ETHICS IN LITIGATION: ISSUES RAISED BY THE LEGAL PROFESSION (PROFESSIONAL CONDUCT) RULES, 1998
| Published date | 01 December 1999 |
| Author | JEFFREY PINSLER |
| Date | 01 December 1999 |
| Citation | (1999) 11 SAcLJ 284 |
This article addresses the impact of the Legal Profession (Professional Conduct) Rules, 1998 in the context of ethics in litigation. The approach is to consider the scheme and application of these Rules,1 to examine the ethical norms applicable to the general conduct of proceedings in court,2 and, more specifically and substantially, to analyse the extent to which the Rules affect the process of cross-examination.3
THE Legal Profession (Professional Conduct) Rules (the LP (PC) Rules) came into operation on 1st June 1998.4 They apply ‘to every advocate and solicitor who has in force a practising certificate’.5 These Rules consist of six parts concerning, respectively, ‘Preliminary’, ‘Practice’, ‘Relationship and Dealings with Clients’, ‘Conduct of Proceedings’, ‘Defending Accused Persons’, and ‘Conduct of Criminal Prosecutions by Practising Solicitor’. This article focuses on ‘Part IV: Conduct of Proceedings’ and certain other rules in the LP (PC) Rules to the extent that they are linked to this topic. The LP (PC) Rules apply to interlocutory processes as well as the trial or hearing unless by reason of their specific nature only a particular process is addressed.6 The rules are facets of the duties which an advocate and solicitor owes to the court, his client, the opposing solicitor, other persons involved in the court process and the public.
Prior to the advent of the LP (PC) Rules, the Practice Directions and Rulings, 1989 (PDR) (including guidelines issued by the Law Society) governed ethical practice in general.7 It is provided in the LP (PC) Rules that they prevail over the PDR ‘to the extent of any inconsistency’.8 Apart from the PDR, the advocate and solicitor has always been required to act within the ethical parameters mandated by his position as an ‘officer of the court.’9 The ramifications of the terminology ‘officer of the court’
can only be truly be described as an overriding principle to be applied to all circumstances of legal practice. This principle now finds itself expressed in the LP (PC) Rules as the obligation ‘to maintain the rule of law and assist in the administration of justice’.10
However, in the complex system of court practice, principle needs to be carefully defined, ideally in the form of specific directions so that the advocates (and their clients) are in no doubt about proper conduct in the great variety of circumstances in which they may find themselves. Although the PDR does contain provisions guiding professional practice,11 few of these focus on the actual conduct of proceedings. While the advocate and solicitor’s responsibility as an officer of the court has always been paramount, the absence of a comprehensive code of ethics governing the trial process may not always have guaranteed adherence to expected standards. Moreover, the PDR, not being legislation, may have lacked the moral and legal force necessary to stamp the ethical aspects of court practice with the appropriate importance or authority. The LP (PC) Rules are the first comprehensive body of rules on ethics in general, and they have statutory force.
The fundamental principle that an advocate and solicitor must represent his client to the best of his ability12 and to endeavour to do his utmost in this respect13 subject to the obligations arising from his role as an officer of the court14 is formulated by Rule 54 of the LP (PC) Rules as follows:
… an advocate and solicitor shall conduct each case in such a manner as he considers will be most advantageous to the client so long as it does not conflict with the interests of justice, public interest and professional ethics.
