Ethics FLK2 - Criminal Practice Flashcards
A duty solicitor is sent to meet a client who has been charged with causing actual bodily harm to his neighbour. During their discussions, the client admits to the solicitor that he hit his neighbour because the neighbour was having an affair with the client’s wife. The solicitor explains that the client should plead guilty but the client is adamant that he wants to plead not guilty because no one saw him hitting the neighbour and he thinks that if he denies it happened he will get away with it.
Which of the following best describes what the solicitor should do?
A-Inform the prosecution of the client’s admission of guilt without further reference to the client.
B-Inform the court of the client’s admission of guilt without further reference to the client.
C-Continue to defend the client and put the prosecution to proof.
D-Continue to defend the client and put forward a positive defence that the client did not hit his neighbour.
E-Cease to act immediately.
C is correct – the solicitor could continue to act by putting the prosecution to proof.
A and B are incorrect as the solicitor owes the client a duty of confidentiality and the solicitor should not disclose the admission to the prosecution or to the court.
D is incorrect as the solicitor is under a duty not to mislead the court (Paragraph 1.4 of the SRA Code of Conduct for Solicitors, RELs and RFLs) and cannot therefore put forward a positive defence which would be based on lies.
E is incorrect as the client is entitled to legal representation – the solicitor could continue to provide that representation at the most basic level.
A solicitor attends the magistrates’ court to represent a client at trial in relation to an allegation of affray. The prosecution case relies on CCTV footage of a man, said to be the client, fighting in the street. The defence case is that the CCTV footage isn’t clear enough to allow the client to be identified. Before the start of the trial, the client says to the solicitor, “Look, I’ll be honest, I did commit the offence, but I want you to try to get me off”.
Which of the following best describes how the solicitor should now proceed?
A-The solicitor should tell the client that when he gives evidence, he should continue to deny that he committed the offence.
B-The solicitor should advise the client to plead guilty. If he refuses, the solicitor should withdraw from representing the client.
C-The solicitor should continue to act for the client, but should take no active role in the trial.
D-The solicitor should continue to act for the client by testing the evidence, but should not allow the client to give evidence himself.
E-The solicitor should continue to act for the client by making submissions that the CCTV does not show the client fighting, but should not allow the client to give evidence himself.
Option D is the correct answer. Acting in this way would comply with SRA Principles 1, 2, 4 and 7. The defence case is that the client cannot be identified from the CCTV footage. Given that in a criminal case the burden of proof is on the prosecution, the solicitor is entitled to test the evidence. The client should not give evidence as this would involve them either admitting the offence, which would clearly not be in their best interests; or being permitted to lie to the court, which would not uphold the proper administration of justice.
Option A is wrong as this would offend Principles 1, 2 and 4.
Option B is wrong as is would offend Principle 7. It is for the prosecution to prove the case. The solicitor should not advise the client to plead guilty simply because they accept that they are.
Option C is wrong as the solicitor is permitted to test the evidence.
Option E is wrong as by making submissions that the solicitor knows are untrue, they would be offending Principles 1, 2 and 4.
CRIMINAL CASE BURDEN OF PROOF IS ON THE PROSECUTION
A solicitor is acting for a client on a plea of guilty to a charge of assault on a member of staff in a public house. At the sentencing hearing the court asks the solicitor to confirm that the client’s list of previous convictions is accurate. The client instructs the solicitor to confirm that the list is accurate despite the fact a conviction for assaulting a bartender last year has been omitted. The solicitor advises the client that this omission should be corrected, but the client does not want to do this.
Which of the following best explains what the solicitor should do?
A-Tell the client that the solicitor must cease to act because the solicitor cannot knowingly mislead the court.
E-Continue to act but refuse to confirm or deny the accuracy of the list because the solicitor will not mislead the court by remaining silent.
Option A is correct. The solicitor cannot continue to act knowing that the list is inaccurate as this would be misleading the court (Paragraph 1.4). However, the solicitor cannot disclose confidential information without the client’s consent (Paragraph 6.3). Hence, the solicitor would have to cease to act, without correcting the list.
A solicitor attends court to represent a client for whom they have acted in the past. The list of previous convictions provided by the CPS is inaccurate and the solicitor is aware of this. They are asked by the prosecutor to agree them before they have seen the client.
What should the solicitor do?
A-Agree the list.
B-Volunteer the additional information needed to update the list.
C-Decline to comment.
D-Withdraw from representing their client.
