Duty to the court Flashcards
What is counsel’s primary duty to the court?
r 25 a barrister has an overriding duty to the court to act with independence in the interests of the administration of justice
r 26?
r 26 a barrister must not knowingly or recklessly mislead the court
What must a barrister do when they become aware they have made a misleading statement to the court?
r 27 a barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading
Question: During the course of a civil proceeding, the opponent makes an expressed concession about evidence, case law, and legislation. You realise the concessions are not properly made and your opponent is confused and has made mistake.
Discuss your ethical obligations if any.
r 25 counsel has a primary duty to the court to act with independence in the interests of the administration of justice…
r 26 counsel should consistent with that duty alert the opponent and if necessary the court to error which counsel believes to be incorrect
the failure to do so may result in the court falling into error
Question: You are briefed to appear on an urgent ex parte interlocutory application (‘freezing order’). Your have provided advice to your client with advice re prospects. Before court your client informs you that he has material which are relevant to the matter, and provides further instructions about the proceeding which he did not previously tell you. Upon reviewing the material, and further instructions it becomes clear that both the material and new instructions will be damaging but not fatal to your application. Your client’s preference is to not disclose the material and new instructions unless required to by law.
Discuss your ethical obligations if any.
Counsel should explain to client that whilst he has a duty to act in client’s best interests r 37, he has an overriding duty to the court to act with independence in the interest of the administration of justice…and there are special obligations on counsel when appearing on ex parte interlocutory applications which includes r 29(c) disclosing all factual matters which would support an argument against the granting of relief or limiting its terms to the client
Counsel should explain that given he has knowledge of the material and factual matters which are potentially adverse to the application the client must waive privilege so that those matters can be put before the court and explain that if the client does not wish to waive privilege counsel must refuse to appear on the application r 30
What is the rationale for frankness in ex parte hearings?
r 29-30 Frankness in ex parte hearings is important in order to ensure counsel is complying with their primary duty to the court to act with independence in the interest of administration of justice.
In conducting themselves counsel must effectively take the place of their opponents in order to ensure that all relevant matters are brought to the attention of the court.
What is rule 25?
r 25 counsel has an overriding duty to the court to act with independence in the interests of the administration of justice
Counsel in assisting the court in the administration of justice also requires that they bring the attention of the court any relevant binding authority (or where there is no binding authority any authority decided by an Australian appellant court) or legislation, notwithstanding that it maybe contrary to client’s case. True for false?
R 31
What is rule 31-34? (Hint: One of the duties to the court)
r 31 counsel must inform the court of any binding authority, or where there is no binding authority any authority decided by an Australian appellant court, and any applicable legislation known to the barrister and which the barrister has reasonable grounds to believe to be directly in point against the client’s case
r 32 barrister does not need to inform the court of a rule 31 matter at a time where (1) the opponent tells the court the whole case will be withdrawn or (2) the opponent will consent to a final judgment in favour of the client
r 33 the obligation to inform the court of a r 31 matter does not need following the close of the case…where a judgment is reserved, but before final judgment, a barrister who becomes of a r 31 matter must bring it to the attention of the court either by writing a letter or by requesting a relisting of the case for further argument after notifying the opponent of the request.
r 34 a barrister need not inform the court of any r 31 matter which would have rendered the prosecution evidence admissible after the court has ruled it as inadmissible without calling upon defence
In criminal proceedings can a defence counsel stand by and passively watch the court be mislead by the prosecution by reason of the prosecutions failure to ascertain facts that are within counsels knowledge?
Yes - r 26 counsel must not recklessly or knowingly mislead the court i.e. actively mislead the court, however counsel has no duty to r 34 inform the court of any authority which would render prosecution evidence which has been excluded admissible before defence was called upon or r 35 where prosecution is unaware of a client’s previous conviction as a pros witness about that in hope of a negative answer…however counsel must be carefully whilst counsel may stand by passively counsel can not make a statement which is misleading in so far it suggests that his or her client has no other convictions (when counsel has knowledge that he does)…further during a hearing counsel can passively stand by during a hearing and watch the court be mislead by vitutre of the prosecutions inability to ascertain certain facts that are within the barristers knowledge consistent with prosecutions obligation to prove its case.
Question: During the preparation of hearing before the Magistrates Court you discover a QCA decision which does not support your client’s case but is on point. You explain to the client that the decision is binding on the magistrates court and is on point. You explain that whilst it is not fatal it does limit prospects of success. Your client asks whether you can just not tell the court about it and deal with the case if the other side uses it.
