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WABA CPD WEEKEND

31 October 2009

PRESCRIPTIVE AND PROSCRIPTIVE DUTIES OF A BARRISTER

C. D Steytler

I propose to break down the duties owed by barristers into a number of categories. The

categorisation is to some extent arbitrary, and prone to overlapping, but it may be helpful.

Duty or duties owed to the administration of justice

The starting point, in a topic of this kind, should be acceptance of the proposition (acknowledged

in the opening rule of the Western Australian Bar Association (WABA) Conduct Rules and in

Rule 2.2(a) of the Law Society of WA Professional Conduct Rules (PCR)) that every lawyer owes

a fundamental duty, or duties, to the administration of justice.

Put in proscriptive terms, no lawyer should undermine the proper administration of justice. Put in

prescriptive terms, every lawyer should facilitate and advance the proper administration of

justice. The duty to the court consequently tends to be expressed in such a way as to emphasise

the public interest in preserving confidence in the administration of justice: Oceanic Life Ltd v

HIH Casualty & General Insurance Ltd [1999] NSWSC 292 [48] per Austin J.

What does the proper administration of justice encompass? Essentially, it involves taking steps

to ensure that our society is governed by law. It includes all aspects of the legal system that cause

people to understand and obey the law and to recognize and uphold rights and freedoms in their

dealings with others. It also involves the lawful quelling of disputes and the provision of an

accessible, efficient and just means of determining disputes that cannot be resolved by the

parties.

Society licenses lawyers to do the things they do upon the assumption that this will further, or at

least facilitate, that system. On admission, lawyers become officers of the court. They

consequently have a responsibility to honour the underlying assumption that has led to the grant

of their licenses.

The notion that lawyers are officers of the court is not empty rhetoric. If lawyers wish to

maintain that office, and the privileges that come with it, they are required to meet their

responsibilities. Eugene R Gaetke, an American academic (quoted in Nader and Smith, No

Contest, Random House, 1996, p xxi), said:

‘Lawyers like to refer to themselves as officers of the court. Careful analysis of the role

of the lawyer within the adversarial legal system reveals the characterisation to be

vacuous and unduly self-laudatory. It confuses lawyers and misleads the public. The

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profession, therefore, should either stop using the officer of the court characterization or

give meaning to it.'

In this State lawyers do not have the option of ceasing to use the characterization. It is imposed

by statute: s29 of the Legal Profession Act 2008. They are consequently obliged to give meaning

to it.

The duty owed to the administration of justice breaks into two sub-categories. The first of these

comprehends duties owed to the court. The second comprehends duties owed to the client. The

first category overrides the second in cases of conflict: Giannarelli v Wraith (1998) 165 CLR

543, 556-7, 578-9.

In R v Serrano [2007] VSC 208 [7], Kaye J described the primacy of the duty which counsel

owes to the court as being ' of great importance to the proper administration of justice '.

Because I am addressing the duties of a barrister, I will focus primarily on duties owed to the

court. However, I should, first, deal very briefly with some of the duties owed to the client.

Duties owed to the client

The more relevant of these, for present purposes (the choice and categorisation is somewhat

arbitrary), are fiduciary obligations owed to the client (in which I include the duty of

confidentiality) and the duty to ensure that the client is kept adequately informed.

I will deal with these in turn.

1. Fiduciary obligations owed to the client

For present purposes, relevant fiduciary obligations owed by a barrister to the client break down

into two sub-categories, as follows:

(a) A barrister should not, at least in the absence of informed consent, act in

circumstances of conflict between:

(i) duty and duty;

(ii) interest and duty.

(b) A barrister must maintain confidentiality, so far as this can be done consistently with

duties of disclosure.

I will deal briefly with each of these sub-categories.

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(1) Conflict of interest

Amongst the obligations resulting from the fiduciary nature of the lawyer/client relationship are

that the lawyer must avoid:

(i) any real sensible possibility of conflict between the duty to serve the interests of the

client and personal interest; and

(ii) any actual conflict between the duty to serve the interests of one client and the duty to

serve the interests of another;

unless the lawyer obtains the unfettered consent of all clients after full disclosure: Oceanic Life

[40] per Austin J; Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357;

Farrington v Rowe McBride & Partners [1985] 1 NZLR 83; WABA Conduct Rules 100-102;

PCR 7.1.

The second category of conflicts is sometimes referred to as the ‘duty of loyalty '.

Because both categories are well known and relatively well understood, I will not dwell on them,

other than by touching on five points, mentioned below.

(a) Professional embarrassment arising out of a decision to embark upon a course of action.

There is, in England, a rule which requires barristers not to accept any brief if to do so would

cause them to be professionally embarrassed. The rule provides that one circumstance of

embarrassment will be if the barrister has been responsible for deciding on a course of action and

the legality of that action is in dispute in the proceedings. This application of the rule, subject to

limited exceptions, is applicable in this State: see WABA Conduct Rule 93, quoted below.

(b) Incurring unnecessary costs

The second point is that it does not occur to all barristers that incurring unnecessary costs

amounts to a breach of fiduciary duties, but it does. That is because the lawyer has an interest in

earning additional fees and, if he or she unnecessarily indulges that interest at the expense of the

client, he or she will have acted in breach of the duty owed to the client to avoid unnecessary

expenditure.

The obvious means of incurring unnecessary costs is by doing unnecessary work, or even

unnecessary photocopying. But unnecessary costs can be incurred by arguing hopeless points or

taking on hopeless cases without advising the client of the hopelessness of the task. I will return

to this issue below.

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(c) Conflict with the interests of the instructing solicitor

Barristers have a responsibility even in the case of an undisclosed conflict between the interests

of the client and those of the instructing solicitor. WABA Conduct Rule 103 provides that:

'A barrister who believes on reasonable grounds that the interests of the client may

conflict with the interests of the instructing solicitor, or that the client may have a claim

against the instructing solicitor, must:

(a) advise the instructing solicitor of the barrister's belief; and

(b) if the instructing solicitor does not agree to advise the client of the barrister's

belief, seek to advise the client in the presence of the instructing solicitor of

the barrister's belief.'

(d) Disclosure

The fourth point relates to the requirement of disclosure.

The law ‘insists upon full candour and appropriately complete disclosure to the client before an

apparent conflict of interest and duty on the part of the solicitor [or counsel] will be excused’:

O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204, 208. The disclosure must

encompass both direct and indirect interests which the lawyer might have: Law Society of New

South Wales v Harvey [1976] 2 NSWLR 154, 171.

It is the lawyer who must prove the existence of informed consent: Official Assignee of Collier v

Creighton [1993] 2 NZLR 534, 537.

(e) A threat to the barrister’s immunity?

The fifth, and final, point relates to the barrister’s immunity from suit.

In Abriel v Rothman [2004] NSWCA 40, Cripps AJA, with whom Mason P and Santow JA

agreed, accepted that it was arguable that the barrister's immunity from suit does not extend to a

dereliction of duty consequent upon an undisclosed conflict of interest [27].

(2) Maintaining confidentiality

It is trite that the lawyer is ordinarily under a duty not to communicate to others information

which is confidential to an existing or former client: Prince Jefri Bolkiah v KPMG (a firm)

[1999] 2 AC 222, 227; Ismail-Zai v Western Australia [2007] WASCA 150 [26] (and see also

WABA Conduct Rules 95-102 and PCR 6 and 7.6).

The duty extends to ensuring that the former client is not at risk that confidential information

which the lawyer has obtained from that relationship may be used against him in any

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circumstances: Bolkiah 227; Ismail-Zai [26]. It protects every person's entitlement to seek and

obtain legal advice in the conduct of their affairs without the apprehension of being prejudiced

by any later breach of confidence: Newman v Phillips Fox (a firm) (1999) 21 WAR 309 [38] -

[41]; Ismail-Zai [26]. The judicial system could not function properly if doubt or suspicion

existed in the mind of the public that confidential information disclosed by a client to a lawyer

might be revealed: Macdonald Estate v Martin [1990] 3 SCR 1235, 1266.

