The Alibi, the Cash, and the Co-Accused: Three Ethical Pressure Points in One Defence
Advocate L defends C on a fraud charge arising from a failed property scheme. C insists on testifying that on 14 May he was in another city and could not have signed the subscription forms. L holds C's own bank statements, supplied by C, showing a card payment at a supermarket two kilometres from the signing meeting at 18:40 on 14 May. C also asks L to keep 90,000 in cash 'for safekeeping until things calm down'; L believes it may be traceable to investor deposits. Separately, D is a co-accused and was L's client in an unrelated matter two years ago, in which D described the same scheme. The prosecutor offers C a reduced charge if C testifies against D. D's new lawyer asks L to disclose what C has said about D, and D tells L that he intends to plead guilty, following L's earlier advice.
1. What must L do about C's proposed testimony, and can L continue to act?
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The governing tension. L owes C confidentiality and a vigorous defence, but owes the court a duty not to present evidence L knows to be false. The duty to the court prevails where the two collide, but it does not authorise disclosure of the client's confidence.
Step 1 - advise privately. L must tell C, in the strongest terms, that the alibi is contradicted by his own bank record, that giving it would be perjury, and that L cannot adduce it.
Step 2 - lawful alternatives. C may remain silent, may give evidence that does not include the alibi, or may put the prosecution to proof. L may test the prosecution's identification evidence without asserting a false alibi.
Step 3 - if C insists. L must decline to examine C on the false account and must withdraw if that makes the retainer impossible. The application to withdraw is made to the court without disclosing the reason, and confidentiality survives termination, so L cannot tell the judge that the client intends to lie. L must, however, correct any misleading impression L himself has already created.
Can L continue? Only if C abandons the alibi or accepts silence. L must not coach C to shade the evidence.
Counterargument: C has the right to testify and to force the prosecution to prove its case. True, but that right does not extend to counsel's knowing participation in a lie.
2. What should L do about the 90,000 in cash?
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Characterise the request. This is not client money held for fees or for a transaction L is conducting. It is a request to take personal custody of cash suspected to be the proceeds of the offence charged, which places L in a different position from an ordinary retainer.
Refuse first. L should decline to hold it unless there is a proper legal purpose, and should record the refusal and the reasons in writing.
Suspicion and reporting. If L suspects the cash is traceable to investor deposits, the anti-money-laundering regime is engaged. In most jurisdictions the duty to report a suspicion overrides confidentiality, and tipping off the client is itself an offence. L cannot simply return the money silently and pretend the request never happened; L should seek guidance from the bar's ethics line and make the required disclosure without telling C it has been made.
Privilege. Legal professional privilege does not attach to client funds, nor to communications made in order to further a crime. L cannot invoke confidentiality to justify keeping the cash.
If L already holds it. Place it in a designated client account, unblended, pending determination; do not use it to fund the defence, because doing so may itself facilitate the offence.
Conclusion: refuse, document, report, and do not accept custody of the cash as a personal accommodation.
3. Analyse the conflicts created by the co-accused D and by the plea offer.
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The earlier retainer. L acted for D two years ago and received confidences about the same scheme. That duty of confidentiality is continuing and survives the end of the retainer. L may not use D's information against D, and may not disclose it to C or to the prosecutor.
Representing C against D. Once C is offered a benefit for testifying against D, L's representation of C points directly against D. L cannot advise C to take the deal while holding D's confidences, and cannot cross-examine D using what D told L. That is a conflict between L's duty to C and L's duty to a former client: a substantial risk that the representation of C will be materially limited.
The plea conversation. D says he intends to plead guilty following L's earlier advice. L must not now advise D to plead guilty, or to plead in any particular way, in order to protect C. L should urge D to obtain independent counsel immediately and should not discuss the case with him.
Course of action. L should assess whether the earlier retainer creates a confidential-information conflict that taints the defence of C. If it does, L must withdraw from C's case (or from any residual involvement with D) unless both clients give informed consent and the risk is genuinely absent - which is unlikely here. L may also become a witness on the advice given to D, a further reason to stand down.