Managing Conflict

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Managing Conflict The Duty to the Court and the
Duty to the Client
Wade Roper
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Overview

• The nature of the duty to the Court.
• The Duty in practical terms.
• How best to manage clients and their expectations
  in light of the competing duties.

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The Duty

• The performance by counsel of his paramount duty
  to the court will require him to act in a variety
  of ways to the possible disadvantage of his
  client. Counsel must not mislead the court, cast
  unjustifiable aspersions on any party or witness
  or withhold documents and authorities which
  detract from his clients case. And, if he notes
  an irregularity in the conduct of a criminal
  trial, he must take the point so that it can be
  remedied, instead of keeping the point up his
  sleeve and using it as a ground of appeal.
• It is not that a barristers duty to the court
  creates such a conflict with his duty to his
  client that the dividing line between the two is
  unclear. The duty to the court is paramount and
  must be performed even if the client gives
  instructions to the contrary. Rather, it is that
  a barristers duty to the court that epitomizes
  the fact that the course of litigation depends on
  the exercise by counsel of an independent
  discretion of judgment in the conduct and
  management of a case in which he has an eye, not
  only to his clients success, but also to the
  speedy and efficient administration of justice.
• Per Mason J in Giannarelli v Wraith (1988)165 CLR
  543 at 546.

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The Duty

• Two things to note about the observations in
  Giannerelli
• yes and notwithstanding the unfortunate use of
  gender specific language, it applies to those of
  a female persuasion as well and
• applies to all advocates, not just barristers.
• You should also note that the continued
  preservation of advocates immunity is no longer
  predicated upon the paramount duty to the court
  but rather is said to be mandated by the
  necessity to avoid challenges to judicially
  declared finality.
• DOrta-Ekanaike v Victoria Legal Aid (2005) 223
  CLR 1

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The Duty in practical terms

• Todays focus is on
• civil litigation
• solicitors and particularly solicitor advocates.
• Consideration of the various duties and a
  refresher.

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The Duty Enshrined

• Rules of Professional Conduct and Practice.
• http//www.lawsocietynt.asn.au/index.php/The-Act-a
  nd-Rules/the-legal-profession-act.html

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Honesty and Candour Rule17.6, 17.7, 17.8.

• It is a basic precept of the legal profession
  that lawyers owe a duty of honesty and candour to
  the court. It is the general duty of lawyers not
  to mislead the court by stating facts which are
  untrue, or mislead the judge as to the true
  facts, or conceal from the court facts which
  ought to be drawn to the judges attention, or
  knowingly permit a client to deceive the court.
• Per Ipp J
• Kyle v Legal Practitioners' Complaints Committee
• (1999) 21 War 56 at 12

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Honesty and CandourRule 17.9

• The Duty extends to arguing against a clients
  case on ex parte applications.
• J Aron Corp V Newmont Yandal Operations (2004)
  183 FLR 90 at 15

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IndependenceRule 17.3, 17.4 and 17.5

• Rule 17.3
• 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 clients and the instructing practitioners
  desires where practicable.
• Rule 17.5
• A practitioner must not make submissions or
  express views to a court on any material evidence
  or material issue in the case in terms which
  convey or appear to convey the practitioners
  personal opinion on the merits of that evidence
  or issue.

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Relevant AuthoritiesRule 17.11, 17.12, 17.13,
17.14.

• Rule 17.11
• A practitioner must, at the appropriate time in
  the hearing of the case
• and if the court has not yet been informed of
  that matter, inform the
• court of
• (a) any binding authority
• (b) any authority decided by the Full Court of
  the Federal Court of
• Australia, a Court of Appeal of a Supreme Court
  or a Full Court
• of a Supreme Court
• (c) any authority on the same or materially
  similar legislation as that
• in question in the case, including any authority
  decided at first
• instance in the Federal Court or a Supreme
  Court, which has not
• been disapproved or
• (d) any applicable legislation

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Delinquent or Guilty ClientsRules 17.18 to 17.20

• A practitioner is required to obtain his or her
  clients instructions to rectify any
  falsification or, in the absence of the same,
  must cease to act.
• In criminal matters may need to continue to act
  but must then run a dead defence.
• Must warn against a stated intention to disobey a
  court order and obviously must not advise on how
  to achieve that objective.