Conflict with duties to the court

The duty of confidentiality, in common with most other duties owed to the client, is subject to

the duties owed to the court. One of these (dealt with below) is the duty of disclosure: Rondel v

Worsley [1969] 1 AC 191, 227. However, when the duty of confidentiality arises out of legal

professional privilege, that duty is paramount: R v Derby Magistrates’ Court [1996] AC 487; Re

L (A Minor) [1997] AC 16; Oceanic Life [47].

The Cox v Railton exception

There is an exception to this last principle. Under the so-called rule in Cox v Railton (1884) 14

QBD 153, the privilege does not extend to ‘communications, criminal in themselves, or intended

to further any criminal purpose’ (Stephen J, 167). This exception was approved in Derby

Magistrates’ Court, 507.

More recently, in Barclays Bank Plc v Eustice [1995] 1 WLR 1238, 1249, Schiemann L J said

that advice sought or given for the purpose of effecting ‘iniquity’ is not privileged. The word

‘iniquity’ seemingly encompasses fraud or misconduct demanding disclosure (to some-one

having a proper interest to receive it) in the public interest: Initial Services Ltd v Puterill [1968]

1 QB 396; Eustice, 1249.

The exception necessarily relates to present or future conduct. Past conduct is subject to the

privilege, unless advice is sought as to how to conceal past criminal conduct: O’Rourke v

Derbyshire [1920] AC 581, 613; Finers (a firm) v Miro [1991] 1 WLR 35, 40-41.

The exception, and the distinction between past and present conduct, is easy to state but can be

problematic in its application to the facts (for some examples of the case law, see the

comprehensive and lucid exposition by D A Ipp: Lawyers’ Duties to the Court (1998) 114 LQR

63, 71-78).

One example of a potentially problematic area is the question whether the exception not only

defeats the privilege, but might, in some circumstances at least, require disclosure: see Nix v

Whiteside 475 US 175 (1986) and the controversy generated by that case in the United States and

elsewhere (discussed by Ipp, 76, 77). Ipp reaches the following conclusion in this respect (page

77):

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‘Apart from in the USA, the courts have yet to resolve the question whether, and in what

circumstances, there is a positive duty on a lawyer to disclose information, imparted

pursuant to a professional confidence, that the client intends to commit a crime. In that

country it has been held that as a matter of policy, at least where the intended crime is

serious and violent, the lawyer has a duty as an officer of the court to make disclosure to

the relevant authorities. [See Hawkins v King County 24 Wn.App. 388, 602 P. 2d 361

(Wash. App., 1979)]. It is difficult to fault this reasoning.’

Physical evidence

There is also a question whether the privilege applies to physical evidence (apart from

documentary evidence created as part of a defence). In the USA it does not: Commonwealth v

Stenhach 356 Pa. Super. 5, 514 A 2d 114 (1986); app. denied, 517 Pa. 589,534 A 2d 769 (1987).

Ipp (78) suggests, with some force, that it would ordinarily be difficult to argue that the delivery

of incriminating evidence to a lawyer would have as its purpose the obtaining of legal advice. He

adds that, if the lawyer retains the evidence, it would be even harder to argue that the retention

was for any purpose other than unlawfully hindering the police investigation.

2. The duty to ensure that the client is kept informed

The second broad duty to the client that I mentioned above is that to ensure that the client is kept

adequately informed. For present purposes, I should address five particular aspects of this duty,

as follows.

(1) The issues

The first of these is that a barrister must ensure that the client has a sufficient understanding of

the case so as to understand the issues and the client's possible rights and obligations in respect

of them. The client must be in a position to give proper instructions, particularly in connection

with any compromise of the case: WABA Conduct Rule 16 and PCR 5.1, 5.2, 5.6, 11.1 and 11.3.

(For the obligations of a practitioner concerning disclosure of likely costs see PCR 11.3 and 18.)

(2) Alternatives to contested litigation

The second aspect is that a barrister must inform the client or the instructing solicitor about

reasonably available alternatives to contested litigation, unless these are already understood by

the client: WABA Conduct Rule 17A.

(3) Prospect of advantage in criminal cases

The third aspect relates to a client who is charged with a criminal offence. Unless circumstances

warrant otherwise, a barrister must advise the client about any law, procedure or practice which

holds out the prospect of some advantage (including diminution of penalty) if the client pleads

guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the

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proceedings: WABA Conduct Rule 17B. However, although a barrister may advise a client about

a plea in strong terms (where necessary), the client must be allowed complete freedom of choice

to make the plea: PCR 15.5.

(4) Advice on the question whether to give evidence

The fourth aspect is that counsel is ordinarily obliged (especially in criminal cases) to give

advice to a client concerning the question whether the client should give evidence. However, the

decision is one for the client (in criminal cases, see s144(3) of the Criminal Procedure Act 2004

and PCR 15.11 and see, generally, as regards the kind of advice to be given, R v Szabo 2000

QCA 194 [4]).

(5) After the case is over

The fifth aspect is that, unless there is good reason not to do so, a barrister must meet with the

client after conviction and sentence or ensure that counsel’s instructing practitioner or

representative does so: PCR 15.13.There is good reason to believe that the same is true after the

conclusion of a civil case.

Duties owed to the Court

That brings me to the duties that are owed to the court. I will deal only with those that I regard as

being the most important.

1. The duty to remain independent

It is convenient to start with the duty to remain independent.

In Holborow v Rudder [2002] WASC 265, Heenan J said:

‘If there are circumstances which are likely to imperil the discharge of ... duties to a court

by a legal practitioner acting in a cause, whether because of some prior association with

one or more of the parties against whom the practitioner is then to act, or because of some

conduct by the practitioner, whether arising from associations with the client or a close

interest which gives rise to the fair and reasonable perception that the practitioner may

not exercise the necessary independent judgement, the court may conclude that the

lawyer should be restrained from acting, even for a client who desires to continue his

service – Clay v Karlson (1997) 17 WAR 493; Wan v McDonald (1992) 33 FCR 491;

National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209; Afkos Industries

Pty Ltd v Pullinger Stewart [2001] WASCA 372.’

This duty can be broken into at least eight sub-categories, as follows:

(1) The duty comprehends an obligation not to act in circumstances of conflict between:

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(a) duty and duty

(b) interest and duty.

(2) Subject to limited exceptions, a barrister may not act when she or he will be a

witness.

(3) A barrister may not act when a close friend, family member, partner, business

associate or employee will be a witness.

(4) A barrister should generally avoid acting for a close friend, family member, partner,

business associates or employee.

(5) A barrister must exercise an independent forensic judgement.

(6) A barrister may not act when in a relationship with the opposing lawyer.

(7) A barrister may generally not appear before a family member in a contested hearing.

(8) A barrister should honour the cab rank rule.

I will deal with these in turn (combining categories (3) and (4) for the sake of convenience).

(1) Conflicts

Self-evidently, if there is a conflict between duty and duty or between interest and duty this will

impinge upon the independence of the barrister. I will not repeat what I have said in respect of

conflicts of this kind.

(2) Acting as a witness

As a general rule, a barrister must not act if it might reasonably be anticipated that he or she will

be required to give material evidence in proceedings encompassed by the brief: Jeffrey v

Associated National Insurance Co [1984] 1 Qd R 238, 245; Chapman v Rogers [1984] 1 Qd R

542, 545; Clay, 494-495; WABA Conduct Rule 74.

G E Dal Pont: Lawyers' Professional Responsibilities, 3rd ed, Law Book Company, 2006,

suggests a number of reasons for the rule ([17. 40]). Perhaps the most important of these is that

there is the prospect of conflict between interest and duty because the lawyer might be placed in

a position where his or her duty to the court, or his or her own interests, conflict with the duty

owed to the client. In Kallinicos v Hunt (2005) NSWLR 561 [87], Brereton J said:

'It is generally undesirable for a practitioner who is aware that he is likely to be called as

a witness, other than in relation to formal or non-contentious issues, to continue to act. If

a practitioner's credibility is at stake as a witness, his personal integrity may be put in

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issue and that may constitute a personal interest inconsistent with the practitioner's duty

to the court or to the client.'

(See also Bowen v Stott [2004] WASC 94.)

