20. Delinquent or guilty clients

1. A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgement or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
   1. has lied in a material particular to the court or has procured another person to lie to the court;
   2. has falsified or procured another person to falsify in any way a document which has been tendered; or
   3. has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
      must –
   4. Omitted
   5. refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.
2. A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:
   1. may, subject to the client accepting the constraints set out in Rules 20.2.2 - 20.2.8, but not otherwise, continue to act in the client's defence,
   2. must not falsely suggest that some other person committed the offence charged,
   3. must not set up an affirmative case inconsistent with the confession,
   4. must ensure that the prosecution is put to proof on its case,
   5. may argue that the evidence as a whole does not prove that the client is guilty of the offence charged,
   6. may argue that for some reason of law the client is not guilty of the offence charged,
   7. may argue that for another reason not prohibited by Rule 20.2.2 or 20.2.3 the client should not be convicted of the offence charged, and
   8. must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.
3. A solicitor whose client informs the solicitor that the client intends to disobey a court's order must:
   1. advise the client against that course and warn the client of its dangers;
   2. not advise the client how to carry out or conceal that course; and
   3. not inform the court or the opponent of the client's intention unless:
      1. the client has authorised the solicitor to do so beforehand; or
      2. the solicitor believes on reasonable grounds that the client's conduct constitutes a threat to any person's safety.

Commentary

20.1  Client and witness perjury

The rule applies where a solicitor learns of a client or witness perjury during or after a hearing, rather than where a solicitor participates in client perjury before a hearing. 

Falsehoods known prior to hearing. A lawyer cannot prepare and file an affidavit that they know would be a perjury: Myers v Elman [1940] AC 282.⁶⁹ Similarly, a lawyer must not prepare pleadings that contain allegations of fact that the lawyer knows to be false: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190.⁷⁰ In these circumstances, the filing of an affidavit known to be false and the pleading of allegations known to be false, the solicitor will be in breach of his or her duty to the court unless the solicitor discloses to the court 'the true position': Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56, [60] (Ipp J).

Falsehoods learned during hearing. Rule 20.1 applies where the solicitor learns of the client's or witness's lie or falsification 'during a hearing or after judgment or the decision is reserved and while it remains pending'. In that case, the solicitor must:

• seek the client's instructions to inform the court, and
• if the client does not so instruct, withdraw from the proceedings.

The solicitor cannot inform the court of the lie, falsification or suppression without the client's instructions, or when withdrawing from the case: Rule 20.1.5; Perpetual Trustee Co Ltd v Cowley [2010] QSC 65. Although other parties and the judge may suspect the reason for the solicitor's withdrawal, the fact of the withdrawal should not be taken as disclosure of the solicitor's knowledge of the client's or the witness's perjury.

Prior to communicating with a client who is still under oath for the purpose of complying with Rule 20.1.4, a solicitor must have regard to Rule 26 – communication with witnesses under cross examination.

20.2 Guilt of the accused

Possible courses of action. In criminal proceedings, where a client confesses guilt to the solicitor but maintains a not-guilty plea, the solicitor may, subject to the client accepting the constraints set out in Rules 20.2.2-20.2.8, but not otherwise, continue to act in the client’s defence.

Limitations when continuing. If the solicitor continues to act, then they:

1. must not falsely suggest that some other person committed the offence charged;
2. must not set up an affirmative case inconsistent with the confession (for example by calling evidence in support of an alibi: New South Wales Bar Association v Punch [2008] NSWADT 78);
3. must ensure that the prosecution is put to proof on its case;
4. may argue that the evidence as a whole does not prove that the client is guilty of the offence charged. 'Whether he be in fact guilty or not, a prisoner is … entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted': Tuckiar v R (1934) 52 CLR 335, 346;
5. may argue that for some reason of law the client is not guilty of the offence charged (for example, the defence of insanity)
6. may argue that for an other reason not prohibited by rule 20.2.2 or 20.2.3 or the client should not be convicted of the offence charged; and
7. must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

69 See also: Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56, 60 (Ipp J) ('Kyle').

70 See also: Kyle at 60.