Duties to the Court

Hierarchy of duties Duties to 1. obey the law (a duty to society) 2. the court (as part of admin of justice) 3. the client 4. others Duty to obey the law Generally must always act in accordance with the law PCPR r12.1 must not engage in conduct that will diminish public confidence in legal profession or in the AOJ BR 4 cant break the law by trying to mislead in breach of the TPA ACCC v Sampson

Clients who want to break the law dont help them do not seek to induce a breach of the law by clients or other people do not instruct agents to break the law cant advise illegality no matter how small the chance of being caught / how trivial LPCC v Segler

Clients who are already breaking the law counsel the client against it avoid personal involvement if you believe they will disregard your advice and break the law advise again of your responsibilities if client persists, terminate instructions

Where lawful conduct is uncertain? A practitioner is still permitted to advise a client to engage if its lawfulness is uncertain, provided that: The advice is given in good faith to test the validity of the law The client is advised of the likelihood (or otherwise) and consequences of the conduct being found illegal The client has freedom of choice on what action to take

Tax evasion / avoidance do not advise to engage in tax evasion do not advise to engage in tax avoidance scheme of artificial character BR 109(b)(ii) can advise of legitimate tax minimisation opportunities Commission of Taxation v Westraders conflicting ethical perspectives Commission of Stamp Duties v Byrnes Lord McNaughton: if you can legally escape the grasp of tax, then you should. Latilla v Inland Revenue Commissioner Viscount Simon: legally you may be within your right to avoid tax, it is immoral and unethical for a lawyer to do that.

Litigation avoidance Although you may be acting legally in setting up a scheme to avoid future litigation, government may step in to punish indicates strong desire to punish offenders James Hardie. Also unadvisable to do so because reputation risk both to the client and the law firm.

Duty to the court Generally Duty to the court is paramount CPA s16 Must exercise independent judgment; cant be the mere mouthpiece for the client PCPR 13.1, BR 16 Ipp J framed the duty to the court under four broad categories: Duty of disclosure owed to the court; Duty not to abuse the court process Duty not to corrupt the administration of justice; and Duty to conduct cases efficiently and expeditiously

Rondel v Worseley Every counsel has a duty to his/her client to fearlessly raise any issue and ask every question no matter how distasteful in order to help his client. They have an overriding duty to the court that may lead to a conflict with their clients wishes. Over and above the duty to the client, the duty to the court prevails. Must not: Mislead the Court, Lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession,

Withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.

Giannarelli v Wraith, DOrta Ekenaike The duty to the court is paramount even if the client gives instructions to the contrary. This is one of the policy grounds for advocates immunity. The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client's case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal Duty of honesty and candour a. Presentation of law Duty to not mislead about the law - Cant deliberately misquote a previous judgment to try to trick a judge R v S(F) Duty to assist the court - In civil proceedings, as soon as practitioner becomes aware of misapprehension, must make court aware of it PCPR 14.12, BR 28 Duty to disclose the relevant law - Must inform court of authority (cases, authority, legislation) that is against the clients interest PCPR 14.6, BR 24 - Must do so still after judgment or decision has been reserved and while it remains pending PCPR 14.8, BR 26 - E.g. lawyer failed to notify judge of a recent binding decision against clients interest Copeland v Smith - Exception 1 dont have to where opponent tells course that it will withdraw the whole care or settle (i.e. consent to final judgment) PCPR 14.7, BR 25 - Exception 2 need not do so where court would rule the evidence as inadmissible PCPR 14.9, BR 27 b. Presentation of facts Duty not to mislead about facts e.g. LSC v Cantwell - Must not knowingly make a misleading statement to a court PCPR 14.1, BR 19 - Must not engage in conduct that is dishonest PCPR 30.1

Barristers must not knowingly make a false statement to the opponent, concerning the facts of evidence in support of or law applicable to the clients case BR 50

