Criminal Litigation and Professional Conduct Flashcards
Being asked by a relatiev or third party to represent someone being detained at the police station
Issue?
- Third Party Instructions
Why and Issue?
- IB (1.25) - where instructions are given by someone else other than your client, must not act unless you are satisfied that the person giving instructions has authority to do so on behalf of your client.
- (Or acting jointly for two or more clients when instructions only came from one)
How to resolve?
- Have to speak to the suspect (will prob be on the phone) and confirm that they are happy for you to act and agrees with the instructions given.
What if another solicitor was earlier instructed (e.g. the duty solicitor) ?
- You must query it with client and get their consent AND get thei solicitor/firm’s permission before you can act for the suspect.
Conflicts of Interest
If 2 persons arrested at the same crime scene, can you act for them both?
O (3.5) client conflict - go through definition in glossary.
If their stories are not the same, then can;t act for both.
May also affect your duties of confidentiality and disclosure.
O (3.6) rarely applies in criminal litigation.
O (3.7) never applies.
IB (3.1) training employees etc. to identify conflicts
IB (3.2) decline to act when intersts in direct conflict
IB (3.5) - decline to act under O (3.6) when clients cannot be represented even-handedly or will be prejudiced by a lack of separate representation.
2007 Code - e.g. when in interests of one client to give evidence against the second client, or to implicate the second client in a police interview.
2011 Code Case Study 2:
To minimise potential for conflicts:
- Take instructions from Client 1. When doing so, advise him that you have also been asked to act for Client 2, and that you can only do so if no cleint conflict.
- Ask C1 if he is aware of any conflict. If he states that there is, or might be, ask for full details. If these amount to a conflict, cannot act for C2; if they do not, inform C1 that you will be able to act for C2.
- Inform C1 that if, at any stage, you come into confidential ifnromation which is confidential to C1 but material to C2, you will have to disclose it to C2, but will need C1’s consent.
- Take instructions from C2, and when doing so, advice C2 that you also act for C1 - and follow same process as above.
Confidentiality
O (4.1)
Issue arises when third party instructions and third party (e.g. relative) wants update about the case.
Need client’s consent.
Duties to the Court
O (5.1) - never deceive or knowingly or recklessly mislead the court.
O (5.2) - don’t be complicit in another person so doing.
IB (5.9) - calling a witness whsoe evidence you know is untrue.
IB (5.5) - if client insists on course of action which would or could lead to you misleading the court, you must stop acting for him.
Representing clients who tell you they have commited the offence but want to deny involvement:
- CAN sit back and wait for the prosecution to prove guilt - perfectly within defendant’s rights;
- SO LONG AS don’t do anything to maintain innocence - not miseadling th court as not allowing him to put forward false evidence.
Representing clients who tell you they are innocent but which to plead guilty
- Up to the client to enter his plea, so long as he does so unequivocally and fully advised.
- Take care however when conducting the casem not to submit information which would breach O (5.1).
Might have to use more of Chapter 5 - remember, duties to the court kick in as soon as you take the insutrctions.
