By Catherine Bunting | 15 January 2024
With such dilemmas come assumptions and public misconceptions about how lawyers deal with these ethical issues. When studying law, it is extremely common for family or friends, who have not studied law or worked, to question the possibility of being a good advocate and an ethical person. They may make comments such as:
“I could never be a lawyer, I couldn’t stomach representing a guilty person” or;
“What if your client told you something that would harm someone but you can’t report it because you would be breaching lawyer-client confidentiality? I wouldn’t be able to sleep at night”
Views such as these stem from the misconception of advocacy. Ethical advocacy involves the consistent balancing of legal duties and personal morality. In order to make ethical decisions, one must learn to reconcile these conflicting duties.[2]
Law students have various reasons to want to study law but regardless of whether they choose to become lawyers someday, a lawyer’s job is always to represent their client’s interests and not their own even if the client’s interests may not align with the lawyer’s interests to advance the greater good. Conflicts between a client’s interests and one’s moral interests are one of the most common ethical dilemmas faced by legal practitioners.
A clear example of a conflict of interest occurs where a client confidentially confesses to committing a crime to their lawyer, yet, still wants to plead “not guilty” to the charge. The course of action available to a legal practitioner when faced with this conflict will depend on their qualifications and the job title. A solicitor, whose own moral position is against representing such a client, may refuse representation.[3]
The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 sets out regulations to assist solicitors to act ethically and in accordance with the principles of professional conduct set out in the rules. In summary, a solicitor is prohibited from representing a client where:
- There is a conflict of interest (eg the solicitor is currently or has previously given advise or represented the other party to the matter), or
- The case is not within their capacity, skill and/or experience, or;
- The client wants the solicitor to submit false evidence to the Court, or;
- The client wants the Solicitor to falsely suggest that some other person committed the offence charged.
The examples above are just to name a few.
It is commonly and falsely presumed that if a lawyer knowingly represents a guilty client, they are falsely defending the innocence of the accused. However, according to the NSW Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, a lawyer cannot present evidence that suggests the accused is innocent, not can a lawyer suggest someone else committed the crime; however the lawyer may argue that the evidence as a whole does not prove that the client is guilty of the offence charge and may argue that for some reason of law the client is not guilty of the offence charged, for example, by using the defence of insanity.
In Tuckiar v R[4] the High Court held that, whether guilty of the crime or not, the accused is entitled to be acquitted for any charge which the evidence fails to establish that he or she committed the offence.[5] Therefore the defence counsel’s obligation in this situation is not to argue the innocence of the accused, but rather to point out when the prosecution’s case is too weak to convict the accused beyond reasonable doubt.[6]
In Rakusen v Ellis[7] the English Court of Appeal recognised the significant role the lawyer’s duty of confidence to his/her client plays in maintaining the efficiency of achieving justice in the legal system. The case acknowledges that if a lawyer cannot get all the facts about the case that she/he is representing , the lawyer cannot represent the client to the best of his/her ability.[8] If a lawyer breaches this duty of confidentiality the client may sue under the law of tort or equity.[9] There are exceptional circumstances in which a lawyer may disclose confidential client information without the consent of the client.[10]
In David Thunder’s article ‘Can a Good Person be a Good Lawyer?’[11] Thunder believes that the highest goals and aspirations of the legal profession are promoting justice, maintaining public order and maintaining the rule of law.[12] Therefore, he suggests, in order to be a good lawyer and a good person, one must make decisions that fundamentally promote these goals.[13]
Ultimately, lawyers have to make
difficult decisions on a regular basis, that consist of legal and moral
implications. As morality and ethics are subjective concepts, each lawyer as an
individual must decide what strategies they will use to make these decisions
and what values they will prioritise in order to ensure they can live with
themselves as a practitioner and as a person. Law students must think about how
they would approach ethical dilemmas before they are faced with them in the
industry. Doing so, will give law students a better idea of what kind of lawyer
they want to become in the future.
[1]. Michael Brogan (ed), Professional responsibility &
Legal Ethics (Thomson LBC 2014), 602
[2]. David Thunder, ‘Can a Good Person be a Good
Lawyer?’ (2014) 20 Notre Dame Journal of Law, Ethics & Public Policy, 313.
[3]. Legal Profession Uniform Law Australian
Solicitors’ Conduct Rules 2015, r 20.
[4]. Tuckiar v The King (1934) 52 CLR 335
[5]. Ibid.
[6]. Ibid.
[7]. Rakusen v Ellis , Munday & Clarke (1912)
1 Ch 831.
[8]. Ibid.
[9]. Ibid.
[10]. Ibid.
[11]. Above n2.
[12]. Ibid, 333.
[13]. Ibid.