“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.” (Proceedings in the House of Lords, Trial of Queen Caroline (Duncan Stevenson & Co, 1820 ed.) Vol 2 p 7 (J Nightingale, 1821 ed)).

• There has been a growing trend in Australian courts to require that cases be determined in accordance with the objective ‘truth’ rather than on evidence presented solely for tactical advantage. [Ipp, “Reforms to the Adversarial Process in Civil Litigation” (1995) 69 A.L.J. 705 at pp712-716, see also Vernon v Bosley (1997) 3 WLR 683]

• As was said by the former Chief Justice of Australia, Sir Anthony Mason:

“There was a time when it was thought the courts administered law as distinct from justice. That is not the position today. And Judicial concern with the ideal of justice is at bottom one of the reasons why the courts have refined some of the principles of substantive law as well as procedural law ” (“The Role of the Courts at the Turn of the Century “(1993) 3 J.J.A. 156 at p 165)

• It may well be that Sir Mason is correct in what he says about the courts, but it is the experience of my Office that members of the community go to lawyers seeking justice but what they get is law. In their view, justice equates with what they believe they deserve, and is, in their view, objective not subjective and unique to every individual in society. Practitioners who do not explain the distinction between law and justice almost inevitably end up with dissatisfied clients and my Office receives complaints.

• Accordingly, the court’s view of a legal practitioner’s role has shifted away from that of pure advocate, in the manner espoused at the extreme in the trial of Queen Caroline above, towards one involving positive duties of restraint and disclosure to the court that may require the practitioner to act to the disadvantage of the client.

• This talk will focus on the extent to which such duties to the Court, as paramount over a practitioner’s duty to his or her client, will necessitate the need to ‘look behind’ the client’s instructions, and the ethical problems consequently visited upon practitioners. I will also examine to some extent duties to issues arising from client confidentiality, privilege and duties to disclose.

• Receive all complaints against solicitors, barristers and licensed conveyancers

• Mediate consumer disputes

• Investigate conduct complaints

• Refer complaints for investigation to professional councils

• Review decisions of professional councils

• Issue reprimands and prosecute practitioners in the Legal Services Division of the Administrative Decisions Tribunal

• Have the power under Section 152 to require information from practitioners. Failure to provide such information is professional misconduct unless there is a reasonable excuse

• Have the power to override legal professional privilege but only between a client and their legal practitioner

• My Office receives many complaints relating to family law, particularly against the other side’s legal practitioner. This commonly occurs where a party hears the other side’s legal practitioner saying things in Court which the party believes are untrue. Subsequently, my Office receives complaints against legal practitioners in having “lied” or misled the court. Obviously, many people in the community do not understand the rules and responsibilities associated with acting on instructions.

• The courts have recognised that, as a matter of public interest, family law matters will impose upon lawyers, in certain circumstances, a duty to disclose all the material evidence, no matter the prejudice to their case. (see Jenkins v Livesey [1985] 1 A.C. 424 at p 437, Woodard v Woodard & Curd[1959] 1 W.L.R. 493)

• This duty is even stronger in matters involving children. In Re K (Infants), Lord Devlin cited the judgment of the trial judge with approval:

• The Family Law Act 1975 (Cth) provides that, in proceedings relating to the custody, guardianship or access to a child, the court must have regard to the welfare (or interests) of the child as paramount consideration. (ss65E, 67L, 67V and 68F)

• This has important implications for family law practitioners in such cases in that, unlike the ordinary cases where the interests of the client are paramount independently of those of third parties, the practitioners must correlate the interests of a third party, namely the child, with his or her client. (Dal Pont, GE: Lawyer’s Professional Responsibility, 1996 LBC at p381)

• Justice Ipp, in his paper “Lawyer’s Duties to the Courts” (1998 LQR 114 at p71), concludes that the courts in family disputes impose a duty of frankness and disclosure, stemming from public interest, that can override the usual rules relating to the conduct of trials. It remains to be seen whether this principle will be extended to other areas. Efforts to do so in the USA have met with strong resistance, being described as the ‘attempt to convert the lawyer routinely into an informer against his client’ (Rifkind, ‘The Lawyer’s Role and Responsibility in Modern Society’ 30 The Record 534 at p535)

• It should be noted, however, that whilst lawyers acting in the family court are under an overriding duty to the child, they should prevent themselves from coming to any quick conclusions about the merits of their client’s case. For example, lawyers may find in dealing with their client that they come to the conclusion that custody should go to the other party, only to find out during the hearing that the other side is far less worthy. (M Broun, ‘The Legal and Ethical Implications of acting for Children’ (1984) (unpublished), quoted in Ross, Stan: Ethics in Law, Butterworths 1995)

• My Office is currently investigating a complaint relating to the failure to disclose relevant information in family law proceedings. In short, one of the parties accepted a settlement offer on the basis that he would take on a significant joint debt, in his own name. The practitioner for this party, a few days before settlement, was approached by the creditor of this debt with an offer to settle this debt for a much lower figure. The client accepted, however, under instructions from his client, the practitioner did not disclose this information to the practitioner for the other party, even when asked if his client’s assets had remained the same. The other side was therefore materially misled.

