Professional Ethics and Court Etiquette

The standard of conduct for legal practitioners is set out in the South Australian Legal Practitioners Conduct Rules. A practitioner must not engage in conduct which is dishonest or disreputable or which would demonstrate that they are not a fit and proper person to practise law, diminish the public confidence in the administration of justice or bring the profession into disrepute [see South Australian Legal Practitioners 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 all other legal practitioners [see Halliwell v Kraft [1990] SASC 2634; Milera v Korber [1986] SASC 9474on 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 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 they cannot advise or represent a particular defendant [see Collie v Police [2002] SASC 109; Hatcher v Police [2006] SASC 332 for 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.

The role of the legal practitioner when representing a defendant is to look after the defendant's 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.

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

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 Legal Practitioners Conduct Rules Rule 19.1]. Whilst defence counsel is not required to disclose information, they 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 Legal Practitioners 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 Legal Practitioners 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 Court and to the administration of justice.

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 Legal Practitioners 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.

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, prosecutors from the DPP are subject to the Legal Practitioners 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 5 for more detailed information].

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. Please visit the Law Society of South Australia Guidelines for Dress Standards in Court webpage for further guidance.

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.

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.

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 they are inevitably delayed in making an appearance in court.

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.

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.

Duty solicitors 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’.

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.

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.