Fairness in court

Fred Swanson

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EbanEmael

Fred Swanson wrote: »

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Generally, an open letter should be written to them. Sometimes ambushes don't work and judges don't like ambushes. It all depends on the level of court and the type of case. In some situations it is a case of no quarter asked or given. In others it is a case of the utmost civility and courtesy.

Corkbah

Fred Swanson wrote: »

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would you simply not have a quiet word prior to the case being called and allow them the opportunity to apply for an adjournment or offer to remedy the situation or withdraw their case.

hullaballoo

It depends on the nature of the case and the manner in which the opposing side has conducted their prosecution/defence. Professional courtesy only goes so far.

johnnyskeleton

Fred Swanson wrote: »

Is there any obligation to let the opposing solicitor know they have made a huge mistake prior to court? Is it bad form to let them plough on and then stand up and ambush them at the end?

Huge mistake in the sense that their case is without merit - no, they probably know that already.

Huge mistake in the sense that they are not aware of a case that goes dead against them - yes, they should be told rather than ambushed.

Corkbah

look at it a different way .... would you prefer to be told or ambushed if you made an error ?

I'd much rather a quiet word outside court, we all make mistakes sometimes its great to get an opportunity to correct the error.

Cody Pomeray

Look at it a different way again - from your own client's or attending solicitor's perspective.

When people say they should be told -- based on what?

Unless it could conceivably amount to knowingly misleading or deceiving the court, I struggle to envisage any situation whereby a lawyer should feel an obligation to almost 'cross the floor' and offer legal advice to his opposite number. Actually, that prospect sounds horrific to my mind.

hullaballoo

Cody Pomeray wrote: »

Look at it a different way again - from your own client's or attending solicitor's perspective.

When people say they should be told -- based on what?

Unless it could conceivably amount to knowingly misleading or deceiving the court, I struggle to envisage any situation whereby a lawyer should feel an obligation to almost 'cross the floor' and offer legal advice to his opposite number. Actually, that prospect sounds horrific to my mind.

The term applied is "not taking a colleague short". It's hardly a repulsive concept: if you know something your opponent appears not to that could seriously harm their case, generally you ought to tell them.

It would be totally repugnant to the principles of professional courtesy and collegiality should people make it their aim to humiliate (even by omission) other professionals who may simply have made a minor error.

Corkbah

Cody Pomeray wrote: »

Look at it a different way again - from your own client's or attending solicitor's perspective.

When people say they should be told -- based on what?

Unless it could conceivably amount to knowingly misleading or deceiving the court, I struggle to envisage any situation whereby a lawyer should feel an obligation to almost 'cross the floor' and offer legal advice to his opposite number. Actually, that prospect sounds horrific to my mind.

would you prefer to embarrass a colleague and make yourself an enemy or have a friend grateful for highlighting an error - you never know who that person is connected to or if they have too much work they might pass some your way.

its nice to be nice !!

(I should add I'm not a solicitor/barrister nor do I have any legal training)

Cody Pomeray

I'll take independence over collegiality any day.

The first concern should be for a client's interests, without regard to one's own interests or those of a friend or colleague. I believe that (essentially) correcting an opponent's mistakes, with possible negative consequences for your own client, borders on professional misconduct, it should be underlined that this is specifically provided for in the Bar Council's code of conduct in respect of criminal cases.

drkpower

Cody Pomeray wrote: »

I'll take independence over collegiality any day.

The first concern should be for a client's interests, without regard to one's own interests or those of a friend or colleague. I believe that (essentially) correcting an opponent's mistakes, with possible negative consequences for your own client, borders on professional misconduct, it should be underlined that this is specifically provided for in the Bar Council's code of conduct in respect of criminal cases.

It all stems from the overarching duty that a lawyer has to the court and to wider society. While that all sounds a little high and mighty, it is one of the bedrocks upon which the legal system is based.

While I'm not sure the precise wording is replicated in Irish guidelines, many common law guidelines for lawyers include an explicit duty not to take advantage of a colleagues bone fide mistakes or slips (Canada's for instance).