LSC v Piva (VCAT): P, a lawyer, acted for himself in litigation over the purchase and trade of Ferraris. He had argued there was no completed contracted for his purchase, but the dealer claimed there was. P was aware of an email to his insurer in which he confirmed the purchase, but failed to provide it during discovery. It was also alleged he lied in evidence to the court. VCAT held the deliberate failure to disclose constituted professional misconduct. The court said that for a practitioner to knowingly withhold a relevant document from discovery is a very serious matter, which would always amount to professional misconduct at common law. It wont be misleading if a practitioner fails to disclose facts about clients character or part PCPR 14.10, BR 158 o Will be misleading if practitioner actively mislead the court by taking steps to mislead about persons credibility. o E.g. failure to disclose demotion within Police force before trial, judge and jury were left with false impression that witness was a Chief Inspector Meek v Fleming - Will not be misleading by failing to correct error by opponent or any other person PCPR 14.3, BR 21 Duty to correct innocent misstatements - Must correct innocent misstatements made by the practitioner himself as soon as he becomes aware of it PCPR 14.2, BR 20 - Must correct false affidavits made by client by telling client to do so; if they dont listen, must stop acting and tell the other party as well Kyle v LPCC Duty in ex parte applications (other party is not present) - Must disclose all matters you have reasonable grounds to believe would support an argument against granting the application or limiting its terms. This is because the other party is not there there is now a stronger duty on you PCPR 14.4, BR 22 - Must seek permission to waive privilege if the practitioner knows something that your client tells you, but the client does not want the practitioner to bring it up PCPR 14.5.1 - If client wont authorise waiver of privilege, must inform client of their responsibility and inform the court that you cannot be sure all information to be disclosed is disclosed PCPR 14.5.2 c. Discovery duties

Supreme Court (General Civil Procedure) Rules - R29.01(3) o Must disclose all documents:

o On which the party relies o That adversely affect the partys own case o That adversely affect another partys case o That support another partys case Rule 29.04 and Form 29B o Identify docs which are or have been in possession o Enumerate and describe the docs o Distinguish between docs that are in possession / no longer in possession o In relation to docs which are no longer in possession State when you parted with the doc; and State what you believe has become part of it o State any claimed grounds of privilege Reasonable search: Rule 29.01.01(5) After the McCabe case, it is a criminal offence to destroy docs that may be reasonably required CA 1958 s254

Duty not to abuse court processes Improper purposes Must not make allegations, bring proceedings or argue a particular defence for an ulterior purpose that is the predominant purpose for bringing the action Flower and Hart, Ashby Example of improper purpose is to bring proceedings just to raise negative publicity against the D Ashby

Making baseless allegations Must not seek to invoke the coercive powers of a court or to make allegations or suggestions that are not reasonably justified, appropriate or designed to harass or embarrass PCPR 16.1, BR 31 Allegations of criminality, fraud or other serious misconduct must only be made when there is appropriate evidentiary foundations for them PCPR 16.2, BR 34 E.g. cant make incorrect assertions/make up evidence Rees v Bailey Aluminum Products

Hopeless cases Distinguish hopeless from weak but arguable cases Hopeless = no chance of success If hopeless, advise client not to proceed If weak but arguable - Advise client of the weaknesses

- Advise client of the likely consequences of pursuing the case It is an abuse of process where a practitioner does not turn his mind to the cause of action cant just rely on the client and what they said White Industries v Flower & Hart C.f. less strict position in the UK where it is not up to the practitioner to determine if a case should run or not, but rather up to the client Ridehalgh v Horsefield (UK)

White Industries v Flower & Hart Goldberg J: It is not appropriate to put an opposing party to proof on an issue which is not disputed, which is not a critical issue and will run up costs unnecessarily It is not proper to pursue an obstructionist or delaying strategy, which is not in the interests of justice and inhibits the court from achieving an expeditious and timely resolution of a dispute A lawyer who is instructed to do so must inform the party it is not proper to do so, and if the client exists, the adviser should withdraw from acting for that party. Failure to do so or to attempt to unduly delay litigation may lead to personal costs against the lawyer Flower were ordered to pay $1.65m or unduly delaying the litigation Flower & Hart suggests that a practitioner, when consider a potentially weak case, should: Investigate Ascertain the facts Form an opinion as to whether the action will succeed If the lawyer determines otherwise, advise the client to not proceed Wasting time and money CPA - Overarching purpose in civil actions to present efficiently and timely s7 - As part of that, not to bring frivolous or vexatious claims s18 - Overarching obligation to avoid undue delay and expense s19 - Overarching obligation to use reasonable endeavours to resolve dispute s22 Professional rules - Duty on practitioner to exercise judgment to confine hearing to real issues, as well as to present the case as quickly and simply as possible PCPR 13.2, BR 17 Case - Cant use delaying tactics that the client proposes Flower & Hart, Saragas v Martinis

Duty not to corrupt the AOJ Client perjury

Before the judgment, if the client informs of their/procured anothers life/falsification/suppress material evidence, then must follow steps in PCPR 15.1, BR 29 o Request authority to inform the court and if not given, inform that you are not to take any further part unless court is informed o If request not granted, warn again that unless client authorises, must refuse to act o If request granted, promptly inform the court; But must not otherwise inform the court of the lie.