• My Office also receives complaints concerning separate representatives appointed by the court to protect the interests of infants. The separate representative is to remain at arms length from all the parties, and not align themselves with any one party. The Demetrious case [(1976)FLC 90-102] describes the ideal role of these lawyers as being like a ‘Friend of the Court’. He or she should present additional evidence or arguments that aid the court in coming to a decision, but should not act as welfare worker - that is, make a report to the court on his or her findings (Lyons and Bosley (1978) FLC 90-423)

• Guidelines have been issued for the separate representative by the Chief Judge of the Family Court (Australian Family Law, Butterworths, looseleaf service, para 4070.04). The guidelines indicate that age will determine the extent to which the child can give instructions. Older children are more capable of giving instructions, whereas younger children will be more dependent on the lawyer, and the lawyer will need to make his or her assessment by speaking to other experts, including the court counsellor.

• A number of complaints come to my office as a result of this system, principally stemming from parents who feel the child’s separate representative is deliberately acting against their interests in, for example, advocating on behalf of the child against custody with that parent. This type of complaint is perhaps inevitable, however, it is important that child representatives maintain their impartiality in circumstances where it is very easy to align oneself with one party against another.

• The role and duties of a prosecutor differ in some ways from other counsel, the most critical distinction being the prosecutor's duty of fairness and impartiality.

• The Australian Bar Association’s Advocacy Rules (1995) require prosecutors to ‘fairly assist the court to arrive at the truth’ and ‘seek impartially to have the whole of the relevant evidence placed before the court’.

• Prosecuting counsel have been described as ‘ministers of justice, who ought not struggle for a conviction nor be betrayed by feelings of professional rivalry’. It is therefore the prosecutor’s duty to refrain from doing anything which might improperly influence the jury and deny the defendant a fair trial.

• There are therefore greater impositions on prosecuting counsel than on counsel for defence. For example, prosecuting counsel should not seek to shut out any evidence which the jury could reasonably regard as credible and which could be of importance to the client’s case. In contrast, defence counsel is under no obligation to disclose to the court or to the prosecution the nature of the defence case. (Dal Pont p374)

• It is a criminal defence lawyer’s duty to protect her or his client so far as is possible from being convicted, except by a competent tribunal and upon admissible evidence sufficient to support a conviction for the offence with which the client is charged.

• The classic situation for defence lawyers is one where she or he believes the client to be guilty, or the client admits guilt.

• Having accepted a brief, a lawyer is under a duty to defend the client for a criminal charge irrespective of any belief or opinion which she or he may have formed as to the guilt or innocence of that person. The assessment of the guilt or innocence of the accused is a matter for the court, not counsel.

• Furthermore, there are advocacy rules in Australia which provide that a client making a clear confession of guilt does not prevent a lawyer from continuing to act. The justification of this is the fact that it is the prosecution which bears the burden of establishing the guilt of the accused. In New South Wales, Barrister’s Rule 33 allows an advocate the opportunity to return the brief if there is time for another practitioner to take over the matter, and if the client does not insist that the barrister retain the brief.

• However, in such a situation, the scope of representation is severely curtailed by the lawyer’s duty to not mislead the court. The lawyer can not set up a case inconsistent with the confession. The lawyer can not, for example, seek to introduce evidence that someone else committed the offence. What the lawyer can do, however, is argue that the evidence as a whole does not prove that the client is guilty of the offence charged.

1. Where the client is instructing the practitioner to advise and or assist in conduct that is illegal (eg fraud), unconscionable, or otherwise improper; and
2. Where the client is instructing the practitioner to present evidence that is false or misleading, or to otherwise mislead the court or opponent.

• Tax schemes and advice can pose particular dangers to practitioners.
  Brennan J observed in Leary v Commissioner of Taxation [(Cth.) (1980) 47 FLR 414 at p 435] “The promotion of a scheme in which particular clients may be advised to participate is pregnant with the possibility of conflict of entrepreneurial interest with professional duty”

• Similar problems occasionally exist where solicitors run mortgage practices.

• Forsythe v Rodda [(1989) 42 A. Crim R. 197]concerned an application for the review of a magistrate’s decision committing the barrister concerned for charges of conspiracy and incitement regarding his advising clients on a tax avoidance scheme. Whilst it was argued that the scheme was ‘on it’s face preposterous’ and artificial, it was submitted on the barrister’s behalf that his advice concerned only the lawfulness of the scheme and with nothing else. The Federal Court held that a case had been established which the barrister was required to answer.