To give a practical example, in litigation it is frighteningly not uncommon for one solicitor to send in error a report, or some important document, to the other side by pure mistake. It is understood practice that the receiving solicitor would not read that report, would certainly not rely in it and would return it immediately. While it would be advantageous to ones client to read it and utilise the information contained within, this 'rule' of practice is adhered to by every solicitor I know. I suspect the court would take a dim view of not being followed.

Sometimes, yes, the requirement of fairness does trump the interests of one's client.

Cody Pomeray

I wouldn't say "high and mighty" so much as 'impractical' and 'vague' and possibly amounting to 'misconduct'.

A solicitor or a Barrister can have an obligation to inform the Court of an error or omission on behalf of his opposite number, especially in civil cases.

However not only can there arise a legitimate, and apparently deliberate opportunity for a lawyer to maintain silence when he becomes aware of an error or omission in criminal cases, but there is never an obligation to approach the opposite party with legal advice. That is not provided for anywhere. Any correction - where absolutely necessary - must be undertaken in public.

This is vital for the interests of the client, and I have to say I am really surprised at anyone who believes that private, advisory communications which conflict with a client's interests are acceptable, or worse, desirable.

drkpower

Cody Pomeray wrote: »

I wouldn't say "high and mighty" so much as 'impractical' and 'vague' and possibly amounting to 'misconduct'.

A solicitor or a Barrister can have an obligation to inform the Court of an error or omission on behalf of his opposite number, especially in civil cases.

However not only can there arise a legitimate, and apparently deliberate opportunity for a lawyer to maintain silence when he becomes aware of an error or omission in criminal cases, but there is never an obligation to approach the opposite party with legal advice. That is not provided for anywhere. Any correction - where absolutely necessary - must be undertaken in public.

This is vital for the interests of the client, and I have to say I am really surprised at anyone who believes that private, advisory communications which conflict with a client's interests are acceptable, or worse, desirable.

You seem to be focussing on criminal cases although I don't think the OP has made such a distinction.

In any case, the duty of fairness or the duty not to take advantage of a colleagues errors (if one can truly be said to exist) will always have an inherent vagueness in the sense that you cannot make hard and fast rules for any given scenario given all of the weird and wacky ways in which people can make such errors.

That is where judgment comes in. And it's why I gave a concrete example of one such factual situation where every solicitor (that I know of) would accept that such a rule not to take advantage of a colleagues error applies notwithstanding that it would mean a lost opportunity for your client.

So this duty of fairness, per se, appears clearly to exist. The limits of it is certainly up for debate.

Cody Pomeray

drkpower wrote: »

You seem to be focussing on criminal cases although I don't think the OP has made such a distinction.

No, I'm focussing on private communications, which the OP refers to.

I'm mentioning criminal cases to demonstrate that the rules go even further again. That is to say, not only is there no obligation to "be a pal" by not raising the error or omission in open court, situations can arise when counsel are not even required to correct the court in the court's own misapprehension, if it suits a client's criminal defence. I don't know if the situation is the exact same for solicitors.

The central point, however, is that there is no obligation to approach the other party, in private, with legal advice against his own client's interests. Quite the opposite, it is offensive to the integrity of the legal professions for there to arise any private communications of that nature.

If we won't even shake hands, I certainly don't want your private legal advice, and I certainly won't want to offer it privately either.

drkpower

Cody Pomeray wrote: »

The central point, however, is that there is no obligation to approach the other party, in private, with legal advice against his own client's interests. Quite the opposite, it is offensive to the integrity of the legal professions for there to arise any private communications of that nature.

If we won't even shake hands, I certainly don't want your private legal advice, and I certainly won't want to offer it privately either.

The OP doesn't say anything about offering legal advice. It talks about letting the other side know they have made a big mistake.

You seem to be talking about something else.

Cody Pomeray

drkpower wrote: »

The OP doesn't say anything about offering legal advice. It talks about letting the other side know they have made a big mistake.

