Understanding your legal rights and liabilities and the court process can be complicated and intimidating for activists without working knowledge of the legal system. If you are confident about representing yourself in court and have a clear understanding of relevant laws, you might consider not seeking representation at all from a lawyer.
Most activists, like other people in the community, would prefer to have legal advice and representation from qualified legal practitioners. The hardest thing to work out is who is going to give you the best legal advice.
Finding a lawyer that understands why you do what you do is important but can be very difficult. Many activists have found that lawyers may not understand the framework in which they operate and why they were arrested. Some lawyers may see their role as simply doing everything they can to get a finding of not guilty. It is important to feel that you can communicate with your lawyer and convey all relevant information.
Don't let yourself be bullied by lawyers. Lawyers must act on your instructions, so be clear about what it is you want a lawyer to do for you by getting all the relevant information and making informed choices. Lawyers can be sacked at any time during the proceedings.
Make sure you talk to other people in activist networks to find out what lawyers activists have used in the past and found useful.
Remember that different lawyers have different areas of specialty. Some lawyers may be great in criminal proceedings but not familiar with the law in relation to civil matters. Some lawyers specialise in administrative or family law and may not be of any help in your case.
How do you choose your lawyer?
There are three questions you might ask yourself when deciding which lawyer is the best to assist you with your legal problem:
- Does the lawyer have expertise in the relevant area criminal lawyer, civil or compensation lawyer, constitutional lawyer?
- If you have been charged with a crime, you should seek representation from a lawyer who practises criminal law.
- If you have been injured during a demonstration or in some other circumstance, you should seek assistance from an expert personal injury lawyer who can advise you on your rights to compensation.
- If you wish to challenge a decision by a government body or authority, or obtain documents under Freedom of Information legislation you may need an administrative and public interest lawyer.
- If you are unsure about how to select the right lawyer for your legal problem, consider contacting the Law Institute of Victoria or visiting a community legal centre for advice and assistance and referral.
- Does the lawyer have a commitment and empathy for the social causes you are involved in?
Attending court can be a stressful experience. This is even more so when if you intend to make public statements about important political and social issues during a criminal or civil hearing. It is important to find a lawyer who understands that you may make decisions not based on whether you will be convicted or not, nor on how much compensation you might achieve, but on the long term impact your case may have on the pursuit of social justice. Speaking to other activists and reviewing media articles on past cases might help you find the right lawyer to represent you.
Don't spend any money on lawyers until you've checked whether you can: represent yourself , get legal aid , get help from a community legal centre , or obtain other free or cheap advice. However, don't expect friendly lawyers to do substantial work for you free of charge.
Inform yourself very clearly about what costs are likely. The Law Institute of Victoria says lawyers should give their clients early and accurate estimates of likely costs. Many people, in distress with a legal problem, rush to a lawyer for help, then discover later that they have a bill for many thousands of dollars.
Lawyers are generally very expensive: barristers, for instance, may charge from $500 to $3000 per day; solicitors may charge several hundred dollars per day. Your court case could run over several days, so check all your options before committing yourself to an agreement with a lawyer.
At the same time, there are many lawyers who will offer free or pro-bono advice at first, then let you decide later whether you will hire them for more substantial work, such as days in court. Don't abuse the help of those lawyers who offer advice freely by expecting them to work for many hours or days free of charge. We need to support those lawyers who support activists and community groups.
If you can't afford to pay
There are many progressive lawyers in Victoria who are prepared to act for protestors for free or on a no win no fee or reduced fee basis. In criminal matters and some limited civil matters, you may also be able to obtain legal aid for your claim.
There are over 40 community legal centres located in suburbs all across the State. They often have drop-in legal advice services where you can obtain legal advice free of charge.
If you are unemployed or a student, you may be entitled to legal aid. Legal aid is very difficult to get these days, as all governments have made cuts to their legal aid budgets. Priority is given to family and criminal law matters. Matters are strictly merit and means tested.
