A Supreme Court judge said it would have been preferable for counsel to withdraw when a client sought to change her plea, describing the situation that followed as undesirable for both the client and her legal team.
Justice Iseult O’Malley made the observations in a concurring judgment delivered on 6 December 2019 in an appeal by E.R. against the Director of Public Prosecutions. She agreed with the judgment of Justice Charleton and said her additional comments concerned the role of counsel.
The judgment says the client did not waive legal privilege. As a result, the evidence about why she had entered the plea came from the client and did not address what advice she had received. O’Malley said that if counsel knew the plea had been entered against their advice because of the client’s perception of the trial judge’s attitude, evidence from counsel could have been relevant to the judge’s decision on the application.
O’Malley said withdrawal would have allowed the client to waive privilege, if she wished, and give evidence about the advice she received after remarks by the trial judge. The source does not state the Supreme Court’s overall disposition of the appeal or the result of the plea-change application.
The judgment sets out the Bar of Ireland’s rules on guilty pleas. It says the decision to plead guilty belongs exclusively to the accused, barristers must not pressure an accused to plead, and counsel should explain the consequences of a guilty plea. It also notes that counsel may advise on the strength of the prosecution case and likely outcome where appropriate.
O’Malley said counsel should be especially clear if a client who denies the offence wants to plead guilty because of something the trial judge said. Perceived pressure from the bench is not a sufficient reason to plead, she said, and a judge’s indication of sentence may not predict the final result. In this case, she said, the client had been told that the DPP reserved the right to appeal an unduly lenient sentence.
She added that counsel could not remain in a case if a client claimed they had not been properly advised before pleading guilty. If a client admitted guilt to their representatives, counsel’s ability to conduct a plea-change application or subsequent trial would also be governed by the professional rules. O’Malley concluded that, in the circumstances, it would have been better for counsel to withdraw.