You seem to be talking about something else.

Advising an opposing solicitor or Barrister on an over-riding legal authority or principle is legal advice. I am construing the OP to refer to an error or omission in law which seems to meet this standard, and from what I can gather so is everybody else.

If the OP is referring to the legal representative who erroneously sends his wife's Food & Wine subscription instead of legal documents requested, then obviously that is not the same issue. Nobody is saying that legal representatives cannot communicate on a basic level.

But any privately offered advice regarding an apprehension of the relevant legal situation which was not previously understood, and which runs contrary to a client's own interests, is improper. I would have no hesitation reporting someone for that, personally.

drkpower

Cody Pomeray wrote: »

Advising an opposing solicitor or Barrister on an over-riding legal authority or principle is legal advice. I am construing the OP to refer to an error or omission in law which seems to meet this standard, and from what I can gather so is everybody else.

If the OP is referring to the legal representative who erroneously sends his wife's Food & Wine subscription instead of legal documents requested, then obviously that is not the same issue. Nobody is saying that legal representatives cannot communicate on a basic level.

But any privately offered advice regarding an apprehension of the relevant legal situation which was not previously understood, and which runs contrary to a client's own interests, is improper. I would have no hesitation reporting someone for that, personally.

Ah, I see. You seem to be interpreting the OP as asking whether his solicitor should advise the other side as to a mistake OF LAW. My interpretation - and the way has thread has progressed thus far - is on the basis that what is at issue is a mistake simpliciter (which was the basis of the example I gave).

Two different questions, in fairness. Seems we are at cross purposes.

Fred Swanson

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Cody Pomeray

Cody Pomeray wrote: »

I'll take independence over collegiality any day.

The first concern should be for a client's interests, without regard to one's own interests or those of a friend or colleague. I believe that (essentially) correcting an opponent's mistakes, with possible negative consequences for your own client, borders on professional misconduct, it should be underlined that this is specifically provided for in the Bar Council's code of conduct in respect of criminal cases.

The first concern is for the administration of justice before the courts. The client is your second responsibility after your obligations to the court.

You are not there to win at all costs. You are there to see justice done and if there is an issue between the parties of which one party is unaware or a piece of law which mitigates strongly against one party of which they are unaware it is a matter of professional courtesy and proper conduct to inform them of such.

McCrack

drkpower wrote: »

It all stems from the overarching duty that a lawyer has to the court and to wider society. While that all sounds a little high and mighty, it is one of the bedrocks upon which the legal system is based.

While I'm not sure the precise wording is replicated in Irish guidelines, many common law guidelines for lawyers include an explicit duty not to take advantage of a colleagues bone fide mistakes or slips (Canada's for instance).

To give a practical example, in litigation it is frighteningly not uncommon for one solicitor to send in error a report, or some important document, to the other side by pure mistake. It is understood practice that the receiving solicitor would not read that report, would certainly not rely in it and would return it immediately. While it would be advantageous to ones client to read it and utilise the information contained within, this 'rule' of practice is adhered to by every solicitor I know. I suspect the court would take a dim view of not being followed.

Sometimes, yes, the requirement of fairness does trump the interests of one's client.

Believe it or not but the Law Society's professional conduct guide allows a solicitor who inadvertently receives correspondence or an expert report intended for his opposite number to use the contents for his own client's benefit. The privilege still attaches to the documents but secondary evidence can be given as to their contents.

At the end of the ones primary duty is to the court and to their client but professional courtesy and working relationships between colleagues are important and thats not only for practitioners but their clients. Anyone on this thread in practice will appreciate you will come up against the same colleagues regularly and if you attempt to score a cheap victory on one case you will have many many cases after that against them...what goes around comes around.

drkpower

McCrack wrote: »

Believe it or not but the Law Society's professional conduct guide allows a solicitor who inadvertently receives correspondence or an expert report intended for his opposite number to use the contents for his own client's benefit. The privilege still attaches to the documents but secondary evidence can be given as to their contents.

