Professional Ethics

Question 1

What are the Law Society objectives?

Answer 1

1. Encourage & promote upholding of rule of law
2. Promote high standards of professional conduct among practitioners.
3. Regulate, foster & protect interests of members & practice of law in J.

Question 2

Describe the relationship b/w the advocate & the court.

Answer 2

• J Code, Rule 2 paramount (no other rules primacy over another):

‘A member has an overriding duty to the Court…A member must assist the Court in the admin of justice & must not deceive / knowingly / recklessly mislead the Court’.

• In re an Advocate [1978] COA -advocate’s duty not to mislead court paramount ‘even if involves acting vs client’s interests.’
• Rule 19 ‘Duty to assist Court’ advocate’s primary function is ‘to present the case for a client to its best advantage’ but is ‘to assist the Court to reach a just decision on the facts properly adduced before it in accordance with a correct interpretation of the law.’ Key duty because court’s central function to deliver justice.
• Obligation to court reqs him to produce authority which goes vs own submissions as to law, / one which directly supports his opponent’s submissions on the law. Rule 19(2) -should draw it to court’s attention.
• Rule 20 (para 1) -must not assert to court as facts any matters which knows to be untrue; i.e. cannot invent defences for client / put words into mouth of W, where would distort W’s evid.
• Obligation to ‘put your case’. If challenge to be made to evid of W called by opponent, must make challenge plainly to W, giving chance to assert (/ re-assert) own account of matter.
• Rule 20 (para 3) -failure result in Adv prevented from reliance on point in closing address to court.
• Rule 20 (para 2) -people not present in court should be afforded protection -Adv should avoid naming in open court someone not party to litigation where effect may be to besmirch character, unless not reasonable poss to avoid doing so.
• Rule 18 -Adv should not ask qs which sole purpose of insulting / annoying W (or other pers) & should consider carefully when asking qs which go only to W’s credit.
• Should not be Adv & W in same case (Hirschfield and others) employed by firm which party whose partners Ws (Takilla Limited) -avoid blurring distinction b/w Adv & litigant in person. Except -where evid purely formal. Practical -Adv needs to keep credibility w court so perceived to advance loftier & more dispassionate view than client. Philosophical -Adv officer of court, req to have attainment of justice as primary motivation for what said, & court needs to be able to trust Adv in submissions made as applicable law when considering facts before it.

Question 3

Describe the relationship b/w the lawyer & the client

Answer 3

• 2 key areas -COI & management of confidential info.
• Rule 2(3) -where lawyer’s interests (/ firm) conflict w client, lawyer & firm must not act for client. Similarly, where conflict (/ serious risk) b/w 2 or more clients. Exception -non-contentious transaction & all clients who party written consent. Need to take account of extent duty owed to client continues re former client following termination of retainer.
• Rule 2(4) -may act vs former client, provided doesn’t hold confidential info re former client relevant to dispute.
• Les Pas Holdings v Receiver General [1995] -‘principle of justice being seen to be done outweighs the right of a litigant to choose his own adv n/w/standing the relatively small size of the J Bar.’ Ruled Adv could not continue to act for States where predecessor from current firm previously acted for P & might hold damaging info though not nec linked.
• Abacus (C.I.) Limited v Bisson [2007] -revisted Les Pas & did not follow -‘the court may, in appropriate circs, take account of the small size of the J Bar & of the nature of the different firms w/in that profession.’ Substantial amount of highly relevant confidential info. / info barrier cannot protect -restrain from acting. Consider relevance of confidential info / where info barrier may be effective. Should not be perception difficult / impossible to find lawyers of appropriate calibre & stature to act vs substantial financial institutions.
• Pragmatic approach heralded in Takilla Limited and others [2004] -field of choice in J is relatively restricted. Time may also be relevant consideration. Here, action for prof neg, RC held undesirable for 1st D firm to be rep by adv from successor firm, Carey Olsen, since calling partners in firm as Ws for 1st D. Since proceedings seriously delayed, time & cost involved & lack of objection until late in day together outweighed concern.
• Rule 16 -prohibits lawyer from entering contract, preparing doc, whereby client confers benefit upon lawyer, / upon anyone w/in lawyer’s firm unless either:

1. client had independent advice on matter from different firm; /
2. benefit conferred insignificant relative to client’s wealth; /
3. client & recipient related by blood / marriage; /
4. client given informed consent to transaction.

