Chapter 5: Lawyers

Many people represent themselves in court either because they see some advantage in doing so, or because they are not eligible for legal aid and cannot afford to pay thousands of dollars for a lawyer. This section discusses:

  • dealings with lawyers; and
  • being legally represented.

If you are facing a charge now, make sure you also read the following sections:

Lawyers, money and ethics

Before you accept the services of a lawyer, make sure you know what fees you're expected to pay. Some people rush to a lawyer in a panic, only to discover later they have a bill for thousands of dollars. Many barristers, for instance, charge between $1000 and $2000 a day. Senior barristers (QCs or SCs) can charge as much as $10,000 per day. Be careful!

There are, however, many lawyers who will offer free advice at first, then let you decide later whether you want to hire them for more substantial work, such as days in court. Find out from the beginning if you are talking to one of these people, or to one of the many others who might charge for just talking to you on the phone. Some States have laws that require lawyers to give estimates of their likely fees. 

Don't take advantage of those private lawyers who offer advice freely, by expecting them to work for you free of charge. If you want them to do substantial work for you, they should be paid.

Check your entitlement to legal aid, by contacting the legal aid bodies. If you are on a low income, you may qualify for legal aid (there is a means test) and will be assigned a Legal Aid solicitor, or in some cases the legal aid body might consider funding a private solicitor.

Legal aid need not mean you can't choose a lawyer, nor does it mean poor representation. The legal aid bodies have many solicitors who are no less competent and hardworking than solicitors in private practice. Contrary to popular myth, paying more money for a lawyer is no guarantee of better service. Note that legal aid is generally not available for preliminary (committal) hearings, except for the most serious charges, or in exceptional circumstances. If you think your case is exceptional, you should apply for legal aid.

At most Magistrates or Local Courts there will be a legal aid 'duty solicitor' who can give advice and may be able to apply for bail on your behalf, or appear for you before the magistrate. A Registrar or Clerk of the Court may be available for some limited advice, at the larger Magistrates Courts. Many universities or their student unions also arrange free legal advice for students on campus.

All lawyers have a fundamental loyalty to the court and a professional duty not to mislead the court. Even if you are paying them, you should not expect them to tell a court one thing if you have told them another. They are officers of the Supreme Court and their jobs are on the line if they are caught out misleading the court in any way.

For instance, in an assault case you should never say to a lawyer, 'I hit the person, don't tell the court; but can you get me off anyway?' The lawyer's loyalty to the court will then mean that she or he cannot tell the court you didn't hit the person. The lawyer can argue self-defence or plead for a reduced penalty in these circumstances but cannot be expected to lie for you. If you insist on falsely denying to the court what you admitted to your lawyer, the lawyer will have to stop acting for you.

For the same reason, a defence lawyer will generally not help one witness match up her or his statement with that of another witness. Don't expect lawyers to 'iron out the differences' between witnesses' statements.

Notice, however, that Australian police may treat this differently. Inquiries into police conduct in Victoria (Beach Inquiry 1976), Queensland (Fitzgerald Inquiry 1988) and New South Wales (Wood Royal Commission 1997) have found that police have duplicated each other's statements, word for word, and fabricated evidence, particularly 'admissions'. The century-old practice of 'verballing' (fabricating confessions) was most strongly recognised in the High Court judgment in McKinney's case (McKinney v R (1991) 171 CLR 468). Video interviews have not eliminated 'verbals', but have modified the way police manipulate evidence.

Do I need a lawyer?

Get a lawyer if:

  • you are not at all confident about speaking for yourself in court;
  • you feel you may be embarrassed by questioning an alleged victim;
  • you feel that you need the special advocacy skills of a lawyer; and/or
  • you feel there is no way you can get to understand the legal issues of your case.

If you choose a lawyer, bear in mind that, like other people, some lawyers are good at some things, while others are good at others. For instance, a lawyer capable of a good courtroom argument with a police officer may not be nearly as good in making a plea for a 'lenient' sentence, and vice versa. Seek advice on the reputations of available lawyers.

If you do decide to hire a lawyer, remember that you are still finally responsible for the presentation of your case in court. Try to develop trust with your lawyer, but also inform yourself of everything that she or he does in the preparation of your case. There are no really effective mechanisms by which lawyers are held accountable if they present an inadequate case on your behalf. You can complain to the Law Society or Bar Council, or to the Legal Services Commissioner, but this is little comfort if you have lost an important court case. If your lawyer fails to prepare or properly present your case, only you will suffer. Stay informed.

Your lawyer may have strong ideas as to how she or he wants to run your case, but you are also entitled to have your say in how your case is presented. Be assertive in what you want argued and how.

It is extremely difficult to appeal against any alleged mistakes made by your lawyer. An appeal court will generally say that it is not interested in any differences you had with your lawyer, and that you should have sorted them out before the hearing or trial. One important example is this: if you have important evidence but your lawyer chooses not to call it at your trial, you will not be able to raise it on appeal as 'fresh evidence'.

The bottom line is a hard reality: if you are unhappy with the way your lawyer presents your case during a hearing or trial, and if you cannot resolve your differences, your only option is to sack her or him (that is, 'withdraw instructions') and conduct the case yourself. If you prepare for this possibility, at least you will remember your responsibility for your own case.

In some States there is a process for complaining about lawyers – you may be able to go to a Legal Services Commissioner. However, this is an uncertain process at best. It is far better to decide early on whether you have a relationship of trust with your lawyer.

Office of the Legal Services Commissioner

​The NSW Office of the Legal Services Commissioner (OLSC) is an independent statutory body that deals with complaints about lawyers.  

The Legal Services Commissioner (LSC) receives all complaints about solicitors and barristers in New South Wales. The LSC can take disciplinary action against solicitors and barristers and assist in resolving consumer matters.

Getting help

If you are Aboriginal or Torres Strait Islander, the local Aboriginal Legal Service (ALS) is an option that may be open to you. The ALS may be able to give advice and appear for you in a range of matters.

There are also a number of community legal centres (CLCs) which are well worth approaching for legal advice. These centres offer free services. Whether they can help you usually depends on their special field of practice and how much of their time they can provide, given their other work. CLCs can give advice on many matters and, if they can't help you, they can refer you on. Many states also have specialist legal centres (for example, immigration rights, social welfare, domestic violence).

Getting help lists more legal assistance services.

Further reading

The Hot Topics issue You and your lawyer provides information about the role of lawyers, practical information about how to work with a lawyer, lawyers duties, ethics, costs, and complaints.