E-Tell the prosecutor in confidence that they should have the record checked.
Option C is correct. At this stage (prior to taking instructions from the client), the solicitor should decline to comment. The solicitor cannot disclose confidential information without the client’s consent. The solicitor should not comment at this stage, but should rather take instructions from the client (cautioning the client that the solicitor might not be able to continue to act if the inaccuracy is not corrected).
Option A is wrong as this would mislead the court.
Option B is wrong as this would breach client confidentiality.
Option D is not the best answer as this would leave the client without representation before having spoken to the solicitor. This course of action is premature, without having obtained the client’s instructions.
Option E is wrong as this would breach client confidentiality by implying the record is incorrect.
Quick Q:
A solicitor has been contacted by a woman who asks him to represent her son, who is aged 20 years, by attending him at the police station. The son has been arrested on suspicion of attempted murder and is in custody at the police station. The solicitor is fully aware of the circumstances of the allegation as he represented the woman’s other son several weeks ago when he was arrested on suspicion of the same offence. The firm will carry out the usual conflict of interest check.
Do the rules of professional conduct allow the solicitor to represent the woman’s son at the police station?
Yes, the solicitor can accept instructions from the woman provided he is satisfied that the woman has the authority to give instructions and that there is no conflict of interest or risk of conflict.
Option C is correct. The solicitor can accept instructions from a third party, including close family members (so options A and B are wrong) provided he is satisfied that the woman has the authority to give instructions and that there is no conflict of interest or risk of conflict. Options D and E are therefore wrong because it is always possible for a conflict of interest to arise between any clients, including close family members.
Quick Q:
A solicitor is representing a client at the client’s bail hearing. Prior to the hearing, the prosecutor gives the solicitor a printout showing that the client has no previous convictions. The client tells the solicitor in conference that the prosecutor is erroneously relying upon a printout for the client’s cousin, who has the same name as the client. In fact, the client has a large number of previous convictions which are similar to the offence with which he is currently charged. The client also has a number of convictions for failing to attend court. The client instructs the solicitor not to disclose any information about his real record of convictions to the court.
Which of the following statements best describes the action the solicitor should take in order to comply with ethical duties?
The solicitor should not continue to represent the client unless the client agrees to disclose the information about his previous convictions to the court.
Option C is correct, and is consistent with paragraph 1.4 of the SRA Code of Conduct for Solicitors, RELs and RFLs, which states that “You do not mislead or attempt to mislead … the court … [by] allowing or being complicit in the acts or omissions of others (including your client).” (emphasis added). The Law Society’s guidance (following the Solicitors’ Disciplinary Tribunal decision, John Francis Bridgwood (1989) LS Gaz 5 July, 86 (11)) is that where, to the knowledge of the solicitor, the client seeks to give to the court false information, the client should try to persuade the client to change his mind and that, unless the client changes his mind, the solicitor will have to withdraw from acting.
Quick Q:
A solicitor specialising in criminal litigation is engaged to represent a client charged with assault occasioning actual bodily harm.
The client tells the solicitor that he is innocent, pleads not guilty and gives evidence in his own defence at trial. The client is subsequently acquitted. After being acquitted the client approaches the solicitor and reveals his guilt, thereby showing that he committed perjury during his evidence.
Which of the following statements best describes the action that the solicitor should take?
Do nothing as the knowledge of perjury was obtained after the trial, and therefore does not amount to complicity in misleading the court.
Option B is the best description of what action the solicitor should take, and therefore the correct answer. Following the acquittal the court proceedings are no longer active, so from the solicitor’s perspective there is no complicity in misleading the court (which would be contrary to Paragraph 1.4 of the SRA Code of Conduct for Solicitors, RELs and RFLs). Note that the client has no professional duties.
Quick q:
A solicitor’s husband is caught by a speed camera travelling in his car at 100 mph on a 40 mph road. The husband already has several points on his driving licence and so, to avoid the husband being disqualified from driving, the solicitor makes a false statement to the police stating that she was driving the car at the time of the speeding offence.
The solicitor has been qualified for six months and works in her firm’s commercial property department.
Which of the following statements best describes the professional conduct sanctions that the solicitor is likely to face?
The solicitor will face severe sanctions for acting dishonestly.