• Rule 9 -lien over client papers, considered Cunningham v Sinel and another [2011]. Significance of rule req Adv to assist court in delivering justice integral part of decision.

Question 4

What is the position of guilty Ds who wish to plead not guilty?

Answer 4

• Adv may have views as to client’s guilt but if, as matter of fact & law, client says will plead not guilty & gives account which consistent w innocence, must be advised to plead not guilty.
• Adv cannot indirectly mislead the court by calling a W (client / another W) to give evid which Adv knows to be false i.e. client instructed him guilty not ‘suspects’. Adv is able to continue to represent client who says guilty but will contest charge.
• Adv limited in what can do to represent client @ trial. So not to mislead court, no evid can be called which intended to show client’s innocence / present arg someone else responsible for crime. Subject to restrictions, Adv may continue to represent client @ trial & may rely in closing speech on submission prosecution not discharged BOP, raise ‘technical objections’ (i.e. evid inadmissible, / W not competent) & make submission of no case to answer. Tactical disadvantages -Adv obliged to explain to client. Client refuses to accept then Adv no alternative but to withdraw from case. No obligation on withdrawing Adv to inform replacement of what passed b/w him & client; covered by client confidentiality.
• Client -clear in law has defence but says will plead guilty despite advice. Code silent. Danger of misleading court.
• BSB -check why client insistent on entering plea which contrary to advice given by Adv. Explore reasons, conseqs of criminal record, unlikely overturned if appealed. Mitigation must be consistent w plea i.e. not explanation that shows innocence nor client remorseful. Adv will ‘avoid’ misleading court. Adv can asks client to sign endorsement on brief that given explanation & chosen of free will.

Question 5

When can a lawyer plead fraud?

Answer 5

• Serious allegation in civil litigation.
• Rule 18 -lawyer must not plead allegation of fraud if not in possession of ‘reasonably credible material’ which can estab prima facie case of fraud.
• _Medcalf v Mardel_l [2002] -HOL rejected ruling in COA that evid for fraud had to be admissible @ time of drafting.
• BSB Code of Conduct -fraud should not be pleaded unless barrister both reas credible material to hand & clear instructions from client to make such allegation.

Question 6

When will ADR be appropriate?

Answer 6

• Civil cases, lawyer continuing obligation to canvass all available methods of DR w client (Rule 22).
• Familiar w alternatives to litigation –e.g arbitration & mediation & client considers as meaningful DR.

Question 7

What should an advocate do if he inadvertently receives an opponents’ documents?

Answer 7

• More dev in civil lit -more even bal b/w parties? Code not concerned w procedures, although may need to withdraw if the client refuses to sanction nec disclosures (not mislead court & act in gd faith).
• Docs come into Adv’s hands not through the usual channels (e.g. In re an Advocate [1978]). Does not include deliberate acts by Adv, e.g covertly taking opponent’s file in court -never condoned (Rule 23(1)). Where Adv innocently acquires opponent’s docs -privileged document. Code -Adv must 1st make enquiries as to how the doc obtained. Unless satisfied properly obtained, if intends to use shld inform opponent both about intention & about circs doc obtained. Where opponent objects, court must decide the matter. Subject to above, Code clear –Adv expected to use doc as will advance client’s interests (Rule 23(2)-(4)).

Question 8

Do advocates have an etiquette?

Answer 8

• Lawyers shld be able to trust one another & rely on each other’s word e.g. undertaking (Rule 10(1)). Generally, personally binding & binding on firm (exception –no personal but on behalf of named other). Impact client e.g. Binet v Foot [1998], Adv’s undertaking to accept service of proceedings sufficient to estab client’s acceptance of the jurisdiction of RC. Reinforced by Code -lawyers shall be frank w other lawyers, act in gd faith (Rule 2(10)) & not deceive them (Rule 2(11)). Professional manner & detachment encouraged – courteous. Covertly recording a conversation -J Code condemns where done electronically. Shld 1st inform other in writing of intention to record & offer to provide a transcript w/in reasonable time, @ reasonable cost (Rule 15).
• Where firm A instructed by client, & another person involved represented by firm B, all communications w person must go through firm B unless firm B consents to direct contact (Rule 13).