WABA Conduct Rule 93 provides that:

'A barrister who has reasonable grounds to believe that there is a real possibility that the

barrister may cease to be solely a disinterested advocate by becoming also a witness in

the case or a defender of the barrister’s own personal or professional conduct against

criticism must return the brief as soon as it is possible to do so without unduly

endangering the client's interests, unless:

(a) the barrister believes on reasonable grounds that:

(i) allegations which involve the barrister in that way have been raised in

order to remove the barrister from the case; and

(ii) those allegations can be met without materially diminishing the

barrister's disinterestedness; and

(b) a member of a Professional Conduct Committee of the Association who is

Senior Counsel approves of the barrister keeping the brief after the barrister

has informed that Senior Counsel of the circumstances.'

(3) Acting for those close to you or when those close to you will give evidence

If a close friend, family member, partner, business associate or employee will be a witness,

counsel’s impartiality will be in question and his or her independence will be undermined. The

same holds true where the close friend, family member, partner, business associate or employee

is the client. Dal Pont points out [17. 60] that, apart from issues of independence and objectivity,

lawyers who act for those close to them might be tempted to cut corners, accept work beyond

their competence, or be less exact with issues of professional responsibility.

(4) Independent forensic judgement

A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and

must exercise necessary forensic judgements independently, after considering the desires of the

client and the instructing solicitor, where practicable: WABA Conduct Rule 17.

(5) Relationship with the opposing lawyer

Obviously, if the opposing lawyer is a close family member, or in some other intimate

relationship with the barrister, independence will be undermined and there is an increased risk,

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for example, of breach of confidence or other breach of duty to the client. (See, for example,

Szabo, above, a case involving a relationship between defence counsel and the prosecutor.)

(6) Appearing before a family member in a contested hearing

WABA Conduct Rule 94 provides that:

‘A barrister must return a brief to appear in a contested hearing before the barrister's

parent, sibling, spouse or child or a member of the barrister's household, unless:

(a) the barrister learns of the identity of the person or persons constituting the

court so close to the hearing date that return of the brief would not give

another legal practitioner enough time to take over the case properly before

the hearing; and

(b) the barrister has sought to draw these circumstances to the court's attention so

as to permit the constitution of the court to be changed.

(7) The cab rank rule

WABA Conduct Rule 6 recognises that the provision of advocates for those who need legal

representation is better secured if there is a Bar whose members must accept briefs to appear

regardless of their personal prejudices and must not refuse briefs to appear except on proper

professional grounds.

Consequently, under WABA Conduct Rule 77 a barrister must accept a brief from a solicitor to

appear before a court in the field in which the barrister practices or professes to practice if:

(a) the brief is within the barrister's capacity, skill and experience;

(b) the barrister would be able to work as a barrister when the brief would require the

barrister to appear or to prepare and the barrister is not otherwise engaged;

(c) the fee offered on the brief is acceptable to the barrister; and

(d) the barrister is not obliged or permitted to refuse the brief under Rules 84, 87 or 88.

Rule 84 provides that a barrister may regard the current listing of a solicitor by the Bar

Association as one who has failed to pay another barrister's fee without reasonable excuse as a

reasonable ground for doubting that his fee will be paid reasonably promptly or in accordance

with the costs agreement, thereby entitling him to refuse the brief.

Rule 87 deals with a situation in which the barrister returns a brief to appear in order to accept

another:

(a) with the consent of the instructing solicitor or client;

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(b) who has been told of

(i) the circumstances in which the barrister wishes to return the brief; and

(ii) the terms of Rule 87 and of Rule 91.

Rules 83, 84, 88, 91 and 92 deal with the circumstances in which a barrister may return a brief .

The circumstances in which a barrister must refuse a brief are listed in WABA Conduct Rules 79

– 82.

Rules 85 and 86, which deal with return of a brief in a case involving a serious criminal offence,

will be dealt with later.

2. The duty not to abuse the process.

The duty not to abuse the process of the court is a broad proscription. The reasons for it are

obvious. The integrity of the adversarial process requires lawyers, who are integral to that

process, not to abuse it. Because the circumstances in which the court’s processes might be

abused vary greatly, there is no fixed category of behaviour amounting to abuse: Hunter v Chief

Constable of the West Midlands Police [1982] AC 529, 536. However, three aspects of the

proscription are especially important. I will deal with these in turn.

(1) A barrister must not use the court’s processes for an ulterior purpose

The first, and most obvious, of these is the proscription against using the court's processes for an

ulterior purpose.

Prime examples of this are cases in which lawyers use litigious procedures for reasons

unconnected with success in the litigation, or those which are pursued notwithstanding that they

are known by the lawyers to be dishonest.

The best-known case in the former respect is White Industries (Qld) Pty Ltd v Flower and Hart

(a firm) (1998) 156 ALR 169 (affirmed (1999) 87 FCR 134 (FC)). In that case, the facts of which

are well known, the court held that the unreasonable initiation or continuation of an action

having no, or no substantial, chance of success might amount to a breach of duty. This is because

conduct of that kind involves either a deliberate conscious decision taken by reference to

circumstances unrelated to the prospects of success, with either a recognition that there is no

chance of success but an intention to use the proceedings for an ulterior purpose, or with a

disregard of any proper consideration of the prospects of success. The court held, also, that a

lawyer might be liable to a costs order where his or her conduct amounts to an abuse of process

of the court, in the sense that court proceedings and procedures have been used for a purpose

unrelated to the objectives which those processes are designed to achieve. (See also R v Weisz

[1951] 2 KB 611).

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The pursuit of a claim or defence that is doomed to fail will not always amount to an abuse. In

White Industries, Goldberg J said that a party is entitled to have a lawyer act for him or her even

in an unmeritorious case. He referred to Ridehalgh v Horsefield (1994) Ch 205 at 233-4. In that

case, the distinction was drawn between the presentation of a case, on instructions, which

counsel regards as bound to fail, on the one hand, and, on the other, the lending of assistance to

proceedings which are an abuse of the process of the court. The court went on to say:

‘Whether instructed or not, a legal representative is not entitled to use litigious processes

for purposes for which they were not intended, as by issuing or pursuing proceedings for

reasons unconnected with success in the litigation or pursuing a case known to be

dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as

by knowingly failing to make full disclosure on an ex parte application or knowingly

conniving an incomplete disclosure of documents. It is not entirely easy to distinguish by

definition between the hopeless case and the case which amounts to an abuse of the

process, but in practice it is not hard to say which is which and if there is doubt the legal

representative is entitled to the benefit of it.’

Dal Pont [17.195], after referring to some of the more recent cases (including CT Bowring & Co

(Insurance) Ltd v Corsi Partners Ltd [1994] 2 Lloyd’s Rep 560, 580 and Ashby v Russell [1997]

ANZ Conv R 321, 323), summarises the position as follows:

‘A lawyer who, as a result of her or his enquiries, decides that no good cause of action

exists must advise the client not to proceed. The challenge is to distinguish cases that are

weak but arguable from those that are destined to failure. A lawyer may legitimately

represent a client in the former type of action – provided, of course, that the client is

informed of the weakness of the case and the likely consequences of pursuing the matter

– but not in the latter (Re Cooke (1889) 5 TLR 407 at 408 per Lord Esher MR). So a

lawyer may ethically put forward a claim or an argument based upon a good faith

argument for an extension, modification or reversal of existing law (A159 of 2002 v

Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1087 at

[23] per Selway J) but, as explained by Davies JA in Steindl Nominees v Laghaifar

[2003] 2 Qd R 683 at [24]:

“[I]t is one thing to present a case which is barely arguable (but arguable

nevertheless), but most likely to fail; it is quite another to present a case which is

plainly unarguable and ought to be so to the lawyer who presents it. In my

opinion, ... it is improper for counsel to present, even on instructions, a case which

he or she regards as bound to fail because, if he or she so regards it, he or she

must also regard it as unarguable.”’

