Rule 20.2 of the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) states that a solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:
20.2.1 may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;
20.2.2 in cases where the solicitor continues to act for the client:
- must not falsely suggest that some other person committed the offence charged;
- must not set up an affirmative case inconsistent with the confession;
- may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
- may argue that for some reason of law the client is not guilty of the offence charged; and
- may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged.
20.2.3 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.
An example for subsection (ii) would be calling evidence in support of an alibi – see NSW Bar Association v Punch [2008] NSWADT 78.
An example for subsection (iv) would be a defence of insanity.