Code of Conduct: You and the Court

Question 1

Who does C1 (You and the Court) apply to?

Answer 1

• Practising barristers (every rule)
• Unregistered barristers (rC3.5 and rC4)
  …when practicing or otherwise providing legal services

Question 2

rC3.5

Answer 2

You must ensure that your ability to act independently is not compromised

Question 3

rC4

Answer 3

Your duty to act in the best interests of each client is subject to your duty to the court.

Question 4

rC3

Answer 4

Your duty to the court to act with independence in the interests of justice

• Paramount duty, overriding inconsistent obligations, e.g. to your client or instructing solicitor
• Independence in the context of the Code of Conduct means that you do not permit any outside influences to prevent you from acting in accordance with your ethical obligations

Question 5

rC3.1

Answer 5

You must not knowingly or recklessly mislead or attempt to mislead the court
You must not, if you are instructed that a fact is untrue or misleading:
- Make submissions that the fact is true
- Make representations or any other statement that the fact is true
- Ask questions of witnesses suggesting the fact is true
- Call witnesses to give evidence or put affidavits or witness statements to the court containing the untrue/misleading facts unless you make clear to the court what the true position is.

Question 6

Meaning of ‘misleading’

Answer 6

• Recklessly is defined in gC4.3 as ‘being indifferent to the truth, or not caring if something is true or false’
• Misleading includes failing to correct the position if you inadvertently mislead the court
• The duty applies for the duration of the case
• Putting forward your client’s case as instructed to you is not misleading even if you do not believe your client. It is not for you to decide whether your client is telling the truth.

Question 7

Misleading when you draft documents

Answer 7

The document must not contain:

• Any statement of fact or contention which is not supported by your client or your instructions
• Any contention which you do not believe to be properly arguable
• Any allegation of fraud, without clear instructions and reasonably credible evidence
• Any statement other than the evidence which you reasonably believe the witness would give orally

Question 8

Drawing the court’s attention to adverse authorities or provisions

Answer 8

You must draw the court’s attention to these; it is particularly important to do so if your opponent is a litigant in person.

Question 9

If the client confesses to the offence

Answer 9

You must not:

• Disclose the information that your client is guilty, without their authorisation
• Suggest to prosecution witnesses that your client did not commit the offence
• Call your client or other witnesses to give evidence to show your client did not commit the offence
• Suggest that someone else committed the offence
• Put forward an alibi for your client

You can:

• Ask the prosecution witnesses questions on the reliability of their evidence
• Say to the jury in your closing speech that the prosecution’s evidence is not sufficient to make them sure of your client’s guilt

Question 10

If your client refuses disclosure

Answer 10

If there is a risk that the court will be misled unless you disclose confidential client information of whatever kind, as a general rule you must:

• Ask client for permission to disclose
• If permission is not given, cease to act and return instructions. Do not inform the court.

Question 11

Previous convictions and mandatory sentences

Answer 11

• The general rule is altered when you are representing a client who has undisclosed previous convictions.
• The prosecution is not always aware of every previous conviction the defendant may have. In this situation, what you must do depends on whether mandatory sentences apply
• For some offences, imprisonment is a mandatory sentence for an offence of the same type as previously committed. If the court is not aware of a previous conviction of the same type, it may fail to pass the sentence required by law.
• Inform the client that the conviction must be disclosed. Inform client that if consent is not given, you must cease to act. If consent is not given, cease to act and return instructions - do not inform the court or prosecution.

Question 12

Previous convictions and non-mandatory sentences

Answer 12

• If your client is to be sentenced for an offence which does not carry a mandatory sentence, you can still represent them but must be careful about what you say to the court
• Seek your client’s permission to disclose
• If not given, explain that you cannot mislead the court if you are asked.
• Once in court, you must not: (1) tell the court the defendant is of good character, or (2) answer a direct question untruthfully

Question 13

rC7.1 - “merely to insult, humiliate or annoy”

Answer 13

• You must not make statements merely to insult, humiliate or annoy a witness or any other person.
• If there is a proper purpose to the question or statement but the witness or any other person feels insulted/humiliated/annoyed by it, this is not a breach.

Question 14

rC7.2 - Witnesses must have the opportunity to answer allegations

Answer 14

• You must not make a serious allegation against a witness whom you have had the opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination.
• This addresses the situation with closing speeches or submissions
• It is prejudicial to make a serious allegation at this stage because the tribunal will not have heard the witness’ side of the story, which offends a basic rule of natural justice (audi alteram paterm - hear the other side)

Question 15

rC7.3 - Blaming someone other than your client

Answer 15

• Applies to allegations against any person
• There may be situations where your client gives instructions that another person is at fault. Whether you believe them or not, you are under a duty to promote by all proper and lawful means your client’s interests, which includes making the allegation you are instructed to make.
• The rule limits the circumstances in which you might make a serious allegation
• You must not make one unless: (a) you have reasonable grounds for the allegation, (b) the allegation is relevant to your client’s case or the credibility of a witness, and (c) where the allegation relates to a third party, you avoid naming them in court unless it is reasonably necessary

Question 16

rC7.4 - No personal opinion of the facts or the law

Answer 16

• Advocates usually use the expressions ‘I submit that’ or ‘in my submission’
• Advocates rarely say ‘I think’ or ‘I believe’
• This is because advocates ‘must not put forward to the court a personal opinion of the facts or law, unless they are required or invited to do so by the court’