In Steindl Nominees Davies JA (with whom Williams JA and Philippides J agreed) went on to

say [27]:

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‘If it is counsel's duty to exercise his or her own independent judgement upon which

points will be argued it must also be his or her duty, in the exercise of that judgement, to

decide whether there is any point which can be argued. Greater care must be taken, in

judging the conduct of a lawyer for a party in litigation, where the arguability of that

party's case depends on a question of fact than where it depends on a question of law, for

it is not for counsel or solicitor to sit in judgement on the reliability of his or her client's

witnesses. Nevertheless the question, in my opinion, is the same whether it depends on

fact or law. If the case is plainly unarguable it is improper to argue it. '

In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18,

Mansfield J referred to what had been said by Davies JA at [27] with apparent approval. He went

on to say [13] that, for present purposes, it was sufficient for him to know that he was bound to

follow the decision of the Full Court of the Federal Court in Levick v Commissioner of Taxation

[2000] FCA 674; (2000) 102 FCR 155, which had expressly adopted the principles referred to by

Goldberg J in White Industries, in turn relying upon the Court of Appeal in Ridehalgh.

Ipp, 80, suggests that it would be a breach of the duty to the court for a lawyer to put his or her

name to a notice of appeal which is manifestly hopeless, or which the lawyer knows or ought to

know is being advanced merely to take advantage of the time lag between the lodging of the

notice of appeal and the listing of the case for a full hearing where the intention is to postpone

payment or to force the respondent to accept a lower sum in settlement.

The criterion for determining whether or not there has been an abuse is the ‘predominant purpose

of the moving party’: Williams v Spautz (1991) 174 CLR 509, 529; Attorney-General (NSW) v

Spautz [2001] NSWSC 66 [19].

If proceedings 'are used as a stalking-horse for extortion or merely as an instrument for vexation

and oppression', there will be an abuse of process: Williams v Spautz 543, per Deane J; Attorney-

General (NSW) v Spautz [19] and see also WABA Conduct Rule 35.

(2) A barrister must not make serious allegations without taking reasonable steps to verify

them

The second aspect that seems to me to be of particular significance is the obligation not to make

serious allegations without a sufficient evidentiary foundation: Strange v Hybinett [1988] VR

418; WABA Conduct Rules 35 and 37.

Not only must the barrister not himself or herself make allegations of this kind, but he or she

must not be a party to the making by a client of allegations of this kind: Rondel v Worsley, 227;

NZ Social Credit Political League Inc v O'Brien [1984] 1 NZLR 581, 586.

Dal Pont ([17. 170]) refers to an unreported case (Thatcher v Douglas, The Times, 8 January

1996) in which the English Court of Appeal held that, when faced with a client who insisted that

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counsel air unfounded allegations of bias and corruption against the trial judge, counsel should

either have refused to act on those instructions or withdrawn from the case.

In Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244, the court (Ashley, Redlich JJA

and Coghlan AJA) said:

'An allegation of fraud, when there is no factual basis for it, constitutes a serious

dereliction of duty and misconduct by counsel ... Whilst counsel has a duty to his client

and to his opponent, his paramount duty is to the Court and to truth and justice ... The

obligation not to mislead the Court or cast unjustifiable aspersions on any party or

witness arises as part of this duty. In the discharge of that duty, counsel must exercise an

independent discretion or judgement to ensure that the conduct of their client's case is in

accordance with the dictates of the administration of justice ... Where counsel alleges

criminal conduct or some lesser but serious discreditable misconduct against a witness or

party without a proper foundation to do so, counsel is in breach of that paramount duty,

such conduct being viewed as an abuse of process for which counsel can be sanctioned.'

In Strange, 423-4, Gray J quoted the following passage from a book written by Lord McMillan

(Law and Other Things, pages 191-2):

‘It is no small responsibility which the State throws upon a lawyer in thus confiding to his

discretion the reputation of the citizen. No enthusiasm for his client's case, no specious

assurance from his client that the insertion of some strong allegations will coerce a

favourable settlement, no desire to fortify the relevance of his client's case, entitles the

advocate to trespass, in matters involving reputation, a hair's breadth beyond what the

facts as laid before him and duly vouched and tested will justify.’

Gray J also pointed out that the barrister's complete immunity from liability for defamation in

exercising a right of audience carries with it a corresponding duty to ensure that the privilege is

not abused [34].

The proscription against making unfounded allegations applies to both pleadings and

presentation of the case in court. For an example of the latter kind see Clyne v New South Wales

Bar Association (1960) 104 CLR 186.

(3) A barrister must not unnecessarily damage third parties.

The third aspect goes hand in hand with the second. When a third person's reputation will be

damaged if named unnecessarily in circumstances in which that person has no opportunity to

answer allegations made against him or her, the person should not be named or, if naming is

essential, the court should be asked to receive evidence of the name confidentially. (See, in

criminal cases, WABA Conduct Rule 40.)

15

3. Duty of candour

Legal practitioners owe a duty of candour to the court: In Re Davis (1947) 75 CLR 409, 417,

426.

Lack of candour by a practitioner may lead to the conclusion that the practitioner is not a fit and

proper person to remain on the roll. The existence of the duty is essential to ensure that counsel

may 'command the personal confidence ... of other members of the Bar and of judges': In re

Davis, 420; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004]

NSWCA 470, [50]. It is also essential so that the court may hold out legal practitioners to

members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the

Supreme Court of New South Wales (1957) 97 CLR 279, 290.

In McCaffery, [53], McColl JA, with whom Sheller and Beazley JJA agreed, said that it was

impossible to overstate the confidence which courts must be able to place in the candour of legal

practitioners who appear before them.

In Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62, Sheller JA,

with whom Mason P and Giles JA agreed, said [101] (in a passage applicable to barristers and

solicitors alike):

'The solicitor's duty is to be faithful to the oath of office, to the courts, to fellow

practitioners and most importantly to the clients ... who should be able confidently to

expect that the solicitor will honour the obligation and responsibility imposed by the

relationship of solicitor and client. The sworn duty is a public duty. The administration of

justice depends in a large measure on the trust the courts and the public place in those

who practice the law.'

As with some of the other duties, the duty of candour encompasses a multitude of obligations. It

is consequently unwise to attempt a comprehensive list of sub-categories. However, there are

several well recognised aspects of the duty. I will touch on some of these.

(1) The duty of disclosure generally

Aspects of the duty of disclosure have been touched upon when dealing with the duty of

confidentiality to the client. I have said that, ordinarily (privilege aside), the duty of disclosure

trumps the duty of confidentiality.

The fact that the duty of disclosure is imposed in the context of an adversarial system of justice

necessarily places some limits on it. Barristers may not do anything which actively misleads, but

they do not, for example, have to disclose to their opponent the identity of an adverse witness (In

re G Mayor Cooke (1889) 5 TLR 407, 408) or call every available witness who can give relevant

evidence (Clayton Robard Management Ltd v Siu (1987) 6 ACLC 57).

16

Ipp, 68-71, discusses some of the difficulties that might arise in determining when positive

disclosure might be required. He refers, in particular, to Vernon v Bosley (No 2) [1997] 3 WLR

683, in which it was held by a majority that, when counsel learns that his client (the plaintiff) has

given inconsistent evidence in other proceedings to which the defendant was not a party, he has a

positive obligation to disclose this, as the court will otherwise be misled. In that case, the later

inconsistent evidence revealed that the plaintiff had substantially recovered from post traumatic

shock that had been relied upon, when claiming damages, in the course of his earlier evidence.

Ipp suggests that Vernon v Bosley (No 2) is an instance of 'the growing trend of courts to require

cases to be determined in accordance with the objective "truth" rather than on evidence used

solely for reasons of perceived tactical advantage'.

(2) A barrister must not knowingly plead false facts.

One aspect of the duty of candour (or of the duty of disclosure, or of that not to abuse the court

process) is the requirement that a barrister should not knowingly plead false facts. The

proscription is one of long standing. In Great Australian Gold Mining Co v Martin (1877) 5 Ch

D 1 at 10, it was said that counsel’s signature on a pleading is a ‘voucher that the case is not a

mere fiction’. (See also WABA Conduct Rule 36(a).)

