Issues:

• Why this is an advocate’s paramount duty.
• Honesty and candour in court.
• Courtesy to the court and fellow practitioners in court.
• Duty not to frustrate the court process.

Desired Outcomes:

• An understanding of an advocate’s paramount duty to the court being above the duty to a client or the duty to others.
• The importance of the manner in which an advocate conducts himself or herself in court.

1. An advocate's duty to the court

(a) Paramount duty

Riley - As an officer of the court, to avoid any action which might mislead the court is a primary limitation on the duty owed to the client

Clyne v NSW Bar Association (op.cit.)
Paramount duty to court

Counsel must not:
- mislead the court
- cast aspersions on the other party(ies) or witness(es), where no valid evidence provides cause to do so
- withhold information, authorities or documents that may prejudice his client's case, when he/she is required by law to produce them

A lawyer must not cast aspersions upon the other party or third party where there is no reasonable basis for making them.  This obligation is derived from a practitioners professional responsibility to the court not to make unreasonable allegations.

Rondel v Worsley [1969] 1 AC 191 at 227-228

Advocate has a positive duty to assist the court rather than merely a negative duty to refrain from misleading or obstructing the administration of justice.

Counsel must not mislead the court and make allegations on other party/ witnesses for which there is insufficient basis. Must not withhold authorities or documents which may tell against his client but which law or standards require him to produce.

"..to his client is to fearlessly to raise every issue, advance every argument, and ask every
question, however, distasteful, which he thinks will help his client’s case. But as an officer of
the court concerned in the administration of justice, he has an overriding duty to the court, to
the standards of his profession, and to the public, which may and often does lead to conflict
with his client's wishes or what the client thinks are his personal interests. "

(b) Professional Conduct and Practice Rule 23 incorporating the advocacy rules

The Bar Rules have been incorporated into the Solicitors Rules so that the bar rules apply to all legal practitioners practising as advocates

(c) Honesty and candour

Bar Rules, rr 21-31

Frankness in court

21.  Must not knowingly make a misleading statement to a court on any matter.
22.  Must correct any misleading statement made by the barrister to a court ASAP
23.  Must correct any express concession made to the court in civil proceedings by the opponent in relation to any material fact, case-law or legislation:
24.  Seeking any interlocutory relief in an ex parte application must disclose to the court all matters
24A. Must endeavour to have privilege waived for matters in Rule 24
25.  Inform the court of binding authority; any applicable legislation;
26.  Rule 25 does not apply where the opponent's whole case will be withdrawn
27.  Rule 25 while a judgement or decision pending must inform the court of new authority of legislation
28.  Need not inform the court of any matter otherwise within Rule 25 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible
29.  Need not disclose facts concerning the client's character or past.
30.  Must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.
31.  Must inform the court in civil proceedings of any misapprehension ASAP

Tombling v Universal Bulb Co [1951] 2 TLR 289*

Duty not to wilfully or knowingly mislead the court as to the facts

A witness was asked his address which he duly provided, instead of disclosing the fact that he was currently in prison, the court held that the intention (per Denning LJ) was merely to enquire as to his permanent address and not to cover the fact that he was serving a prison sentence. Accordingly this was not improper.

Meek v Fleming [1961] 2 QB 366*

Police officer was demoted due to disciplinary offence involving deception of court of law. QC assisted in hiding this fact from Court. Issue of credibility of the officer was significant matter at trial (his word as superior officer against others). There is no general rule that party disclose all matters, including matters to the party’s discredit to the court. However it was held the suggestion of a falsehood went hand in hand with the suppression of a truth.  Needed to disclose his true rank.  Every one referred to him in his old rank he was wearing plain cloths to disguise his demotion.

(d) Courtesy

Courtesy to the court is a fundamental duty which is not committed to writing in the Bar Rules. It was said in Clyne v The New South Wales Bar Association that courtesy is a fundamental rule that rests “essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness”.

The Model Rules state that "A practitioner, in all of the practitioner's dealings with other practitioners must take alt reasonable case to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language”

Lewis v His Honour Judge Ogden (1984) 153 CLR 682*

Robust action in front of a judicial officer is warranted and sometimes necessary.

At times allegation of bias and application for disqualification of a judicial officer is also required.

Contempt used only to protect integrity of court and proceedings not to protect the sensitivities of the judge.

The High Court considered whether a barrister should have been found guilty of contempt of the court for his address to the jury, in which he sought to redress an imbalance which – he perceived – had arisen from various comments made by the judge. The relevant legislation provided that a finding of contempt required the barrister to have wilfully insulted the judge, and the High Court concluded this to mean “‘intentionally’ or ‘deliberately’ in the sense that what is said or done is intended as an insult; it does more than negative the notion of "inadvertently" or "unconsciously", and imports the notion of purpose.

Discourtesy is disciplinary – Contempt is criminal

Prothonotary of the Supreme Court of New South Wales v Costello

The barrister was found guilty of professional misconduct for ‘calculated insult and insolence’ directed to wards the magistrate, and to another magistrate and three barristers on other occasions, which the NSW Court of Appeal described as a “style of advocacy designed to intimidate rather than persuade.”

Garrard v Emait Furniture Pty Ltd

Rudeness and discourtesy in court can amount to contempt of court. "Discourtesy is not limited to the tone of correspondence or the vigour of its language. Those members of the legal profession who seek to win a momentary advantage for their clients without observing the usual and proper courtesies invite correction by the court and the disapprobation of their colleagues

(e) Not to frustrate court process

Ex parte Bellanto: re Prior [1963] SR (NSW) 190*

The diatribe of the barrister appears to have been exercised in order for the jury to be discharged was held to be contempt and designed to frustrate the court process.  A deliberate manoeuvre of this kind, calculated to interfere with the due course of the trial, would amount to a contempt, even if it involves no insult to the judge.

Mechanical and General Inventions Co v Austin [1935] AC 346 at 359*

The barrister was held to have frustrated the court process by indefensibly conducting cross-examination of two witnesses, wherein the cross-examination was more than three times the duration of the original examination

Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201

Could be frustrating the court process by continued insults.

Interference with the proper administration of justice’ denotes the doing of something which, if successful, would bring about consequences in the working of the system of justice by improper means; whether conduct in court goes so far beyond a tolerable degree of heat and conflict as to constitute such interference will be a question of fact in each case.”  the barrister was found guilty of intimidating the court, rather than persuading it, in order to procure a finding in favour of his client

Kennedy v The Council of the Incorporated Law Institute of New South Wales (op. cit.) (McTierran J)

Suborning witnesses frustrates the court process.  Where the High Court stated that counsel may not interfere with the evidence of a witness

(f) To efficiently administer justice

Not to chase every rabbit down every hole Giarnelli.

Bar Rules, rr 41-42A

41. All nessasary work done must be done in a reasonable time and notice given if can not comply

42. Must confine work to the genuine issues, heard as soon as practicable, succinctly, with limited cross in shortest possible time.

(g) Responsible exercise of court process

As well, in Clyne, it was also affirmed that the protections which counsel enjoys must not provide a shield from which to abuse, attack or knowingly do harm by the introduction of irrelevant matters into court proceedings.

Bar Rules, rr 35-40

35. Allegations to be based on material in possession

36. A barrister must not allege any matter of fact unless a proper basis

37. Must not allege criminal actions unless material in support.  If the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

38. A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the witness’s credibility.