Ethical Advocacy

Legal Aid Commission In-House Criminal Conference 2013 and UTas Law School Advocacy Summer School 2014

Ethical Advocacy

Justice Stephen Estcourt

1. To give you a glimpse of the blindingly obvious, I will commence by saying that a lawyer’s ethical responsibilities in the practice of advocacy spring from his or her paramount and overriding duty to the court, as an officer of the court.

2. The best-known exposition of this duty is in Rondel v Worsley [1969] 1 AC 191 at 227. It was there said that every counsel has a duty to his or her client to fearlessly raise every issue, advance every argument, and ask every question, however distasteful,which he or she thinks will help the client’s case. However, it was also said that all of that notwithstanding, the overarching principle is that counsel must not mislead the court.

3. These two simple propositions break down into a subset of what are all of the well-known ethical guidelines in advocacy. I will deal with some of the more important of these. You no doubt know all of these rules but I sometimes think that first recognizing them, and second observing them in practice, can prove to be difficult for counsel who are often required to make quick decisions about their application. It is the nuances that are problematic.

4. For example, the duty to fearlessly represent does not extend to slavishly following a client’s every wish in advancing evidence or presenting argument. Counsel is independent in presenting a client’s case and must not misuse court time. This means that counsel must refrain from irrelevant cross–examination and from pursuing submissions that are really unarguable, even though the client may wish to chase every rabbit down its burrow, as Mason CJ put it in Giannarelli v Wraith (1988) 165 CLR 543 at 556.

5. Where this independence of counsel may be undermined, then counsel must not act for the client. This clearly occurs where counsel may be a witness in a case or where there is a classic conflict such as a personal interest, one way or another, in the outcome of the case. Less obvious perhaps, as a threat to independence, are personal or professional relationships which are so close as to potentially compromise counsel’s duty to the court. For example, inhouse counsel might lack true professional detachment from their organization, depending on the nature of the case.

6. I suspect it is well understood that counsel’s duty to the court prevents him or her withholding authorities that are contrary to his or her client’s case. But less well recognized is the obligation to be adequately prepared as counsel and armed with reasoned argument and with relevant authorities – not just textbooks, I might add.

7. You must not simply assert propositions or make submissions without having conducted a considered review of the law and an analysis of the cases. To leave the judge to do all the work and then to be caught out overlooking elementary legal principles will result in you being labeled by the court as untrustworthy.

8. The same goes as to the facts of the case. Counsel must not be a party to the presentation of evidence that is false or misleading. And of course a failure to disclose can result in presenting a half-truth.

9. Although it arose in the context of mediation, in Legal Services Commissioner v Mullins [2006] LPT 012, Byrne J found a barrister guilty of intentional and fraudulent deception by remaining silent during negotiations about his client’s reduced life expectancy brought about by the recent onset of very significant secondary cancers and the commencement of chemotherapy.

10.  Incidentally, I think that the topic of ethical limits in negotiations and in mediation is much neglected. If you are interested, there are two very good papers available on the internet – Effective and Ethical Negotiations by Campbell Bridge SC, published in February 2011; and The Ethical Limits of Advocacy in Mediation by Robert Angyal SC, published in May 2011.

11. Care must also be taken to decide whether evidence with which you are presented as counsel has been illegally obtained, for example by covert recordings of telephone conversations, or improperly obtained emails or documents, and if so, what to do about it.

12.  Obviously counsel must never advise that evidence be illegally obtained, but if presented with such evidence it must be borne in mind that legal professional privilege does not apply and the required disclosure of the material to the other side may prejudice or harm your client by revealing unlawful activity: Dubai Aluminum v Al Alawi [1999] 1 WLR 1964.

13. As to witnesses, I expect that everyone appreciates that there is no property in a witness, including an expert witness; that you should not confer with witnesses together, other than perhaps some interdependent expert witnesses, and that no witness may be coached, including an expert witness.

14. Understand also though that precisely the same rationale that produces those rules, namely the protection of the integrity of evidence, underpins the rule that prohibits counsel from conferring with a witness, including an expert witness, under cross-examination. Strictly speaking, that rule does not extend to re-examination but care should be taken there also.

15. If you would like to read more in the area of dealing ethically with expert witnesses, there is a very useful paper by Declan Kelly SC and Dan Butler presented to a Bar Association of Queensland seminar on ethics on 1 December 2010, entitled, unsurprisingly, Ethical Considerations in Dealing with Experts. It is published online in Hearsay, the journal of the BAQ. There is also a recent article in the Autumn 2013 edition of the Law Society’s Law Letter by G Blake SC and P Doyle-Gray entitled Can Counsel Settle Expert Reports?

16. Now, again I think that it is universally understood that a lawyer to whom a client has made a confession of guilt may nonetheless continue to represent the client if he or she wishes to plead “not guilty”, and indeed must continue if the confession is made during the course of the trial. However, the obverse seems less well appreciated, that is the situation that arises where the client denies guilt, but wishes to plead “guilty”.

