THE QUICK ANSWER IS: Just the opposite — if a lawyer were to lie on behalf of a client, the lawyer would be running the risk of being struck off the roll. In other words, the lawyer would risk being disbarred from practising as a lawyer.
The above short paragraph begs the question: If we do not lie to defend our clients, then how do we defend our client? The answer to this question is a two-fold answer:
(1) we take instructions from you;
(2) we apply our knowledge of the law to the instructions (or to the version) that you have given us.
Whether the version or the instruction that you have given us is the truth or falsehood, we do not know for certain. What we must do is to apply our knowledge of the law to the version (to the story) that you have given us. Whether the version (or story) that you have given us is true or false, it is not for us legal representatives to determine. It is for the judge (in the High Court) or for the magistrate (in the regional or district court), to determine.
My duty as an advocate in court is two-fold:
(1) not to mislead the court as to facts;
(2) to advise the court as to law.
Let me now deal with the first duty of an advocate indicated above, namely: not to mislead the court as to facts. This means that an advocate or an attorney representing an accused person in a criminal or civil court, should not — knowingly — twist the truth. The legal practitioner should only convey to the court what the client has conveyed to the legal practitioner, and then the legal practitioner should apply his or her knowledge of the law (which he studied at university) to the facts given to the practitioner by the client — whether those facts are true or false. If the client is lying, it is not the legal practitioner who is lying, but the client.
With regard to the second requirement stated above, namely: advise the court as to law, it is the duty of an advocate or attorney in court to advise the presiding judge or presiding magistrate what the law says regarding the point that is in dispute between the parties, and especially with regard to the version given by the client and the version given by state witnesses in a criminal court. The law quoted by the legal representative may be derived from statutes of Parliament, or from previous decisions of higher courts — what is called in legal terminology: stare decisis.
Further showing that a legal practitioner is not expected to lie on behalf of his or her client, is the ethical principle that if a client changes the version he or she had given to the lawyer earlier, and concoct a different version, the lawyer must withdraw from representing the client.
The legal profession is a clean profession — a profession that requires a high standard of integrity, because advocates and attorneys are officers of the court.
Perhaps an element that has contributed to the fallacy that lawyers lie to defend their clients, is the isiXhosa word used for lawyer: “igqwetha“. This word means one who twists [the truth]. The isiXhosa word fuels the belief that lawyers twist the truth on behalf of their clients to get their clients acquitted in a criminal court. This is far from the truth. A lawyer cross-examines witnesses and points out weaknesses in the evidence of the other side, and then applies his or her knowledge of the law to the evidence that has been given by his client and by the witnesses of the other side. As pointed out at the outset, a lawyer is an officer of the court, and is expected to defend his or her client by upholding a high standard of integrity.
Prepared and published by Defence Counsel, Adv/Dr O.S. DZINGWA, LLB (Unisa), LLM (Unisa), LLD (Unisa)