Ipp (81,82) deals with this at some length. He provides three examples of what he regards as

impermissible conduct:

‘The first is where a critical fact, essential to the plaintiff's cause of action, is known by

the defendant to be true, but it is not admitted because proof of that fact requires the

calling of a witness who can only be found and brought to testify after considerable delay

and expense.

The second is a case in which counsel for the defendant, knowing that the plaintiff will

only be able to prove a fact (which the defendant knows to be true) by calling a witness

who counsel for the defendant wants to cross-examine, does not admit the fact in

question so as to enable that cross-examination to take place.

The third is where the plaintiff's counsel, knowing that a particular cause of action must

fail, nevertheless pleads it in order to gain a tactical advantage, for example, by placing

facts before the court that are thought to be likely to excite the sympathy of the judge.’

(3) A barrister must not knowingly submit false documents to the court.

It is obvious that no lawyer should ever knowingly submit a false document to the court. This

obligation encompasses a duty not to be a party to an affidavit containing any kind of misleading

statement. In Kyle v Legal Practitioner's Complaints Committee (1999) 21 WAR 56 at 60, Ipp J

said:

17

‘Lawyers may not, consistently with their ethical duties and duties to the court, prepare and

file affidavits known by them to be perjured, whether the affidavits are made by their clients

or by other witnesses ... In England, the ethical rule is that lawyers should not produce

witness statements that they know to be false or where they know that the witness does not

believe the statement to be true in all respects. Further, if, after filing a witness statement, a

lawyer is put on enquiry as to the truth of the facts stated in the statement, the lawyer should,

where practicable, check whether those facts are true. If the lawyer then discovers that the

witness statement which has been served is incorrect, the lawyer must inform the other

parties immediately ...In my view this rule reflects the duties that lawyers in this country owe

to the court.’

(4) A barrister most not mislead the court regarding the law or the facts.

The duty not to mislead the court (as to which see PCR 14.2) is both proscriptive and

prescriptive. Not only must the lawyer not be party to any active misleading of the court (or to

the making of any submission alleging a matter of fact unless the barrister reasonably believes it

has a proper basis: WABA Conduct Rule 36), he or she must correct any misapprehension under

which, to his or her knowledge, the court is labouring.

For example, a barrister must inform the court of any misapprehension concerning the effect of

an order it is making: WABA Conduct Rule 31. PCR 15.9 requires counsel to inform the court of

any procedural irregularity of which they become aware before the return of a verdict in a

criminal case (see also R v Tripodina (1988) 35 A Crim R 183, 191). A barrister must also

correct a misleading statement made by her to the court as soon as possible after she becomes

aware that the statement was misleading: WABA Conduct Rule 21.

A barrister is also required to correct any express concessions made to the court in civil

proceedings by the opponent in relation to any material fact, case law or legislation:

(a) which the barrister knows, or believes on reasonable grounds, was contrary to what

should be regarded as the true facts or the correct state of the law; and

(b) in the case of a concession as to fact, which the barrister believes was made by the

opponent by reason of a mistake.

(WABA Conduct Rule 22).

In Kyle, at 73, Parker J said:

‘The duty of counsel not to mislead the court in any respect must be observed without

regard to the interests of counsel or of those whom the counsel represents. No

instructions of a client, no degree of concern for the client's interests, can override the

duty which counsel owes to the court in this respect. At heart, the justification for this

18

duty, and the reason for its fundamental importance in the due administration of justice, is

that an unswerving and unwaverable [sic] observance of it by counsel is essential to

maintain and justify the confidence which every court rightly and necessarily puts in all

counsel who appear before it.’

It is settled that lawyers ‘must do what they can to ensure that the law is applied correctly to the

case’: Re Gruzman (1968) 70 SR (NSW) 316, 323 (CA). This means that they cannot

misrepresent the law: Clyne, 200; R v S (F) (2000) 144 CCC (3d) 466, [30]. Consequently,

lawyers are obliged to 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,

which the barrister has reasonable grounds to believe to be directly in point, against the client's

case (WABA Conduct Rule 24 and see also PCR 14.5).

Dal Pont, 383, suggests that the obligation in Western Australia might be broader than that

imposed by rules in other jurisdictions because it could, in an appropriate case, encompass

foreign case law. The obligation endures until final judgement is given: WABA Conduct Rule 27.

Half-truths, whether of law or fact, plainly have the ability to mislead the court. In Re Thom

(1918) 18 SR (NSW) 70, 74 -75, Cullen CJ said:

‘It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is

in fact misleading by considering that the deponent is not under any obligation to make a

complete disclosure. By this means 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 to

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.’

(See also Meek v Fleming [1961] 2 QB 366 and R v Rumpf [1988] VR 466,472.)

If a barrister knows that his or her client has committed or procured perjury in the course of the

proceedings, he or she must either notify the court (with the consent of the client) or withdraw (if

no consent is given). This is the effect of WABA Conduct Rule 32, which provides that:

19

'A barrister whose client informs the barrister during a hearing or after judgement or

decision is reserved and while it remains pending, that the client has lied to the court or

has procured another person to lie to the court or has falsified or procured another person

to falsify in any way a document which has been tendered:

(a) must refuse to take any further part in the case unless the client authorises the

barrister to inform the court of the lie or falsification;

(b) must promptly inform the court of the lie or falsification upon the client

authorising the barrister to do so; but

(c) must not otherwise inform the court of the lie or falsification.'

(5) A barrister must be especially candid in ex parte applications.

An application should never be brought ex parte unless this is essential. Where it is essential,

there is an obligation to be especially candid. Isaacs J, in Thomas A Edison v Bullock (1912) 15

CLR 679, 682, said that, in order to satisfy the duty, the applicant must supply:

'the place of the absent party to the extent of bringing forward all material facts which

that party would presumably have brought forward in his defence to that application.'

In Lindholdt v Meritt Madden Printing Pty Ltd [2002] FCA 260, [45], Weinberg J said:

'A party who applies ex parte for an order in the exercise of judicial or quasi-judicial,

power is required to meet a high standard of candour and responsibility in bringing to the

attention of the decision-maker all facts material to the determination of the application.

This obligation extends to facts which the absent party (if present) would presumably rely

upon in defence to the application. The existence of such a duty of candour is not limited

to applications to the court for injunctive or equitable relief. An order obtained in breach

of an ex parte applicant's duty of candour will almost invariably be set aside even if, on a

fresh application following full disclosure, the applicant would be entitled to an order in

similar terms.'

(See also Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 676 - 678.)

WABA Conduct Rule 23 provides that:

'A barrister seeking any interlocutory relief in an ex parte application must disclose to the

court all matters which:

(a) are within the barrister's knowledge;

(b) are not protected by legal professional privilege; and

20

(c) the barrister has reasonable grounds to believe would support an argument

against granting the relief or limiting its terms adversely to the client.'

(See also Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71, 88; Bell

Group NV (in liq) v Aspinall (1998) 19 WAR 561; Orpen v Tarantello [2009] VSC 143 [48].)

In Orpen [27], Beach J summarised the relevant principles as follows:

(a) ‘First, the duty owed by a plaintiff seeking an ex parte order is to place before the

court all material facts and matters.

(b) Secondly, the duty is an absolute one, owed to the court.

(c) Thirdly, the disclosure of all material facts must be both full and fair.

(d) Fourthly, it is no excuse for a plaintiff to say he was not aware of the importance of a

particular material fact.

(e) Fifthly, a party fails in this obligation ' unless he supplies the place of the absent party

to the extent of bringing forward all the material facts which that party would

presumably have brought forward in his defence to that application '.

(f) Sixthly, materiality is to be decided by the court, and not by the assessment of the

plaintiff or his legal advisers.

(g) Seventhly, a plaintiff must disclose any defence he has reason to anticipate may be

advanced. A high standard of candour and responsibility is required of those who

seek ex parte orders.’

These principles were adopted by Applegarth J in Heartwood Architectural Timber and Joinery

Pty Ltd v Redchip Lawyers [2009] QSC 195 [30].

