Paramount Duty to Court and Duty to Client - Report Example

Ethics and Profession Name Date Course Introduction The lawyers play an important role in representing and defending their clients in court. In Western Australia, Professional Conduct Rules 2010 (WA) outlines the duties of the lawyer to the client as well as to the court1. According to section 5, a practitioner’s duty to court and the administration of justice is paramount and it prevails to the extent of inconsistency with any other duties including but not limited to a duty owed to a client of the practitioner2. This section has attracted different interpretations and comments among the members of the legal profession. Some have argued that this overrides the duty that the lawyer has to the clients. It has also seen some of the lawyers facing dilemma with regards to whether to fulfill their obligations to the clients or to the court. The paper discusses section 5 well as the inconsistencies and tension faced by the laws with regards to overriding ethical obligation to the court and administration of justice and the obligation to the client. Discussion The lawyers have contractual obligations to their clients and they also have obligations to the court. According to section 6(1) (a), the practitioner must act in the best interest of a client in a matter where the practitioner acts for the client3. This established the contractual obligation to the client. However the obligation towards the court as outlined in section 5 is also of great importance as it may overrule the duty owned to the client. Some of the practitioners are in support of section 5 as the duty owed to the court in reality is owed to the large community as opposed to a particular judge. The public interest is therefore the source of the duties of the lawyer. Some professionals have argued that the court has a right and powers to supervise those appearing before it and this includes the lawyers. It is for this reason that the courts can impose penalties on the lawyers who engage in any conduct that may defeat justice. A breach of duty owed to the court by the lawyers leads to unlawful conduct which may also be unethical. In the case of Coe v New South Wales Bar Association, the lawyer was found guilty of professional misconduct after she swore an affidavit to verify a document he knew was false4. As a result of the misconduct his name was removed from the roll of legal practitioners. The duty to disclose to the court certain information may conflict the duties of the lawyer to the client. This is mainly in terms of confidentiality as the lawyer has an ethical obligation of maintaining confidentiality with regards to certain information about the client. It is in such a situation that the lawyer may be in a dilemma with regards to maintain the contractual obligation to the client or disclose the information in court. In such circumstances, the lawyer will have to override the ethical obligations to the client and disclose the information in court. In the case of Legal Services Commissioner v Mullins, the barrister was found to be in breach of duty to the court5. This is after he failed to disclose information about his clients that could have affected the case. The client had cancer and has been involved in the road accident. Mullins failed to disclose that His client had cancer as it would have affected the outcome of the case. This is considering that the duty to the court is Paramount. This view is supported by most of the practitioners including the professional bodies in which the lawyers are members. According to a notice from the Federal Court of Australia, the parties and their representative have an obligation to corporate with, and assist the court in fulfilling the overarching purposes6. This is an indication that it is in support of section 5 with regards to the duties of the lawyers to the court. Competence is one of the qualities that is required of the lawyers as it is useful during the decision making process. Justice Ipp is in support of the section 5 and argues that it is the responsibility of the lawyers to ensure that they do not present or argue issues that in their judgment is bound to fail. It is important for the lawyers to be competent so as to avoid being in dilemma with regards to their duties to the client and the court. The lawyers are required to act in good faith in order to avoid the breach of duty to the court. According to rule 14 of the professional conduct rules of the Law Society of Western Australia, the lawyers have a duty of ensuring that the court is not intentionally mislead7. This has also been emphasized by Western Australian Bar Association Rules 2006. The lawyers owes paramount duty to the court and the duties owed to the client will always be secondary when the duty owed to the court conflicts the duty owed to the clients. This means that the lawyers may be forced to override the duties of the client in order to fulfill the duty of the court. A lawyer is prohibited from misleading the court or lying in order to override their obligations to the client or court. A lawyer who misleads the court is guilty of professional misconduct as was highlighted in the case of Kyle v Legal Practitioners’ Complaints Committee8. This is after Kyle was alleged to have misled the court to belief that his client had executed certain documents. This is an indication that the interest of the court overrides that of the client. In the event that a lawyer overrides the duty of the court, they may be held accountable for misconduct. A lawyer may also be liable for deceit or engaging in misleading conduct when they do not disclose information about their clients. In some instances, the lawyers may not disclose the information about their clients in order to protect their interest. This is not allowed under any circumstance as the duty to the court overrides that of the clients. Honesty and reliability of the practitioners is one of the important factors that influence the effective administration of justice. This requires the lawyers to ensure that they do not breach their duty to the court. This is despite the instructions that they receive from the clients. The lawyers are also required to look behind the instructions of their clients in order to fully understand their situation. A lawyer is in breach of duty to the court when the coach their clients or witness. In the case of Meek v Fleming, the barrister was found to be in breach of duty to the court after coaching the witness9. It was also during the barrister was found to be in breach of the duty to the court after disclosing only some of the factual information with regards to the case. It is therefore the responsibility of the lawyer to ensure that they are not in breach of the duty to court regardless of the instructions that they have from the clients. Under no circumstance is a lawyer supposed to override the duty of the court in order to meet the interest of the clients. Competence is important among the lawyers in order to ensure that they are able to deal with any form of conflict of interest. It is also the duty of the lawyers to inform their clients about their duties to the court. This is for the purposes of ensuring that the duty to the court is not breached. Conclusion In conclusion, it is evident that the lawyers have to fully comply with section 5. The duty to the court cannot be overridden by the duty to the client as the duty to the court is paramount. It is apparent that most of the professionals as well as the professional bodies are in support of section 5. The duty to the court by the lawyers is mainly for the purposes of ensuring that justice is served and the lawyers are not involved in any activities that may led defeat justice. The dilemma for most of the lawyers is however in terms of disclosing the information. References Meek v Fleming [1961] 2 QB 366 Coe v New South Wales Bar Association [2000] NSWCA 13 Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115 Legal Services Commissioner v Mullins [2006] LPT 012 Professional Conduct Rules 2010 (WA) Mark, Steve. Ethics in litigation and court proceedings. NSW Office of the Legal Services Commissioner, 2009. Martin, Kenneth. Legal ethics: Navigating the daily minefields. University of Western Australia, 2015. Martin, Kenneth. Lawyers Duties to the Court: Between the Devil and the Deep Blue Sea: Part II. University of Western Australia, 2012. Read More