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PROFESSIONAL ETHICS AND COURT ETIQUETTE

This chapter outlines principles in relation to professional ethics and court etiquette relevant to duty solicitor work.

Legal Professional Ethics

All members of the legal profession have a paramount duty to the Court and to the administration of justice, This duty prevails over all other duties, especially in circumstances where there may be a conflict of duties, for example, following a client's instructions if those instructions are inconsistent with the practitioners duties to the Court.

Whilst this duty affects professional conduct within the solicitor client relationship, it is a broad duty, and each member of the legal profession is entrusted to maintain the independent and impartial administration of justice. It is important that legal practitioners conduct themselves with integrity, provide competent assistance to the courts, and promote public confidence in the court system. In carrying out their duties, legal practitioners are required and expected to deal with other members of the legal profession with courtesy and integrity.

It is important that all legal practitioners are well versed in the Australian Solicitors' Conduct Rules, a copy of which is available from The Law Society of South Australia (or via the link on their website - above). The Law Council of Australia has also produced a Commentary to the Rules which provides additional information and guidance in understanding how particular Rules might apply in some situations.

The following paragraphs serve to highlight only some of the rules of professional conduct, making it important for the duty solicitor to become acquainted with the other rules. It is important to remember that a breach of the Australian Solicitor's Conduct Rules can amount to professional misconduct or unsatisfactory professional misconduct.

Standard of Conduct

The standard of conduct for legal practitioners is set out in the Australian Solicitors’ Conduct Rules. A practitioner must not engage in conduct which is dishonest or disreputable or which would demonstrate that a practitioner is a fit and proper person to practise law, would diminish the public confidence in the administration of justice or bring the profession into disrepute [see Australian Solicitors’ Conduct Rules, Rule 5]. A practitioner must also avoid any compromise of their integrity and professional independence [Rule 4].

It is recognised that duty solicitor work is often performed under pressure. That pressure can come from time constraints, the need for multiple court appearances and the task of dealing with anxious or distressed defendants. Nevertheless, the duty solicitor is held accountable to the same standard of professional conduct as are all legal practitioners [see Halliwell v Kraft [1990] SASC 2634; Milera v Korber [1986] SASC 9474 on judicial comment on duty solicitor work].

Maintaining an appropriate standard of professional conduct is particularly important when considering the advice to be given to a defendant, or whether or not to act for a defendant [see Role of Duty Solicitor Chapter and Guilty Pleas chapters]. It is also important for the duty solicitor to keep comprehensive and accurate notes of all dealings with defendants throughout each day. This includes situations where the duty solicitor has decided he/she cannot advise or represent a particular defendant [see Collie v Police [2002] SASC 109; Hatcher v Police [2006] SASC 332re judicial comment on duty solicitor work].

Defendants have successfully appealed convictions and penalties due to a miscarriage of justice arising from duty solicitor assistance [see Guilty Pleas chapter]. Unsatisfactory conduct or professional misconduct can result in adverse judicial comment in subsequent appeals and the duty solicitor may become subject to disciplinary proceedings. A reputation for professional integrity and being consistently reliable with the courts is fundamental to the duty solicitor’s ability to perform as an effective advocate.

Duty to the client

The role of the legal practitioner when representing a defendant is to look after his or her interests by assisting them to understand the case against them, their legal rights and obligations, and the consequences of the decisions they may make in relation to the conduct of their matter.

Avoiding personal bias

In representing a client, a legal practitioner follow the client’s lawful, proper and competent instructions [see Australian Solicitors’ Conduct Rules, Rule 8]. In addition, a legal practitioner must advance the client’s interest in accordance with the law, without conveying or appearing to convey the practitioner’s personal opinion on the merits of the case [see Rule 17 for specific obligations].

