I
believe to be the most frequent problems that arise.
CONTRADICTORY INSTRUCTIONS
You can't put forward a defence you know to be a lie, but 'know' is the operative word. Unless your
client actually says " I killed the Reverend Green with the spanner in the library" You do not have to
second guess the honesty of your client's version. Even if he has said the above you still need to
turn your mind, however briefly, to self defence, provocation, mental defences, Section 24 of the
Queensland Criminal Code and a few of the other more unusual ways out of a guilty plea.
You can, and should, tell your client that their inherently ridiculous version of events would be
unlikely to be believed by a jury ( and I have heard this put very forcefully by counsel in
conference). You can, and should point out the effects on sentence of a plea as opposed to a
losing trial, and in some cases the effect on sentence of putting the complainant through the
trauma of cross examination. But if the client insists, your job is to present their story as
persuasively as you can.
You must tell the client if there is a legitimate defence, technical or not, to the charge, and if you
feel morally outraged by it and don't you are in the wrong job.
A client is always entitled to put the Crown to proof, because the Crown says it can prove beyond
reasonable doubt all the elements of the offence. You don't have to take their word for it, and you
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don't have to prove your client's innocence. If your client says he did it, you can still put the crown
to proof, but you can't conduct an active defence.
I think it should be pointed out that this principle is being rapidly whittled away by the ever
extending reach of R v Weissensteiner ((1992) 62 A.Crim. R. 96), and I predict that sooner or later
in some of your careers if not mine accused persons will have to climb in the box to defend
themselves in all cases.
You are not under an ethical obligation to disclose your clients previous criminal history to the court
if the Crown does not, but you should not then make submissions on their good character.
The instruction "I didn't do it but I want to plead guilty" is one that all criminal lawyers will
encounter. The short answer is "well you can't" ( or to be more accurate, "I can't do that for you"),
but in fact there are ways around the problem. What you must not do is take instructions, or make
submissions on sentence that disclose a defence. First it is unethical , and second you will be
exposing yourself to adverse comment by the judge or Magistrate who will refuse to accept the
plea, and set the matter down for a hearing over the outraged protests of your client. When you
leave the court you will want the ground to open up and swallow you. I know from personal
experience.
The formula I now use, and I do not pretend it is the only one, is to say to the client that if they want
me to act for them and plead them guilty they must give me signed, dated and witnessed
instructions that they accept the crown case in all material particulars. I have no problem with them
knowing in their hearts that they didn't do it, that is between them and their god, but they must
accept that I am going to stand up in Court on their behalf and say they accept their guilt. If they
can live that, fine. If they cant, then I won't plead them guilty, and they will have to do it
themselves.
EQUIVOCAL INSTRUCTIONS
Another not uncommon problem is that sometimes clients will tell you that "all I did was drive the
getaway car", and they therefore can't possibly be guilty of the robbery. This is sometimes very
tricky because they get deeply offended when you point out the meaning of sections 7 and 8 of the
criminal code. (I assume all of us know about sections 7 and 8). This isn't strictly an ethical
problem, but it feels like one. In practical terms , you have to make your client understand the
futility of running a defence that proves all elements of the offence beyond any reasonable doubt.
When you get such equivocal instructions, it usually means you haven't prepared properly. You
really need to anticipate these problems before you actually start taking the formal statement of
fact. I know that is easier said than done, and I know that in the balmy days before economic
rationalism we had less files and therefore more time with each client, but at least be aware of
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obvious traps like defences that don’t apply to certain categories of crime , and Sections 7 and 8
for people around the periphery of the main event.
Do not assume that your client is aware of your legal ethical duties. They almost certainly aren’t, so
if you walk them down an alley that leads to such instructions its probably your fault not theirs.
Generally speaking, as long as you get clear signed and witnessed instructions that your client
accepts and that match his plea you will be safe.
There will be occasions when your client has been charged with offences so horrible that everyone
is appalled by their nature. If the alleged offences are so revolting that you feel you cannot
properly represent this client you do not have an ethical conflict. You have a personal moral crisis,
and if you cannot resolve it and act for your client fearlessly you should think long and hard about
the nature of the profession you have chosen. Few criminal lawyers will not have had an individual
case that bothers them, but if you start having dilemmas about entire categories of crime you are
not cut out to be a defence lawyer. Not everyone shares this view, and in the end it is a personal
decision.