Discuss your ethical obligations.
part b: Would your ethical obligations change (if any) if you discovered the case whilst the decision was reserved but before final judgement?
r 25 I would explain to the client that barristers have a paramount duty to the court to act with independence in the interest of the administration of justice and consistent with that duty r 31 there is a duty to inform the court of any binding authority known to a barrister which is directly on point even if it is contrary to the clients case this is to avoid the court being led into error etc should client refuse to follow advise may be grounds under r 99(g) to return the brief subject to r 101 or r 104 however can not mislead knowingly mislead the court r 26
the ethical obligation as per r 31 does not change after the close of the case r 33 sets out the requriment that counsel inform the court of the r 31 matter whilst judgment remains pending as per r31(a) or (b)
Question: The court is about to make an order which names your client as a respondent. However during the courts remarks to your client about the effect of the order it becomes clear the court has a misapprehension about the effect of the order which is favourable to your client.
Discuss your ethical obligations if any.
r 25 barristers have a paramount duty to the court to act with independence in the interests of the administration of justice consistent with that duty r 36 counsel must inform the court about the misapprehension the court is making as soon as the barrister becomes are of the misapprehension…
What is the rationale for the rules regarding informing the at the appropriate time during a hearing about any binding authority, case law or applicable legislation…even if it is directly on point against client’s case? (r 31; r 42)
The rationale for the rule is counsel owes a paramount duty to assist the court with independence in the interest of the administration of justice. A barrister who is aware of a binding authority, case law, or applicable statute but does not inform the court is wilfully misleading the court which may lead the court into error. A barrister will not have breach duty to client by informing the court of any persuasive authority against the client’s case contrary to instructions.
Question: You are conducting a criminal hearing and have started calling witnesses. Before you call your next witness your client tells you the next witness will be a good one. When you ask why your client says “…because he is going to say he committed the offence, even though he didn’t, so I will be off the hook”.
Discuss what you would do?
Rule: R 78 a barrister who as a result of information a provided by the client clears during a hearing that a witness called by the client intends on lying must refuse take any further part in the case…etc
Active role: Here I would ask that the court stand down before next witness tell the client that I have duty to the court to act with independence in the administration of justice and I must not mislead the court…by leading evidence which I know to be false I would be misleading the court…I would inform the client that I will not be calling the next witness and should he refuse to agree with that course…I could not act for him given the exceptional circumstances…and I would seek leave to withdraw.
What is the rationale for the rule that barrister must not allege any matter of fact in any court document settled by the barrister (pleadings of affidavits) unless the barrister believes on reasonable ground that the factual material ready available provides a proper basis for doing so?
The rationale for the rule is that the courts depend on lawyers settling pleading and in drawing up sworn affidavits that the allegations and facts are not false. This is ensures the court is not mislead and prevents abuse of court process. As such, counsel has an active duty to ensure that any matter of facts are reasonable based and must not make allegations which are not properly based.
Question:
You have just settled pleadings and affidavits for a commercial litigation matter. Whilst settling the court documents the instructing solicitor provided you with material from the client which substantiates the client’s allegations.
You are informed the solicitor has filed the pleadings and have been served.
Whilst waiting for the defendants to serve their notice of intention to defend and defence…the client tells you during a conference he has left our a heap of inculpatory facts, and has actually ‘lied’ about a few things.
Discuss.
Active: Must seek instructions to inform opposing party of the errors and the need for amended pleadings. The failure to provide those instructions return brief.
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What rule provides the duty of candour with regards to ex parte applications and what is the rationale of the rule?
R 29-30 a barrister seeking an interlocutory ex parte application must disclose to the court all factual and legal matters which (a) are within the barrister knowledge (b) are not protected by LPP and (c) the barrister has reasonable grounds to believe would support an argument against the granting of relief or limiting its terms adversely to the client.
Special candour is required in ex parte applications to avoid an abuse of the court processes. Given the nature of the application the applicant must place before all material facts which presumable the absent party would have brought. The rationale for the rule is that it ensures upmost good faith and fairness to the other party.
Question: You are brief to settle an application for a domestic violence order. The client has provided the instructing solicitor a version of events regarding an incident in which the client alleges the other party was domestically violent when they smashed his property, and sent abusive messages.
The client wishes for those allegations to be made in the court documents (pleadings).
Discuss your ethical obligations
R 63 - a barrister must not alleged any matter of fact in any court document settled by the barrister unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
I would explain to the instructing solicitor I require further material to support the allegation made by the client. The would explain rule 63 and that lawyers must take reasonable steps to confirm client’s version.
I would explain that counsel has a paramount duty to the court which includes frankness in dealings with the court which includes not making basesless allegations which may be considered an abuse of process and could result in cost implications should the matter be determined vexatious or malicious.
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