Advancing the case

A legal practitioner has a duty to provide clear and timely advice to enable a client to understand relevant legal issues and to make informed choices about actions to be taken during the course of a matter. This involves informing the client about the alternatives to a fully contested adjudication which may be reasonably available to the client [see Australian Solicitors’ Conduct Rules Rule 7]. Examples are, advising a defendant on the merits of his or her case, particularly where there are no prospects of success, and advice about a penalty discount on an early plea of guilty [see Guilty Pleas and Sentencing chapters].

Allegations of serious misconduct made against other persons

Where a practitioner receives instructions to mitigate the client’s criminality, and those instructions involve allegations of serious misconduct against another person (who is unable to answer the questions directly in the case), then the practitioner must not disclose the identity of the other person. That is, unless the practitioner believes, on reasonable grounds, that the disclosure is necessary for the proper conduct of the client’s case [Australian Solicitors' Conduct Rules Rule 21.7].

Conflict of Duties

The following paragraphs outline situations where a duty solicitor may be faced with a conflict of duties.

Former clients

Where a legal practitioner in the course of acting for a defendant (former client) has acquired confidential information which is material to a matter involving a new defendant, and it might be reasonably concluded that such information, if disclosed, would be detrimental to the interests of the former client, then there is a conflict of duties as the legal practitioner has duty to both their current and former client. The legal practitioner cannot act for the new defendant unless the former client has given informed written consent, or an effective information barrier has been established [see Australian Solicitors’ Conduct Rules Rule 10].

Acting for more than one party

Conflicts may also arise where a legal practitioner is asked to represent more than one party involved in a particular matter, for example, co-accused defendants [see Australian Solicitors’ Conduct Rules, Rule 11.5].

Practitioners own interest

A practitioner must not act for a defendant where the practitioner is aware that the defendants's interest in the matter is, or would be, in conflict with the practitioner’s own interest or the interest of an associate. [see Australian Solicitors’ Conduct Rules Rule 12.1]. For example, a conflict would arise where the victim of an offence is a relative, a friend or an acquaintance of the legal practitioner.

When clients lie to the court or falsify documents

A conflict of duty can arise in the course of duty solicitor work by virtue of instructions of the defendant. Where a defendant informs a legal practitioner that they have:

  • lied to the court; or
  • arranged for another person to lie to the court; or
  • have falsified a document which has been tendered to the court; or
  • arranged for another person to falsify a document which has been tendered to the court before judgement or a decision is handed down

the practitioner must:

Where the defendant instructs the practitioner to disclose the information to the court, the practitioner must promptly inform the court of the lie or falsification. Where the defendant refuses to provide such instructions, the legal practitioner must refuse to take any further part in the case, but cannot inform the Court of the lie or falsification.

WITHDRAW FROM THE FILE

Where a defendant refuses to provide instructions to have the information about a lie or a falsification disclosed to the Court, it is your duty to then appear before the Court and seek leave to withdraw from the file.

When doing so, the duty solicitor must be careful not to disclose to the Court the reason for withdrawing from the file. It is safest for them to keep their submissions to a minimum; for example: ‘I seek leave to withdraw from this matter due to a conflict’. This complies with the Magistrates Court Rules which provide that a legal representative of a party must notify the court of that status and any changes to that status as soon as practicable [see Magistrates Court Rules 1992 Rule 32.01].

WRITTEN AND SIGNED INSTRUCTIONS

Where the defendant agrees to the disclosure of the information, those instructions must be in writing and signed by the defendant.

When clients disclose they will breach a court order

On occasions, the duty solicitor will encounter a defendant who instructs that they will disobey a particular court order. In this situation, the duty of a legal practitioner is to advise the client against such action and warn of the consequences. A legal practitioner must not provide advice as to how such a breach should be carried out or concealed, nor should a legal practitioner inform the court or prosecution of the client’s intentions without authorisation from the client [see Australian Solicitors’ Conduct Rules Rules 20.3; and 20.3.3 for exceptions].