There are other dangerous, but fortunately not too common ways to get into an ethical dilemma
over the instructions your client has given you. Don't talk about your current cases at social events,
especially in a way that makes them identifiable. It is sometimes an almost irresistible temptation,
especially when you have a high profile matter and your audience seems to be fascinated,
impressed or turned on by you, but resist. Gossip has a habit of moving at the speed of light , and
the ethical problems that can arise from this are among the hardest to sort out, because you have
to confess to the way they arose, and that brings up the problem of the Legal Aid Act.
Solicitor/Client confidentiality and privilege forbid this sort of disclosure for all lawyers but for us
there are additional specific provisions in the Legal Aid Act that make unauthorised disclosure by a
Legal Aid employee an offence punishable by a jail term. So don’t do it.
The same problems mean that you shouldn’t give a statement to the police as a witness about the
instructions you took from a client without taking Legal advice yourself first.
NEGLIGENCE
You Can get struck off for being negligent. There are an almost infinite number of ways to be
negligent, but in a large law firm such as Legal Aid there should be systems to catch problems
before they reach that level. Perhaps the single best advice I can give is to talk to people if you
think you are getting out of your depth, if you feel that you can’t manage your file load, or if you find
that there are clients whose files you haven’t looked at for months.
There is a structure around most cases that includes signed instructions, not missing court dates
and appeal/lodgement/recognisance deadlines, properly advising the client of the available
jurisdictional options, and knowing about the administrative requirements of certain defences such
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as alibi. Understanding these gives you the best insurance against being negligent, and the key is
to recognise what you don’t know, although that sounds like nonsense. It means constantly
checking your knowledge and understanding with other people whose judgement you trust. Never
be afraid of being thought foolish because you have to ask how to do something. The fool is the
person who isn’t sure but pretends they are and doesn’t ask.
It is also unethical not to know the elements of the offence your client is charged with, and the
potential defences. I accept that this is a harsh thing to say because we all have different levels
and depths of knowledge, and all of us can be tripped up on some aspect or other of the law.
However we are dealing with the liberty of the subject, and just have to get on top of the relevant
law before any of this esoteric ethical stuff about changed instructions and acting for both co
accused even enters the picture.
You will not get struck off for merely being incompetent (which is not the same thing as negligent),
but if you don't know the criminal law properly and you're taking instructions that may decide your
client's future liberty you are acting grossly unethically.
CHANGED INSTRUCTIONS.
Once you have signed a client up to a particular version of events, if they change their instructions
be aware that you have entered an ethical minefield. There is no theoretical ethical difficulty if they
were going to fight the case and now decide to plead guilty, as an eventual and reluctant
consciousness of guilt is OK, although you may have blown the early plea argument. Be aware,
however, that you are entering a danger zone. A client who has changed their instructions once
and tells you that their previous statement was rubbish may do it again when the actual sentence
day comes near and panic sets in.
Be absolutely certain that you get the new instructions signed and witnessed, and preferably not by
you. A client can be pleading not guilty, then decide to plead and change instructions , but then
panic and want to withdraw his plea in the Supreme Court on sentence day. The court may not
accept the change, and in those circumstances desperate clients have sometimes claimed we had
"leaned on" him to change his plea to guilty. Even if the claim of duress is ultimately rejected, it is
traumatic for all concerned.
I cant give you a roadmap, because there infinite variations, but if you get a change of plea from
not guilty to guilty, be aware that you are potentially at risk and make sure all instructions are
signed and witnessed, and that the running sheet on your file is full and accurate.
The change of instructions from guilty to not guilty creates an instant ethical dilemma, but is easier
to give advice on because it is so obviously dangerous.
I suggest that all the following actions be taken:-
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1) Get the client to give you the reasons for the change of plea. Sometimes they will be valid
and create no difficulties at all for you ethically. Duress by a third party is one, a failure to
be aware that his actions constituted an available defence (such as provocation or self
defence) can sometimes be another.
