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Ethics for Litigators - conflicting duties and obligations

NZ $25.00
Author(s): Stuart Ennor, John Rowan QC, Justice Hansen
Published: 17 November, 1998
Pages: 88



Any discussion and debate on the ethics of a profession always tends to be somewhat gloomy. Such occasions inevitably focus upon breaches of ethics, and the problems arising from such breaches. We hear the bad news, but never the good. However, the reality is that most practitioners conduct their practice in accordance with the ethics of the profession.

Having said that, it must be accepted that both the judiciary and the profession are under scrutiny as never before. Some of this comes from high profile defalcation cases, some from the activities of a very small number of judges, some from the general demands for increased accountability, and some the circus that is nowadays called the media. While noting that the vast bulk of the profession do operate within the ethical constraints, there are breaches. Furthermore, as the demands of clients become more intense, there are inevitable pressures on practitioners that push them close, or even over, the ethical line. These pressures are an inevitable result from the dramatic changes to the manner in which law has been practised over the last twenty years. Put simply, the profession has become intensely competitive. When this is allied with ever increasing demands from clients, it is not surprising that difficulties occur. But all this does is highlight the need to observe the ethical boundaries strictly.

In the area of litigation, I think most judges would agree that the most obvious change in recent times has been the failure of some practitioners to remember at all times that a barrister or solicitor’s first obligation is as an officer of the court. Allied with this is the lack of objectivity from many practitioners who completely identify with the interests of their client. Not only is it wrong to fail to take an objective view of a proceeding, it seldom assists the client’s case.

Breaches of the rules of ethics can have a disastrous consequence for a practitioner. There are the professional consequences of disciplinary proceedings. Breaches also frequently have serious financial consequences, where breaches result in actions being brought against solicitors. Practitioners who persistently bend the rules, or even cheat, quickly become known. Judges, like all lawyers, talk, and if a practitioner earns a reputation for persistently bending the rules, or cheating, that practitioner should be aware that their reputation will precede them. But the greatest concern must be the damage to the profession as a whole that results from persistent breaches of ethical obligations. Quite simply, the profession is judged by the lowest common denominator, not the highest.

I just want to mention a few areas that cause concern on a regular basis, and which are covered in greater detail in the papers prepared by the two presenters. In the civil area, of major concern, is the insistence of proceeding to trial in completely unmeritorious cases. They are cases that are not susceptible to striking out, but any objective assessment of the evidence that is available to support the pleadings makes it plain that success is impossible. Frequently, these cases are on legal aid. I can mention many cases where, if the most fundamental steps had been taken to ascertain the strength of a client’s evidence, and to cross check it with readily available other evidence, it would become apparent to anyone that the proceedings should not continue. In the interlocutory area, despite the new rules and awards of costs, there continues to be persistent abuse by defendants with unlimited budgets using interlocutory procedures to avoid a trial on the merits. Practitioners should be aware that in such circumstances they are placing their client, and perhaps themselves, at risk of an award of an indemnity cost. An example of a completely unmeritorious case being taken can be seen in Bulmer & Parum v Attorney General on behalf of a Wellington High Court Judge (CA145/98 unreported 20 July 1998, Thomas J). Another slightly different example can be found in the case of Maclean v Stewart 11 PRNZ 66 (CA). In that case, summary judgment was sought in what was clearly a building dispute. In the course of hearing an application for leave, I strongly pointed out to the solicitors for the plaintiff that the case was not suitable for summary judgment, and their client’s interests would be much better served by arbitrating the building dispute. Given that they had obtained judgment in the District Court and the High Court, that view was not attractive to them. Leave was granted, and the ultimate appeal by the owner was successful. The end result was costs against the plaintiff builder and a delay of such a kind that final disposal by arbitration could have easily been achieved before the matter came before the Court of Appeal. This was a classic example of counsel for the plaintiff refusing to step back and take an objective view of the proceedings.

