The Francis Forbes Society For

THE FRANCIS FORBES SOCIETY FOR

AUSTRALIAN LEGAL HISTORY

As an intermediary between the court and public, a lawyer requires the highest sense of justice to perform their duties. A lawyer’s role revolves around ethics-“honourable means to” an end. When a client hires a lawyer, it is understood that the lawyer will do all that is ethically possible to act in the client’s interests. A lawyer cannot be expected to perform without the highest regard for what is morally right. So when a lawyer is made a confidential confession of guilt, what are the lawyer’s obligations to the court, client and to the public?

Of course, it would be completely ethical to responsibly disclose the secret if only for the greater good. Indeed, this has happened in the past in Tuckiar’s case, his defence counsel openly admitted Tuckiar’s confession to court, clarifying the case beyond question. However, a client is obligated to confidential communication, a thing privileged against demands of exposure. It is considered a serious misconduct for a lawyer to disclose such information without prior consent from the client. So do all the rigid ethical scaffolds mean nothing due to this privilege?

“1. An attorney at law is obliged to cancel contract of provision of legal services if e. interests of the applicant for legal services are in dissent with the interests of the requested attorney at law or a person close to the attorney at law.” Therefore, a lawyer would be free from repercussions; it is totally within their rights to end their work for a client. Unfortunately this career path offers no such clarity of duty. Should a lawyer withdraw halfway through a case, questions will be asked, the majority of which revolve around asking why such a thing happened, what caused the lawyer to behave in such a manner. The unlikely would be discounted and something close to the truth would arise that the client had something to hide. Instead of leaving quietly, the lawyer would have aroused suspicion regarding the client, as well as leaving them without a legal adviser and representative. The client might later complain that the lawyer’s service was shocking and decide to charge them for gross negligence.

Since all confessions are privileged against disclosure, a lawyer might therefore decide to continue with the case particularly carefully. Instead of declaring their client as innocent and falsely accused, the lawyer may decide to accept the evidence. The lawyer might claim that their client’s guilt was not quite certain and so ask for a more lenient charge. If asked for an uncomfortable level detail, the lawyer could insist that their communication with the client was limited and that the answers the court seeked were or would be confidential if they really did exist at all. Seeing as the court is not really being misled and the lawyer has met their obligations to their client, this may be the best that possible course of action. The lawyer asserted very little and all that was asked was a downgraded charge for a case that was clouded enough to require a confession to understand. Should the case really have enough strength to convict the client, it would be quite unreasonable to expect a confession from the client. Even if that happened, the lawyer would face no ethical obligations in keeping a public fact a secret.

So what is it to know that someone is guilty? The information itself is a mere fact, but the emotions involved are many and varied. Trust, fear, surprise and confusion are all present in this type of confession. The power to ruin the client’s life now exists for the lawyer. The lawyer now has ‘one over’ the court, the pivotal information needed to make a better choice. The lawyer has been entrusted with the more important information of the client’s life and must use it wisely so as not to defame the profession.

In the Dean Controversy, Meagher continually insisted that his client was innocent, while perfectly aware that Dean had deliberately tried to poison his wife. In this case, the lawyer seemed to have taken leave of his senses, how could a lawyer show so little decency in a potential homicidal case? The way in which Meagher behaved clearly showed a lack of moral fortitude. In the days of capital punishment, it might have been more ethical by today’s standards for Meagher to have aimed towards a prison sentence, rather than asserting Dean’s false innocence. His ambition eventually brought about his downfall and resulted in him being struck off the Roll of Solicitors.

In Tuckiar’s case, Tuckiar told two different stories to interpreters, one which was much more likely than the other. Both stories described Tuckiar killing a policeman in self-defence, although one painted the policeman’s character as civilized while the other showed him in an appalling light. Tuckiar confessed the two stories to his counsel and explained how the first story was the truth. His counsel then disclosed the information to the court, not in the interest of his client, but in those of the deceased. Although Tuckiar’s confession was not one of guilt, but one of explanation, it is still an example of a lawyer deciding to reveal a client’s confession without prior consent. Whilst the disclosure was not as monumentally damaging in Tuckiar’s case, it should always be remembered that irreparable damage can be caused by the disclosure of a confession.

For whichever lawyer in such a predicament, it can cautiously be said that there is no correct way to deal with such a confession. Each method has its own benefits and drawbacks; some are for the public, the court or the client. The case has yet to come where a lawyer will handle a confession with a perfect regard for ethics. This is mainly due to the sheer number of conflicts involved. It will always be straightforward to guard the innocent but the guilty will require much more work. Such are the rules we humans have built for ourselves.

Ben Nam