The duty is one to disclose not only material facts that are known to the applicant, but also those

which would have been known if she had made reasonable enquiries. There is nothing

unreasonable about this requirement. An applicant should make proper enquiries before bringing

the application: Bank Mellat v Nikpour [1985] FSR 87. What will amount to proper enquiries

depends upon the circumstances, including the nature and effect of the orders sought and the

time available for preparation, given the degree of urgency of the application: Columbia Picture

Industries Inc v Robinson [1987] Ch 38; Bank Mellat, 92 - 93; Brink’s Mat Ltd v Elcombe [1988]

1 WLR 1350, 1356 -7; Parola v Parola [2009] WASC 190, [45].

In order to be material, a fact does not have to be one that would cause the application to be

refused: Heartwood Architectural Timber and Joinery [32]. In Siporex Trade SA v Comdel

Commodities Ltd [1986] 2 Lloyd's Rep 428, 437, Bingham J said that an applicant must disclose

‘all facts which reasonably could or would be taken into account by the Judge in deciding

whether to grant the application'. He went on to say:

21

'It is no excuse for an applicant to say that he was not aware of the importance of matters

he has omitted to state. If the duty of full and fair disclosure is not observed the court

may discharge the injunction even if after full enquiry the view is taken that the order

made was just and convenient and would probably have been made even if there had

been full disclosure.'

A similar duty is owed to the court by a party making a claim for public interest immunity. It

must bring all facts relevant to the application to the attention of the court: P Dawson Nominees

Pty Ltd v Australian Securities and Investments Commission (2009) 255 ALR 466.

4. Duty not to corrupt the administration of justice

The duty not to corrupt the administration of justice, too, has a number of aspects. I will deal

with some of the more important of these.

(1) A barrister must not impair the integrity of evidence.

The integrity of evidence can be impaired by, amongst other things:

(a) conferring with witnesses together;

(b) coaching witnesses;

(c) intimidating, coercing or otherwise tampering with witnesses;

(d) asserting property in a witness; or

(e) communicating with a witness during cross-examination.

(a) Group preparation

An American text on trial advocacy (E Low: 'How to Prepare and Try a Negligence Case')

recommends group preparation of witnesses. It suggests (70 -71) that:

'Use of the group method makes for a united front, a dovetailing of testimony, and a

uniformity of narration. Each witness sees the case as a whole and the role that he is to

play in it. It brings out errors in perception, faulty observations and improper judgements.

It sharpens and refreshes recollections, and thus eliminates the danger of one witness

needlessly contradicting another.’

It is these very advantages that make this practice unethical. WABA Conduct Rule 45 provides

that:

'A barrister must not confer with, or condone another legal practitioner conferring with,

more than one lay witness (including a party or client) at the same time, about any issue:

22

(a) as to which there are reasonable grounds for the barrister to believe it may be

contentious at a hearing;

(b) which could be a affected by, or could affect, evidence to be given by any of

those witnesses;

unless the barrister believes on reasonable grounds that special circumstances require

such a conference.’

WABA Conduct Rule 46 provides that Rule 45 will not have been breached by conferring with, or

condoning another legal practitioner conferring with, more than one client about undertakings to

a court, admissions or concessions of fact, amendments of pleadings or compromise.

(b) Coaching witnesses

WABA Conduct Rules 43 and 44 provide that:

‘43. A barrister must not suggest or condone another person suggesting in any way to any

prospective witness (including a party of the client [sic]) the content of any particular

evidence which the witness should give at any stage in the proceedings.

44. A barrister will not have breached Rule 43 by expressing a general admonition to tell

the truth, or by questioning and testing in conference the version of evidence to be given

by a prospective witness, including drawing the witness’s attention to inconsistencies or

other difficulties with the evidence, but must not coach or encourage the witness to give

evidence different from the evidence which the witness believes to be true.'

These rules can give rise to grey areas.

For example, most would agree that Rule 43 is breached by a barrister who shows a witness a

transcript of what that witness has previously said in related proceedings, shows the witness a

transcript of what has been said by someone else, shows the witness a number of related

documents and then asks the witness what the witness has to say on the topic. An unscrupulous

witness would take this to be an invitation to commit perjury.

But is there any difference between that process and one of asking the witness first to give his

recollection, then showing the witness the relevant documents and transcripts and asking the

witness whether, his memory having been jogged, his recollection is now different?

Much, of course, depends upon the way in which this is done. If it is done in a manner which

makes clear that there is no invitation to commit perjury or to tailor evidence, the rule would not

be breached. As Rule 44 makes plain, there is nothing wrong with drawing the witness's attention

to inconsistencies or other difficulties with her evidence (counsel is obliged to do so, in most

cases), so long as the witness is not coached in that process.

23

A good (or bad) example of coaching is provided by the book, 'Anatomy of a Murder’, written

by a justice of the Supreme Court of Michigan under a pseudonym. In the book, a lawyer

describes his meeting with a client as follows:

'I paused and lit a cigar. I took my time. I had reached a point where a few wrong answers

to a few right questions would leave me with a client -- if I took his case -- whose cause

was legally defenceless. Either I stopped now and begged off ... or I asked him the few

fatal questions and let him hang himself. Or else, like any smart lawyer, I went into the

Lecture ...

And what is the Lecture?

The Lecture is an ancient device that lawyers use to coach their clients so that the client

won't know he has been coached and his lawyer can still preserve the face-saving illusion

that he hasn't done any coaching. For coaching clients, like robbing them, is not only

frowned upon, it is downright unethical ... Hence the Lecture, an artful device as old as

the law itself, and one used constantly by some of the nicest and most ethical lawyers in

the land. “Who, me? I didn't tell them what to say ', the lawyer can later comfort himself.'

I merely explained the law, see.” It is a good practice to scowl and shrug here and add

virtuously: “That's my duty, isn't it?”’

In that scene, the lawyer explains to the client that there are four ways to defend a charge of

murder under Michigan law and then suggests that the client’s only hope is to have a legal

excuse for the killing. The client slowly begins to understand that a form of temporary impaired

mental capacity may be his only defence. At the end of the interview, the lawyer advises his

client, 'See if you can remember just how crazy you were. '

(See, generally, Prof G Hazard, The Law and Ethics of Lawyering, 2nd ed, Foundation Press

(1994), 444 and Applegate (1989) 68 Texas Law Review 277.)

(c) Intimidating , coercing or tampering with witnesses

Obviously, it would be unethical for a barrister to intimidate or coerce a witness into giving

evidence (or not giving evidence) of a particular kind or to tamper in any way with the evidence

of a witness.

(d) Asserting property in a witness

It is commonly said that there is no property in a witness. This means that neither party has the

sole right to call, or discuss a case with, a witness.

Dal Pont 392, says that the general rule that the lawyer may confer with any witness who is

willing to see her or him, whether or not that witness is to be called by the opposing party,

applies even to expert witnesses: Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1

24

WLR 1380, 1386, 1387; Wimmera Industrial Metals Pty Ltd v Iluka Midwest Ltd [2002] FCA

653, [46]; (and see also Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty

Ltd [2005] WASC 255).

The lawyer is entitled to tell a prospective witness that the witness need not agree to be

interviewed by the opposing party. However, the lawyer must not discourage the witness from

doing so: WABA Conduct Rules 48 and 49.

(e) Communicating during cross-examination

WABA Conduct Rule 47 provides that:

'A barrister must not confer with any witness (including a party or client) called by the

barrister on any matter related to the proceedings while that witness remains under cross-

examination, unless:

(a) the cross-examiner has consented beforehand to the barrister doing so; or

(b) the barrister:

(i) believes on reasonable grounds that special circumstances (including

the need for instructions on a proposed compromise) require such a

conference;

(ii) has, if possible, informed the cross-examiner beforehand of the

barrister's intention to do so; and

(iii) otherwise does inform the cross-examiner as soon as possible of the

barrister having done so.

(See also PCR 14.10.)

(2) A barrister must not assist the client to disobey a court order.

Under WABA Conduct Rule 34:

'A barrister whose client informs the barrister that the client intends to disobey a court's

order must:

(a) advise the client against that course and warn the client of its dangers;

(b) not advise the client how to carry out or conceal that course; but

(c) not inform the court or the opponent of the client's intention unless:

(i) the client has authorised the barrister to do so beforehand; or

25

(ii) the barrister believes on reasonable grounds that the client's

conduct constitutes a threat to any person's safety.'

