“Your honour, my client is extremely embarrassed and sorry for what he has done. He realises the extent of the trouble he has caused and is very remorseful, and wishes to apologise profusely to those he has upset or inconvenienced.”
It is almost criminal law 101: when pleading guilty, your client must show their remorse. Sometimes it is even embellished with comments about ‘now realising’ that what was done was wrong, and a determination to get their lives back on track and make mum proud.
It is difficult to know just how much assistance these sorts of submissions are, especially as the magistrate or judge is bound to have heard it all before (and sometimes from the same client).
Certainly, the old submission, in vogue in some circles back in the day, that the client would like no conviction recorded because they “…intend to apply to become a police officer”, did little more than generate mirth amongst any actual police officers in attendance.
What is doubtless, however, is a distinct lack of remorse is likely to be disastrous. Most criminal lawyers have had a client or two who wouldn’t stop snickering or waving and pulling faces at their friends in the gallery, with predictably sub-optimal results.
The advent of social media brings a whole new dimension to the situation, and it is one which embroils solicitors and barristers in an ethical dilemma. What if the client is bragging about their exploits on social media?
Obviously, screen shots of prideful boasts and belittling of victims will be a train wreck for the client, but their lawyers have a bigger problem. If the lawyer knows of the material on social media, can they ethically tell the court that their client regrets their deeds or has real remorse for their actions?
Rule 4.1.2 of the Australian Solicitors Conduct Rules 2012 (ASCR) provides that solicitors must be honest in all dealings in the course of legal practice, and the ASCR also proscribes conduct which demonstrates that the solicitor is not a fit and proper person to practise law.1
Moreover, the court relies on its officers — the solicitors and barristers who appear before it — for a true understanding of the circumstances in a given case. Chief Justice Holmes, speaking at the 2016 Queensland Law Society Senior Counsellors conference, put it thus:
”the functioning of the court in turn depends on its officers and their observation of the obligations which they assume as legal practitioners. Judges are in no position to make their own inquiries, to ascertain the facts except through what is presented to them. Without our being able to rely on your integrity and honesty in doing so, the administration of justice would become unworkable.”2
In addition, and of much greater concern in these circumstances, is the blunt prohibition in Rule 19.1 of the ASCR that a solicitor must not deceive or knowingly or recklessly mislead the court. While one might argue, albeit unwisely, the toss around the broad scope of rules 4 and 5 — or even more unwisely, argue the toss with the Chief Justice — rule 19 leaves no wriggle room.
In fact, Rule 19 is a reflection of the specific responsibility of the advocate to be honest in the submissions made and to ensure that the words used do not create misimpression or overstate the client’s level of contrition.
In short, a solicitor who knows the client has been bragging about their crimes on Facebook or other portals cannot lead the court to believe that client is remorseful. It would at the least be reckless and may well be seen as deliberately misleading the court. The consequences of that being found obviously go much further than the outcome of a particular plea, and no practitioner should allow themselves to be placed in that position.
If you do have a client posting social media boasts of their crimes, the situation needs to be addressed, but delicately.
While the client should be advised of the possible consequences of the posts, under no circumstances can you instruct your client to take the posts down. This could be seen as unethical and an effort to deny a litigant access to evidence, which may generate disciplinary proceedings.3
For a full examination of the consequences of deleting or altering social media posts, see this note from the QLS Ethics and Practice Centre.
Clearly the posts will need to be addressed, and the unvarnished truth is always powerful.
Whatever motivation the client had for making the posts needs to be disclosed, explored and put into context. If the client is claiming remorse, how that sits with the embarrassing posts will need to be explained.
Obviously, advice about the imprudence of making future posts should the client re-offend can (and should) be given.
As solicitors we look to do the best for our clients, and are indeed obliged to do so — but not at the cost of our own integrity. We hold the trust of the court and need to live up to that privilege; if our client isn’t sorry, we can’t pretend that they are.
Footnotes
1 Rule 5 Australian Solicitors Conduct Rues 2012
2 The Hon Catherine Holmes, Chief Justice, Opening Plenary, QLS Senior Counsellors’ Conference 2016 Law Society House Friday 19 August 2016, 9am
3 See, for example, Lester v. Allied Concrete Co., 2011 Va. Cir. LEXIS 245 (Va. Cir. Ct. 2011 Sept. 6, 2011) for potential negative effects to the client’s case, see Fast v GoDaddy.com, No. CV-20-01448-PHX-DGC (D Ariz, 2022)
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