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Managing Conflict – The Duty to the Court and the Duty to the Client

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  1. Managing Conflict – The Duty to the Court and the Duty to the Client Wade Roper

  2. 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

  3. The Duty “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.

  4. The Duty Two things to note about the observations in Giannerelli: • yes and notwithstanding the unfortunate use of gender specific language, it applies to those of a female persuasion as well; and • applies to all advocates, not just barristers. 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

  5. The Duty in practical terms • Today’s focus is on: • civil litigation; • solicitors and particularly solicitor advocates. • Consideration of the various duties and a refresher.

  6. The Duty Enshrined “Rules of Professional Conduct and Practice.”

  7. Honesty and Candour Rule17.6, 17.7, 17.8. “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 [12]

  8. Honesty and CandourRule 17.9 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 [15]

  9. IndependenceRule 17.3, 17.4 and 17.5 Rule 17.3 “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.” Rule 17.5 “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.”

  10. Relevant AuthoritiesRule 17.11, 17.12, 17.13, 17.14. Rule 17.11 “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 court of: (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.

  11. Delinquent or Guilty ClientsRules 17.18 to 17.20 • A practitioner is required to obtain his or her client’s instructions to rectify any falsification or, in the absence of the same, must cease to act. • In criminal matters may need to continue to act but must then run a dead defence. • Must warn against a stated intention to disobey a court order and obviously must not advise on how to achieve that objective.

  12. Responsible use of PrivilegeRules 17.21 to 17.27 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.

  13. Integrity of EvidenceRules 17.28 to 17.34 • Duty not to Suborn a Witness – 17.28 Kennedy v Council of Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 • Conferring with Multiple Witnesses – 17.30 Day v Perisher Blue Pty Ltd [2005] NSWCA 110 per Sheller JA at [30] • Witness under Cross – 17.32 R v Shepherd [2001] 1 NZLR 161 • No property in a witness – 17.33 and 17.34 Deacon v Australian Capital Territory (2001) 147 ACTR 1 at [111]

  14. Pleadings and AffidavitsRules 11 and 12 “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 [1940] AC 282 at 322 per Lord Wright

  15. Pleadings and Affidavits (Cont)Rules 11 and 12 • Do not allow a client to swear imperfect or incomplete affidavits. • Do not allow allegations to be made in Affidavits or Pleadings in the absence of a reasonably held belief that the evidence is such as to properly found the same.

  16. The Court’s Inherent jurisdiction to restrain a practitioner from acting “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

  17. Examples of what will lead to a practitioner being restrained • Disrespect of the Court Owens v Owens [2009] FMCAfam 1397 • Personal Interest in the outcome – even if it is in an attempt to mitigate the effects of one’s prior negligence R & P GangemiPty ltd v D & G LuppinioPty Ltd [2012] VSC 168 • Where a party is a relative or friend of the practitioner Temby v Chambers Investment Planners Pty Ltd [2010] FMCA 783 Greives v Tully [2011] FamCA 617

  18. Examples of what will lead to a practitioner being restrained (Cont) • Conflicts in personal interests Bowen v Scott [2004] WASC 94 • Where the practitioner may be a witness Holborow v Macdonald Rudder [2002] WASC 265 at [29] Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238 As to where the practitioner may be a witness see also Rule 13.

  19. How the Stakeholders see things

  20. Managing Expectations • Be firm from the outset. • If the client is fully appraised of your role and obligations at the outset, easier to manage the process. • The respective duties do not so much collide as coincide – it is in everyone’s best interests that only cases which admit of merit are actually agitated. • Take advantage of the absence of a Cab Rank Rule. It is the bane of a barrister’s existence.

  21. Questions