(3) A barrister must not otherwise connive at improper or dishonourable conduct.

There is a general duty owed by counsel not to assist in any way in dishonourable or improper

conduct. Some aspects of this have already been considered under other headings.

The duty applies to conduct both in and out of court: R v Sweezy (1988) 39 CCC 182; Ipp, 89. An

obvious example is the swearing of an untrue affidavit of documents: Myers v Elman [1940] AC

282, 293, or, for that matter, an untrue affidavit of any kind.

As a general proposition, lawyers should do nothing to further conduct involving financial

impropriety: Ipp, 90; Lipkin Gorman v Karpnale Ltd [1991] AC 548.

Nor should lawyers attempt to mislead their opponents in the course of settlement negotiations.

WABA Conduct Rule 50 requires a barrister not to knowingly make a false statement to the

opponent in relation to the case (including its compromise). Moreover, a barrister is required to

correct a false statement unknowingly made to the opponent as soon as possible after the

barrister becomes aware that the statement was false: WABA Conduct Rule 51.

WABA Conduct Rule 33 deals with the situation in which a barrister, briefed to appear in

criminal proceedings, is faced with a confession of guilt by a client who insists on maintaining a

plea of not guilty. The rule provides that in such a case the barrister:

(a) may return the brief, if there is enough time for another legal practitioner to take

over the case properly before the hearing, and the client does not insist on the

barrister continuing to appear for the client;

(b) in cases where the barrister keeps the brief for the client:

(i) must not falsely suggest that some other person committed the offence

charged;

(ii) must not set up an affirmative case inconsistent with the confession; but

a. may argue that the evidence as a whole does not prove that the

client is guilty of the offence charged;

b. may argue that for some reason of law the client is not guilty of

the offence charged; or

c. may argue that for any other reason not prohibited by (i) and

(ii) the client should not be convicted of the offence charged.

26

(See also PCR 15.4)

5. Duty to preserve the appearance of integrity in the administration of justice.

A barrister must not create the appearance that she or he will get favourable treatment from the

court, whether by fraternising or giving the appearance of doing so, making private jokes, or the

like: WABA Conduct Rule 60; Dal Pont [17.160] and see also PCR 14.11 and 14.12.

Nor should a barrister do anything that might reasonably give the impression that he is able to

communicate information about the proceedings to the judge independently of the other parties

or their counsel. A barrister should consequently not appear in a case in which her relationship

with the court might prejudice the appearance of the impartial administration of justice: Dal Pont

[17.160].

6. Duty to conduct the case fairly, reasonably and with due regard to the client and the

court.

There are, once again, many aspects to this duty. I will address some of them.

(1) A barrister must take all points deserving consideration.

Although counsel must take all points that are worthy of consideration, this duty is tempered by

the obligation not to waste time and money by undertaking a hopeless case.

The classic formulation of the duty was once that of Bramwell B in Johnson v Emerson (1871)

LR 6 Ex 329, 367, as follows:

‘A man’s rights are to be determined by the court, not by his attorney or counsel. It is for

the want of remembering this that foolish people object to lawyers that they will advocate

a case against their own opinions. A client is entitled to say to his counsel, “I want your

advocacy, not your judgment, I prefer that of the court”.’

(See also Abraham v Jutsun [1963] 1 WLR 658,663; Tombling v Universal Bulb Co Ltd [1951] 2

TLR 289,287.)

Times have changed.

As will be apparent from the cases to which I have referred when dealing with the use of the

court’s processes for an ulterior purpose, counsel must exercise an independent judgment and is

not at liberty to argue a hopeless case (or points) urged on her or him by the client.

In Ashmore v Corporation of Lloyd's [1992] 1 WLR 446, 453, Lord Templeman said:

' It is the duty of counsel to assist the judge by simplification and concentration and not to

advance a multitude of ingenious arguments in the hope that out of 10 bad points the

judge will be capable of fashioning a winner.'

27

WABA Conduct Rules 18 and 19 provide that:

‘18. A barrister will not have breached the barrister's duty to the client, and will not have

failed to give reasonable consideration to the client's or the instructing solicitor's desires,

simply by choosing, contrary to those desires, to exercise the forensic judgements called

for during the case so as to:

(a) confine any hearing to those issues which the barrister 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.

19. A barrister must not make any 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 barrister's personal opinion on the merits of that evidence or issue.'

The ‘hopeless case rule’ applies with less rigour in criminal proceedings, if it applies at all. Dal

Pont suggests three reasons for this (403):

(a) the State, not the defendant, institutes the proceedings;

(b) it is for the prosecution to establish the guilt of the defendant beyond reasonable

doubt; and

(c) the client has the sole right whether to plead guilty or not guilty.

(2) A barrister must not waste time and money

Allied to the duty not to take on hopeless cases is the wider duty not to waste time and money in

court proceedings (see PCR 14.4(2)). In Wollongong City Council v FPM Constructions Pty Ltd

[2004] NSWSC 532, [54], Einstein J said that counsel had an ‘ethical and general obligation …

to carry out their best endeavours in any civil litigation to achieve a just, quick and cheap

resolution of the proceedings’. (See also Saif Ali v Sydney Mitchell & Co [1980] AC 198; Unioil

International Pty Ltd v Deloittes Touche Tohmatsu (No 2) (1997) 18 WAR 190, 193, per Ipp J).

I have already set out WABA Conduct Rule 18, which provides, amongst other things, that a

barrister will not have breached the duty to the client by choosing, contrary to the desires of the

client or the instructing solicitor, to confine the issues to the real issues and to present the client's

case as quickly and simply as may be consistent with its robust advancement.

In Re Suitors’ Fund Act 1964 (WA) (2002) 135 A Crim R 48, [26], Roberts-Smith J said that

lawyers owe a duty to ensure that ‘cases are properly considered and prepared well in advance of

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a hearing date and to advise the court and the other parties immediately if it becomes apparent

the case cannot or should not proceed.’ (See also WABA Conduct Rule 42A).

(3) A barrister must be in a position to assist the court.

The duty to assist the court can only be satisfied by counsel who:

(a) know the brief; and

(b) research the law properly.

(Ivan Fergus (1994) 98 Cr App R 313.)

Ipp, 78, suggests that the duty may be breached if a solicitor briefs counsel excessively late, or

inadequately, or if one counsel drops out at the last moment with the consequence that new

counsel is required to appear without appropriate preparation. However, he adds that, in such an

event, it is the duty of counsel who does appear to do the best he can in the circumstances. The

breach of duty would consequently be that of the defaulting solicitor or counsel.

He also points out (79) that it has been said that counsel has a duty to present argument based on

full research and not to rely on practice books: R v Dick (1982) Tas R 252. I have earlier

mentioned that counsel has a duty to bring all relevant authorities to the attention of the court.

Ipp, 99, refers to authority to the effect that counsel is expected to be experienced in her

particular legal fields. However, given the need for counsel to gain that experience in the first

place, the duty might be better expressed as one not to appear in any matter unless satisfied that

counsel has the necessary knowledge and skill to do so. PCR 5.7 requires a practitioner not to

accept instructions which are beyond the practitioner’s competence.

Counsel must inform themselves of the court’s powers in a case in which they are instructed and

correct the judge if she should err in this respect: Granvias Oceanicas Armadora SA v Jibsen

Trading Co (The Hartrey) (1993) 14 Cr App R (S) 507. In a sentencing case it is the

responsibility of both prosecuting and defence counsel to be aware of the relevant law and to

ensure that the sentence passed does not exceed the sentencing judge’s jurisdiction: Walker

[1996] 1 Cr App R 447, 448.

(4) A barrister must exercise due care and skill

Allied to the previous duty (and overlapping it) is the duty to exercise due care and skill (as to

which, see also WABA Conduct Rules 2 and 7). Negligence of a serious kind might amount to a

breach of duty. So, too, might the unreasonable incurring of costs or delay: Ridehalgh; Myers.

