Duty to opponent Flashcards
A barristers duty to his opponent is set out in rules [insert] ? and what do they reflect?
r 48 -55; They reflect the same standards of honesty which apply in a barristers dealings with the court.
What is r 48, r 49, r 50?
r 48 a barrister must not knowingly make a false statement to an opponent in relation to a case (including its comprise (i.e. settlement));
r 49 a barrister must take all steps necessary to correct any false statement as soon as possible after barrister becomes aware that the statement was false
r 50 a barrister will not have made a false statement to an opponent by simply failing to correct an error on any matter stated to the barrister by the opponent.
Frankness - Is a barristers obligation to not ‘mislead’ is not confined to the court room. Discuss. (Hint LSC Mullins; and rationale)
Counsel role is to assist the court to do justice according to law (Giannarelli). In doing so a barrister must not deceive or knowingly or recklessly mislead the court (r 25).
However, a barristers duty of frankness extends beyond the court room (compromise negotiations) and to opponents (R 48-50 BCR; LSC v Mullins).
The rationale being without an assumption of honesty from parties would not deal. Honesty promotes confidence in legal processes. The common law reinforces an exception honesty through the tort of deceit. Failure of counsel to abide by this is a breach of BCR’s.
Discuss the decision of LSC v Mullins.
LSC v Mullins - Duty of frankness out of court and to opponent - intentional deception.
Facts: Counsel was negotiating the compromise of a personal injury claim on behalf of a client with an insurance company.
Counsel had medical reports regarding client’s life expectancy. Client then told counsel he had cancer this impact life expectancy and therefore any payout. Counsel said should disclose and adjourn mediation so insurer can investigate. Client said no unless he was legally obligated to do so. Counsel then changed his opinion (after research and speaking with counsel - posed wrong questions) and said can rely upon original reports but could not make any positive assertions re life expectancy. Mediation kicked on, and Mullins eventually got caught.
Held: Barristers duty of frankness extends to dealings outside of court and to opponents. Honesty in promotes confidence in processes. Parties to negotiations regarding settlement of a PI claim have the shared expectation that there will be no intentional deception about material facts. Mullins was not protected by r 50 because it was not that he failed to correct an error on behalf of the opponent he relied on and encouraged his opponent to rely on material which he knew to be incorrect - fraud deception - $20,000 fine - standard of conduct involved a substantial departure from standard of conduct expected.
What are the rules for counsel dealing with parties who are and are not legally represented?
r 51- 52 - barrister must not deal with a a party who is not legally represented other than to (a) determine if they are represented or (b) lawyer for other party has consented or (c) barrister believes on reasonable grounds that circumstances are so urgent and dealing would not be unfair
r 52 - barrister must not confer or deal with an party who is unrepresented unless the party has signified a willingness to that course
Does a barristers duty of frankness extend to situations where he is not acting in the role of an advocate? If yes, provide an two example…
yes - Barristers are officers of the court which means they must not mislead the court even in general conduct and their duty to the administration of justice is not lessened when not engaged in court proceedings.
LSC v Hackett - Barrister had sworn a misleading affidavit which was relied upon a civil proceedings. There was no dishonesty on the part of Hackett the affidavit was simply poorly prepared and failed to disclosure material information. The case was compared with Mullins…and the punter was fined $2000
Barristers board v Young - Barrister was a witness in an inquiry into electoral fraud and gave lied under oath about his address and membership of a political party. Barrister was struck off.
A barrister must be frank in dealings with [insert]? (hint 5) (Frankness with…)
- Frankness with the court (r 25-26)
- Frankness with opponent in and out of court (r48-50; LSC v Mullins)
- Frankness in ex parte hearings (r 29-30)
- Frankness in criminal defence (r 34-35)
- Frankness in general conduct as an officer of the court (i.e. affidavits; giving evidence; r 5)
When can a barrister communicate, absent the opponent, with the court concerning a matter of substance (outside of an ex parte application)?
What is the rationale for rules regarding this ?
What is the proper way for this communication to take place?
What is the consequences for failing to observe the rule?