17. In that situation, counsel is not ethically prevented from representing the client on the plea in mitigation, notwithstanding that it would, at first blush, appear to amount to misleading the court. In Meissner v R (1995) 184 CLR 132 at 141 Brennan (as he then was), Toohey and McHugh JJ explained that a person charged with an offence is at liberty to plead guilty or not guilty to the charge whether or not that person is in truth guilty or not guilty.

18. The plurality in Meissner went on to explain that there is no miscarriage of justice in a court acting on such a plea of guilty entered in open court by a person who is of full age and sound mind, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.

19. People have all sorts of good reasons for wishing to plead guilty and get a matter over and done with, but in order for it to be a free choice it must be an informed choice and it must be in their best interests. Counsel should seek to ascertain the reasons for the client wishing to enter such a plea, and should also advise the client of the prospects of an acquittal on a plea of not guilty, and of the consequences of a guilty plea, including the fact that the plea of guilty is an admission of all of the elements of the offence, and that any plea in mitigation must accept those elements as proved and cannot quibble with them.

20. It is well established that counsel must not, without his or her client’s instructions, disclose to the court the client’s prior convictions of which the prosecution, and thus the court, is unaware. However, it must be remembered also that counsel must not in any way imply to the court that there are in fact no prior convictions. Observing this ethical rule may sometimes have concealed ramifications for the client.

21. The English Bar Standards Board takes the view that where counsel is aware of previous convictions, he or she should give clear advice as to the options.

22.  Counsel should, firstly, inform the defendant that information as to the previous conviction will remain confidential unless the client waives privilege.

23.  Second, counsel should inform the defendant that nothing can be said as to the defendant’s record which expressly or even impliedly adopts the position outlined by the prosecution, as to the absence of convictions; or as to the absence of convictions of a particular type or gravity; or as to a period of time free from conviction; or as to the absence of a particular type of sentencing disposal; or of apparent good character.

24.  Third, counsel should advise the defendant as to the possibility that the failure by counsel to refer to the defendant’s antecedents may not go unnoticed by experienced prosecution counsel who might apply for an adjournment to investigate. Later discovery could, of course, also ground an appeal against sentence: Plumstead v R (1997) 7 Tas R 206, and Criminal Code,s402(4).

25.  I would like to finish with a word or two about unethical cross-examination. While there are some differences between the disallowable and improper questions provisions in the Uniform Evidence Law in force in most Australian States and Territories, they all render disallowable, and therefore, in my view, unethical, questions that are misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or oppressive: Evidence Act 2001(Tas), s41.

26. The provision also renders disallowable otherwise unobjectionable questions that are put to a witness in a manner or tone, I repeat, in a manner or in a tone that is belittling, insulting or otherwise inappropriate.

27.  But wait, there is more; neither, in Tasmania nor in Victoria may you ask a question that has no basis other than a stereotype. For example, “You are an accountant Mr Smith – accountants are generally very careful now aren’t they?” Section 41 prohibits specifically, but not exclusively, stereotypes based on a witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability.

28. There are, however, other questions that are impermissible and thus unethical. You must not put to one witness that his or her evidence is contrary to that of other witnesses, and expressly or by implication invite an opinion as to the reason. The best known example, of course, being,”She is a police officer Mr X, what reason would she have to lie?”

29.  You must not ask a witness to speculate about the reasons someone else did or said something. You must not put a hypothetical question to a witness other than an expert. And you must not put a question that invites the drawing of an adverse inference from the exercise of the common law right to silence. Again, while legislation in some States is changing as to this, a well-known example of a question impinging upon the right to silence is, “Mr X why did you not tell that to the police officer when she arrested you?” (For a coverage of the additional constraints on a prosecutor conducting cross-examination in criminal proceedings, see Whitehorn v The Queen (1983) 152 CLR 657 at 663 – 664).

30. There is also a very valuable discussion of the common law limits to ethical cross-examination by Heydon J in Libke v The Queen [2007] HCA 30 from [127], where his Honour deals with unethical advocacy involving compound questions, questions assuming the existence of a fact in controversy, argumentative questions, questions that are only comments, and the cutting off of answers before they are complete. As Heydon J points out, all these rules rest on the need for fairness and on the need not to mislead or confuse a witness. Deliberate breaches of them are unethical.

31. While on the subject of Heydon J’s writings and the ethics and courtesy of advocacy, there is a must-read article by his (former) Honour in the Australian Law Journal (2007) Vol 81 at 23, entitled Reciprocal Duties of Bench and Bar.

32. Finally, remember also that s37 of the Tasmanian Evidence Act which deals with leading questions in examination-in-chief and re-examination, actually entirely prohibits their asking, providing that, except in the situations allowed by the section, “a leading question must not be put”. So it is not just poor advocacy to ask leading questions, it is, strictly speaking, unethical advocacy.

33.  I have merely scratched the surface in the time available today, but I can say that all of these issues, and many more, are covered in meticulous detail by Gino Dal Pont in his book, Lawyers’ Professional Responsibility,which is now in its 5th edition and I recommend that you all read chapters 17 and 18 every year or so to remind yourselves of the very important obligations you carry into your work every day.


7 November 2013 – Legal Aid Commission

9 January 2014 – UTas Law Summer School