• The professional rules in some jurisdictions explicitly prohibit a practitioner from promoting or knowingly assisting in the promotion or marketing of tax schemes or arrangements having the predominant purpose of avoidance of tax by the exploitation of revenue law.

• If a lawyer has reasonable grounds to doubt the bona fides of a client, then the lawyer is entitled to make inquiries in that respect. For example, where money is handed to a lawyer in circumstances which raise the suspicion that those monies stem from some criminal activity on the client’s behalf, the lawyer should question the client regarding its source, and should decline to handle the money if not satisfied with the response.

• Another example comes from a ruling of the Law Society of the A.C.T., [ACT Law Society Ruling, “Illegal or Unlawful Use of Premises” (17 June 1985)], which states that a practitioner required to act in a matter involving premises about which he or she has heard unsubstantiated rumours that the premises are being used or are about to be used for illegal purposes is entitled to disregard such rumours, even if, by virtue of the rumours, he or she forms the belief that the premises were being used for such a purpose. However, if the practitioner knows or receives instructions that the premises are being used for improper purposes, he or she must cease to act.

• Virginia Shirvington, in her paper entitled ‘Too concerned about clients' affairs?’ puts forward some interesting fact scenarios. (1997) 35 (11) LSJ 30

A solicitor acted for the executor of an estate who was also one of its beneficiaries. The client instructed him to repay a mortgage loan from estate monies. He freely conceded the debt was his own personal debt, not the estate’s, but instructed the solicitor to deduct the discharge monies from estate monies not just from his own share.

The solicitor’s personal view that he could not carry out the client’s instructions was not shared by some other practitioners with whom he discussed his dilemma. They felt he had an inviolable duty to obey the instructions. They overlooked the solicitor’s duty not to assist a client in a fraudulent activity in breach of his executorial duties and against the interests of the estate and the other beneficiaries.

• Virginia concluded that while you can’t act in direct contravention of instructions you have the option, or in some cases the obligation, of refusing to accede to the client’s unreasonable demands.

• In Myers v. Elman it was alleged that a solicitor had filed defences which he must have known or suspected to be false.

• It was held that :
  The solicitor can not simply allow the client to make whatever affidavit or documents he thinks fit, nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information which he is entitled to require, or if the client insists on swearing an affidavit which the solicitor knows to be imperfect, the solicitor’s duty is to withdraw from the case. A solicitor who has innocently put upon the file an affidavit by his client which he subsequently discovers to be false, owes a duty to the Court to put the matter right at the earliest moment if he continues to act as solicitor on the record

• In a case called Re a Company (No 006798 of 1995), it was held that a solicitor who swears an affidavit in which he verifies that a debt is owing, or that a company is insolvent, when he does not have any belief that those facts are true, will breach his duty to the court.

• It has also been held that a solicitor should withdraw if he knows a client is using false names in proceedings (Cahill v Law Society of NSW (1988) 13 NSWLR 1) particularly if it is for fraudulent purposes (R v Gruzman; ex p The Prothonotary (1968) 70 S.R. (N.S.W) 316)

• The solicitor’s rules incorporate principles similar to those espoused in Myers v. Elman above - see rules 17.1 (appendix A)

• The imposition on the practitioner can be a difficult one to deal with, particularly where the practitioner believes, but is not sure, that evidence, such as sworn affidavits, are false or misleading.

• In such a situation, the model conduct expected of a practitioner would have to fall between two poles: that where the practitioner is merely a mouthpiece or amanuensis (scribe), and the opposite end where the practitioner is an investigator. There is little guidance, however, on where the duty should fall.

• The imposition of a duty which approaches that of an investigator would theoretically mean greater costs on the individual litigant, and a lower burden on the courts. Of greater import however is the potential for such a shift in duty to limit the fundamental role of lawyer as advocate, and the court’s role as ultimate forum to determine the veracity of evidence. The ramifications this might have on the delivery of justice can be serious, particularly if an undue onus is placed on practitioners to use their judgment and their concerns about risk, and not the rules of evidence and law generally.

• Dal Pont, Lawyer’s Professional Responsibility in Australia and New Zealand (LBC, Sydney 1996), at page 353:

• Comment by the Chief Justice in Re Thom:

…a practitioner may be led into presenting a statement of fact, which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.

• Meek v Fleming is something of a classic case on this issue. It was found that the defendant’s lawyers had concealed facts such that ‘ the judge and jury were misled in an important manner, namely the credibility of the defendant’. In this case the defendant’s lawyers made no comment when the defendant was repeatedly referred to as ‘inspector’, when the defendant had in fact been recently demoted from that rank. This had a material effect on the outcome of the case.

