LLB197 Lecture Notes - Lecture 9: Rule 21, William Deane, Supreme Court Of Victoria
Week 9 – Duty to the Court and Administration of Justice
The lawyer’s duty to the court
• R 3
• Primary duty to client
• However, when duty to client and duty to court conflicts, the duty to the court is the
oeidig dut & peails ( 3.1 AND Giannarelli v Wraith (1988) 165 CLR 543)
Ee ousel has a dut to his liet fealessl to aise ee issue, adae ee
aguet, ad ask ee uestio, hoee distasteful, hih he thiks ill help his liets
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
ad ofte does lead to a oflit ith his liets ishes o ith hat the liet thiks ae
his persoal iteests. Cousel ust ot islead the out
- Rondel v Worsley [1969] 1 AC 191 at 227
- Uniform Conduct Rules (Solicitors) – duties to the Court primarily in Rules 17-29
Duty to the court – to act with honesty and candour
• Present clients with honesty, frankness and candour
• Not deceive or knowingly recklessly mislead the court (r 19.1)
• Must take all necessary steps to correct any misleading statement made by a
solicitor as soon as possible as the solicitor becomes aware that the statement was
misleading (r 19.2)
• Lawyer seeking interlocutory relief on an ex parte subject to strict requirements of
disclosure → the party against whom the claim is bought is not present to confirm or
deny allegations
• Eteds to koledge of liets haate o past, iluding previous conviction
• Extends to documentation filed in court on behalf of a client, including pleadings and
affidavits
• See Queensland Law Society Inc v Wakeling → text pg 331 → lawyer consciously
misleading the court, filing affidavit with false information
• See also Legal Services Commissioner v Puryer → text pg 332
If judges aot tust laes appeaig efoe the to at ith hoest, the outs ae
likely to become mere instruments of oppression, and the creator of greater evils than
those they ae appoited to ue
- Isaacs J in Incorporated Law Institute of New South Wales v Meagher
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Delinquent or Guilty Clients
• R 20
• Not the role of the lawyer to decide if client is guilty or innocent. It is a matter for
the court
- Tuckiar v R (1934) 52 CLR 336 → barrister seemed to form the view the client
was guilty and failed to do all he could to defend the matter
• Deisio to plead is liets → lawyer not prevented from representing a guilty client
who wishes to plead not guilty
• If appears on evidence likely to be found guilty then lawyer to advise client on
benefits of pleading guilty – Rule 7.1 – help client make informed choices
• If client pleads guilty then role of lawyer is to secure best result for client e.g. plea
bargaining
• Note: general rule against misleading the court – r 19
• If client admits guilt but wants to plead not guilty?
- Rule 20.2 – can act and must act if not time to get another lawyer providing do
not mislead the court (or if client insists)
- Must not claim that someone else did it
- Must not put a defence case inconsistent with confession
- Can argue evidence presented by prosecution does not prove guilt
- Must not continue to act if client insists on giving evidence asserting innocence
- NSW Bar Assn v Punch [2008] NSWADT 78 - struck off for knowingly leading false
evidence
• Breach of these limitations puts the lawyer in a position of breaching their duty to
the court
• Where a client will probably be found guilty, lawyer must advise of all options
including guilty plea and possible advantage → decision rests with client
• Guilty plea = lawyer does all they can to ensure best interests e.g. plea bargaining
• If client says not guilty but wants to plead guilty?
- Meissner v The Queen (1994-5) 184 CLR 132 – not a breach of duty to the court
but cannot use material to mitigate sentence that is inconsistent with plea of
guilty
- A peso haged ith a offee is at liet to plead guilt o ot guilt to the
charge, whether or not that person is in truth guilty or not guilty ... There is no
miscarriage of justice ...even if the person entering it is not in truth guilty of the
offee. - at 141
• Explain that by pleading guilty they are admitting to all the elements of the offence
and that no submission made can be inconsistent with a guilty plea
• consequences explained
• advice should be in writing however no formal requirement to do so
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• If client admits lying during proceedings? Or procured another person to lie? Or
falsified documents?
- Rule 20.1 – can amount to perjury
- Must refuse to act unless client authorises you to tell the court
- If not, withdraw from case (cannot tell the court)
• If client is going to disobey court order?
- Rule 20.3 – advise against
- Warn of dangers
- Caot dislose uless authoized o pesos safet is theateed
Responsible Use of Privilege (text pg 335)
• Practitioners have privilege of being able to make allegations or suggestions against
any person before the court without fear of prosecution
• Should not be used to simply harass or embarrass or gain collateral advantage for
the client
• Only use for allegations that are appropriate for the robust advancement of clients
case o its eits
• Responsible use of privilege extends to documents alleging criminality, fraud or
other serious misconduct → only allegations that can be backed up by factual
material can be made, or written and admissible evidence and only after the client
gives permission and is aware of the potentially serious consequences if not made
out
• Similar prohibition applies to cross-examination suggesting criminality, fraud or
serious misconduct without basis
• Must ot asset as a fat i issue a allegatios that ist suppoted eidee
available
• Rule 21
• Clyne v NSW Bar Assn (1960) 104 CLR 186
Integrity of Evidence
• Must advise the client that false evidence must not be given – perjury – Rules 20-22
• Must not influence witnesses – Rules 23-25
- suggest adding to content of evidence
- coaching
- discourage
• oah – suggesting the construction of any evidence that the witness might give →
Note: ot the sae as poofig o pepaig a itess
• Coes that itess ae plaed ude pessue to poide othe tha a tuthful
aout o eig eheased, patied o oahed i elatio to thei eidee
• Reputations of witnesses and lawyers suffer
• See Universal Music v Sharman; Day v Perisher Blue Ltd; Legal Profession Complaints
Committee v Brickhill → all text pgs 338-339
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Document Summary
Week 9 duty to the court and administration of justice. Rondel v worsley [1969] 1 ac 191 at 227. Uniform conduct rules (solicitors) duties to the court primarily in rules 17-29. If judges (cid:272)a(cid:374)(cid:374)ot t(cid:396)ust la(cid:449)(cid:455)e(cid:396)s appea(cid:396)i(cid:374)g (cid:271)efo(cid:396)e the(cid:373) to a(cid:272)t (cid:449)ith ho(cid:374)est(cid:455), the (cid:272)ou(cid:396)ts (cid:862)a(cid:396)e likely to become mere instruments of oppression, and the creator of greater evils than those they a(cid:396)e appoi(cid:374)ted to (cid:272)u(cid:396)e(cid:863) Isaacs j in incorporated law institute of new south wales v meagher. Delinquent or guilty clients: r 20, not the role of the lawyer to decide if client is guilty or innocent. If appears on evidence likely to be found guilty then lawyer to advise client on benefits of pleading guilty rule 7. 1 help client make informed choices. If client pleads guilty then role of lawyer is to secure best result for client e. g. plea bargaining: note: general rule against misleading the court r 19.
