There may be some people who are surprised at the answer to this question. The lawyer – and especially the defence lawyer – represents the interests of one party and is committed to the wellbeing of his client. Nevertheless, he may not lie.
According to § 1 of the Federal Code for the Legal Profession, a lawyer is an independent organ of judicature. The freedom of state influences is guaranteed by this set phrase by emphasising the advocator’s independence. At the same time, every lawyer contributes towards a functional justice system. This is guaranteed by his obligation to law and order.
A lawyer is not only not allowed to lie; he is not allowed to prompt his client to purposely tell an untruth. This can put criminal defence lawyer in particular in difficult situations. In cases where it depends on the defendant’s perception of the crime, the duty to advise and the obligation to tell the truth may collide. If, for example, the circumstances of committing the crime do not allow for a conclusion of deliberate intention, a dedicated criminal defence lawyer will attempt to work towards his client making a convincing plea. One of the most important tasks a defence lawyer has is to assist his client and also to advise him with regard to the plea at court. This includes the comprehensive presentation of the legal situation as well as explaining the consequences of certain pleas. In other words, the defence lawyer must provide his client with answers to questions that every accused person asks:
Will the court believe me?
Is my plea consistent with the contents of the court files?
What will the witnesses say?
How will co-defendants behave?
The borderline between a wanton lie and a benevolent construction of the circumstances is difficult to define when preparing a plea. If the defence lawyer pushes it too far, he may end up facing criminal proceedings himself for obstructing criminal prosecution. The lawyer’s obligation to tell the truth is not only a precept of (professional) conduct; a breach of it can result in criminal charges.
Incidentally, there is no obligation to tell the truth if the defence lawyer attempts against his better judgement to achieve an acquittal for his client. If the accused admits his crime toe his lawyer, the lawyer is not obliged to direct his defence strategy towards a conviction and cannot be turned into a witness against his client.
A lawyer’s obligation to tell the truth can be summed up as follows: “Everything a defence lawyer says must be the truth. He does not have to and needs not say everything that is the truth.”