It is clear from this rule and the case law that the advocate and solicitor’s obligation to act in the best interests of his client15 is necessarily limited by his position as an officer of the court, which raises a separate set of obligations relating to the system of justice as a whole.16 The term ‘officer
of the court’ is no mere esoteric title about which the advocate can remain passive. The position imposes a manifold duty comprising: obligations to the court to maintain the rule of law and assist in the administration of justice;17 a duty to the opposing party and his legal counsel to ensure fairness in the litigation process; and a general public duty to ensure that the integrity and dignity of the judicial system and the legal profession is preserved.18
His most basic obligation is not to deceive or mislead the court, any other advocate and solicitor, witness, court officer, or other person or body involved in or associated with court proceedings.19 This responsibility extends to every function including the presentation and interpretation of facts, drafting of pleadings and documents, legal argument and other submissions to, or communications with, the court.20 The duty not to intentionally mislead or deceive is only the bare minimum required of the advocate and solicitor. As an officer of the court, he is expected to advance the public interest in the fair administration of justice even if this would jeopardise his client’s interests. Hence, he is required to inform the court of ‘all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues’.21 In the same context, he is prohibited from advancing submissions, opinions or propositions which he knows to be contrary to the law.22 He is also expected to raise ‘any procedural irregularity’ during the hearing and not reserve it for the appeal.23 Although this injunction is primarily intended to ensure that the advocate and solicitor raises his opponent’s procedural defaults so that they are adjudicated at first instance rather than on appeal, it also appears to require him to raise any procedural irregularities for which he is responsible even though such a revelation would adversely affect his client’s case. This would be consistent with his duty to raise substantive law sources whether or not they are favourable to his client.24
The LP (PC) Rules also recognise that the proper and fair administration of justice may be served by confidentiality in certain circumstances as much as it is by disclosure in the situations just discussed. Communications between the advocate and solicitor and client in the context of the case are generally25 protected from disclosure26 primarily to enable the client to willingly confide in his lawyer so that he can be effectively represented. The advocate and solicitor is permitted, even encouraged in certain circumstances, to continue to represent a client who has confessed his guilt to him in criminal proceedings.27 Of course, the advocate and solicitor must not disclose the confession.28 Another example of the duty of the advocate and solicitor to maintain silence about a matter concerns the disclosure of the client’s previous convictions for the purpose of sentencing. The advocate and solicitor is under no duty to disclose to the court any convictions which are not on record before the court, or to point out any errors or omissions in the record, if such disclosure ‘would be to his client’s detriment’.29 The principle recognises that the matter of disclosure of convictions is the prosecutor’s sole responsibility and that any assistance given by the advocate and solicitor in this respect would compromise his duty to his client. The advocate and solicitor’s role as an ‘officer of the court’ does not extend to assisting the prosecutor in this context. However, the advocate and solicitor’s right not to disclose these convictions does not mean that he is entitled to make any form of representation which would give the impression that his client has none of these convictions. In other words, while the advocate and solicitor may remain neutral through non-disclosure, he must not make any representation whatsoever that would misrepresent the circumstances. Hence, the words in the rule that the advocate and solicitor ‘shall not lend himself to any assertion that the client has no convictions nor ask a prosecution witness whether there are previous convictions against the client in the hope of receiving a negative answer’.30 As such conduct would involve a dishonest element, the advocate and solicitor would be neglecting his responsibility as an ‘officer of the court’. Here, he oversteps the line between his neutral and non-active role of maintaining
confidentiality, which is permitted by the rule in the interest of his duty to his client, and conduct which is unbecoming of ‘an officer of the court’. In the same vein, although an advocate and solicitor may continue to act for a client who has confessed his guilt to him, he must not ‘set up an affirmative case inconsistent with the confession’.31 For example, his case should not involve the contention that some other person committed the offence or an alibi defence. Another aspect of the advocate and solicitor’s duty of non-disclosure is the direction that he ‘shall not express his personal opinion of his client’s guilt’ when conducting proceedings in court.32 It is suggested that this principle applies to his opinion of his client’s liability in a civil case.
The advocate and solicitor’s professional standing and concomitant obligation to avoid a conflict of interest in the course of proceedings is emphasised by various rules. He is not to ‘allow his personal feelings to affect his professional assessment of the facts or the law or to affect his duty to the court’.33 As a general rule, an advocate and solicitor who has been instructed to act on behalf of a person charged with a criminal offence is expected to defend him even if he is of the opinion that the person...
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