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(5) A barrister must act fairly

Obviously, a barrister's characterisation as an officer of the court carries with it an obligation to

act fairly. This obligation is recognized by WABA Conduct Rule 3, which provides that:

'The role of barristers as specialist advocates in the administration of justice requires

them to act honestly, fairly, skilfully, diligently and bravely.'

(See also PCR 3.1.)

A prosecutor has a number of special obligations in this respect: WABA Conduct Rules 61-71.

Amongst the more important of these are those set out in Rules 61 and 62, as follows:

'61. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially

to have the whole of the relevant evidence placed intelligibly before the court, and must

seek to assist the court with adequate submissions of law to enable the law properly to be

applied to the facts.

62. A prosecutor must not press the prosecution's case for a conviction beyond a full and

firm presentation of that case.'

A barrister who appears as counsel assisting an inquisitorial body, such as the Corruption and

Crime Commission, the National Crime Authority, the Australian Securities and Investment

Commission or a Royal Commission having investigative powers, must act in accordance with

Rule 61 (and also Rules 63 and 64).

(See also Ismail-Zai [36]; Cannon v Tahche (2002) 5 VR 317 [56]-[59].)

MG v R [2007] NSWCCA 57 provides a recent illustration of the operation of the duty in a case

involving a prosecutor. The prosecutor had made public statements in the course of which she

made known her belief in the guilt of the accused person. The court concluded that, in those

circumstances, a reasonably fair minded person would inevitably conclude that she might not

discharge her obligations with appropriate fairness and detachment. She was restrained from

continuing to act.

(6) A barrister must be expeditious.

Also allied (and overlapping) is the duty to be expeditious. As Ipp points out (96), counsel have a

duty to present the issues as clearly and economically as possible and to avoid waste of time,

prolixity and repetition: McFadden (1975) 62 Cr App R 187. Moreover, as part of their

overriding duty to the administration of justice, lawyers must give effect to the public interest in

the prompt and economical disposal of litigation, as to which see Sali v SPC Ltd (1993) 67 ALJR

841; Wollongong City Council, [54]; Saragas v Martinis [1976]1 NSWLR 172,174; White

Industries (Goldberg J) 252 (see also WABA Conduct Rules 18(a) and (b) and 41). It is worth

repeating WABA Conduct Rule 42. This provides that:

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‘A barrister must seek to ensure the work which the barrister is briefed to do in relation to

a case is done so as to:

(a) confine the case to identified issues which are genuinely in dispute;

(b) have the case ready to be heard as soon as practicable;

(c) present the identified issues in dispute clearly and succinctly;

(d) limit evidence, including cross-examination, to that which is reasonably

necessary to advance and protect the client's interests which are at stake in the

case; and

(e) occupy as short a time in court as is reasonably necessary to advance and

protect the client's interests which are at stake in the case.’

(7) A barrister must be polite to the court.

The lawyer’s duty not to undermine the proper administration of justice carries with it an

obligation not to undermine the authority of the court, whether by being willfully insulting or

otherwise. Counsel have a duty to be dispassionate in their conduct of a case: Re B and H

(Minors) [1995] 2 FCR 416 and see also PCR 14.4(1).

However, the duty should not be taken too far. Courts must respect the freedom of counsel to

pursue the interests of their clients with appropriate vigour, and should be slow to find that

remarks made in respect of relevant issues were willfully insulting: Lewis v Judge Ogden (1984)

153 CLR 682, 689.

(8) A barrister must not be unnecessarily impolite to his or her opponent and to witnesses.

I have mentioned that a barrister must not make baseless allegations. This applies to witnesses as

well as to the opposing party: Giannarelli, 556; Rondel, 227-8.

WABA Conduct Rule 35 requires a barrister to ensure, when making forensic judgments during a

case, that allegations under privilege against any person:

(a) are reasonably justified by the material already available to the barrister;

(b) are appropriate for the robust advancement of the client’s case on its merits;

(c) are not made principally in order to harass or embarrass the person; and

(d) are not made principally in order to gain some collateral advantage for the client or

the barrister or the instructing solicitor out of court.

(See also PCR 14.6, 14.7 and 14.9.)

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WABA Conduct Rule 38 provides that 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.

As an officer of the court, a barrister should never be needlessly impolite to another officer of the

court: Beevis v Dawson [1957] 1 QB 195, 201; R v Keeth, unreported, Supreme Court of

Victoria, Court of Criminal Appeal, 5 October 1989, 6 - 7 (Crockett, O’Bryan and Gray JJ).

In Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 Allsop J said:

'Not all litigation can be conducted in peaceful harmony, but one of the fundamental

obligations of any practitioner in the discharge of his or her obligations to the client and

to the court is the civil and dispassionate communication with other parties to that

litigation: see generally Ex Parte Bellanto; Re Prior [1963] SR (NSW) 190 and Garrard

v Email Furniture (1993) 32 NSWLR 662 at 667.'

(9) A barrister must not take advantage of her or his opponent’s obvious errors.

Barristers are required to be scrupulously fair and not to take advantage of obvious mistakes by

the opposing counsel: Ernst & Young v Butte Mining Plc [1996] 1 WLR 1605; Ipp, 85. WABA

Conduct Rule 52, which provides that a barrister will not have made a false statement to the

opponent simply by failing to correct an error on any matter stated to the barrister by the

opponent, does not detract from this overriding principle.

(10) A barrister must observe undertakings to the court.

As officers of the court, barristers must abide by undertakings given by them to the court. Courts

must be confident that undertakings that cannot be, or are unlikely to be, honoured will not be

given: A Ltd v B Ltd [1996] 1 WLR 655. If an undertaking given professionally by a barrister is

not honoured, the barrister may be required to make good the default by paying the loss flowing

from the failure to perform the undertaking: John Fox v Bannister, King & Rigbeys [1988] QB

925; Udall v Capri Lighting Ltd (in liq) [1988] QB 907.

(11) A barrister may owe a duty to continue to act.

Upon accepting a brief and announcing an appearance in court, counsel accept onerous and

important obligations to the client and to the court. Counsel cannot withdraw at will without

good reason, once having announced an appearance: Serrano [11], Kaye J.

In Serrano, the accused man had absconded. His counsel were advised by the Ethics Committee

of the Victorian Bar that they should withdraw from the case, as they could not appear without

instruction. Kaye J held that it was the duty of counsel to remain. He said [12] that they had a

role which they could usefully perform and that it was not apparent to him why they could not

fulfill that role, and thus discharge their duty to the court, in the absence of the client.

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WABA Conduct Rules 85 and 86 provide that:

‘85. A barrister must not return a brief to defend a charge of a serious criminal offence

unless:

(a) the barrister believes on reasonable grounds that:

(i) the circumstances are exceptional and compelling; and

(ii) there is enough time for another legal practitioner to take over the case

properly before the hearing; or

(b) the client has consented after the barrister has clearly informed the client of

the circumstances in which the barrister wishes to return the brief and of the terms

of this Rule and Rule 91.

86. A barrister who holds a brief to defend a charge of a serious criminal offence and also

any other brief, both of which would require the barrister to appear on a particular day,

must return the other brief as soon as possible, unless the barrister became aware of the

appearance being required on that day in the first brief after the barrister was committed

to appear on that day in the other brief.’

(See also PCR 13.3, 19.3 and 19.4.)

Final Reminder

Finally, it is important to remember what was said by Kitto J, in Ziems 298, as follows:

'The Bar is no ordinary profession or occupation. These are not empty words, nor is it

their purpose to express or encourage professional pretensions. They should be

understood as a reminder that a barrister is more than his client's confidant, adviser and

advocate, and must therefore possess more than honesty, learning and forensic ability. He

is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges,

as well as with his fellow-members of the Bar, in the high task of endeavouring to make

successful the service of the law to the community. That is a delicate relationship, and it

carries exceptional privileges and exceptional obligations. If a barrister is found to be, for

any reason, an unsuitable person to share in the enjoyment of those privileges and in the

effective discharge of those responsibilities, he is not a fit and proper person to remain at

the Bar.'

I should express my gratitude for the helpful comments made by Craig Colvin SC in respect of

an earlier draft of this paper.