Thursday, 13 June 2013

Behaving ethically

I’ve not been very active lately as I had surgery a few weeks ago and haven’t been able to do much.  Even now, I’m staying in a hotel (Premier Inn, because criminal law is very glamorous) by the court because I’m not ready to travel all the way to court two-days running.  I’ve been writing a lot of blog posts but haven’t posted any for the simple reason that they are pretty crap – even worse than my usual outpourings.  The injury also appears to have damaged my memory.  I've just looked at the last post, which is utter rubbish and one that I have absolutely no memory of putting on this blog!

Anyway, today I was back in court for the first time in a month or so.  I met a prosecutor who’s ability to lose papers is simply outstanding – better than me and I’ve managed to misplace large stacks of paperwork in under 10-seconds!  This chap gave me my copy of the papers and then promptly lost his own set.  I let him read mine to open the facts then took them back.  He had no list of previous convictions to refer to and had managed to lose the copy intended for the court.

He hopefully suggested that I could tell the court about my client’s offending behaviour.  Even the judge laughed at that suggestion.  I wasn’t about to do the prosecutors job for him and I politely told the judge that I wouldn’t help out.  Judge accepted my position before the words had left my lips.

Outside court another solicitor asked whether I could actually refuse to assist the court given that a defence solicitor has a duty to the court.  I was a little surprised by the question since he’d just sat and watched me do it, so clearly I could do it.  I realised that he was more concerned with resolving the ethical dilemma created by my refusal to assist than my actual ability to say “no” to a judge.  I explained my point of view thus: if he had a trial looming and took unhelpful witness statements from witnesses he would not be under an obligation to assist the court and undermine his client’s case by revealing those witness statements.  On the same basis, why should I do the prosecutor’s job by proving for him that my client has previous convictions?

I know that this will not be a popular stand-point for some people who find it difficult to understand that defence lawyers exist to defend not to prove things against their own clients, but there it is.  I always ask people to imagine how they would feel if they employed a solicitor and he acted against their interests.  For example, if you were selling a house and your solicitor revealed some information that undermined your position and caused your buyer to reduce their offer.  You wouldn’t be happy about that would you?  So, why should somebody accused of a criminal offence be happy if their lawyer actively stands up to prove unhelpful points against them?

Clearly there is a line to be drawn and, I think it is reasonable to say that I went close to the line today but I am happy that I did not and have never crossed the line of what is proper.  The question for me in this case was how to balance my duty to the court and to my client, both must be considered and neither should be preferred over the other.  So, I cannot breach my duty to the court to help out a client and at the same time I cannot breach my duty to the client to assist the court.  By refusing to prove a point against my client, I am not assisting the court but equally I am not lying to the judge or preventing the prosecution from doing their own job properly and putting that evidence before the court.  I thus act in my client’s best interests and I do nothing contrary to my duty to the court.  I have balanced my duty to court and client.

What alarms me is the number of advocates I see who believe that they have an unrestricted duty to tell the court pretty much everything no matter how harmful it is to their clients’ interests. 


At Bar School, professional ethics are supposedly tested throughout the course and every assessment has a minor ethical pitfall for students to avoid.  I also enjoyed a weekend of studying solicitors ethics when I transferred, most of which is focused on what to do when you act for both the buyer and seller in a property transaction.  I’d like to see training colleges for both solicitors and barristers pose more challenging ethical conundrums that require students to really focus on their duties to people other than their own client and the conflict that can arise between the two.