Officer of the court

As officers of the court, all legal practitioners must act competently, diligently and with complete candour when dealing with the court. Conduct towards the court must be exemplary. There is an expectation of honesty and frankness in all court proceedings.

A legal practitioner must not knowingly, or recklessly, mislead the Court [see Australian Solicitors’ Conduct Rules Rule 19.1]. Whilst defence counsel is not required to disclose information, he/she must not mislead the Court by providing false or inaccurate information, nor fail to disclose material information [see R v Stamos [2004] SASC 132 and Role of the Duty Solicitor chapter].

A legal practitioner must correct any misleading statement made by the practitioner to a court as soon as possible after they become aware that the statement was misleading [see Australian Solicitors’ Conduct Rules Rule 19.2]. However, a practitioner is not taken to have made a misleading statement to a court simply by not correcting an error in a statement made to the Court by an opponent or any other person [see Australian Solicitors’ Conduct Rules Rule 19.3].

Whilst, as a general rule, legal practitioners act in accordance with the defendant’s instructions, there must remain a degree of forensic judgement in following those instructions in order to prevent submissions to the Court which the duty solicitor knows will deceive the Court and which would accordingly breach the legal practitioner's duty to the Cout and to the administration of justice.

ROBUST REPRESENTATION

Despite a duty solicitor's advice to the contrary, a defendant may instruct them to proceed with a bail application or sentencing submissions. It is important that the duty solicitor's manner does not suggest to the Court or the prosecutor their personal view that the application is hopeless.

Confidentiality and Legal Professional Privilege

The solicitor-client relationship is founded on confidentiality and legal professional privilege.

A legal practitioner must not disclose to any person, any information which is confidential to a client and acquired by the practitioner during the client’s engagement of the legal practitioner, without the client’s authorisation [see Australian Solicitors’ Conduct Rules Rules 9.1; and 9.2 for exceptions].

Legal professional privilege protects written material or documents (such as those in a client’s file, or the pink duty solicitor forms) from disclosure to any other person, without the defendant’s consent. This also protects such information from being subpoenaed or consequently used as evidence.

Prosecution Policy Guidelines

In the courts of summary jurisdiction, for summary and minor indictable offences, the prosecutor is a police officer, and not usually a lawyer. The Director of Public Prosecutions (‘DPP’) prosecutes all major indictable matters in the superior courts, and is represented by qualified lawyers. As legal practitioners, those prosecutors representing the DPP are subject to the Australian Solicitors’ Conduct Rules. In addition, they are guided in their conduct of criminal matters by Prosecution Policy and Guidelines which hold all prosecutors to ‘ the highest ethical and professional standards and strives to achieve the most effective and appropriate criminal prosecutions ’ [see Prosecution Policy and Guidelines p 1].

The guidelines set out the role and obligations of the prosecutor. The prosecutor holds a duty of fairness to the court, the community, the accused, victims, witnesses and defence counsel [see Prosecution Policy and Guidelines p 2]. The prosecutor has a discretion whether or not to proceed with a prosecution. There must be a reasonable prospect of a conviction and ‘ admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused’ [see Prosecution Policy and Guidelines p 3 for more detailed information].

Court Etiquette

There is much literature available on court etiquette and a variety of meanings given to the expression. This section discusses court etiquette in the context of the standard of behaviour expected of legal practitioners when working in the court precinct, and will not cover professional duties as outlined in the Australian Solicitors’ Conduct Rules. When at court, legal practitioners are expected to behave in a manner supportive of the solemnity of the court’s position and of the occasion of the defendant’s hearing.

Appropriate attire

There is an expectation for men to always wear a jacket and a tie when they appear in court. On occasion, when the weather is hot, a Magistrate may give leave for jackets to be removed. Women are expected to attend court wearing the equivalent of office attire, with a degree of modesty.

Before court

Preparedness for the court appearance is of upmost importance. In addition to the particulars of the matter for which the legal practitioner is appearing, knowledge of court procedure is also required.

