2(a) Duty to Court and Conflict in Criminal and Civil Cases Flashcards
Conflict - Overview
What is the summary overview for client conflicts of interest?
The Law Society of Jersey Code of Conduct 2017 Ed
(A) D pleading not guilty - facts consistent with plea:
01 D. own decision:
(a) made freely
(b) exclusively matter for client to give instructions on
02 lawyer advises, not own opinion: if account consistent with facts:
- advise to plead not guilty as matter of fact and law,
- advise client as to possible outcomes conviction highly likely or inevitable
- set aside and not act on own opinion as to client’s best interests and whether guilty or innocence
(B) Facts inconsisent with not guilty plea: D admits guilty, but pleads not guilty:
01 duty not to mislead crt - R.3.4: potential conflict cannot:
(a) knowingly or recklessly mislead (or attempt or permit Crt to be) - R.3.4
(b) call witness giving evidence knowing false (untrue/misleading), unless makes clear true position to crt - R.3.4(d)
02 duty not to abuse role as advocate - R.3.5: D states guilty, but wants to contest charge:
(a) can continue to act for client
(b) limited representation at trial: limited in what you can do - tactical disadvantage:
1. no evidence to show client’s innocence - R.3.5
2. no argument someone else responsible for crime - R.3.5
(c) not mislead crt - G.3.3: if, after ‘not guilty’ pleas, lawyer:
1. test reliability of prosecution witnesses’ evidence in cross-examination
2. address jury that prosecution not succeeded proving client’s guilt:
i. e. closing submission speech: can say:
i. burden of proof not discharged by prosecution
ii. raise ‘technical objections’:
- evidence inadmissible
- witness not competent
- no case to answer
3. cannot set up positive case inconsistent with confession by:
- showing client did not commit crime: by suggesting to prosecution witness, calling witness, or submitting to jury
- suggesting someone else did crime
- putting forward alibi
4. duty to explain position plainly to client - G.3.3: not to mislead crt and not to abuse role as advocate:
(a) withdraw from case if client refuses to accept
(b) client confidentiality: no obligation to inform new lawyer of matters between you and client
(c) if risk crt will be misled, ask client permission to disclose confidential information to crt - no choice but to withdraw if client refuses G.3.3
(C) Client advised has defence, but wants to plead guilty
(a) Code is silent
(b) duty not to mislead crt - R.3.4
(c) UK Bar Code: sensible for Jersey advocate to take following steps to avoid misleading the crt and protect the advocate, must:
1. check why client pleading contrary to advice
2. explore:
i. client’s reasons
ii. steps to facilitate not guilty plea
iii. advise criminal record consequences (client of good character)
3. explain:
i. resultant conviction unlikely overturned if appealed
ii. mitigation to be consistent with client’s plea, lawyer:
a. cannot give explanation showing innocence
b. cannot say client is remorseful
4. remind sentence: client will serve sentence and not advocate
e. g. client makes own evidence assessment, deciding merits on lower sentence for guilty plea outweigh advantages of tricky defence and acquittal
5. client acknowledges explanation: sign endorsement that explanation has been given, but freely chosen to plead guilty
(D) Fraud allegation
01 serious allegation in civil litigation
02 not plead fraud allegation unless both:
(a) clear instructions to allege fraud
(b) reasonably credible material establishes prima facie case - Rule 4.2(b)(iii)
03 not just admissible - Medcalf v Mardell 2002
(a) HL rejected CoA ruling: evidence had to be admissible at time of drafting
(b) HL need both:
1. reasonably credible material to hand; and
2. clear instructions from client to make allegation
04 beware client’s claim in anger, ill will or malice - Guidance.3.8: not start proceedings:
(a) reasonably believe only for
(b) purpose of gratifying
(c) client’s anger, ill will or malice towards another person(s)
(E) Discovery
01 discovery: informing otherside of your case in civil and criminal litigation
02 client refuses to comply with discovery request:
(a) duty to comply with disclosure obligations - civil or criminal procedure
(b) duty not to mislead Crt (knowingly or recklessly) - Rule 3.4
(c) duty to act in good faith and courtesy towards other lawyers Rule 10: act towards:
1. other members and their employees
2. in good faith
3. subject to duty to client and overriding duty to court
(d) withdraw if client refuses necessary disclosures
(F) Receiving privileged documents:
01 Deliberate act: advocate receives documents channels, but not usual
(a) not act in way to bring (or may fairly) legal profession into disrepute - P.2
(b) act with honesty and integrity at all times - P.3
(c) not do anything reasonably seen by public to undermine their honesty, integrity and independence - Rule.4.1
(d) no deliberate act: advocate cannot deliberatly and covertly take opponent’s file in crt and read contents later - Re an Advocate 1978
02 Innocent act:
(a) Return information/documents without use if clearly received inadvertently/improperly - G.2.20
1. receives information/documents from client or third party
2. clearly disclosed inadvertently or obtained improperly
3. return information to rightful owner without using it
(b) inform opponent information/documents of intended use and how received if not clear received by mistake - G.2.21
1. not clear information/documents disclosed by mistake but may have been
2. tell opponent about:
i. intention to use information, and
ii. circumstances of how it came into possession
3. if opponent objects to proposed use
4. crt may have to determine position
(G) Recovering confidential/privileged documents:
01 client can recover
02 advocate can also recover - Sinel v Hennessy 2018 CA
Facts:
(a) person copied client documents without permission from Sinel’s offices
(b) passed to litigant in separate administration of estate action
(c) action to recover documents
CA held:
(a) referred to Ashworth (Hospital Authority) v MGN Ltd 2002 UK CA/SC
(b) documents improperly obtained/received:
1. documents obviously confidential or person copying knew
2. copies and information held subject to confidentiality
3. confidentialilty lay with client
4. client or his advocate can bring recovery proceedings
(c) shared confidential information
1. personal/private information provided in confidence (e.g. lawyers, doctors or trustees)
2. recipient bound to keep private
3. recipient’s staff to keep private - recipient can expect this
4. unless and until provider chooses
Conflict - Not Guilty Plea - How should a lawyer act if the client wishes to give a not guilty plea where the facts are consistent with please?
D pleading not guilty
Facts consistent with plea:
(a) D. own decision:
1. made freely
2. exclusively matter for client to give instructions on
(b) lawyer advises, not own opinion: if account consistent with facts:
1. advise to plead not guilty as matter of fact and law,
2. advise client as to possible outcomes conviction highly likely or inevitable
3. set aside and not act on own opinion as to client’s best interests and whether guilty or innocence
Conflict - Not Guilty Plea - How should a lawyer act if the client wishes to give a not guilty plea where the facts are not consistent with please?
D pleading not guilty
Facts inconsisent with not guilty plea: D admits guilty, but pleads not guilty:
(a) duty not to mislead crt - R.3.4: potential conflict cannot:
1. knowingly or recklessl_y_ mislead (or attempt or permit Crt to be) misled - R.3.4
2. call witness giving evidence knowing false (untrue/misleading), unless makes clear true position to crt - R.3.4(d)
(b) duty not abusing their role as an advocate - R.3.5: D states guilty, but wants to contest charge:
1. can continue to act for client
2. limited representation at trial: limited in what you can do - tactical disadvantage:
i. no evidence to show client’s innocence - R.3.5
ii. no argument someone else responsible for crime - R.3.5
3. not mislead crt - G.3.3: if, after ‘not guilty’ pleas, lawyer:
i. test reliability of prosecution witnesses’ evidence in cross-examination
ii. address jury that prosecution not succeeded proving client’s guilt:
i. e. closing submission speech: can say:
a. burden of proof not discharged by prosecution
b. raise ‘technical objections’:
- evidence inadmissible
- witness not competent
- no case to answer
iii. cannot set up positive case inconsistent with confession by:
- showing client did not commit crime: by suggesting to prosecution witness, calling witness, or submitting to jury
- suggesting someone else did crime
- putting forward alibi
4. duty to explain position plainly to client - G.3.3: not to mislead crt and not to abuse role as advocate:
(a) withdraw from case if client refuses to accept
(b) client confidentiality: no obligation to inform new lawyer of matters between you and client
(c) if risk crt will be misled, ask client permission to disclose confidential information to crt - no choice but to withdraw if client refuses G.3.3
Full text:
R.3.4 Not misleading the court
A member’s duty not to knowingly or recklessly mislead or attempt to mislead the court or to permit the court to be misled will include the following obligations:
Members must not:
a) make submissions, representations or any other statement, or
b) register, file or otherwise lodge any documents with the court, Judicial Greffe or Viscount,
that they know, or are instructed, are untrue or misleading, or, in respect of which, they do not hold the requisite authority or consent;
c) ask questions which suggest facts to witnesses that they know, or are instructed, are untrue or misleading;
d) call witnesses to give evidence or put affidavits or witness statements to the court which they know, or are instructed, are untrue or misleading, unless they make clear to the court the true position as known by or instructed to them; or
e) invent a defence for a client or suggest to the client or to a witness the use of words in evidence which would distort the facts.