Question 9

What are the standards and values of an advocate?

Answer 9

• Rule 2 -“…duty…to uphold the dignity & high ethical…standards of the…profession’. Cf The Bâtonnier v Sinel [2005]. Eg, req lawyer must report any criminal conviction vs himself, other than for a minor road traffic offence (Rule 12).
• Exercise independent judgment, act in client’s best interests & not allow integrity or standards to be compromised to suit anyone, whether a client or anyone else (Rule 2(1) & (2)).
• Reputation of profession to be maintained. E.g., form of business structure lawyer permitted to use for professional work & non-lawyer, work. Code –lawyer not allowed to engage in other work if such work might either reflect adversely on reputation of J legal profession or be prejudicial to the admin of justice in J (Rule 1, Rule 4(3)‘cold calling’). Lawyer must only engage in a partnership to practice J law w other members of Law Society of J (Rule 1) & cannot agree to share profits of legal practice w anyone who not advocate or solicitor of RC, unless Law Society approves it (Rule 7).
• Positive way lawyers contribute to reputation of profession & adhere to terms of their oath to the court (Rule 2) -legal aid scheme (Rule 3). Oath taken by lawyers in RC provides they will assist ‘widows, poor people, orphans & those who are undefended’ but as Legal Aid Guidelines make clear, scheme now extends beyond groups. All J lawyers u15 yrs’ Call req to participate, as directed by Bâtonnier of Law Society. System of appointment represents exception to general principle people free choice as to their lawyer & nothing shld be done to impede freedom (Rule 2(7) & (8)). When Bâtonnier directs Adv to represent client, Adv has no choice in the matter (cf Re Advocate Sinel). ‘Cab rank’ rule.

Question 10

Are there requirements in respect of professional development?

Answer 10

• Every lawyer’s interest, & that of clients, to ensure informed about leg developments & has excellent level of current awareness (Rule 2). Code mandatory req for practising lawyers 15 hrs of CPD annually. They/firm must inform Law Soc complied w req by 31st Jan of following yr.

Question 11

What disciplinary procedures can be taken against an advocate?

Answer 11

• ‘Law Soc of J takes any complaint made vs member seriously, investigates it fully & ensures that the appropriate disciplinary action is taken in cases where a member’s performance is found to have fallen short of Law Soc of J’s standards.’
• Disciplinary regime -The Law Soc of J Law 2005, Part 3. Upon receipt of complaint, President of the Law Soc establishes disciplinary committee, unless satisfied complaint either unrelated to professional misconduct or is frivolous, vexatious or trivial. Disciplinary committee 2 lay members of disciplinary panel & a member of Law Soc who is on the panel. Committee chaired by 1 of lay members, sits in private & gives both complainant & practitioner right to be heard, to call evid & cross-examine Ws (RC said Adv duty to cooperate promptly, openly & fully (see Re An Advocate [2003]. AG right to be heard & Bâtonnier practitioner Adv or President of the Chambre des Ecrivains re solicitor. Before it reaches determination committee may refer complaint to mediator (The Law Soc of J Law 2005, Art 22). Unlikely mediation wld be appropriate where serious complaint concerned.
• Committee can:

1. dismiss complaint,
2. find professional misconduct proved & administer either a private rebuke or a public reprimand, or
3. make no finding & refer matter to AG.

• 1st 2 situations, right of appeal to RC vs determination (The Law Soc of J Law 2005, Art 24). Where RC upholds appeal by complainant or confirms finding of prof misconduct & considers rebuke or reprimand inadequate, may fine practitioner, suspend him from practice for up to 6 mths or order name removed from the roll (The Law Soc of J Law 2005, Art 26(8) e.g AG v Begg [2012] (fined £25,000).) AG right to refer complaint to RC by statute where President does not accept it or where a disciplinary committee referred it to him (The Law Soc of J Law 2005, Art 25) re lawyers who are not members of Society, as the partie publique.
• RC also has inherent jurisdiction to exert disciplinary control over its practitioners (The Law Soc of J Law 2005, Art 32).
• Re dispute b/w client & lawyer, or b/w lawyers, matter may be taken to Committee of Law Soc. Committee will endeavour to resolve matter informally, through conciliation or mediation. Lawyer not bound by any suggestion / recommendation which Committee may make.