At the end of the ones primary duty is to the court and to their client but professional courtesy and working relationships between colleagues are important and thats not only for practitioners but their clients. Anyone on this thread in practice will appreciate you will come up against the same colleagues regularly and if you attempt to score a cheap victory on one case you will have many many cases after that against them...what goes around comes around.

Yes, its a strange one alright. I'd like to hear the precise rationale for it.

Although it is (possibly) a little different to the scenario that I come across not uncommonly. The lawsociety guidelines seem to cover where the correspondence is intended for the solicitor for the other party. In circumstances where solicitor sends correspondence to another solicitor and inadvertently encloses a document in error, I don't think that would be considered to be correspondence 'intended for the solicitor for the other party'.

drkpower

Fred Swanson wrote: »

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What one solicitor or client believes is doomed to failure may not be what another solicitor believes. In those circumstances, there wouldn't be any such onus. However, if one side believes they have a particularly strong case (to the point of believing the other side is doomed to failure), it would be very unusual for them not to state that to the other side, likely in open correspondence.

McCrack

drkpower wrote: »

Yes, its a strange one alright. I'd like to hear the precise rationale for it.

Although it is (possibly) a little different to the scenario that I come across not uncommonly. The lawsociety guidelines seem to cover where the correspondence is intended for the solicitor for the other party. In circumstances where solicitor sends correspondence to another solicitor and inadvertently encloses a document in error, I don't think that would be considered to be correspondence 'intended for the solicitor for the other party'.

I think so too. Where I have seen it happen (and its rare) is when an expert has been instructed and he sends his report to the opposition by mistake. Simple carelessness on the experts part.

johnnyskeleton

Cody Pomeray wrote: »

I wouldn't say "high and mighty" so much as 'impractical' and 'vague' and possibly amounting to 'misconduct'.

A solicitor or a Barrister can have an obligation to inform the Court of an error or omission on behalf of his opposite number, especially in civil cases.

However not only can there arise a legitimate, and apparently deliberate opportunity for a lawyer to maintain silence when he becomes aware of an error or omission in criminal cases, but there is never an obligation to approach the opposite party with legal advice. That is not provided for anywhere. Any correction - where absolutely necessary - must be undertaken in public.

This is vital for the interests of the client, and I have to say I am really surprised at anyone who believes that private, advisory communications which conflict with a client's interests are acceptable, or worse, desirable.

You know that's all well and good, but its not at all the scenario that the OP was asking about, and is something of a strawman argument.

No one is talking about revealing private client instructions, or telling the other side about a case that undermines your clients interests, the op was asking about a very specific issue whereby if one lawyer knows something that undermines the others case, is there a duty to inform them of it before they make a fool of themselves. In such a case, it serves the clients interest to let the other side know as it strengthens their bargaining position, and they won't get any real benefit by taking the other side by surprise.

Cody Pomeray

Deleted User wrote: »

The first concern is for the administration of justice before the courts. The client is your second responsibility after your obligations to the court.

I'm not sure if you've read what I posted correctly.

I am saying that there is no obligation - or none that I can conceive - whereby the opposing legal representatives are obliged to make private contact with the other and advise them on a point of law.

I have said there are times when there is an obligation on the solicitor or barrister to inform the court of the court's misapprehension on a specific point of law in civil cases.

I have said there are, also, times when there is no such obligation, as can arise in the course of a criminal defence.

But this next bit is important. The fact that there is no obligation to make private contact, and the fact that to do so is generally improper, is anterior to all of the above points. I have never suggested that a legal representatives have no obligations to the court.

At the same time, any sensible person would have to reject the idea that a representative's first obligation is always to the court.

johnnyskeleton wrote: »

No one is talking about revealing private client instructions, or telling the other side about a case that undermines your clients interests

I haven't raised the prospect of revelations, apparitions, secrets or otherwise.

It is fundamentally improper, and verging on misconduct, for a person acting for one side to make private contact with the other for the purposes of offering legal advice to the opposing side.