The vast majority of charges which arise from political demonstrations are summary (i.e. minor) offences, where it is unlikely that people charged will go to jail, especially if they have no (or very few) previous criminal charges. If you are pleading not guilty, under Victoria Legal Aid guidelines, you can only get legal aid for your legal representation if your likely fine is $750 or a more serious penalty and Victoria Legal Aid believes there is a reasonable likelihood of you being found not guilty on the most serious charge.
If you are pleading guilty, you must be at risk of receiving a penalty of at least a lengthy (200 hours plus) community-based order, intensive correction order, suspended sentence or imprisonment. This can often be argued, as magistrates can vary on the penalty imposed.
Sometimes, even if you don't qualify for legal aid under these guidelines, you can argue that your case has special circumstances, because it involves important public policy questions (eg. police abuse and misconduct in making arrests may be such special circumstances). There are also special circumstances guidelines that allow legal aid to be given to people unable to represent themselves because of mental impairment, intellectual disability, youth, or language or literacy problems. These circumstances usually require documentation to support the application.
Nevertheless, always check your entitlement and apply for legal aid through a lawyer. Legal aid can also extend to the funding (at a relatively low level) of private solicitors to act on your behalf. Legal aid need not mean no choice of lawyer, nor need it mean poor representation. Many salaried or low-charging lawyers are more dedicated than, and just as competent as, the high-flyers.
If you are Aboriginal, the local Aboriginal Legal Service is an option that may be open to you. There are also community legal centres around Australia, which are well worth approaching for legal advice. There is no fee for service at these centres; it's just a question of how much of their time they can provide, given their other work commitments. Some lawyers will give free legal advice to political or social groups or causes they support. Inform yourself through your organisation about what advice is available. Remember that solicitors and barristers act on your behalf, but are legally considered to have a basic loyalty or duty to the court. They are officers of the Supreme Court of the state in which they are registered. So you cannot say to a lawyer, for instance in an assault case: I hit the person, but can you get me off? The lawyer's duty not to mislead the court will then mean that they cannot present facts contrary to what you have admitted to them in private.
The lawyer is ethically bound not to report what you've said or give evidence against you, but at the same time they will not be able to mislead the court. If you have admitted the charge to your lawyer they can support you in a plea of not guilty, but without contesting the facts that you've admitted. The lawyer could also plead for a reduced penalty, or stop acting for you and refer you to another lawyer, if you insist on pleading not guilty.
Most courts have lawyers on duty who can provide free, basic support for people who have not had the chance to see a lawyer before court.
Duty lawyers are people employed by Victoria Legal Aid who provide advice and support to people charged with a criminal offence and appear for them if necessary in bail applications and adjournment applications. They can also undertake pleas in mitigation if you are pleading guilty. Generally, they cannot conduct more complex defended cases.
It is not a good idea to rely on the help of duty lawyers as they are often busy and your case may not be a priority. It is a good idea to ring the Registrar beforehand to see if duty lawyers are available at the court you are attending.
If you have a lawyer, listen to their advice, but also inform yourself about every step of the legal process you are in. Don't leave the decisions to your lawyer.
You are finally responsible for the presentation of your case in court. Don't surrender the control of your case.
In Australia there are no really effective mechanisms by which lawyers are held accountable for presenting an inadequate case on your behalf. If your lawyer fails to prepare or properly present your case, only you will suffer. So stay informed.
Furthermore, there is generally no appeal from your lawyer not properly presenting your case to a court. An appeal court will generally say that they are not interested in any differences you had with your lawyer, and that you should have sorted them out. The bottom line to this 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 them (to withdraw instructions) and conduct the case yourself. If you prepare for this, at least you will remember your responsibility for your own case.
If you have communication problems with a legal aid lawyer, you can complain to a more senior legal aid lawyer. Stay informed of, and involved in, all the major decisions of your case. Listen to advice, but remember that the decisions are ultimately yours.
If you become unhappy with the representation being provided to you by a lawyer, you can make a complaint to the Legal Ombudsman or the lawyer's relevant professional association.