Rule 3.5
Not abusing their role as an advocate
Where a member is acting as an advocate, their duty not to abuse their role includes the following obligations:
Members must not:
a) make statements or ask questions merely to insult, humiliate or annoy a witness or any other person or which exploit, or attempt to exploit, the vulnerability of a witness or any other person;
b) make a serious allegation against a witness whom they have had an opportunity to cross-examine unless they have given that witness a chance to answer the allegation in cross-examination;
c) make a serious allegation against any person, or suggest that a person is guilty of a crime with which their client is charged unless:
i) they have reasonable grounds for the allegation; and
ii) the allegation is relevant to their client’s case or the credibility of a witness; and
iii) where the allegation relates to a third party, they avoid naming them in open court unless this is reasonably necessary, or
d) put forward to the court a personal opinion of the facts or the law unless they are invited or required to do so by the court or by law.
Guidance to Rule 3
G.3 Duty to the Court - Guidance
R.3.2 makes it clear that amember’s duty to act in the best interests of their client is subject to their duty to the court, but subject to R.3.3.
For example, if a client were to tell a member that he had committed the crime with which he was charged, in order to be able to ensure compliance with R.3.1 to R.3.4:
the member would not be entitled to disclose that information to the court without their client’s consent; and
the member would not be misleading the court if, after their client had entered a plea of ‘not guilty’, they were to test in cross-examination the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of their client’s guilt.
However, they would be misleading the court and would therefore be in breach of R.3.1 and R.3.4 if they were to set up a positive case inconsistent with the confession, as for example by:
suggesting to prosecution witnesses, calling their client or their witnesses to show, or submitting to the jury, that their client did not commit the crime; or
suggesting that someone else had done so; or
putting forward an alibi.
If there is a risk that the court will be misled unless a member discloses confidential information which they have learned in the course of their instructions, the member should ask the client for permission to disclose it to the court.
If their client refuses to allow them to make the disclosure they must cease to act, and return their instructions. In these circumstances the member must not reveal the information to the court.
For example, if the client tells a member that he has previous convictions of which the prosecution is not aware, the member may not disclose this without their consent.
However, in a case where mandatory sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass the sentence that is required by law.
In that situation, the member must advise their client that, if consent is refused to the member revealing the information, the member will have to cease to act.
In situations where mandatory sentences do not apply, and the client does not agree to disclose the previous convictions, a member can continue to represent their client but in doing so must not say anything that misleads
Conflict - Guilty Plea - How should a lawyer act if the client wishes to give a not guilty plea?
D pleading guilty
01 Client advised has defence, but wants to plead guilty
(a) Code is silent
(b) duty not to mislead crt - R.3.4
(c) UK Bar Code: sensible for Jersey advocate to take following steps to avoid misleading the crt and protect the advocate, must:
1. check why client pleading contrary to advice
2. explore:
i. client’s reasons
ii. steps to facilitate not guilty plea
iii. advise criminal record consequences (client of good character)
3. explain:
i. resultant conviction unlikely overturned if appealed
ii. mitigation must be consistent with client’s plea, lawyer will not be able to:
a. give explanation showing innocence
b. say client is remorseful
4. remind client will serve sentence and not advocate
e. g. client makes own evidence assessment, deciding merits on lower sentence for guilty plea outweigh advantages of tricky defence and acquittal
5. client to sign endorsement that explanation has been given, but freely chosen to plead guilty
Full text:
Law Society of Jersey Code of Conduct 2017 Ed
Rule 4 - Honesty, integrity and independence
Rule 4.2
A member’s duty to act with honesty and integrity under P.3 includes the following requirements:
Members must:
a) not knowingly or recklessly mislead or attempt to mislead anyone;
b) not draft any statement of case, witness statement, affidavit or other document containing:
i) Any statement of fact or contention which is not supported by their client or by their instructions;
ii) Any contention which the member does not consider to be properly arguable;
iii) Any allegation of fraud, unless the member has clear instructions to allege fraud and has reasonably credible material which establishes an arguable case of fraud;
iv) (In the case of a witness statement or affidavit) any statement of fact other than the evidence which they reasonably believe the witness would give if the witness were giving evidence orally;
c) not encourage a witness to give evidence which is misleading or untruthful;
d) not rehearse, practise with or coach a witness in respect of their evidence unless the member has the permission of the representative for the opposing side or of the court;
e) not communicate with any witness (including their client) about the case while the witness is giving evidence;
f) not make, or offer to make, payments to any witness which are contingent on the evidence or on the outcome of the case;
g) only propose, or accept, fee arrangements which are legal.