It wasn't clear what the OP meant from his two line OP, and in fact I still think his point may relate to advice on a point of law, but that isn't entirely clear.

Fred Swanson wrote: »

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No, it doesn't sound like it, but we possibly need more details.

If the client wants to advise the opposing client of a specific issue, that's obviously fine, but there is no obligation to save an applicant from himself.

Pat Mustard

For the sake of argument, let's assume that the other party's application is doomed to failure.

One would hope that costs would follow the event. Despite what one might hope, there can be no guarantee.

Quite apart from any obligation to inform the other side of their error, would it make sense to write a letter to them, informing them that their application is misconceived, that an application for costs will be made and that said letter will be produced in court in support of said application?

After all, from one's client's perspective, a court victory without an order for costs may be something of a hollow victory, depending on the circumstances.

As I am not familiar with the facts, I am simply wondering.

johnnyskeleton

Cody Pomeray wrote: »

I am saying that there is no obligation - or none that I can conceive - whereby the opposing legal representatives are obliged to make private contact with the other and advise them on a point of law.

I think you are perhaps failing to appreciate the nature of our legal system. It is necessary for the administration of justice that the parties to litigation can present only those issues which are in controversy and not have to reinvent the wheel every time they go to court. So there is an obligation, for example, for the parties to exchange pleadings, which are legal documents setting out each sides position.

Occasionally, in a case of complex legal issues, the parties will exchange submissions so that each side is aware of the points the other is going to make. This helps to clarify the precise points each side wishes to make.

All of this is part of our practice and procedure, to such an extent that if an opposing solicitor was caught off guard by a case or point which he/she was not aware of, the court will usually adjourn the case for them to consider it. So there are well established rules of practice whose purpose is to ensure that cases address only the real issues of controversy and neither side is taken by surprise. There is no benefit whatsoever to a litigant to taking the other side by surprise - it only wastes the courts time and increased costs. In an extreme case, a litigant who tries to ambush the othe side could have their case struck out because of it, or have a reduced level of costs, or a judge could prevent them from raising an issue at the hearing which hadn't been flagged in advance.

So while in other court systems there may not be an obligation to assist the court in this fashion, it is the nature of the Irish and English systems to do so. You can argue that this is a bad system from a client perspective if you like, and suggest litigation should become more like a US style game of brinksmanship, but you cannot seriously deny that there is an obligation on both sides of a dispute to discuss the issues in a case with a view to saving court time. That is our system as it stands.

At the same time, any sensible person would have to reject the idea that a representative's first obligation is always to the court.

The first obligation is always to the client, not to the court, and if it were the case that revealing something to the other sides solicitor would damage your clients case then there is no question of that happening. But that is so far removed from what the rest of us are discussing that it is not relevant.

I'll try to give an example in non-lawyers terms to show you what we are talking about. Supposing lawyer A is going to ask the court for a list of client B's documents (which he is entitled to do), specially a copy of B's bank accounts. But unknown to lawyer A a judgement of the day before says that bank accounts cannot be granted in this way. Lawyer B knows about this case and knows that lawyer A doesn't. Lets say he tells lawyer A and upon seeing how foolish he will be lawyer A drops the application with an order for client A to pay client B's costs. Or maybe he tries to distinguish his case from the decision of the day before and wins or loses based on that.

Now, lets say that lawyer B acts as you propose and after 10 minutes of an application to court by lawyer A, lawyer B opens the recent decision, its very embarrassing for lawyer A and 10 minutes later the judge dismisses the application with client A to pay client B's costs. This is no better than the scenario where after being told about the new case lawyer A drops the claim, except that 20 minutes of court time is wasted, and a judge may not be particularly well disposed to lawyer B for going through the motions so may refuse the order for costs. Or worse, maybe lawyer A will say, as he/she is entitled to do, that he/she is not aware of this new judgment and needs an adjournment to consider it. Benefit to client A, none. But it wastes a lot of court time and incurs unnecessary expense.

