Walker, Bret --- "Test of Loyalty - Procedural Reform and Advocates' Ethics" [1998] ALRCRefJl 3; (1998) 72 Australian Law Reform Commission Reform Journal 11

• By Bret Walker SC*

---

Reform Issue 72 Autumn 1998

This article appeared on pages 11 – 16 of the original journal.

Test of Loyalty - Procedural Reform and Advocates’ Ethics

By Bret Walker SC*

It may be taken for granted that two of the constant aims of practical litigation reform will be the principled encouragement of compromise and the efficient presentation of issues for adjudication.

The first is essential if the administration of justice at anything like the present level of government funding is to be adequate to cope with the likely caseload - and also has social and personal benefits (for example, resort to agreement in place of contest) if the purchase of certainty (that is, the sacrifice of some measure of one’s claimed right or immunity) is not too dear. The second is equally crucial to the tolerable functioning of a litigation system - as conventional admonitions to avoid trial by ambush and to promote the narrowing of issues have emphasised for many decades.

A superficial survey of the advocate’s role in these aspects of modern litigation could mislead an observer into regarding an advocate as a figure beset with impossible, or at least invidious, conflicts of duties and conflicts of interests.

Some of those supposed conflicts are theoretically easy to describe. First, the interest of the client in the most cost effective outcome is thought to clash with the advocate’s usual method of remuneration by time based fees. Second, the interest of the client who is inclined to settle, that compromise be achieved before much cost is spent in preparation for a contest, is thought to clash with the advocate’s other usual method of remuneration by task based fees.

Third, the interest of the client in victory and the duty of the advocate to assist the client to win (a crude paraphrase which will serve for argument’s sake) are thought to clash with the advocate’s duties not to mislead the court and not to use his or her privilege to defame so as to oppress the opposing party. Fourth, nowadays, one might add a less formal conflict between a systemic value of economy in adjudication and an individual client’s interest (and thus the advocate’s duty?) in deploying “as much as it takes” to achieve his, her or (usually) its personal, commercial or political end by litigation.

Most of these conflicts are more apparent than real. Admittedly, this is an assertion based on personal experience and anecdote, in an area which is not easy to observe or measure. In this respect, the practices of advocates are not well understood by a plain analysis of material self-interest.

Principal loyalties

Professional ethics mean more than personal commitments to honesty, fidelity and diligence. It is intended to describe a body of norms and values, often expressed as commands and prohibitions, explicitly espoused by the profession and sought to be enforced by discipline including expulsion from the profession. The New South Wales Barristers’ Rules are used here as the example. (They bind, by statutory effect, the most numerous Bar in Australia, and also, by express adoption of the ‘Advocacy Rules’ - that is, Rules 16-72, in the Professional Conduct and Practice Rules made by the Council of the Law Society of New South Wales - the most numerous body of solicitors in Australia.)

These rules reproduce in familiar terms the cardinal statements of the principal loyalties imposed on advocates by reason of their so-called duties to the Court, to their clients and others, such as the opponent. The preamble asserts:

“Barristers owe duties to the courts, to other bodies and persons before whom they appear, to their clients, and to their barrister and solicitor colleagues.”

Thus the supposed primary conflict is recognised, even if not as a conflict, at the outset. It is an old and accepted multiplicity of loyalties. Sir Anthony Mason in Giannarelli v Wraith ((1988) 165 CLR 543 at 555-557) classically expounded the traditional and current view as follows:

“The peculiar feature of counsel’s responsibility is that he owes a duty to the court as well as to his client. His duty to his client is subject to his overriding duty to the court. In the performance of that overriding duty there is a strong element of public interest ... The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client ... It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice ... our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.”

In practice, this supposed conflict is rarely uncomfortable for the advocate, however galling it may be for the uninformed or unimpressed client.

Traditionally, codes of conduct have sought to simplify and make explicit some particulars of this overriding duty to the administration of justice. The New South Wales Barristers’ Rules take what is mostly an orthodox approach, as follows:

“16. A barrister must seek to advance and protect the client’s interests to the best of the barrister’s skill and diligence, uninfluenced by the barrister’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules.”

The last phrase in this otherwise conventional expression of an advocate’s duty to his or her client makes it quite impossible for it to be seriously argued that the extravagance of Lord Brougham’s statement in the fraught circumstances of the trial of Queen Caroline really does accurately represent the modern position.¹ Lord Brougham famously asserted that in the discharge of an advocate’s duty, the advocate “knows but one person in all the world, and that person is his client”. His Lordship continued this rodomontade, which was probably wrong when he uttered it and has not gained authority by others repeating it, by claiming that the salvation of the “client by all means and expedients, and at all hazards and costs to other persons ... is his first and only duty”.

Balance for advocates

The balance between an independent role for advocates in the administration of justice and the private loyalty for which their clients pay is set out in a familiar way:

“18. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgements called for during the case independently, after reasonable consideration of the client’s and the instructing solicitor’s desires where practicable.”