• Ordinarily, any duty of confidentiality owed to the client is overriden by any duty of disclosure to the court. (Rondel v Worsley [1969] 1 A.C 191 at p 227)

• The duty of confidentiality to the client is paramount when it arises by reason of legal professional privilege (R v. Derby Magistrate’s Court [1996] A.C. 487). The basis of this is that privilege is absolute, and no circumstance of public interest may detract from it in any way.

The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision” (1976) 135 CLR 674 at 685, (affirmed in Baker v Campbell (1983) 153 CLR 52(see Deane J)

• Justice Ipp disagrees with such a firmly immutable paramountcy of privilege, stating that a balancing exercise between public interests may be necessary, and concluding:

Whatever the need to preserve the confidence of the client in the lawyer, and whatever the responsibilities of a barrister or solicitor may be, modern society will not readily accept that, in a serious case, silence may be preserved at the cost of irremediable injustice. (p73)

• It is important to note the well recognised exception to the existence of legal professional privilege, namely, the situation where communications between lawyer and client can be considered criminal in themselves, or intended to further any criminal purpose. (R v Cox and Railton (1884) 14 QBD 143)

• This principle has been broadened recently to include advice sought or given for the purpose of effecting iniquity. Iniquity means fraud in a wide sense, or misconduct of such a nature that it is in the public interest that it ought be disclosed. (Barclays Bank Plc v Eustice [1995] 1 W.L.R. 1238 at 1249)

• Whereas privilege is a special type of confidentiality, lawyers of course owe a general duty to maintain the confidentiality of information received from the client in the course or as a result of the retainer.

• Breach of confidentiality is a common source of complaint to my Office. An example is a situation arising where a practitioner acts for both parties in a relationship. The relationship breaks up, and the practitioner then acts for one of the parties in the subsequent proceedings between them. Clearly, in such a situation, a practitioner who has obtained information confidential to both parties ought to decline to act for one against the other subsequently. Recent developments in disciplinary law suggest that a practitioner should not act against a former client even if they can establish that no confidential information had passed or was used. It is enough, for the practitioner to be under a duty to not act, if a reasonable observer could conclude that the practitioner was in a situation where confidential information could have been obtained and used. (Decision of Legal Practitioner’s Disciplinary Tribunal (Western Australia), 25 September 1995)

Relations with clients – Rules 1-16

Extract from Statement of Principles for Rules 1-16

Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

2 - Confidentiality

2.1 A practitioner must not, during, or after termination of, a retainer, disclose to any person, who is not a partner or employee of the practitioner’s firm, any information, which is confidential to a client of the practitioner, and acquired by the practitioner during the currency of the retainer, unless –

2.1.1 the client authorises disclosure;

2.1.2 the practitioner is permitted or compelled by law to disclose; or

2.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client’s claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony.

Extract from Statement of Principles for Rules 17-24

Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings which they give to the Court or their opponents.

17 - Preparation of affidavits

17.1 If a practitioner is:

17.1.1 aware that a client is withholding information required by an order or rule of a court, with the intention of misleading the court; or

17.1.2 informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular;

Duty to a client

A.16. A practitioner must seek to advance and protect the client’s interests to the best of the practitioner’s skill and diligence, uninfluenced by the practitioner’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the practitioner or any other person, and always in accordance with the law including these Rules.

Independence – Avoidance of personal bias

A.18. A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s and the instructing practitioner’s desires where practicable.
A.19. A practitioner will not have breached the practitioner’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing practitioner’s desires, simply by choosing, contrary to those desires, to exercise the forensic judgments called for during the case so as to:

(a) confine any hearing to those issues which the practitioner believes to be the real issues;

(b) present the client’s case as quickly and simply as may be consistent with its robust advancement; or

(c) inform the court of any persuasive authority against the client’s case.

Frankness in court

A.21. A practitioner must not knowingly make a misleading statement to a court on any matter.
A.22. A practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading.
A.23. A practitioner will not have made a misleading statement to a court simply by failing to correct an error on any matter stated to the court by the opponent or any other person.

A.31A. A practitioner must take all necessary steps to correct any express concession made to the court in civil proceedings by the opponent in relation to any material fact, case law or legislation:

(a) only if the practitioner knows or believes on reasonable grounds that it was contrary to what should be regarded as the true facts or the correct state of the law;

(b) only if the practitioner believes the concession was in error; and

(c) not (in the case of a concession of fact) if the client’s instructions to the practitioner support the concession.

Duty to opponent

A.51. A practitioner must not knowingly make a false statement to the opponent in relation to the case (including its compromise).
A.52. A practitioner must take all necessary steps to correct any false statement unknowingly made by the practitioner to the opponent as soon as possible after the practitioner becomes aware that the statement was false.
A.53. A practitioner does not make a false statement to the opponent simply by failing to correct an error on any matter stated to the practitioner by the opponent.