Professional Conduct in Criminal Litigation Flashcards
What are the SRA Principles and Codes?
Each principle is known as Principle 1, Principle 2, etc. The Code refers to CCS (Code of Conduct for Solicitors) and CCF (Code of Conduct for Firms).
Who do the SRA Principles apply to?
- Individuals authorised to provide services by the SRA
- Authorised firms and businesses
- Their managers and employees
What are the Seven Principles of professional conduct?
Individuals and firms must act:
* In a way that upholds the constitutional principle of the rule of law and the proper administration of justice
* In a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
* With independence
* With honesty
* With integrity
* In a way that encourages equality, diversity, and inclusion
* In the best interests of each client
In what 4 circumstances does professional conduct most likely arise for a defence solicitor?
- Third party instructions: Can a solicitor attend a police station to represent a detainee if asked to do so by a relative or third party?
- Conflicts or potential conflicts of interest: Can a solicitor represent more than one defendant in the same case?
- Confidentiality: Can a solicitor use information from one client’s case if it would help another client’s defence?
- Duties to the court and specific duties on advocates: Can a solicitor represent a defendant who has told them they are guilty? Can they represent a client who has said they are not guilty but wants to plead guilty?
Can a solicitor decide whether to take on new clients?
A solicitor is generally free to decide whether or not to take on a particular client, provided they do not unlawfully discriminate.
What should a solicitor do if they take clients instructions from someone else?
- A solicitor should only act for clients on instructions from the client or someone properly authorised to provide instructions on their behalf.
- If the solicitor has reason to suspect the instructions do not represent the client’s wishes, they should not act unless they have confirmed this with the client.
What is the rule regarding solicitor access in police stations under PACE?
- Access to a solicitor cannot be delayed on the grounds that they might advise the detainee not to answer questions.
- If the solicitor was initially asked to attend by someone else, the detainee must sign the custody record to confirm whether they want to see the solicitor.
- A solicitor should contact the police station beforehand to confirm with the client.
What is the rule regarding conflicts of interest between clients?
If there is a conflict, or a significant risk of conflict, between two or more current clients, the solicitor must not act for all or possibly any of them.
How should conflicts of interest be identified in publicly funded cases?
- Regulations require one litigator to act for all co-defendants in a legal aid case unless there is a conflict of interest.
- The solicitor should not interview clients together.
- The solicitor should obtain full instructions from the first client before having substantive contact with the second.
How can a solicitor attempt to avoid conflicts if 2 different clients?
- Take instructions from Client 1.
- Inform Client 1 that Client 2 is interested in instruction.
- Ask Client 1 if they are aware of any conflict.
- If Client 1 identifies a conflict, ask for details. If it amounts to a conflict, the solicitor cannot act for Client 2.
- Inform Client 1 that if they act for Client 2 as well, they may need to share confidential information about Client 1 with Client 2 if it is relevant. Request consent.
How long does confidentiality last?
Confidentiality is forever unless required by law or if the client consents.
What are the disclosure rules under CCS 6.4 and 6.5?
- CCS 6.4: A solicitor must make the client aware of all material information they personally know regarding the retainer.
- CCS 6.5: A solicitor should not act for Client A if they hold confidential information for Client B that is material to A, unless that information can be protected.
- Information barriers do not exist in criminal cases.
How should confidential information be handled between clients?
- If a solicitor receives confidential information about Client 1 that is relevant to Client 2, they must obtain consent from Client 1 to disclose it.
- The solicitor must make it clear that there is no obligation to give consent.
- If Client 1 does not consent, the solicitor must cease to act for Client 2.
- The duty of confidentiality overrides the duty of disclosure.
- The solicitor must not disclose the reason for ceasing to act.
- The solicitor may continue to act for Client 1 if the duty of confidentiality to Client 2 is not at risk.
When can a conflict of interest arise despite best practice?
Conflicts can arise when a defendant changes their plea or evidence.
What is the solicitor’s duty to the court?
- A solicitor is an ‘officer of the court’ and has an overriding duty to uphold the rule of law and the proper administration of justice.
- They must act with integrity, independence, honesty, and in the best interests of each client.
What is the solicitor’s duty regarding misleading the court?
- A solicitor must not mislead the court by acts or omissions.
- If a client insists on a course of action that would mislead the court, the solicitor must stop acting for them.
Can a solicitor represent a guilty client who wishes to plead not guilty?
- Yes, it is not misleading the court if the client pleads not guilty.
- The solicitor may remain silent and allow the prosecution to present its case.
- If the prosecution has a weak case, the solicitor can submit a “no case to answer.”
- However, the solicitor must not present false evidence or suggest that prosecution witnesses are mistaken in identifying the defendant.
What are examples of perverting the course of justice?
- Manufacturing false evidence
- Destroying evidence
- Concealing evidence
- Interfering with potential witnesses
- Knowingly acting for a defendant who has assumed a false name to deceive the court
- Deliberately assisting a client to evade arrest
What should a solicitor do if a duty to confidentiality conflicts with a duty to disclose?
- Duty of confidentiality cannot be breached.
- If a defendant wants to mislead, the solicitor must explain they cannot do that.
- The solicitor should reassure the client that everything remains confidential.
- If the defendant wants to hide evidence but the solicitor has a duty to disclose, the solicitor must cease acting unless the defendant authorises disclosure.
What should a solicitor do if the court orders details about a client witness, but they cannot disclose them?
- Inform the court that they are unable to comply with directions but do not give reasons.
- If asked whether they have received instructions from the client on the matter, it is not a breach of duty to indicate whether instructions have been received.
- The court cannot require the solicitor to reveal what those instructions are.
