Guilty Pleas, What Clients Must Know about Counsel’s Ethical Obligations

Over the years, we frequently encounter clients who request for our assistance in entering a guilty plea in situations where counsel ought not to be assisting with a guilty plea. One common example of these situations is where a client has provided instructions that they did not commit the offence and provided a narrative that raises proper defence to the offence. Another common example is where the client has given the impression that he or she committed the offence and wants a plea before disclosure is provided by the Crown and not reviewed by counsel. 

For the situation where a client has provided instructions that they did not commit offence or narrated facts outlining their innocence and or raising a defence, clients must know that counsel is required to treat the court with candour per Rule 5.1-1 of the Rules of Professional Conduct. This would mean that counsel cannot present a defence, even in a guilty plea scenario, which he knows to be false. As such, counsel should not allow the client to admit that he committed an offence which he or she previously instructed counsel that he did not do. The only way such a plea can go forward is if the client, perhaps in light of disclosure from the Crown, revises the narrative and is believed by counsel. Obviously, such a revision would be one that admits the essential elements of the offence.

For the Scenario where the client wants to insist on an early guilty plea before disclosure is provided, the client ought to know that “When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged.” This duty is of tremendous importance such that an accused person seeking to enter a guilty plea before counsel has had an opportunity to review disclosure puts the counsel in an ethically difficult position that would require clear written instructions for the plea to proceed. The client in this scenario ought to know that his belief or even his lawyer’s conviction as to his guilt or culpability does not remove the lawyer’s duty to mount a vigorous defence within the limits allowed by the Rules of Professional Conduct. 

In R v Beckford, 2019 ONCA 998 at paragraph 64-65, the Court of Appeal for Ontario found that trial counsel’s performance did not fall within the range of reasonable professional assistance because trial counsel’s knowledge of the appellant’s guilt and disapproval of the appellant’s actions led to a failure to take appropriate actions on the appellant’s behalf. The court found at Paragraph 74 that counsel was required to evaluate the strength of the evidence against the appellant before advising him to enter a guilty plea no matter how advantageous he thought the plea would be. Instead, according to the finding of the court at paragraph 73, trial counsel insisted that his knowledge of the appellant’s guilt obviated the need for him to take the sorts of steps that would normally be taken before advising a person to enter a guilty plea. 

Counsel will obviously be in breach of his or her professional obligation if they facilitate a guilty plea for a client who had previously insisted on their innocence unless different instructions are provided. As well, an accused person who pushes counsel to assist in a guilty plea before counsel has reviewed disclosure will also be wrong and will be acting against his or her own interest.

 [1] Commentary [9] Rule 5.1-1 Rules of Professional Conduct