Report to the court

It is important that all legal practitioners report to the Court before the commencement of the list and the duty solicitor is no exception. It is important to arrive in court on time. Whilst it can be difficult, efforts should be made to not keep a court waiting whilst occupied in other courts for other matters. Where this cannot be avoided, it is important that the duty solicitor ensure that court staff are aware of their whereabouts. Where a court has been waiting for an appearance, it is important to apologise to the Court for the delay and provide the reason for the delay at the outset.

Relations with court staff

It is important that duty solicitors are courteous to the Court, court staff and prosecution. Every staff member at court has a job to do and it is important that the duty solicitor is respectful to all members of the Court as a matter of professional courtesy, and because it will make working life easier when he/she is inevitably delayed in making an appearance in court.

CHECK IN WITH COURT STAFF

Once the duty solicitor has seen the people in custody in the morning, they must tell the orderly in Court 2 which people they will be representing and what will be happening with each. For example: ‘I’m appearing for Anderson, Roberts and Jenkins. The first two are bail applications, and Jenkins is a remand.’

This ensures not only that the duty solicitor has checked in as required, but having done this as soon as they have seen the people in custody, court staff will know that they are ready to proceed with those matters, and any delays will not be due to them.

If the duty solicitor checks in but then has to leave to attend another court, to appear in a matter, the duty solicitor should ask the orderly to hold their matters and tell him or her which court they are going to.

Entering the courtroom

When entering and leaving the courtroom, all legal practitioners are expected to acknowledge the presence of a Judge or Magistrate with a bow, and then to sit in the body of the courtroom in a manner which minimises disruption.

While waiting to appear

Sometimes waiting for a court appearance can be frustrating for junior counsel because counsel appear on matters in order of seniority. It is important to remain patient and courteous when waiting for a matter to be called on. It is considered inappropriate for practitioners to talk loudly inside the courtroom (and outside the courtroom where they can be heard) while awaiting their turn, or to move around the courtroom in a disruptive manner. Mobile telephones must be turned off and solicitors should not play games or read newspapers while waiting. The court must be silent and still when the court is being opened or closed, when a person is taking an oath or affirmation, when a person is being sentenced, a judgment is being delivered, or a prisoner is being arraigned.

At the bar table

Duty solicitor's must always stand up straight and look the Judge or Magistrate in the eye when addressing them. The appearance should be announced by the legal practitioner by introducing themselves and the party for whom they are appearing. For example, ‘If your honour pleases - [surname] for the defendant who is [or is not] present’. When addressing the bench “Your Honour” is appropriate to address men and women of the judiciary; “Sir” is an appropriate address for male members of the judiciary, however, do not use “ma’am” when addressing a female member of the judiciary as it may be seen as offensive.

A legal practitioner should always stand when addressing the Judge or Magistrate, or when the Judge or Magistrate is addressing them. It is important to always speak from the bar table and not from elsewhere in the body of the court. A legal practitioner should never speak when someone else is speaking (especially the Judge or Magistrate, and including prosecution). Most importantly, legal practitioners should display graciousness, especially in defeat, and respond with ‘as Your Honour pleases’ or ‘may it please Your Honour’.

DO NOT SPEAK WHEN SOMEONE ELSE IS SPEAKING

A duty solicitor should never interrupt the Judge or Magistrate, or prosecution when they are speaking. If the duty solicitor is interrupted during their submissions by opposing counsel they should simply stop and sit down. A duty solicitor should speak clearly, show respect to the court clerk and always spell difficult words.

Senior Counsel

It is important for junior counsel to always show respect to senior counsel. Where there are multiple counsel at the bar table appearing for a matter, senior counsel occupy the bar table with the most senior in the centre chair.

Leaving the bar table

The bar table must never be left unoccupied during the hearing of a court list. A legal practitioner must remain at the bar table until they are given leave of the court to vacate the bar table, or until the next matter on the list is called, or until the court adjourns.