Criminal proceedings - If a client confesses but still maintains a plea of not guilty, then must follow steps in PCPR 15.2 o May cease to act if there is enough time for another practitioner to take over the case and the client does not insist on the practitioner continuing to appear for the client o If continuing Must not falsely suggest some other person committed the acts Must not set up an affirmative case inconsistent with confession May argue evidence as a whole does not prove guilt That for some reason of law the client is not guilty Disobeying court orders - BR 30 - If client informs barrister that they intend to disobey court order, must: o Advise against it and warn of dangers o Not advise client as to how to carry out or conceal that court; o BUT not inform the court or the opponent of clients intention unless: Client authorises it; or Barrister believes on reasonable grounds there is a threat to any persons safety. Evidential integrity of witnesses - If witness, practitioner must not advise or suggest that false or misleading evidence should be given nor condone another person doing so PCPR 17.1 - Must not coach or encourage witness to give evidence different to what the witness believes to be true PCPR 17.2 - Cant question 2 witnesses at the same time PCPR 17.3 - Cant confer with any witness while they are under cross examination unless cross examiner gives consent, the practitioner believes on RG that special circumstances require the conference, the practitioner has informed the cross examiner the intention to do so before cross examination, or practitioner has otherwise informed cross examiner as soon as possible of practitioner having done so PCPR 17.4

Must not prevent/discourage witness/prospective witnesses from conferring with the opponent or being interviewed by another person involved in proceedings PCPR 17.5 o Exception: where witness/prospective witness is client, or by simply telling witness/prospective witness they need not agree to be interviewed, or if there are other proper reasons PCPR 17.6 Corroborating rules for barristers, BR 44-48

Communication with other people - With opposing party PCPR 25 - With witnesses PCPR 17.5, BR 47 - With judges cannot communicate w/o consent PCPR 19.2, BR 83 - Barristers cannot speak to a judge privately without the opponents knowledge and consent - BR 54-56 Sanctions what happens if you breach any of the above? - Deny admission or strike off - Prevent from representing client - Punish for contempt - Overturn verdict - Order costs o Although court can order costs against lawyer, undesirable b/c dont want to discourage lawyers from taking on hard / novel cases. Generally, it is the D that has to pay costs to the other side: Baluch v Lyndock Warrnambool - Disciplinary proceedings o LSC v Piva If you breach your duties to the Court, the LSC can try to claim professional misconduct which may result in sanctions A lawyer was found to not discover a particular document. This was found to be very serious and went to the heart of the AOJ and he was disqualified from practice for 2 years, and not involve in civil proceedings for a further 3 years, and had to pay costs A legal practitioner or a law practice engaged by, or on behalf of, a client in connection with a civil proceeding must not by his, her or its conduct cause the client to contravene any overarching obligation s14

Criminal Law Duties

1. Essential duties Make P prove its case BR 149 Put aside personal beliefs or opinions BR 150

cab-rank principle if a barrister is available and competent, they have to accept a brief. They cant knock it back BR 86-90 Duty to conduct cases efficiently and expeditiously - R v Wilson (took 10 weeks to red out evidence) 2. Role of counsel and client

R v McLoughlin Client decides how to plead and whether to give evidence. Counsel decides how to run the case within the parameters of those decisions. Client was charged with rape. He said he wasnt there. The lawyer decided this wasnt going to work, so ran a consent defence instead. The Court said this wasnt fair counsel is required to listen to what the client wants. So a new trial was ordered. 3. Defending guilty clients

Lawyers, to an extent, must have faith in the court to work out if client is guilty. It is not for the lawyer to decide guilt. There is inherent doubt as to whether the lawyer knows exactly whether the client is guilty or not. Tuckiar v The King - Tuckiar confessed to lawyer that he killed a person. Lawyer proceeded not to give any defence for him, and ultimately Tuckiar was convicted. - HCA unanimously agreed lawyers behaviour was bad. - Duty to act honourably BR 161 - Even if the client confesses, the lawyer is prohibited from falsely attributing guilt to someone else, setting up an inconsistent defence, allowing the accused to give inconsistent evidence PCPR 15.2.2 - Lawyer is permitted to ensure P proves its case, argue not guilty for legal reasons, argue there is another person against conviction.

