ATP 105 Professional Ethics - 2023 Lecture 4 - Rights Duties and Obigations of Advocates

ATP 105
Professional
Ethics - 2023
LECTURE 4 – ETHICS: RIGHTS DUTIES AND OBLIGATIONS OF THE ADVOCATE
Course Instructor – Stephen Mallowah LLB, LLM, MSc
Topic Objectives
• At the end of the next three lessons, involved
you should be able to 6. Propose a solution the ethical
1. Name the multiple stakeholders issues arising
to whom an advocate has 7. List and Explain the specific
obligations duties
2. Identify the sources of these 8. Illustrate the duties with
obligations examples from decided cases
3. Identify the potential for 9. Determine the prospects of a
conflicting obligations culture change in the legal
4. Identify the source of ethical profession
problems for a lawyer
5. Explain the inherent moral issues
STEPHEN MALLOWAH 2016 3/1/23 2
Topic Organization
▪ Part 1
ØIntroduction
Øduties to court
▪ Part 2
ØDuties to Clients
▪ Part 3
ØDuties to other stakeholders
▪ Part 4
ØRights of advocates
ØDisabilities of advocates

Learning Resources

Readings
▪ Pagone G.T. : The advocate’s duty to the court in adversarial
proceedings Victorian Bar Ethics Seminar, 23 July 2008
www.vicbar.com.au/GetFile.ashx?file...Advocate's+Duty+to...
Court...
▪ Bell Robert and Abela Caroline A Lawyer's Duty To The Court
http://www.advocates.ca/assets/files/pdf/education/Symposiu
m-on-Professionalism/Duty_to_Court.pdf
▪ Lumumba PLO: The Legal Profession in Kenya: Towards a
New Ethos

Readings
1. Giannarelli v Wraith (1988) 165 CLR 543, 555-6
2. Lewis v His Honor Judge Ogden (1984) 153 CLR 682
3. Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation & anor
2000 KLR 315
4. Rondel vs Worsely [1969] 1 AC 191, 227 (Lord Reid), 271
5. Myers v Elman [1940] AC 282 at 291
6. Arthur J.S Hall and Co. v. Simons (A.P.)
7. Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
8. East African Foundry Works (K) Ltd vs. KCB 2002 (2) KLR 443
9. D K Njogu vs NBK
10.David Alan Westerfield
Stakeholders
1. The court
2. The client
3. The employer
4. The profession
5. Third parties
6. The public

A Multiplicity of Roles
• “The ABA Model Rules of Professional Conduct define the role
of the attorney as threefold;
• A lawyer,
1. as a member of the legal profession, is a representative of clients,
2. as an officer of the legal system and
3. as a public citizen having special responsibility for the quality of
justice”
• Roberta K. Flowers, The Role of the Defense Attorney: Not Just
an Advocate

Sources of Ethical Obligation
▪ Statutes impacting on the advocate e.g. the Advocates Act, the
Law Society of Kenya Act the Public Officers Ethics Act, Judicial
Services Act
▪ Common Law; e.g. the cab rank rule in Rondel vs Worsely
▪ Codes of conduct and ethics; LSK Digest of professional
conduct and etiquette , Code of conduct for judges and
magistrates, National prosecution code of conduct and ethics
▪ Generally accepted standards of conduct; conduct not
befitting a member of the Honourable profession of law see
section 60 Advocates Act. Also preamble to LSK Digest . Digest
is not exhaustive. When in doubt refer to LSK!
Geoffrey Hazard- An Inherent Moral Problem
Moral expectations • These are mutually

exclusive expectations,
• Autonomy
hence the lawyers
• Impartiality
moral dilemma
• Truthfulness
• There is a disconnect
Legal expectations between the
hypothesised morality
• Agency
and the reality
• Partisanship
• Confidentiality
The practice setting is irrelevant
▪The language of the most codes of conduct and ethics
do not differentiate the roles based on the kind of law
the lawyer practices
▪There are substantial overlaps between the ethical
obligations of lawyers in private practice , those in
salaried employment in the private sector, and those in
employment in the public sector
▪But there are sector specific obligations

The Roles are not Prioritized!
▪Most sources of ethical obligations do not prioritize the
different roles.
▪ This lack of differentiation leads to the conclusion that
all lawyers, no matter what area of law, have a
responsibility that goes beyond merely advocating
for the client.
▪But they provide scant guidance when there is a
conflict of obligations

The Roles are Prioritized!
▪Rondel vs Worsely
ØThe court comes first!
▪Polk County v. Dodson 454 U.S. 312 (1981)
454 U.S. 312
ØThe court comes first
▪D K Njogu & Co vs NBK
ØThe court comes first

Part 1
Duties to the Court

The Court Comes First!
▪The essence of this argument is that the advocate is in a
unique position because the duty to his or her client is
subject to the advocate’s overriding duty to the court. This
duty may require the advocate to act to the disadvantage
of the client’s case, even if the client instructs to the
contrary.
▪For example, the advocate must not mislead the court and
must not withhold documents or authorities, even if they
detract from his or her client’s case

