Duties of a lawyer when acting as an advocate, fraud, and defamation.

A lawyer is broadly speaking in English law, a generic term for a solicitor, a barrister, a legal executive, and a solicitor-advocate, regulated by a governing body with codes of conduct, a certificate to practice in the profession, and carrying sufficient indemnity insurance.

A solicitor and a solicitor-advocate’s conduct is governed by the Code of Conduct of the Solicitors’ Regulation Authority.

A barrister’s conduct is governed by the Code of Conduct of the General Council of the Bar.

Any lawyer who is regulated by the Law Society or the General Council of the Bar, and has a practising certificate and indemnity insurance, can be an advocate.

Barristers and Solicitor-Advocates (if properly accredited by their professional body or permission of the court), have higher rights of audience in the High Courts of Justice in civil courts, and the Crown Courts in criminal courts, to speak.

Litigants-in-person have full higher rights of audience with no qualifications or experience necessarily…

McKenzie friends are people who assist litigants-in-person with their case. Their role and ability to speak and to advocate is beyond the remit of this post.

All lawyers have an overriding duty as officers of the senior courts of England and Wales, to the court.

Section 51(6) and (7) of the Courts and Legal Services Act 1990, put Solicitor-Advocates and Barristers on par in respect of higher rights of audience in the Higher Criminal and Higher Civil Courts of England and Wales.

Sometimes, the duty to a client and the duty to the courts are conflicted.

The obvious example, by way of ethics, is where in criminal courts a defendant pleads not-guilty, but then admits to the lawyer that he/she committed the criminal offence alleged. In those circumstances, the advocate MUST decline to act. That is a clear example of conflicting duties.

What happens when a client asks you to represent them in a case which might be hopeless?

If it is fraud-related, then a practising barrister must not ‘…devise facts which will assist in advancing his lay client’s case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing…any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. [Code of Conduct, para 606]

Lawyers therefore engaged in advocacy, are faced with a conundrum. How do they possibly weigh up what the client wants, as opposed to what the court expects of an advocate representing someone?

Lord Steyn made the following comments in the case of Medcalf v Weatherill and Anor [2002] UKHL 27:

‘This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Lord Bingham in the 2002 case said:

‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would, however, agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’

…and now some information as to allegations of fraud ‘alleged fraud’, ‘suspected fraud’, ‘purported fraud’. The courts will deem any allegation containing the word fraud as defamatory if there is no truth in such allegations. Therefore, having reason to believe, or reasonable grounds, is no longer a defence to such allegations pursuant to the Defamation Act 2013. Unless the allegations are based upon truth, such allegations are likely to be defamatory, and you will find yourself facing damages and costs.

If it isn’t true, do not say it. Do not suggest it, unless it is true, rather than you believe it to be true.

September ‘16

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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