Honesty/Integrity/Independence - Fraud Allegation - When can an advocate raise a fraud allegation?
Fraud allegation
01 serious allegation in civil litigation
02 not plead fraud allegation unless both:
(a) clear instructions to allege fraud
(b) reasonably credible material establishes prima facie case - Rule 4.2(b)(iii)
03 not just admissible - Medcalf v Mardell 2002
(a) HL rejected CoA ruling: evidence had to be admissible at time of drafting
(b) HL need both:
1. reasonably credible material to hand; and
2. clear instructions from client to make allegation
04 beware client’s claim in anger, ill will or malice - Guidance.3.8: not start proceedings:
(a) reasonably believe only for
(b) purpose of gratifying
(c) client’s anger, ill will or malice towards another person(s)
Full text:
Law Society Code of Conduct 2017 Ed
Rule 4 Honesty, integrity and independence
Rule 4.2 A member’s duty to act with honesty and integrity under P.3 includes the following requirements:
Members must:
a) not knowingly or recklessly mislead or attempt to mislead anyone;
b) not draft any statement of case, witness statement, affidavit or other document containing:
i) Any statement of fact or contention which is not supported by their client or by their instructions;
ii) Any contention which the member does not consider to be properly arguable;
iii) Any allegation of fraud, unless the member has clear instructions to allege fraud and has reasonably credible material which establishes an arguable case of fraud;
iv) (In the case of a witness statement or affidavit) any statement of fact other than the evidence which they reasonably believe the witness would give if the witness were giving evidence orally;
c) not encourage a witness to give evidence which is misleading or untruthful;
d) not rehearse, practise with or coach a witness in respect of their evidence unless the member has the permission of the representative for the opposing side or of the court;
e) not communicate with any witness (including their client) about the case while the witness is giving evidence;
f) not make, or offer to make, payments to any witness which are contingent on the evidence or on the outcome of the case;
g) only propose, or accept, fee arrangements which are legal.
Guidance.3.8
Members must not institute proceedings on behalf of a client which the member reasonably believes to be instituted only for the purpose of gratifying the client’s anger, ill will or malice towards another person or persons.
Mislead/Good Faith - Discovery - How should an advocate act if a client refuses to comply with a discovery request or requirements?
01 discovery: informing otherside of your case in civil and criminal litigation
02 client refusing to comply with discovery request:
(a) duty to comply with disclosure obligations
(b) duty not to mislead Crt (knowingly or recklessly) - Rule 3.4:
(c) duty to act in good faith and courtesy towards other lawyers Rule 10: act towards:
1. other members and their employees
2. in good faith
3. subject to duty to client and overriding duty to court
(d) withdraw if client refuses necessary disclosures
Full text:
Law Society Code of Conduct 2017 Ed
Rule 3.4 Not misleading the court
A member’s duty not to knowingly or recklessly mislead or attempt to mislead the court or to permit the court to be misled will include the following obligations:
Members must not:
a) make submissions, representations or any other statement, or
b) register, file or otherwise lodge any documents with the court, Judicial Greffe or Viscount,
that they know, or are instructed, are untrue or misleading, or, in respect of which, they do not hold the requisite authority or consent;
c) ask questions which suggest facts to witnesses that they know, or are instructed, are untrue or misleading;
d) call witnesses to give evidence or put affidavits or witness statements to the court which they know, or are instructed, are untrue or misleading, unless they make clear to the court the true position as known by or instructed to them; or
e) invent a defence for a client or suggest to the client or to a witness the use of words in evidence which would distort the facts.
