Managing Conflict – The Duty to the Court and the Duty to the Client. Wade Roper. The nature of the duty to the Court. The Duty in practical terms. How best to manage clients and their expectations in light of the competing duties.. Overview. The Duty.
Managing Conflict – The Duty to the Court and the Duty to the Client
The nature of the duty to the Court.
The Duty in practical terms.
How best to manage clients and their expectations in light of the competing duties.
“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 of appeal.
It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed even if the client gives instructions to the contrary. Rather, it is that a barrister’s duty to the court that epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion of judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice.”
Per Mason J in Giannarelli v Wraith (1988)165 CLR 543 at 546.
Two things to note about the observations in Giannerelli:
You should also note that the continued preservation of advocate’s immunity is no longer predicated upon the paramount duty to the court but rather is said to be mandated by the necessity to avoid challenges to judicially declared finality.
D’Orta-Ekanaike v Victoria Legal Aid (2005) 223 CLR 1
“Rules of Professional Conduct and Practice.”
“It is a basic precept of the legal profession that lawyers owe a duty of honesty and candour to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge’s attention, or knowingly permit a client to deceive the court.”
Per Ipp J
Kyle v Legal Practitioners'’ Complaints Committee
(1999) 21 War 56 at 
The Duty extends to arguing against a client’s case on ex parte applications.
J Aron Corp V Newmont Yandal Operations (2004) 183 FLR 90 at 
“A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s and the instructing practitioner’s desires where practicable.”
“A practitioner must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner’s personal opinion on the merits of that evidence or issue.”
“A practitioner must, at the appropriate time in the hearing of the case
and if the court has not yet been informed of that matter, inform the
(a) any binding authority;
(b) any authority decided by the Full Court of the Federal Court of
Australia, a Court of Appeal of a Supreme Court or a Full Court
of a Supreme Court;
(c) any authority on the same or materially similar legislation as that
in question in the case, including any authority decided at first
instance in the Federal Court or a Supreme Court, which has not
been disapproved; or
(d) any applicable legislation;
which the practitioner has reasonable grounds to believe to be directly
in point, against the client's case.”
See also Rule 25 of the Bar Conduct Rules.
Obligation not to advance allegations against any party, witness or any third party in the absence of reasonable grounds and for a proper purpose.
Again, one is not simply the mouthpiece of the client.
Kennedy v Council of Incorporated Law
Institute of New South Wales (1939) 13 ALJ 563
Day v Perisher Blue Pty Ltd  NSWCA 110
per Sheller JA at 
R v Shepherd  1 NZLR 161
Deacon v Australian Capital Territory
(2001) 147 ACTR 1 at 
“The solicitor cannot simply allow the client to make whatever affidavit of documents he thinks fit nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information he is entitled to require or if he insists on swearing an affidavit which the solicitor knows to be imperfect, then the solicitor’s proper course is to withdraw from the case. He does not discharge his duty in such a case by requesting the client to make a proper affidavit and then filing whatever affidavit the client thinks fit to swear to.”
Myers v Elman  AC 282 at 322 per Lord Wright
“In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.”
Grimwade v Meagher & Ors (1995) 1 VR 446 at 452
Owens v Owens  FMCAfam 1397
R & P GangemiPty ltd v D & G LuppinioPty Ltd
 VSC 168
Temby v Chambers Investment Planners Pty Ltd
 FMCA 783
Greives v Tully  FamCA 617
Bowen v Scott  WASC 94
Holborow v Macdonald Rudder
 WASC 265 at 
Jeffery v Associated National Insurance Co Ltd
 1 Qd R 238
As to where the practitioner may be a witness see also Rule 13.