1 - r 53-55; Ken Tugrul; Must not unilaterally communicate with court regarding a matter of substance in connection with proceeding outside exparte application unless
(a) court has first communicated with the barrister in such a way to require barristers to respond;
(b) opponent has consented to dealing with court in specific matter;
(c) matter of triviality or practice (start time or robes); or
(d) in compliance with existing order or direction.
r 54 must tell opponent what passes between barrister and court
r 55 must not raise any matter outside of scope of consent
2 - The rationale for the rule is protects against (1) danger that judge mind coloured by information not subject to debate (2) guard against familiarity and (3) potential apprehension of bias.
3 - The corro should (1) state the reason for the communication without other parties knowledge (2) where consent has been obtained, should be stated and (3) always be copied to other party.
4 - It may result in an application by other party for recusal
Discuss the case of Ken Tugrul.
ken tugrul - r 53-55 - Party sent a joint expert report to court, in accordance with court order, which annexed documents that other party did not consent to…the corro noted the objection…judge told staff to delete the communication.
Court noted, outside exparte communication, there are limited exceptions to unilateral communication with the court regarding a matte of substance namely (1) matters of triviality or practice (2) complying with a court direction or order (3) with consent (4) or court has first communicated with party
The rule is protects against the dangers (1) the judges mind is coloured by material which was not subject to to debate (2) guard against familiarity and (3) apprehended bias.
Noncompliance with the rule may result in the court simply disregarding the material and/or recusal application. This also may result in wasted costs by the other party who has to consider how to respond to the material sent to the court.
Discuss Bale v Mills
Bale v Mills:
Court reserved its decision, however in the meantime requested provide cases regarding Brown v Dunn, however counsel for both parties sent through additional submissions and cases..
Parties have no right to place material before the court after an appeal has been heard unless leave has been provided the rationale for the rule being that it undermines the principles of open administration of justice…the proper practice is to relist the matter and to make an application to enlarge the court which can be determined in open court…sending material without leave and then seeking leave is not the proper course.
…and the court also held there can be no implied wavier by a party regarding compliance with the rule in Brown v Dunn.
What is the rationale for the rule to not make false statements to opponent?
R 48-59: The rationale for the rule prohibiting false statements to opponents is that it is impacts on the efficient administration of justice which requires that lawyers be able to rely upon their colleagues representations and assurances…and it also may expose the solicitor to civil liability in contract or under statute.
Revised - LSC v Mullins information
LSC v Mullins:
Principle: Counsel owes a duty of frankness to opponent during mediations which includes not misleading or deceiving opponent (in addition to not making false statements r 48-50 BCR).
Rationale: The rational for duty is that probity is essential to the utility of meditation as a form of ADR.
The duty of frankness to opponent is arguably higher in mediations as parties conduct are not subject to the procedures and safeguards of the court so unethical practices are difficult to detect.
Parties are entitled to approach mediations with the shared expectation there will be no intentional deception about material facts.
Unethical behaviour by lawyers undermines public confidence in the justice system and legal profession.
Consequence: Where a negotiation is secured by misleading conduct a party may be sued in tort for losses caused or referred to LSC.
Summary: Mullins relied upon and encourage opponent to rely upon medical documents which were misleading as to the client’s life expectancy (because they did not account for client’s cancer). Life expectancy was material to the value of the claim and settlement figure. The matter was settled.
Mullins referred to LSC and argued that compromise negotiations were commercial and conducted on tact, and it was assumed that parties would rely upon own resources and information in deciding whether to settle. Mullins formed the view he would be doing nothing ethical so long as he did not make any false statements about the life expectancy. The court held that Mullin’s was intentionally deceptive and was professional misconduct.
What is the rationale for the rule a party must not directly deal with another party who is legally represented? (‘no contact’ rule) (r 51)
The rationale of the rule is that it prevents a lawyer from circumventing the protections that a legal representative affords to a client.
Without the rule, a lawyer would use legal skill and knowledge to (1) secure admissions from party (2) access privilege documents or (3) undermine trust in parties lawyer.
Further where there is a dispute as to the content of the communication this may require the lawyer to become a witness, and and may be considered professional misconduct.
