You and the Court Flashcards
What are the outcomes of the conduct rules?
1) the court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it
2) the proper administration of justice is served
3) the interests of clients are protected to the extent compatible with outcomes 1 and 2
4) both those who appear before the court and clients understand clearly the extent of the duties owed to the court by advocates and those conducting litigation and the circumstances in which duties owed to clients will be overridden by duty owed to the court.
5) the public has confidence in the administration of justice and in those who serve it.
What is rule RC3?
you owe a duty to the court to act with independence in the interest of justice. this duty overrides any inconsistent obligations which you may have. it includes the following specific publications which apply whether you are acting as an advocate or are otherwise involved in the conduct of litigation in whatever role.
How do you act in your duties to the court?
1) you must not knowingly or recklessly mislead or attempt to mislead the court
2) you mustn’t abuse your role as an advocate
3) you must take reasonable steps to avoid wasting the court’s time
4) you must take reasonable steps to ensure the court has before it all relevant decisions and legislative provisions.
5) you must ensure that your ability to act independently is not compromised.
What is your duty to act in the best interests of each client subject to?
the duty to act in the best interests of each client is subject to your duty to the court. However, your duty to the court does not require you to act n breach of your duty to keep the affairs of the client confidential.
What does the duty to not mislead the court include?
1) to not make submissions, representations or any other statement; or
2)ask questions which suggest facts to witnesses
which you know, or are instructed, are untrue or misleading.
AND/
3) you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.
For how long does your duty to not mislead the court last?
for the duration of the case. You should draw the court’s attention to adverse authorities or provisions.
Is it misleading the court if you fail to correct a position the position you gave earlier?
Yes
Do you have to draw the courts attention to any adverse authorities or decisions?
Yes
When do you particularly have to draw the court’s attention to adverse authorities?
When your opponent is not legally represented.
Can you put forward your clients case even if you don’t believe them?
Yes, your duty under CD2 requires you to put forward your clients case in line with your instructions, so long as you don’t mislead the court. It is not for you to decide whether the client is to be believed.
What should you do if your client admits to you that he committed the crime?
you would not be entitled to disclose that information to the court without your client’s consent and you would not be misleading the court if, after your client had entered a plea of not guilty, you were to test the reliability of the evidence of the prosecution case and address the jury to say that the P had not succeeded in making them sure of your clients guilty.
Would you be misleading the court, if your client admitted to a crime and you tested the evidence?
No, you would only be misleading the court if you set up a positive case inconsistent with the confession
What do you do if your client has undisclosed previous convictions and there is no mandatory sentence?
- Seek client’s permission to disclose - if it is not given, explain that you cannot mislead the court
- once in court, you cannot:
a. tell the court that D is of good character
b. answer direct question untruthfully, e.g. if asked if there are any previous convictions which are undisclosed.
What do you do if you are aware that your client has a document which should be disclosed but has not been disclosed?
you cannot continue to act unless your client agrees to the disclosure of the document. In these circumstances you must not reveal to the court the existence or contents of the document to the court.
What does the duty to not abuse your role as an advocate include?
- you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
- you must not make a serious allegation against a witness who you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross examination;
- you must not make a serious allegation against any person or suggest that person is guilty of a crime with which your client is charged unless-
a) you have reasonable grounds for the allegation; and
b) the allegation is relevant to your client’s case or the credibility of a witness; and
c) where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary. - you must not put forward to the court a person opinion of the fact or law unless you are invited/required to do so by the court or by law.