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Responsible use of PrivilegeRules 17.21 to 17.27

• Obligation not to advance allegations against any
  party, witness or any third party in the absence
  of reasonable grounds and for a proper purpose.
• Again, one is not simply the mouthpiece of the
  client.

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Integrity of EvidenceRules 17.28 to 17.34

• Duty not to Suborn a Witness 17.28
• Kennedy v Council of Incorporated Law
• Institute of New South Wales (1939) 13 ALJ 563
• Conferring with Multiple Witnesses 17.30
• Day v Perisher Blue Pty Ltd 2005 NSWCA 110
• per Sheller JA at 30
• Witness under Cross 17.32
• R v Shepherd 2001 1 NZLR 161
• No property in a witness 17.33 and 17.34
• Deacon v Australian Capital Territory
• (2001) 147 ACTR 1 at 111

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Pleadings and AffidavitsRules 11 and 12

• The solicitor cannot simply allow the client to
  make whatever affidavit of documents he thinks
  fit nor can he escape the responsibility of
  careful investigation or supervision. If the
  client will not give him the information he is
  entitled to require or if he insists on swearing
  an affidavit which the solicitor knows to be
  imperfect, then the solicitors proper course is
  to withdraw from the case. He does not discharge
  his duty in such a case by requesting the client
  to make a proper affidavit and then filing
  whatever affidavit the client thinks fit to swear
  to.
• Myers v Elman 1940 AC 282 at 322 per Lord Wright

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Pleadings and Affidavits (Cont)Rules 11 and 12

• Do not allow a client to swear imperfect or
  incomplete affidavits.
• Do not allow allegations to be made in Affidavits
  or Pleadings in the absence of a reasonably held
  belief that the evidence is such as to properly
  found the same.

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The Courts Inherent jurisdiction to restrain a
practitioner from acting

• In my view it cannot be doubted that this court
  likewise has an inherent jurisdiction to ensure
  the due administration of justice and to protect
  the integrity of the judicial process and as part
  of that jurisdiction, in an appropriate case, to
  prevent a member of counsel appearing for a
  particular party in order that justice should not
  only be done but manifestly and undoubtedly be
  seen to be done. The objective test to be applied
  in the context of this case is whether a
  fair-minded reasonably informed member of the
  public would conclude that the proper
  administration of justice required that counsel
  be so prevented from acting, at all times giving
  due weight to the public interest that a litigant
  should not be deprived of his or her choice of
  counsel without good cause.
• Grimwade v Meagher Ors (1995) 1 VR 446 at 452

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Examples of what will lead to a practitioner
being restrained

• Disrespect of the Court
• Owens v Owens 2009 FMCAfam 1397
• Personal Interest in the outcome even if it is
  in an attempt to mitigate the effects of ones
  prior negligence
• R P Gangemi Pty ltd v D G Luppinio Pty Ltd
• 2012 VSC 168
• Where a party is a relative or friend of the
  practitioner
• Temby v Chambers Investment Planners Pty Ltd
• 2010 FMCA 783
• Greives v Tully 2011 FamCA 617

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Examples of what will lead to a practitioner
being restrained (Cont)

• Conflicts in personal interests
• Bowen v Scott 2004 WASC 94
• Where the practitioner may be a witness
• Holborow v Macdonald Rudder
• 2002 WASC 265 at 29
• Jeffery v Associated National Insurance Co Ltd
• 1984 1 Qd R 238
• As to where the practitioner may be a witness see
  also Rule 13.

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How the Stakeholders see things
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Managing Expectations

• Be firm from the outset.
• If the client is fully appraised of your role and
  obligations at the outset, easier to manage the
  process.
• The respective duties do not so much collide as
  coincide it is in everyones best interests
  that only cases which admit of merit are actually
  agitated.
• Take advantage of the absence of a Cab Rank Rule.
  It is the bane of a barristers existence.

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Questions