A Standards Committee undertook an investigation into the conduct of a lawyer in criminal proceedings following adverse comments by an appeal court. The lawyer’s client was convicted on all charges and sentenced. The client appealed his convictions on the grounds that the lawyer had not called witnesses despite clear instructions to do so, did not call him to give evidence, and failed to present his defence as he had instructed.

The appeal against sentence was allowed in part on the basis that the client, having always admitted guilt, had not been advised to plead guilty and an allowance ought to be made for that.  The appeal court allowed the sentences to run concurrently. The court stated that defence counsel should obtain written instructions from their clients, particularly on significant decisions, and that the practitioner had failed to do this.

A Standards Committee investigated the lawyer’s conduct, noting the comments of the Court on the importance of obtaining written instructions on significant decisions and how they can reduce potential misunderstandings.

The Committee stated that “wherever practicable, a lawyer ought to document a client’s instructions. Furthermore, where it is not practicable to obtain signed instructions, a lawyer should record the position in timely correspondence to the client or at least make clear file notes.”

It further stated: “Ultimately, it is the client’s decision whether to plead guilty or not guilty, whether to elect trial by jury (or remain in the judge-alone jurisdiction), and whether to give (or call) evidence or not in their case. However, this is predicated on the client being in a position to make a fully informed decision, which requires the defence counsel to traverse all relevant implications of the options available.”

The client had always admitted his guilt but there was a conflict of evidence as to whether he had received adequate advice about pleading guilty. The appeal court noted an absence of advice in this respect, in circumstances where an offer of a guilty plea would likely have benefitted the client at sentencing. The Committee considered that changes to the lawyer’s approach, such as documenting written advice, would have reduced the potential for such ambiguities, and improved the quality of the advice and representation provided to the client.

The Committee considered that the practitioner had failed to ensure that his client was aware of all the relevant implications of his decision regarding how to plead, and that his client was therefore not able to give informed instructions on this fundamental issue. Accordingly, the Committee determined that there had been unsatisfactory conduct on the lawyer’s part as he had breached Rules 3, 13.3 and 13.13.1.

The Committee was of the view that the conduct, overall, was toward the lower end of the scale and concluded that a fine of $500 was appropriate. It also ordered the practitioner to pay $500 in costs.