Comparison of PCPR 15.2.2 with US This is strikingly different from American criminal defence. In the US, there is no prohibition against putting forth an affirmative defence for a client who acknowledges guilt but asserts his or her right to trial; indeed, there is great scope in putting forward defences whether or not they are based in fact or are in good faith. There is no prohibition against

cross-examining witnesses known to be telling the truth. There is no prohibition against arguing that witnesses known to be telling the truth are incredible. Indeed, it is the standard view that, whether or not the client is actually innocent, [e]ffective trial advocacy requires that the attorneys every word, action, and attitude be consistent with the conclusion that his client is innocent. Abe Smith Defending the unpopular page 533 referring to rule PCPR 15.2.2 4. Withdrawing from a case

If a client confesses but still maintains a plea of not guilty, then must follow steps in PCPR 15.2 May cease to act if there is enough time for another practitioner to take over the case and the client does not insist on the practitioner continuing to appear for the client If continuing Must not falsely suggest some other person committed the acts Must not set up an affirmative case inconsistent with confession May argue evidence as a whole does not prove guilt That for some reason of law the client is not guilty 5. Silencing your client

Unclear whether it is ethical to prevent your client from giving you incriminating information To avoid this issue in practice, most defence lawyers tell their clients before they speak to not tell them anything unless they are asked a question. 6. Innocent clients pleading guilty

As a general principle, it has been said that counsel of course will emphasise that the accused must not plead guilty unless he has committed the offence charged R v Turner The client may nevertheless plead guilty e.g. for convenience, family reasons. Lawyers are not ethically prohibited from representing a client in these circumstances Meissner v R However before entering a guilty plea for a client, the lawyer must first make sure the client knows: Strength of P case Prospects of acquittal Likely consequences of a guilty plea Admitting the elements of the offence Likely penalty Crimes compensation and civil liability

7. Disclosure of prior convictions No duty to correct omission PCPR 14.3, BR 159 But do not mislead the Court e.g. by asking the client if they have been guilty of previous convictions in the hope that they say no (with knowledge that the prosecution is unaware of past offences) PCPR 14.11, BR 157-159 8. Prosecutors duties PCPR 20.1 20.13, BR 134-148 Minister of Justice Whitehorn v R - Not trying to secure a conviction at all costs - Duty to act fairly and with detachment - Aim to establish truth in compliance with the law - Aim to ensure a fair trial Statements by the Prosecution outside of Court - The P should not make public comments about trials they are prosecuting MG v R - Where the P continues to disobey this and make public comments repeatedly, wrong is being done to the AOJ and the court may stop that person being a rep. of the State MG vR - MG v R o The accused was charged with sexual assaults, was convicted. After the verdict was given the P spoke to the media and said they commended the polices prosecution. The accused appealed his conviction. o During that appeal the Court was critical of the P making public comments about trials they are prosecuting. This is because it gives an impression that the job isnt done to the best. A re-trial was ordered on other grounds. o Before the re-trial the P gave a lecture where she said she thought the accused was guilty but that he only got off on a technicality. The lecture was recorded and the media got a hold of it. o The Court said she shouldnt be a representative. She had wronged the AOJ by talking about the accused and the case. Whitehorn v R: Prosecutor failed to call a witness for tactical reasons. Deane J said that the prosecutor had breached the duty of fairness. Prosecutors must act with detachment and always with the objectives of establishing the whole truth in accordance with the law MG v R (NSW): Prosecutor was involved in a case in which an accused had been convicted of rape, but then appealed successfully and was acquitted. In addressing university students on the case, the prosecutor commented that he believed the accused was guilty. Court said he breached guidelines on public comment. The court said that the prosecutor was entitled to draw attention to the victims ordeal, suggest reform or discuss merits of the system as a whole. However, stating that he believed the offender

was guilty went beyond those matters; it was a public expression of partiality which attracted significant publicity. Calling witnesses - Prosecution as sole discretion R v Apostilides - Must call all witnesses necessary to present the full picture PCPR 20.7, BR 139 - No need to call witnesses if unreliable, repetitive, no consent given. Suppressing evidence - Must disclose all relevant and credible evidence as soon as practicable PCPR 20.5, BR 141 - CPA s42, s185 - Mallard v The Queen if you are representing a witness on the P side and you know they committed perjury, must inform the other party. - Exceptions PCPR 20.5.1, BR 141 o Disclosure would seriously threaten the integrity of the AOJ, o Disclosure would seriously threaten a persons safety, AND o The P believes on reasonable grounds that the threat cant be avoided by conditional disclosure to the opponent Inflaming the Jury - Do not seek to inflame or bias the Court against the accused PCPR 20.3, BR 136 - R v DDR - Livermore v R - McCullough v R

Sentencing submissions

Do not seek a vindictive sentence PCPR 20.12, BR 147