Special ethical considerations

The following are incidences where there are special ethical considerations to take into account before the duty solicitor can accept instructions to conduct a guilty plea.

Acting for a defendant who has changed instructions from not guilty to guilty

It is not unethical for a duty solicitor to act on a guilty plea where the defendant has changed instructions from not guilty to guilty as long as:

the defendant instructs that they now admit a particular element or fact which was previously denied; and
they understand that the Court will order penalty on a plea of guilty and that this will be recorded; and
they instruct that it is their own decision to admit the charge and they have not been pressured by anyone to reach that decision; and
the duty solicitor takes signed instructions from the defendant in relation to the issues discussed above.

NEVER MISLEAD THE COURT
The duty solicitor must not mislead the Court by putting a version of the facts forward which they know, from the defendant’s instructions, to be false. Defendants who change instructions from not guilty to guilty may invent a more flattering scenario than the facts allow. The duty solicitor should politely but firmly decline to put those instructions to the Court.

Acting for co-charged defendants on a guilty plea

As a general rule, it is preferable for a solicitor to act for one party, but this is not always possible in the duty solicitor situation. The duty solicitor should only act for co-charged defendants on a guilty plea where this will not cause a conflict of interest, and therefore:

there is no discrepancy as to the degree of participation and facts; and
neither party is blaming the other to mitigate his or her own part in the offence; and
both parties instruct they have no problem with the duty solicitor acting for the other party; and
the duty solicitor has taken signed instructions from each defendant to all of the above.

See South Australian Legal Practitioners Conduct Rules r 11.

Where the defendant gives implausible instructions

A defendant is entitled to be sentenced on the version of the facts most favourable to them [see Law v Deed [1970] SASC 527 for this principle]. Moreover, the duty solicitor has the same duty as any defending counsel to put the instructions of the defendant to the Court. However, some instructions as to circumstances may be patently fanciful and self-serving while falling just short of denial. In this situation, the duty solicitor needs to politely and firmly explain they are not prepared to advance that version to the Magistrate. The defendant may then choose to appear unrepresented, or instruct the duty solicitor to act, but not to put those particular instructions to the Court. In the latter case, the duty solicitor should record the defendant’s instruction in writing and have the defendant sign it before acting.

Instances where instructions should not be accepted

Instructions to conduct a defendant’s plea of guilty should not be accepted where:

there is a real risk of imprisonment [see Sentencing chapter];
a defendant with no compelling disadvantage could afford to instruct a private solicitor but chooses not to do so simply to save the expense;
the defendant says they wish to plead guilty despite maintaining instructions of innocence. The court will not accept an ambiguous plea of guilty and the duty solicitor cannot ethically act on a plea of guilty where the plea conflicts with the substance of the defendant’s instructions;
the defendant has had many previous adjournments to obtain legal advice but has neglected to do so and wishes the duty solicitor to solve the problem for them;
the defendant indicates that they have fully or partially instructed another solicitor (see Professional Ethics and Court Etiquette chapter and Role of the Duty Solicitor chapter);
the defendant admits the elements of the offence but disputes some aspects of the allegations. Where this situation arises the prosecutor is sometimes able to negotiate the facts with the duty solicitor and resolve the matter by guilty plea on an agreed set of facts.

NEGOTIATING WITH PROSECUTION
Since R v Nemer (2003) 87 SASR 168; [2003] SASC 375, prosecution are generally not amenable to negotiation at the bar table. However, time permitting, it is important for the duty solicitor to explore with prosecution whether there is room for negotiation in relation to the facts in the allegations, where the defendant does not agree with these facts. In doing so, it is important for the duty solicitor to take care not to disclose the defendant’s instructions, in case the matter does not resolve that day. For example: there is an allegation of assault, which states that the defendant punched the victim five times. The defendant instructs he agrees he assaulted the victim, but that he punched the victim three times, not five times as alleged. Do not say to the prosecutor: ‘He admits three punches but not all five’. Often the only relevant fact is that more than one punch was delivered. Say to the prosecutor: ‘If you allege that the victim was punched (or multiple punches, or several punches) then the matter will resolve today'. In this way, you are not tying the defendant to any admissions, but you may still successfully resolve the matter. In addition, you have not indicated that the defendant admits any assault at all. You have put a hypothetical proposition to the prosecutor. You should attempt to resolve such matters in this way whether the defendant is in custody or at liberty. REMEMBER the starting place in criminal injuries compensation claims by victims is the apprehension report, so notes need to be taken of the agreed basis of the plea.

NEGOTIATING WITH PROSECUTION

Since R v Nemer (2003) 87 SASR 168; [2003] SASC 375, prosecution are generally not amenable to negotiation at the bar table. However, time permitting, it is important for the duty solicitor to explore with prosecution whether there is room for negotiation in relation to the facts in the allegations, where the defendant does not agree with these facts. In doing so, it is important for the duty solicitor to take care not to disclose the defendant’s instructions, in case the matter does not resolve that day.

For example: there is an allegation of assault, which states that the defendant punched the victim five times. The defendant instructs he agrees he assaulted the victim, but that he punched the victim three times, not five times as alleged.

Do not say to the prosecutor: ‘He admits three punches but not all five’.

Often the only relevant fact is that more than one punch was delivered. Say to the prosecutor: ‘If you allege that the victim was punched (or multiple punches, or several punches) then the matter will resolve today'.

In this way, you are not tying the defendant to any admissions, but you may still successfully resolve the matter. In addition, you have not indicated that the defendant admits any assault at all. You have put a hypothetical proposition to the prosecutor. You should attempt to resolve such matters in this way whether the defendant is in custody or at liberty.

REMEMBER the starting place in criminal injuries compensation claims by victims is the apprehension report, so notes need to be taken of the agreed basis of the plea.

Special ethical considerations : Last Revised: Mon May 21st 2012

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