Despite the provisions in the rules, practitioners persist in attempting to use court proceedings to delay the inevitable for their client’s benefit. An example of this can be seen in Morris v Retail Trading Services & Others (CA173/97 unreported, 22nd October 1997, Thomas J). The strength of the Court of Appeal judgments, particularly in the first and the latter cases mentioned should be a salutary warning to all litigators.

Problems also arise in the legal aid area where practitioners seem to be unaware of their obligations under the Act. Two cases which highlight the need to obtain the approval of the local legal services subcommittee before billing clients direct are:

Walker v Anthony Harper (unreported, HC, Christchurch CP111/96 14th August 1998 Hansen J);

Macfarlanes v Canterbury District Legal Services Subcommittee (HC, Christchurch CP 106/96 11 August 1997, Fraser J).

Another area of concern can be the casual approach of even the most senior counsel. I have been involved in one major case where senior counsel was endeavouring to juggle two cases in which he was involved - one in Christchurch and the other in Auckland. On occasions, he left his junior to conduct the case, and because of unexpected shifts in the timing of witnesses, and the length of evidence, the junior was left in an awkward and untenable position. While the junior acquitted himself well, he should not have been placed in that position, and nor should the client have had a serious and important piece of litigation that had vital cross-examination dealt with in this manner. Quite simply, there is an obligation on practitioners not to take on more than they can handle.

That leads on to another obligation which is frequently overlooked. Quite often, practitioners take on cases which are quite simply beyond their experience and ability. Clearly, to progress, counsel must take on ever more demanding work, and that is not the situation I am speaking of. Such a step is only to be commended. What I am speaking of is practitioners, often sole practitioners or those in small firms, taking on major litigation in which they have no experience or ability. Worse, this type of practitioner seldom seeks advice from other more senior members of the profession who could assist. In the criminal area, on many occasions I have had counsel give assurances which they say they have checked personally, which later turn out to be incorrect. Again, it is only a handful of practitioners who transgress, but the consequences, especially for the practitioners themselves, is serious. As noted, their practices soon become common knowledge. Quite frankly, practitioners who regularly indulge in tactics of this sort gain themselves a reputation that reduces their capacity to represent their clients properly.

I noted earlier, the strong comments by the Court of Appeal in the three cases I mentioned. Practitioners should be aware that abuses can lead to significant costs orders, even against counsel (eg McDonald v FAI & NZ Law Society (Auckland CP507/95 unreported, decision of 24 September 1998, Giles J)). It should be noted, however, that this judgment is subject to appeal.

As I said at the beginning, it is not all doom and gloom. The vast majority of practitioners comply with their ethical obligations. The examples I give above are areas that are persistently abused by some practitioners, and by others on an occasional basis. The important thing to bear in mind is the ethical obligations imposed on practitioners involved in litigation, because without awareness there cannot be prevention, and breach becomes inevitable.

Two excellent papers follow. In the area of civil litigation, Stuart Ennor’s experience in dealing with proceedings involving the profession is unparalleled in New Zealand. He has appeared for the New Zealand Law Society in countless cases. In the criminal area, John Rowan QC is also a practitioner of vast experience. Both have had ongoing involvement in ethical matters. Their papers raise issues that should be of concern to all lawyers who practise in the courts. Scenarios have been prepared to allow participants in this seminar to consider ethical issues in a practical manner. The issues raised in the criminal and civil scenarios range from relatively simple issues to complex ones. They also range from those that are readily answered, to those where there is probably no set answer which, no doubt, will lead to stimulating debate.

One thing of which I am certain is that practitioners who consistently apply the ethical obligations relevant to litigation will seldom put a foot wrong in court, and will represent their clients in the manner to which those clients are entitled. My own experience suggests that at the end of the day ethical breaches do nothing to help a client’s cause. Practitioners who seem to think otherwise are, in my view, totally misguided.


Content outline

  • Ethics for litigators in the civil field
    • The place and significance of the Rules of Professional Conduct
    • A wider duty
    • Duty to the Court
    • Excessive zeal
    • Unsupported or irrelevant allegations
    • Insults, intimidation or obfuscation
    • After acquired documents
  • Ethics for litigators in criminal cases
    • Ten ethical guidelines for criminal advocates
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