Do you see now what we are talking about? You can rest assured that it is not some sneaky code or deal that lawyers are doing behind your back.

It is fundamentally improper, and verging on misconduct, for a person acting for one side to make private contact with the other for the purposes of offering legal advice to the opposing side.

The word "advice" is wrong here. The OP is asking about correcting the other persons mistaken understanding. He never suggested that "advice" be given, so you are really answering a question that no one is asking, or at best rephrasing it to suit the points you wish to make.

In any event, it is not misconduct to point out the flaws in another persons case. How else would negotiations take place and what would be the point of lawyers if they didn't argue the law with each other? It is part of our justice system, and in cases where the parties haven't discussed the issues a judge will usually tell them to do so. And with compulsory ADR as the latest thing, it would be misconduct not to engage with the other side, unless a client expressly forbid their lawyers from doing so and they did it anyway. Most litigants understand this about the courts and want their lawyers to try to agree matters so that they don't have to take the stand unnecessarily etc.

It wasn't clear what the OP meant from his two line OP, and in fact I still think his point may relate to advice on a point of law, but that isn't entirely clear.

Everyone else understood what he meant, and he has since clarified for you exactly what he meant.

Cody Pomeray

Cody Pomeray wrote: »

I'm not sure if you've read what I posted correctly.

I am saying that there is no obligation - or none that I can conceive - whereby the opposing legal representatives are obliged to make private contact with the other and advise them on a point of law.

I have said there are times when there is an obligation on the solicitor or barrister to inform the court of the court's misapprehension on a specific point of law in civil cases.

I have said there are, also, times when there is no such obligation, as can arise in the course of a criminal defence.

But this next bit is important. The fact that there is no obligation to make private contact, and the fact that to do so is generally improper, is anterior to all of the above points. I have never suggested that a legal representatives have no obligations to the court.

At the same time, any sensible person would have to reject the idea that a representative's first obligation is always to the court.

Any sensible person would read the Bar Council Code of Conduct:

Barristers have an overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved and they must assist the Court in the administration of justice and must not deceive or knowingly mislead the court.

Every trainee barrister in the Inns knows that their first, primary and overriding duty is ALWAYS to the Court. You can say whatever you like but that's the plain truth. You said the first obligation was to the client and this is, objectively, incorrect.

Secondly it is a waste of the Court's time to sit there and to wait until the other side has made a catastrophic error before dropping the bomb on them when you can give them a chance to walk away and save costs beforehand. That is not achieving the "proper and efficient" administration of justice. In Ireland we do not have trial by ambush.

johnnyskeleton

[Deleted User] wrote: »

Every trainee barrister in the Inns knows that their first, primary and overriding duty is ALWAYS to the Court.

Maybe I'm being overly semantic, but I always understood it to be that the first duty is to the client, subject to the overriding duty not to mislead the court. The significance being that where a clients instructions would be to mislead the court, the lawyer should withdraw from the case and let them get new lawyers or represent themselves, rather than present the case in a manner inconsistent with the clients instructions.

johnnyskeleton

johnnyskeleton wrote: »

Maybe I'm being overly semantic, but I always understood it to be that the first duty is to the client, subject to the overriding duty not to mislead the court. The significance being that where a clients instructions would be to mislead the court, the lawyer should withdraw from the case and let them get new lawyers or represent themselves, rather than present the case in a manner inconsistent with the clients instructions.

That's certainly a reasonable interpretation but there are situations where you must inform the Court of case law that is detrimental to you, facts which go against you etc. Also the Court must be able to take Counsel at their word so the overriding duty must always be to the Court.

Tom Young

Example: Discovery Motion.

Counsel for Plaintiff seeks discovery of 8 categories; motion begins.

Counsel for Defendant fails to communicate with Plaintiff Counsel that 6 categories are on consent.

Counsel for Plaintiff runs Motion in full, giving reasons, relevance and necessity to Court. 35 minutes baiting with capricious judge.

Counsel for Defendant get to feet, says: Categories 1 - 6 are on consent.

