Can You Be Honest With Your Lawyer? What Happens If You Admit Guilt

Many people charged with a crime are unsure how much to tell their lawyer. Some worry that admitting what happened will make the lawyer less willing to fight. It doesn’t. In fact, a lawyer can only build a sound defense with the full picture.

What the privilege protects

In California, confidential communications between you and your lawyer, made for the purpose of getting legal advice, are protected by the attorney-client privilege (Evidence Code § 954). Your lawyer cannot be forced to testify about them, and neither can you. Separately, California lawyers have a strict duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client” (Business and Professions Code § 6068(e)(1)). That duty is broader than the privilege and covers most of what a lawyer learns about your case.

To keep the privilege intact, talk to your lawyer privately. Having friends or family in the room, or forwarding your lawyer’s emails, can weaken it. Calls from jail are usually recorded. Do not discuss your case on them, except on a line set up for confidential attorney calls.

The limits

• Future crimes and fraud. The privilege does not protect communications made to get help committing or planning a crime or fraud (Evidence Code § 956). Talking about what already happened is protected; asking for help with a new crime is not.
• Preventing death or serious harm. A lawyer may, but is not required to, reveal confidential information to the extent reasonably necessary to prevent a criminal act likely to result in death or substantial bodily harm (Evidence Code § 956.5; Bus. & Prof. Code § 6068(e)(2)).

What your lawyer can still do after you admit guilt

Admitting what happened to your lawyer does not mean you have to plead guilty. Every defendant is presumed innocent, and the prosecution must prove each element of each charge beyond a reasonable doubt. A defense lawyer who knows a client committed the act can still:

• challenge whether the evidence was lawfully obtained, through motions to suppress;
• cross-examine witnesses and test the reliability of the prosecution’s evidence;
• argue that the prosecution has not met its burden, or that the facts support a lesser charge;
• raise legal defenses that do not depend on denying the act, such as self-defense or lack of the required intent;
• negotiate for a reduced charge, diversion, or a lighter sentence, with mitigating information you provide.

What your lawyer cannot do

A lawyer cannot knowingly present false evidence or help a client lie to the court (California Rules of Professional Conduct, rule 3.3). That means a lawyer cannot call a witness to give testimony the lawyer knows is false, or argue as fact something the lawyer knows to be untrue. You still decide whether to testify. If you plan to testify, your lawyer will talk through with you what that means. This is one more reason to be candid early: it lets your lawyer plan a defense that will hold up.

Why candor helps

Surprises at trial hurt the defense. If your lawyer knows the difficult facts, they can investigate them, anticipate the prosecution’s evidence, and give honest advice about whether to go to trial or negotiate. Attorney Vikas Bajaj treats every conversation with a client as confidential. If you would like to talk privately about your situation, you can contact our office, or read about how attorney Vikas Bajaj handles drug cases and theft cases.

This article is general information about California and federal law, not legal advice for your situation. Laws change, and the right answer depends on your facts. Written by attorney Vikas Bajaj, Law Office of Vikas Bajaj, APC, San Diego.