Rule 10 Dealing in good faith and courtesy
Members must:
a) act towards other members and their employees in good faith subject to their duty to the client and the overriding duty to the court;
b) behave with good manners and courtesy towards other members, their employees and third parties even though there may be matters of bitter contention between clients;
c) not write offensive letters to other members, their employees or third parties;
d) not use social media or other forms of communication improperly.
Honesty/Integrity/No disrupt - Privileged Information - How should an advocate act if privileged information or documents are received improperly or if it is not clear if received by mistake?
Receiving privileged documents:
01 Deliberate act: advocate receives documents channels, but not usual
(a) not act in way to bring (or may fairly) legal profession into disrepute - P.2
(b) act with honesty and integrity at all times - P.3
(c) not do anything reasonably seen by public to undermine their honesty, integrity and independence - Rule.4.1
(d) no deliberate act: advocate cannot deliberatly and covertly take opponent’s file in crt and read contents later - Re an Advocate 1978
02 Innocent act:
(a) Return information/documents without use if clearly received inadvertently/improperly - G.2.20
1. receives information/documents from client or third party
2. clearly disclosed inadvertently or obtained improperly
3. return information to rightful owner without using it
(b) inform opponent information/documents of intended use and how received if not clear received by mistake - G.2.21
1. not clear information/documents disclosed by mistake but may have been
2. tell opponent about:
i. intention to use information, and
ii. circumstances of how it came into possession
3. if opponent objects to proposed use
4. crt may have to determine position
Full text:
Law Society Code of Conduct 2017 Ed
Principles
P.2
Members must not, in their professional and personal lives, act in any way which brings or which may fairly bring the legal profession or the provision of legal services in Jersey into disrepute.
P.3
Members must, at all times, act with honesty and integrity.
Rules
Rule.4.1
Members must not do anything which could reasonably be seen by the public to undermine their honesty, integrity and independence.
Guidance
G.2.20
If, during the course of a matter, a member receives information or documents from either a client or a third party, which clearly appear to have been (a) disclosed inadvertently or (b) obtained improperly, the member must return such information or documents to the rightful owner without use being made of the information or documents.
G.2.21
Where it is not clearly apparent that the information or document (or documents) has been mistakenly disclosed, but it appears that this may be the case, the member must inform his or her opponent of their intention to use the document and the circumstances (so far as are known) in which the information or document has been obtained. If the opponent objects to the use of such information or documents, reference to the court may be necessary
Honesty/Integrity/No disrupt - Confidential Information - Who should bring the claim to recover confidential information?
Recovering confidential/privileged documents:
01 client
02 advocate can
Sinel v Hennessy 2018 CA
Facts:
(a) person copied documents without permission from Sinel’s offices concerning client
(b) passed to litigant in separate administration of estate action
(c) action to recover documents
CA held:
(a) referred to Ashworth (Hospital Authority) v MGN Ltd 2002 UK CA/Supreme Crt
(b) documents improperly obtained/received:
1. documents obviously confidential or person copying knew
2. copies and information held subject to confidentiality
3. confidentialilty lay with client
4. client or his advocate can bring recovery proceedings
(c) shared confidential information
1. personal/private information provided in course of relationship of confidence (e.g. lawyers, doctors or trustees)
2. recipient bound to keep private
3. recipient’s staff to keep private - recipient can expect this
4. unless and until provider chooses
Full text:
Law Society Code of Conduct 2017 Ed
Principles
P.2
Members must not, in their professional and personal lives, act in any way which brings or which may fairly bring the legal profession or the provision of legal services in Jersey into disrepute.
P.3
Members must, at all times, act with honesty and integrity.
Rules
Rule.4.1
Members must not do anything which could reasonably be seen by the public to undermine their honesty, integrity and independence.
Guidance
G.2.20
If, during the course of a matter, a member receives information or documents from either a client or a third party, which clearly appear to have been (a) disclosed inadvertently or (b) obtained improperly, the member must return such information or documents to the rightful owner without use being made of the information or documents.
G.2.21
Where it is not clearly apparent that the information or document (or documents) has been mistakenly disclosed, but it appears that this may be the case, the member must inform his or her opponent of their intention to use the document and the circumstances (so far as are known) in which the information or document has been obtained. If the opponent objects to the use of such information or documents, reference to the court may be necessary
