9. Duties to the Court and Third Parties Flashcards
Solicitors have a key part to play in the courts’ function
within the legal system. As an …. of the court, a solicitor owes a ….. to the court
Office
Duty
Which principle overrides the other?
Principle 1 - upholding Justice over Principle 7 - Best interest of the client
The duty not to mislead the court
A basic and self- explanatory duty is found in Paragraph 1.4:
You must not ….. or attempt to ….. the court (or others), either by your own acts or omissions or allowing or being complicit in the acts or omissions of others
(including your client).
This duty is part and parcel of the fundamental requirements for a solicitor to act with
…… (Principle 4) and …… (Principle 5) and uphold …… …… in the profession (Principle 2).
Misleading the court can take a wide variety of forms, such as helping a client to create a
false alibi or making false statements to the court.
Mislead x2
Honesty
Integrity
Public trust
Paragraph 1.4 is a frequent consideration for solicitors acting for the …… in criminal
cases.
Where admitting guilt, the duty under Paragraph 1.4 would require the solicitor to …… to act in such circumstances.
Defence
Decline
A solicitor must not misuse or tamper with …… or attempt to do so (Paragraph 2.1) and must only make assertions or put forward statements, representations or submissions to the court or others which are properly …… (Paragraph 2.4).
Examples of breaches of these duties are wide- ranging and include:
(a) calling a witness whose evidence the solicitor knows is …..;
(b) continuing to act for a client if the solicitor becomes aware that the client has committed
perjury or deliberately ….. (or attempted to mislead) the court;
(c) constructing facts to support a client’s case or drafting documents relating to proceedings
containing statements or contentions which the solicitor does not consider to be properly
arguable before a court.
Evidence
Arguable
Untrue
Misled
A solicitor must not place themselves in contempt of court and must comply with ….. …..
which place obligations on the solicitor (Paragraph 2.5) and must not waste the court’s time (Paragraph 2.6).
An increase in the number of reports to the SRA about misconduct in the conduct litigation resulted in the SRA producing a report in 2018 entitled ‘Balancing duties in litigation’. The report outlines various instances of misconduct. In some cases, the solicitor had improperly
placed the interests of the client above the solicitor’s other duties; in others the solicitor had
failed to act in the client’s best interests. Examples include:
(a) ‘……’ litigation. This occurs when a solicitor encourages a client to pursue a case in which there is little or no legal merit or threatens/ initiates litigation in such a case in the hope that the opponent will pay a settlement rather than incur the costs of defending
the case.
(b) ….. of the litigation process. This occurs when a solicitor uses the court process for purposes not directly connected to resolving a dispute, for example to run up high costs for the client’s commercial rival or silencing criticism.
(c) Solicitors accepting instructions for weak or unwinnable cases without first explaining the
potential costs or risks to the client.
(d) Solicitors employing aggressive or overbearing behaviour in the conduct of litigation.
Court orders
Predatory
Abuse
A solicitor must not seek to ……. the substance of evidence, including generating false evidence or persuading witnesses to change their evidence (Paragraph 2.2).
In the report, ‘Balancing duties in litigation’, the SRA cited examples of such behaviour being reported,
including where solicitors have knowingly helped criminal clients to create a false alibi and, where they have known that their client has obtained information to help their case by illegal means, helped them provide a false explanation as to where it came from.
A solicitor must not provide or offer to provide any benefit to witnesses dependent upon the
nature of their …… or the outcome of the case (Paragraph 2.3).
Influence
Evidence
Duty to Disclose Law and Fact
There is a duty on the part of a solicitor to draw the court’s attention to relevant cases and statutory provisions or procedural irregularities of which the solicitor is aware and which are likely to have a …… effect on the outcome of the proceedings (Paragraph
2.7).
Clearly, drawing such matters to the attention of the court may work against the client’s case. However, this is a situation in which the duty to …… the rule of law and the ….. administration of justice is likely to take precedence.
Material
Uphold
Propert
Refusing instructions to act
A solicitor is never ….. to act in a case. A solicitor is generally free to decide whether or not to accept instructions in any matter, provided that the solicitor does not discriminate unlawfully (see 4.3).
If it is clear to a solicitor appearing as an advocate, or acting in litigation, that the solicitor or anyone else in the firm will be called as a witness in the matter, the solicitor should decline to appear/ act unless satisfied that this will not prejudice the solicitor’s ….. as an advocate or a litigator (Principle 3), the ……. of the client (Principle 7) or the interests of
…… (Principle 1).
Obliged
Independence
Interest
Justice
Choice of Counsel
In selecting a particular barrister, a solicitor must not …… by allowing their personal views to affect their professional relationships and the way in which the solicitor provides services (Paragraph 1.1) and must act in a way that encourages ….., ……. and
……. (Principle 6).
Consequently, a solicitor must not discriminate when instructing a barrister on the grounds of, for example, age, race, sex or disability. Indeed, it is unlawful for
a solicitor to do so under s 47 Equality Act 2010.
Discriminate
Equality - Diversity - Inclusion
Liam, a solicitor, instructs counsel on behalf of a client, Ryan, to provide advice on a particular legal issue. Counsel’s fee is £1,000 plus VAT.
Before Liam can issue a bill, Ryan is declared bankrupt.
Who is responsible for the counsel’s fee?
Liam. This is why many solicitors request that their clients provide them with money on
account before instructing counsel.
A solicitor’s duties are primarily owed to the client and the court. However, in certain circumstances a solicitor also has a duty to ….. …… or the rules of professional conduct require a solicitor to behave in a certain way towards third parties.
Third parties
Beneficiaries
Where a solicitor is instructed to administer a probate estate, the solicitor’s client will be the …… ……. of the deceased’s estate. However, in certain circumstances a solicitor will also owe a duty of care to the …… of that estate.
Ross v Caunters [1980] 1 Ch 297
A solicitor failed to warn a testator that the will should not be witnessed by a benefi ciary.
Accordingly, the beneficiary who witnessed the will was unable to claim her share of the
estate. The solicitor was held liable in negligence to the beneficiary.
Personal representative
Beneficiaries