The closing phrase seeks to recognise that the active discharge of the advocate’s balancing of these loyalties cannot be satisfactorily met by some lordly indifference to the client’s or the client’s other legal advisers’ legitimate views and preferences. It is therefore a plausible possibility that an advocate could be disciplined for what in New South Wales would be called unsatisfactory professional conduct if he or she were to take a significant step such as sacrificing an alternative argument without some prior consultation with the client. Practicability prevents an advocate being obliged constantly to consult a client about the snap decisions made on the feet in court. However, an advocate should explain what may well happen later in court, so that a client can contribute to the process of tactical decisions.

There is recognition in the definition of “forensic judgements” in Rule 18 that certain matters can and should be for the client to decide: the expression does not include “decisions as to the commencement of proceedings, the joinder of parties, admissions or concessions of fact, amendments of pleadings or undertakings to a court, or in criminal proceedings as to a plea”. The independence of forensic judgements is required in relation to an advocate’s “advice given to assist the client ... to make such decisions” (and see Rule 15).

An innovation to the rules enlists the advocate’s skills directly to increase the efficiency or economy of the administration of justice. The new rule is as follows:

“ 19. A barrister will not have breached the barrister’s duty to the client, and will not have failed to give reasonable consideration to the client’s or the instructing solicitor’s desires, simply by choosing, contrary to those desires, to exercise the forensic judgements called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real issues;
(b) present the client’s case as quickly and simply as may be consistent with its robust advancement; or
(c) inform the court of any persuasive authority against the client’s case.”

The last element in Rule 19, which is meant to encourage disclosure of “persuasive” as opposed to “binding” authority against the client’s case, may be contrasted with the absolute command for the disclosure of relevant law against the client’s interests, as follows:

“25. A barrister must, at the appropriate time in the hearing of the case, inform the court of any binding authority or any applicable legislation which the barrister has reasonable grounds to believe to be directly in point, against the client’s case, if the court has not yet been informed of that matter.”

Another illustration of how the adversarial instinct, in its purely combative sense, is explicitly encumbered by ethical duties can be found in the New South Wales innovation concerning ex parte applications, where there is a duty of disclosure binding the party. It is as follows:

“24. A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all matters which:
(a) are within the barrister’s knowledge;
(b) are not protected by legal professional privilege; and
(c) the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

A specific attempt was added in 1997 to give practical guidance where a client is recalcitrant and justice otherwise may be spoiled by a decision or order being permitted to proceed on a false basis. It reads as follows:

“24A. A barrister who has knowledge of matters which are within Rule 24(c):
(a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that privilege, so as to permit the barrister to disclose those matters under Rule 24; and
(b) if the client does not waive the privilege as sought by the barrister:
(i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so; and
(ii) must inform the court that the barrister cannot assure the court that all matters which should be disclosed have been disclosed to the court.”

Introduction of this requirement met with no opposition from the New South Wales Bar when it was circulated as a proposal. One can draw the inference that the rule accords with most advocates’ sense of justice, and their understanding of their roles as ministers of justice.

Then there are all the rules (Rules 35-41) made to control an advocate’s privileged statements in and for the purposes of court proceedings. They recognise that the power to defame by utterances which can be reported with immunity in public, and often are given wide publicity, brings with it particular obligations of care and temperateness.

These requirements limit the zeal, partisanship and non-accountability of contemporary Australian advocates, as well as those in other common law countries such as New Zealand, Canada, England, Wales and Ireland.

Possible reform

A possible reform of these rules is suggested by the American experiment in the 1983 and 1993 versions of United States’ rules to make advocates responsible for statements and arguments, factual and legal, on the basis of “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”. Justice David Ipp, of the Supreme Court of Western Australia, has discussed the 1993 version of the US Rule 11, and some professional, academic and judicial consideration of its 1983 version, in his Reforms to the Adversarial Process in Civil Litigation - Part I, ((1995) 69 ALJ 705 at 728-730). There is some controversy in the American literature as to the merits of the 1993 version, which expanded the scope of professional work to meet this standard and reduced the availability of costs sanctions for breach. A theme in the criticism of the 1983 version appears to be that it gave birth to a cottage industry of collateral litigation in jurisdictions without Anglo-Australian cost-shifting rules.

A legitimate reason to hesitate before imitating the Americans is that the US Rule 11 does not seem to encourage an advocate to specialise in disinterested advocacy to anything like the same extent as in Australia. Belief in the rightness of a client’s case is a slippery concept and the American model seems to welcome active participation by advocates in finding out the facts.

In my opinion, the model of Rule 37 of the New South Wales Barristers’ Rules, which currently states that a barrister “must not open as a fact any allegation which the barrister does not then believe on reasonable grounds will be capable of support by the evidence” should be extended to pleadings, to cross-examination and to final addresses. A rule as follows could be adopted:

“36A. A barrister must not allege any matter of fact in:
(a) any court document drawn or settled by the barrister;
(b) the course of an opening address;
(c) any suggestion made in cross-examination; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available to the barrister, and admitted into evidence in the case of a closing address, provides a proper basis to do so.”

