Topic 1- Duty to the Court Flashcards
What should a barrister do if they are told by their client they were in fact guilty?
Issue- cannot mislead the court; whether he should disclose it to the court
Core Duty- CD6 (confidentiality); CD1 (duty to the court); CD3 (honesty); CD2 (client’s best interests)
Rule- duty to the court does not override duty to confidentiality (rC5); duty to the court overrides every other duty, apart from CD6 (rC4)
Other Guidance- gC9: not entitled to disclose client info without consent
Answer- advise client to either plead guilty or test the strength of the prosecution case, as long as he does not mislead- or he should withdraw
What must be told to the client if a barrister chooses to withdraw?
Needs to explain reasons why (rC27.1)
Ensure he will keep all information confidential (rC15.5)
What is rC5?
This is important to know
Your duty to the court does not require you to breach client confidentiality (CD6)
What is rC4?
Your duty to act in the best interests of each client is subject to your duty to the court
What is rC3?
You must not knowingly mislead the court
What is rC6?
Your duty not to mislead the court includes:
- Making submissions or representations which you know are untrue or misleading
What is gC10?
You will be misleading the court if you set up a positive case inconsistent with a confession
What relevant rules and gCs are there where a client has asked you to lie to the court?
rC3- cannot mislead the court
rC4- duty to act in best interests of the client is subject to the duty to the court
rC5- duty to the court does not require you to breach client confidentiality
rC6- duty not to make submissions that are untrue or misleading
What should a barrister do if a court is unlikely to pass a mandatory sentence, but the client’s previous convictions have not been disclosed?
The barrister does not need to disclose the previous convictions
gC12
According to gC38, what does CD7 include?
Taking all reasonable steps to avoid unnecessary expense
If a client insists on you lying to the court, what must you do?
You MUST withdraw (rC21.6)
What rule states that you must withdraw if a client insists on you lying to the court?
rC21.6
According to gC39, what does CD7 include?
Keeping your professional knowledge and skills up to date
If this has not been done, this could breach CD7
If a client wishes for you to keep representing them, but you have information that would damage their case in court, what should you do?
To avoid misleading the court, you must avoid that information at all costs and mitigate
This is difficult to do, so it is best to err on the side of caution and withdraw
If you accidentally read a confidential document that helps your case, what should you do?
Must maintain CD3- return the document
As you owe a duty not to mislead, you should explain to the opponent what has happened
Need to consider whether to return instructions
