The question “Can a lawyer defend someone they know is guilty?” challenges how justice truly works in South Africa. Many people assume that once guilt is known, a lawyer should step aside — but that is not how our legal system functions. Under South African law, every accused person, regardless of guilt, has the constitutional right to a fair trial and legal representation. The job of the lawyer is not to prove innocence at all costs but to ensure that justice is done lawfully and fairly, even for those who admit guilt.
This principle may seem morally complicated, yet it lies at the very heart of the justice system. Without it, fairness and accountability in court would collapse, and innocent people could easily be convicted without proper defence.
The Legal Position in South Africa
In South Africa, the right to legal defence is enshrined in Section 35 of the Constitution, which guarantees every accused person the right to a fair trial, including the right to choose and consult with a legal practitioner. Whether a person is guilty or not, the law protects this right because it ensures that the State’s power is tested, and that convictions are based on proper evidence, not assumption.
The Legal Practice Act 28 of 2014 and the Code of Conduct for Legal Practitioners issued by the Legal Practice Council South Africa (LPC) set the ethical boundaries that all lawyers must follow. According to these rules, a lawyer may defend a client they know is guilty, but they cannot lie, fabricate evidence, or mislead the court. Their role shifts from proving innocence to protecting due process.
A lawyer who lies or misrepresents facts risks disciplinary action, which may lead to being struck off the roll or even criminal charges for misconduct. The LPC is strict on this point: a defence must be honest, lawful, and within the rules of professional conduct.
What Lawyers Can and Cannot Do When They Know Their Client Is Guilty
The moment a client admits guilt privately, the lawyer’s duties become delicate. The lawyer must still provide legal defence, but they cannot claim the client is innocent or present false evidence. Instead, they test whether the prosecution’s case is properly built and whether the evidence was obtained legally.
For instance, a lawyer can:
- Question whether police followed legal arrest and search procedures.
- Challenge unreliable or inadmissible evidence.
- Ensure that the accused’s constitutional rights were not violated during interrogation.
- Negotiate a plea bargain under Section 105A of the Criminal Procedure Act to reduce sentencing.
However, a lawyer cannot:
- Encourage the client to lie in court.
- Present forged or misleading documents.
- Allow the client to commit perjury.
- Mislead the court about facts or evidence.
In cases such as divorce or estate disputes, lawyers face similar ethical pressures to represent clients strongly but truthfully. For example, understanding how to apply for a divorce in South Africa or how to manage tracking deceased estates in South Africa requires the same ethical foundation: honesty before representation.
Practical Example: The Balance Between Truth and Defence
Let’s take a criminal case as an example. Suppose a lawyer’s client privately admits to committing a robbery but insists on pleading not guilty in court. The lawyer cannot declare the client’s innocence or use false witnesses. Instead, they will:
- Ensure that every piece of evidence against the client was lawfully obtained.
- Force the State to prove the case beyond a reasonable doubt.
- Advise the client about the risks of perjury or a guilty plea.
- Present mitigating factors, such as the client’s background, lack of previous offences, or cooperation with police.
In doing so, the lawyer fulfils their duty to the court and the client without crossing ethical lines.
How Other Countries Handle the Same Question
The South African legal approach mirrors that of other common-law countries where defending a guilty client is lawful but restricted by ethics.
| Country | Rule Summary | Key Authority |
|---|---|---|
| South Africa | Lawyers may defend a guilty client but cannot lie or mislead the court. | Legal Practice Council South Africa |
| United Kingdom | The “cab-rank rule” obliges lawyers to take cases regardless of guilt but demands honesty to the court. | Solicitors Regulation Authority (SRA) |
| United States | Defence lawyers may represent guilty clients but must not make false statements or use perjury. | American Bar Association (ABA) |
| Australia | Lawyers can continue representing a guilty client but must withdraw if the client insists on lying. | Legal Services Commissioner |
These systems share the same moral foundation — that justice cannot depend on the lawyer’s personal view of guilt but on whether the process is fair, transparent, and constitutional.
Lawful Strategies Lawyers Use in Such Cases
When a lawyer defends someone they know is guilty, they often rely on lawful, ethical strategies such as:
| Strategy | Purpose |
|---|---|
| 1. Challenging the State’s Case | Ensures the prosecution meets its burden of proof beyond reasonable doubt. |
| 2. Focusing on Procedure | Tests whether police and prosecutors followed lawful arrest, detention, and evidence-gathering procedures. |
| 3. Plea Negotiation | Seeks a lighter sentence through a plea agreement that saves court time and acknowledges guilt. |
| 4. Mitigation of Sentence | Highlights the client’s cooperation, remorse, or rehabilitation potential to reduce punishment. |
| 5. Protecting Rights | Ensures that even guilty individuals receive humane and constitutional treatment. |
| 6. Ethical Withdrawal | When a client insists on lying, the lawyer must withdraw from the case rather than assist in falsehood. |
Each of these strategies is recognised under South African law and taught in legal ethics training. They ensure that the rule of law remains intact while still protecting clients’ rights.
Ethics in Action: Case Lessons from South Africa
Lesson 1: The Confession Dilemma
A defence lawyer in Johannesburg represented a client charged with fraud. The client admitted guilt privately but wanted to testify as innocent. The lawyer refused to present false testimony and instead focused on the State’s weak procedural handling. The client was convicted fairly, and the lawyer’s integrity was preserved.
Lesson 2: The Withdrawn Defence
In a family matter, an attorney withdrew from representing a parent who wanted to falsify financial documents in a child custody case. The Legal Practice Council South Africa later noted the withdrawal as an ethical model of professional conduct.
Lesson 3: The Plea Bargain
A Cape Town lawyer negotiated a plea deal for a client facing theft charges, reducing a possible five-year sentence to a suspended sentence and community service. The lawyer remained truthful while securing the best lawful outcome.
Lesson 4: International Influence
South African courts have cited British and Australian rulings to emphasise that the lawyer’s first duty is to the court, not the client’s story. This alignment reinforces South Africa’s strong ethical framework.
Why These Rules Protect Justice in South Africa
The ability for lawyers to defend guilty clients ensures that the State’s power is always checked by fairness. Without this protection, the risk of wrongful convictions would rise dramatically. Lawyers act as a safeguard for both the guilty and the innocent by making sure every conviction is based on proof, not prejudice.
The Legal Practice Council South Africa continually reminds practitioners that ethical defence is not weakness — it’s the foundation of the rule of law. Whether it’s a criminal matter, a family dispute, or a divorce application in South Africa, the lawyer’s role remains the same: fight hard, but within the truth.
Reflective Closing
So, can a lawyer defend someone they know is guilty? Yes — but within the strict boundaries of law and ethics. South African lawyers are trained to balance their duty to clients with their duty to the court. They defend rights, not lies.
When a lawyer defends a guilty client, they uphold fairness, protect justice, and ensure that the legal system remains rooted in truth. That is what keeps the South African justice system credible — a constant reminder that even the guilty deserve fairness, and the law must always be stronger than emotion.