Judge loses the plot with Defendant Counsel, excoriates same and awared wasted costs to the Plaintiff.

Defendant Counsel was a devil (older one) thinking he was being smart/clever.

Not good.

Tom Young

Legal Submissions: Written ones, are an exposition of all relevant law in a given area, not just the bits that suit your case.

I am exposed to a continuing trend of incorrect submissions. That's unfair, even if the cases are stacked against your client. Facts can modify the law quite often.

The_Minister

Tom Young wrote: »

Example: Discovery Motion.

Counsel for Plaintiff seeks discovery of 8 categories; motion begins.

Counsel for Defendant fails to communicate with Plaintiff Counsel that 6 categories are on consent.

Counsel for Plaintiff runs Motion in full, giving reasons, relevance and necessity to Court. 35 minutes baiting with capricious judge.

Counsel for Defendant get to feet, says: Categories 1 - 6 are on consent.

Judge loses the plot with Defendant Counsel, excoriates same and awared wasted costs to the Plaintiff.

Defendant Counsel was a devil (older one) thinking he was being smart/clever.

Not good.

I've never seen that in the Common Law lists yet - could I ask which judge that was?

Fred Swanson

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Tom Young

The_Minister wrote: »

I've never seen that in the Common Law lists yet - could I ask which judge that was?

Yet!

No, I'm not about to identify this car crash openly. It did happen though and wasted costs orders are rare but that was deserved for being about as thick as the ditch.

Tom Young

Fred Swanson wrote: »

May I state the exact nature of the application involved?

Discovery in a contract dispute.

norrie rugger

If telling them harms your client's case should you really be telling them, out of professional courtesy?

Cody Pomeray

Deleted User wrote: »

Every trainee barrister in the Inns knows that their first, primary and overriding duty is ALWAYS to the Court. You can say whatever you like but that's the plain truth. You said the first obligation was to the client and this is, objectively, incorrect.

Then maybe that person should put greater effort into their reading. And I haven't said that the obligation is 'always' to the client.

The Bar Council's own code of conduct allows for a Barrister allowing a court's misapprehension to go uncorrected in certain circumstances.

You are making two errors.

Firstly, you are speaking in absolutes. In fact, it cannot be said that a Barrister's primary obligation is to a Court or to a client. There is a hierarchy of obligations, but this changes from time to time.

Secondly, you are completely missing the point of what I was saying - which relates primarily to private, advisory communications on a point of law. I am not suggesting a Barrister ever actively mislead or deceive the court, and I have said that from the very beginning.

To summarize, a Barrister who becomes aware of an error or omission of a legal nature or pertaining to some legal authority should be referred to in open communication or in open court, i.e. the other side can be 'ambushed', if that is the phrase people want to use.
On the other hand, if, in the course of a criminal defence, it rather suits counsel for the defence to zip their lips, then that is what they ought to do, their obligation not to actively mislead or deceive the court notwithstanding, but taking into account their (I say) primary obligation to the client in that particular scenario.

I would describe what Tom Young is talking about as a communication problem, and is not what I am talking about, and may not be the sort of thing the OP is talking about.

Tom Young

I'd describe it as fairness in Court myself.

Fred Swanson

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hullaballoo

Fred Swanson wrote: »

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In that case, it is totally improper to allow the Plaintiff to proceed under this misapprehension. It is in no way prejudicial to the Defendant to reveal the fact that the decree was vacated, particularly because the Defendant will necessarily have to reveal that information in the running of his response to the Plaintiff's application.

It is a very good example of where professional courtesy meets positive obligation in that if the Defendant omitted to inform the Plaintiff in advance, there is a real risk that costs could become the dominant issue and I would not like to have to justify the Defendant's position, should it fail to warn the Plaintiff in advance.

Cody Pomeray

Fred Swanson wrote: »

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This is clearly a non-contentious communication relating to the facts, there is no doubt that the defence should make the defendant aware of the relevant facts in the normal way before this goes to court. It sounds like it shouldn't have even got this far.