2) If valid reasons exist, and don’t impinge on your behaviour when taking instructions earlier,
you can continue to act, but get everything signed and witnessed by someone other than
you, and make sure the running sheet on the file is up to date.
3) Write detailed dated file notes.
4) If no valid reason is given, or if the reasons for the original guilty plea put forward involve
you in any way ( and they often do), neither you nor anyone else in the practice should act
for the client. Explain to the client that you cannot act for them. Among many other reasons,
you are a potential witness at the trial. Legal Aid will brief out the file. Make absolutely
certain that you have documented the sequence of events.
The third common version of the change of directions is a late dispute on a particular point of
evidence, particularly in a plea of guilty, that either wasn't covered or wasn't known about when the
original instructions were taken. Strictly speaking these aren’t changes of instructions at all but
missed instructions. They are not uncommon, particularly where the Crown Prosecutor wants to
gild the lily in the description of the offences. The main danger here is where the change requires
either a change of plea, or more frequently a contested sentence.
Again I can give you no roadmap, but be aware that you have entered a twilight zone. If the issue
should have been covered earlier, it is sometimes better to negotiate with the crown on the version
to be put forward at sentence. Once you actually run a contested plea your client forfeits some of
the goodwill of the Court in pleading guilty. Be aware of the current state of play in the ever
changing standards of proof position in contested sentences ( R v Morrison [1999] 1 Qd.R 397 no
longer applies because of S132C of the Evidence Act).
If the client is accusing you of getting his version wrong, or not properly advising him, you should
get a third party to witness the new instructions, and then make a judgement call on not acting for
the client any further. However annoying or embarrassing this is to do, it is far worse to blunder on
knowing that a case has the potential to rear up and attack you in Court.
CONFLICTS of INTEREST.
A conflict of interest is a situation where whatever action you take, you will either be, or be
perceived to be acting unethically towards at least one of the parties involved in the case. Conflicts
of interest are often, although not always, foreseeable.
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We have the luxury here of not directly charging our customers, so if a conflict arises and we
decide we can no longer act for a client it will not personally cost us money. Theoretically speaking
this is an irrelevance, but in real life money is rarely an irrelevance.
It is my belief that we take too many risks with conflicts. Nine times out of ten we get away with it,
and there is a perception among some lawyers that claiming there is a conflict is an "easy way out"
of a difficult file. It isn’t. It is not courageous to continue to act in these circumstances, it is
extremely unwise. There are an infinite number of potential conflicts, so I'll just highlight a few of
the most frequent, starting with acting for both co-accused.
As a general rule, it is unwise for a single Solicitor or Counsel to take on two (or more) coaccused. So called Chinese walls may be reassuring but are often dangerously ineffective (much
as the original Great Wall was).
Even on pleas of guilty, and perhaps especially on pleas of guilty, the potential for one party to
minimise their involvement by painting the other co-accused as ringleader, cleverer one, older
sibling etc is enormous, and as their lawyer you should fearlessly and ruthlessly exploit any
advantage for your client. You can't do it if you're also acting for the target of this advocacy.
So if you want to do this unwise and dangerous thing, then get signed and witnessed instructions
from both parties that they are aware of and agree to you acting for them both, and that there has
been no duress, either by you or the other party. Even with that if you can see that there is
potential to differentiate culpability, just take one.
On a not guilty plea just don’t do it. Those of you who are experienced enough can laugh at this,
and I know it sometimes happens, but in general it is fraught with peril. Only expert players should
attempt it, and even then with great trepidation.
There are an almost infinite number of other potential conflicts that can arise. If you realise that you
know one of the witnesses (for either side) you have a potential conflict. If you become a potential
witness yourself, and there are a few ways this can happen, you have a conflict. As a general rule,
if in doubt, bow out.
CONCLUSION.
The nature of our business means that we are all be faced with ethical dilemmas on a fairly regular
basis. Handling them is one of the skills competent defence lawyers have to learn. The problems
arising from them can be minimised if proper file notes are always kept, if clients instructions are
properly dated signed and witnessed, and if regular assessments of all current files are made to
isolate potential problems early and seek help with them before they become lethal.
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