Option E is correct. The SRA Principles apply both inside and outside practice. The conduct issue here is the making of the false statement. In making a false statement the solicitor has acted dishonestly. Dishonesty is always regarded as serious and will attract severe sanctions. The solicitor’s junior status is a relevant factor, but is unlikely to result in mild sanctions given such a deliberate and flagrant breach of Principle 4 (and Principles 2 and 5 and, arguably, Principle 1 by making a false statement to the police).
Quick Q:
A solicitor attends a private party at a friend’s house. A good deal of alcohol is consumed. Tempers flare and the solicitor is caught up in a fight outside the house. The neighbours call the police. The solicitor is arrested for assault. The police decide to issue the solicitor with a caution rather than proceed with a prosecution.
Which of the following best describes how the solicitor’s duties operate in this situation?
The solicitor is under a duty to notify the SRA about the caution.
Option D is correct. Paragraph 7.6 requires the solicitor to notify the SRA if they are subject to a criminal caution – a conviction is not required (option A is wrong). The requirement to notify the SRA in these circumstances is a strict one; the seriousness or otherwise of the matter is not relevant (option C is wrong). The duty applies irrespective of whether the offence occurs outside practice (option E is wrong). The solicitor could satisfy their duty by notifying the firm’s compliance officers, not the solicitor’s manager (which means that option B is wrong).
Quick Q:
A woman is charged with assaulting her adult son. She allegedly hit him with a frying pan. She accepts that she hit him but says that she did so as he was drunk and aggressive and had threatened to punch her. When he then approached her, she hit him with the frying pan in self-defence, as she genuinely believed he was about to make good his threat. The solicitor advises her that she has a defence of self- defence and that she should plead not guilty. Nevertheless, her instructions are that she intends to plead guilty to save her son the ordeal of giving evidence in court. She does not want the solicitor to reveal to the court that she has a defence to the charge.
Is the solicitor permitted to tell the court that the client has a defence and must therefore plead not guilty?
D- No, because the solicitor has a duty of confidentiality to the client and cannot tell the court that she has a defence without her consent.
Option D is correct, because the solicitor has been given instructions to keep the client’s defence confidential and cannot therefore reveal the defence without the consent of the client. (Ethics and professional conduct manual chapter 6).
Quick Q:
A solicitor represents a woman who has been charged with theft. The woman pleads not guilty and the case is listed for trial in the magistrates’ court. On the morning of the trial, the solicitor becomes aware of a relevant case which is adverse to the defence case and which assists the prosecution case. The solicitor is concerned that the case will have a material effect on the defence case.
In relation to the duty to the court owed by the solicitor which of the following is correct?
The solicitor must draw the court’s attention to the case even though it is adverse to the client’s case.
Option D is correct because where there is a conflict of duties, in this case the duty to act in the client’s best interests and the duty to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice, the latter duty takes precedence. The solicitor must mention the case, (SRA Code, principle 7 and principle 1).
Quick Q:
A man is charged with theft from a shop. The man admits his guilt to his solicitor but insists on entering a not guilty plea at court and denying guilt on giving evidence in the witness box.
Can the solicitor continue to defend the man at trial?
No, because to continue to defend the man would amount to the solicitor being complicit in another person misleading the court.
The correct option in D. The solicitor cannot continue to defend the man at trial unless the man agrees to disclose the truth of his guilt to the court. The solicitor must not be complicit with the man misleading the court (para 1.4 of the SRA Code of Conduct for Solicitors).
Quick Q:
A solicitor is representing a defendant in a trial before the magistrates’ court. The defendant instructs the solicitor that he is guilty but wants the solicitor to represent him on a not guilty plea. The prosecution evidence against the defendant is weak.
Which of the following best describes the solicitor’s professional conduct duties to their client?
Because the defendant can put the prosecution to proof, the solicitor can defend the case to that extent.
Option B is the correct answer. A solicitor representing a defendant in a trial before the magistrate court is under a duty to say on behalf of their client what that client would properly say for themself were they to have the necessary skills and knowledge to do this. In other words, it is the duty of the defence solicitor to act in their client’s best interests and to ensure that the CPS discharges the onus placed upon it to prove the client’s guilt. Therefore, even if a client admits his guilt to their solicitor, it would still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor considered that the prosecution case to be weak. The defendant’s solicitor nevertheless remains under an overriding duty not to mislead the court (SRA Code of Conduct, Principle 1 and standard 1.4). The solicitor cannot therefore say anything in their client’s defence which they know to be untrue. Therefore, all that the solicitor can realistically do here is put the prosecution to proof.
