#13086 - Duty To The Court - Ethics

Duty to the Court

• Introduction

  • Practitioners in all their dealings with the courts should act with competence, honesty and candour

    • Duties not limited to making of oral submissions to a court or tribunal, but extend to the performance by lawyers of any act in the course of practising their profession

    • Lawyer as an officer of the court

  • Case is over = no longer a duty to the court

    • As long as you don’t actively mislead the court, you can sit on information in a criminal case if the prosecution doesn’t bring it up.

  • This duty overrides all duties to the client, besides the duty of confidentiality, because it is protected via privilege

    • The advocate has a duty to the court which is paramount Rondel v Worsley 1966

    • Even if the client gives instructions to the contrary Giannarelli v Wraith 1988 HCA

• Duty of Candour in disclosing the law and the facts

  • Practitioners must disclose to the court the law applicable to a case and must not knowingly mislead the court about the facts of a case, or any other matter.

  • Make a full disclosure to the court of the relevant law. Be upfront and honest. It is a duty not to hide things and a duty to positively disclose things.

    • Obligation of disclosure is stronger when it’s an ex parte application

  • Duty not the mislead the court

    • ASCR 19.1 A lawyer must not deceive the court about the law or legal processes, or recklessly do so. Must not knowingly or recklessly mislead the court presenting false or misleading evidence or concealing material facts.

    • ASCR 19.10 A solicitor who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

    • LRCRB 12 A barrister must not engage in conduct which is:

      • (a) dishonest or otherwise discreditable to a barrister;

      • (b) prejudicial to the administration of justice; or

      • (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

    • LRCRB 25 A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.

    • LRCRB 26 A barrister must not deceive or knowingly or recklessly mislead the court.

    • LRCRB 35 A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

    • LRCRB 36 A barrister must inform the court of any apparent misapprehension by the court as to the effect of an order which the court is making, as soon as the barrister becomes aware of the misapprehension.

    • A practitioner must not knowingly or recklessly mislead the court or present false or misleading evidence Meek v Fleming 1961 2 QB; Kyle v Legal Practitioners Complaints Committee 1999 WAR

  • Duty to assist the court

    • Practitioners must prepare their case properly, know the relevant law and legal processes and clarify any misapprehensions Copland v Smith 2000

    • ASCR 19.11 A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

    • LRCRB 27 A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

    • LRCRB 28 A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake.

    • LRCRB 29 A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:

      • (a) are within the barrister’s knowledge;

      • (b) are not protected by legal professional privilege; and

      • (c) the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

    • LRCRB 30 A barrister who has knowledge of matters which are within Rule 29(c):

      • (a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that privilege so as to permit the barrister to disclose those matters under Rule 29; and 7

      • (b) if the client does not waive the privilege as sought by the barrister:

        • (i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequence of not doing so; and

        • (ii) must refuse to appear on the application.

  • Duty to disclose relevant law

    • Must inform the court of authorities that go against your client, including any binding authority, any authority decided by an Australian appellate court, and any applicable legislation

    • ASCR 19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

      • 19.6.1 any binding authority;

      • 19.6.2 where there is no binding authority, any authority decided by an Australian appellate court; and

      • 19.6.3 any applicable legislation, known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.

    • ASCR 19.7 A solicitor need not inform the court of matters within Rule 19.6 at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the solicitor to have informed the court of such matters in the ordinary course has already arrived or passed

    • ASCR 19.12 A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

    • LRCRB 31 A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of: (a) any binding authority; (b) where there is no binding authority any authority decided by an Australian appellate court; and (c) any applicable legislation; known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.

      • LRCRB 32 need not do this if the opponent is withdrawing

      • LRCRB 34. A barrister need not inform the court of any matter otherwise within Rule 31 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

    • Applies until final judgment is given

      • ASCR 19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

        • 19.8.1 a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or

        • 19.8.2 requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

      • ASCR 19.9 A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

      • LRCRB 33 A barrister who becomes aware of a matter within Rule 31 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

        • (a) a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or

        • (b) requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.

    • Obviously there is a duty of confidentiality that includes legal professional privilege.

      • Apart from in the USA, the courts have yet to resolve the question whether, and in what circumstances, there is a positive duty on a lawyer to disclose information, imparted pursuant to a professional confidence, that the client intends to commit a crime. In the US it has been held that as a matter of policy, at least where the intended crime is serious and violent, the lawyer has a duty as an officer of the court to make disclosure to the relevant authorities. It is difficult to fault this reasoning.

  • Duty to correct innocent misstatements

    • The duty prohibits a lawyer from being a party to the representation to the court of any evidence or the making of any statement, which is to the lawyer’s knowledge false and misleading.

    • ASCR 19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

    • ASCR 19.3 A solicitor will...