A rule in this form does not turn an advocate into a sleuth. It should, however, provide useful support for any professional who needs to resist pressure from a client who wishes to throw up a smoke screen of fiction or sheer speculation. It should also assist the economic administration of justice by applying the independent filter of an advocate’s nose to factual disputes which may otherwise absorb parties’ costs, delay settlement or consume court time.

Beyond the scope of this article are the specific and crucial duties binding prosecutors, which undoubtedly temper the adversarial system (Rules 62-72).

Touching on all these areas, of course, is the traditional statement of the essential duty owed by an advocate to the Court, as follows:

“21. A barrister must not knowingly make a misleading statement to a court on any matter.”

Given the imperfections of human advocacy, it is not enough that only fraud or deceit be proscribed. Mistakes as well should be corrected, lest the administration of justice proceed on a false basis. A very important requirement is as follows:

“22. A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.”

There is less comfort to be drawn from the current dispensation from any obligation to correct an opponent’s errors. At present, this reads as follows:

“23. A barrister will not have made a misleading statement to a court simply by failing to correct an error on any matter stated to the court by the opponent or any other person.”

It may now be time to push for abolition of this hands off approach. After all, the lack of diligence by an opponent does not excuse an advocate from the obligation to draw an adverse authority or statute to the Court’s attention.

Why should a matter of fact which is so unarguably wrong as to be described as ‘an error’ not attract the same level of disinterested service to the administration of justice as an error of law? Justice should be administered as close to the truth as humans acting with due economy can achieve.

In my opinion, there should be a replacement of Rule 23 by its very opposite, as follows:

“23. A barrister must take all necessary steps to correct any misleading statement on any matter made by the opponent in civil proceedings to the court, which is adverse to the opponent’s client’s case, if the barrister believes on reasonable grounds that it was in error.”

Obviously, such a new rule is intended to enlist the inside knowledge of an advocate about matters which might perhaps remain secret from the Court or from the opponent, so as to ensure that ignorance will not knowingly be the basis of a false judgement. It is not intended to intrude on the evidentiary contest, but rather on statements made from the Bar table not themselves being evidence. In practice, it would probably not much alter the presently observed concern of the judges and most advocates that decisions be soundly based in fact and law.

The vexed question of the application of such a rule to criminal proceedings is beyond the scope of this article.

Advice to litigants

Another area where the explicit terms of the ethics of advocacy could be changed is in the area of advice by advocates to litigants about litigation. An innovation in New South Wales was to require a serious effort of explanation by an advocate to the client about the issues in the case, as follows:

“17. A barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations, if the barrister is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connection with any compromise of the case.’

Such a large proportion of disciplinary complaints against barristers was constituted by allegations that the barrister had bullied or inappropriately pressured the client into an ill-understood settlement that some such rule was considered necessary. Such a rule could also insist that all civil litigants have explained to them the range of available alternatives to a fully contested adjudication. In actual practice, this occurs as a matter of ordinary client care. But the interests of clients and the economic use of the Court system would be enhanced if advocates were obliged to run the risk of talking themselves out of the job.

In my opinion, a new rule should be imposed, as follows:

“17A. A barrister must tell the client about the alternatives to fully contested adjudication of the case which are reasonably available to the client as soon as possible after the barrister is instructed to do work towards the presentation of the case in court.”

Such a rule may increase the awareness of compromise at an early stage of proceedings, with the desirable outcome of more cases being settled before most costs have been incurred.

It is time that the kind of rules noted above have their complement in procedural rules of the Courts. The Advocacy Rules explicitly force advocates to volunteer matters which do not immediately, or ever, benefit the particular client, but which are intended to benefit the process of achieving justice in a particular case. That idea, as these rules make plain, is not alien to the practice of advocacy in our adversarial system. One example of complementary procedural reform would be to prohibit pleading a blank denial, as proposed in Rule 211 of the Queensland October 1997 consultation draft of the Uniform Civil Procedure Rule.

Adversarial ethics, to use a shorthand which apparently strikes some commentators as an oxymoron, are not fairly summed up as ‘win at all costs’. Nor are the current Australian norms of advocacy in the legal profession fairly described as a charter for gladiatorial combat. Nor are they sensibly regarded as an arbitrary mixture of impossible conflicts and unworldly or hypocritical idealism. They reflect a practical acceptance of the unremarkable fact that it is the administration of justice, and not the mere representation of clients, which is the province of advocates. This ethos should be harnessed by those who wish to improve the procedures of litigation in order to make the process better adapted to find out the truth, less expensive and less protracted.

*Bret Walker SC is President of the Law Council of Australia. He discloses that he wrote the New South Wales Barristers Rules.

End-notes

1.cf the discussion by Prof Stephen Parker in his Change, Responsibility, and the Legal Profession in ‘Legal Ethics and Legal Practice: Contemporary Issues’, Parker & Sampford (eds), Oxford 1995, pp 79-85.