DUTIES TO THE COURT Flashcards
WHAT IS THE PARAMOUNT DUTY
- ASCR r3 – Paramount duty to the court and the administration of justice
› 3.1. A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. - WABR r25
› A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
DUTY OF CANDOUR
- Lawyer’s duty not to mislead the court regarding either the law or the facts
- WABR – 25-36, 68-74
- ASCR – 19
ASCR 19
Frankness in court.
- 19.1 Frankness to the court. Solicitor must not deceive or knowingly or recklessly mislead the court.
› Not mislead on a point of law, or fact.
- 19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
- 19.6 A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:
19.6.1 any binding authority;
19.6.2 where there is no binding authority, any authority decided by an Australian appellate court; and
19.6.3 any applicable legislation,
known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.
› Even if it unfavourable to your case.
- 19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
19.8.1 a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or
19.8.2 requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
PROVISIONS RELATING TO DUTY OF INDEPENDENCE
- ASCR – 17
- WABR – 25, 41-47
ASCR 17
ndependence:
- 17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise forensic judgements called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
- 17.2 A solicitor will not have breached the solicitor’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to:
17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues;
17.2.2 present the client’s case as quickly and simply as may be consistent with its robust advancement; or
17.2.3 inform the court of any persuasive authority against the client’s case.
- 17.3 A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.
› ‘it is my opinion’, to ‘my submission that…’
MERE MOUTHPIECE
- you aren’t a mere mouthpiece for your client.
- “Hired gun” - R v O’Connell (1844) 7 Ir LR 261 at 312-313
- “[the] client is not his or her ‘master’” - Legal Profession Complaints Committee v Oud [2019] WASC 287
- ‘mouthpiece’ - Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227
PROVISIONS RELATING TO DUTY TO UPHOLD THE LAW
- ASCR – 5, 21, 24-25
- WABR – 12, 59-67, 68-74
ASCR 21, WABR 59-67
- 21.1 A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court:
21.1.1 is reasonably justified by the material then available to the solicitor
21.1.2 is appropriate for the robust advancement of the client’s case on its merits
21.1.3 is not made principally in order to harass or embarrass a person, and
21.1.4 is not made principally in order to gain some collateral advantage for the client or the solicitor or the instructing solicitor out of court. - 21.4 A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:
21.4.1 available material by which the allegation could be supported provides a proper basis for it, and
21.4.2 the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
ASCR 24
Witnesses and Evidence:
- 24.1 A solicitor must not:
24.1.1 advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so, or
24.1.2 coach a witness by advising what answers the witness should give to questions which might be asked.
- 25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time:
25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and
25.1.2 where such conferral could affect evidence to be given by any of those witnesses, unless the solicitor believes on reasonable grounds that special circumstances require such a conferral.
ASCR 5, WABR 12
Clients Behaving Badly:
- 5. A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice, or
5.1.2 bring the profession into disrepute.
ADMINISTRATION OF JUSTICE
- Prosecutorial duties
- Special duties for family lawyers
SPECIAL DUTIES FOR FAMILY LAWYERS
- Parenting applications
› Any application for care, etc of children. - The Paramount Principle
› S 63A: Best interest of the child must be the paramount consideration.
First the court, then the child, then the client. Compared to normally the court and then the client. - Mandatory Reporters
› Lawyers aren’t mandatory reporters in WA. - The (extra) special role of Independent Children’s Lawyers.