Truth seeking in an adversarial context
▪An attorney must act as an officer of the court, respecting

the need for truth and truth-seeking within the
confines of the adversary system and as an active
participant of a system that places justice as a core value.
▪He urges his clients cause zealously within the bounds of
the law

Not Just a Hired Gun
▪A lawyer is not just a hired gun
▪He can only urge his clients cause zealously within the
bounds of the law
▪But the truth must be sought within the limits of the
adversarial system
▪It is in his clients best interest that he behaves ethically
▪The system that protects the client is founded on the
assumption that advocates as the principal participants
therein will behave ethically
The advocate as an officer of the court
▪ Officer of the court; any person who has an obligation to

promote justice and effective operation of the judicial system,
including judges, the attorneys who appear in court, bailiffs, clerks,
and other personnel.
▪ As officers of the court lawyers have an absolute ethical duty to tell
judges the truth, including avoiding dishonesty or evasion about
reasons the attorney or his/her client is not appearing, the location
of documents and other matters related to conduct of the courts
▪ http://legal-dictionary.thefreedictionary.com/officer+of+the+court

The advocate as an officer of the court
▪Officer of the court…. advocate, appointed official
of the court system, attorney, attorney-at-law,
barrister, counsel, counselor, counselor-at-law,
designated official of the court system, judicial
designate, judicial officer, judicial official, legal
advisor, legal advocate, legal consultant, legal
practitioner, member of the legal profession, official
of the court

A Universal Principle
▪The idea of an advocate as an officer of the court is as
old as the profession itself
▪It appears to transcend all legal systems
▪It has been accepted almost uncritically as the raison
deter for the special role lawyers play in the justice
system

A Universal Principle
▪Ancient Rome
▪The ‘ advocatus’ was called upon to by the proctor to
assist in the cause of a client with an solemn
admonition to ‘avoid artifice and circumlocution’
▪Europe
▪The principle was recognized in virtually the whole of
Europe by the middle ages

Potential Conflict
▪This principle has been recognized throughout the
history of the profession in virtually all legal
systems
▪It has far reaching implications as it may be in
direct conflict with the advocates duties to his
clients

Potential Conflict
▪An advocates duty to his client is to fearlessly to raise
every issue, advance every argument, and ask every
question, however, distasteful, which he thinks will help
his client’s case.
▪ But as an officer of the court concerned in the
administration of justice, he has an overriding duty to
the court, to the standards of his profession, and to the
public, which may and often does lead to conflict
with his client's wishes or what the client thinks
are his personal interests. "
Giannarelli v Wraith Mason CJ
▪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

Swinfen v Lord Chelmsford Pollock CB
▪"The conduct and control of the cause are
necessarily left to counsel ... A counsel is not
subject to an action for calling or not calling a
particular witness, or for putting or omitting to put a
particular question, or for honestly taking a view of
the case which may turn out to be quite erroneous.
If he were so liable, counsel would perform their
duties under the peril of an action by every
disappointed and angry client

The advocate as an officer of the court s 55
Advocates Act
▪S 55. Every advocate and every person otherwise entitled
to act as an advocate shall be an officer of the Court
and shall be subject to the jurisdiction thereof
▪DK Njogu & Co Advocates vs NBK
▪Air Alfaraj Ltd VS Raytheon Aircraft Credit Corporation
& anor 2000 KLR 315. Duty to court is paramount

Primary jurisdiction
▪The court has the primary jurisdiction for the discipline of
advocates
▪Mohammed Ashraf Sadique & another v Matthew Oseko
t/a Oseko And Company Advocates [2009] eKLR
▪High Court at Nairobi (Nairobi Law Courts) Miscellaneous
Application 901, 933, 934, 935, 936, 937 & 938 of 2007
(Consolidated With Misc. Applications Nos. 933, 934, 935,
936, 937 and 938 OF 2007)

Per Justice Onyancha in Sadique v Onyancha
▪ …Mr. Amadi was heard to weakly assert that the jurisdiction to
enforce the code of conduct of advocates as contained in the
Advocate Act is reposed in the Disciplinary Committee of the Law
Society and no other person. I agree that the Law Society is the
major player in the discipline of the members of the society. The
proposition is however not wholly correct since the courts also play
a substantial role in the discipline of advocates, day to day. First
and foremost section 31 authorises the court to deem and deal with
the unlawful practice of unqualified person before it as contempt.
Subsection 2(a) thereof gives the court jurisdiction to take
cognisance of such contempt and deal with it as if it were any other
act of disrespect to the court committed before it inclusive of
pronouncing a fair punishment.
Per Justice Onyancha in Sadique v Onyancha
▪ Secondly, the court has general power to deal conclusively with any act or
conduct of contempt committed before it.
▪ Thirdly, section 56 of the Advocates Act expressly saves and preserves the
court’s jurisdiction to deal with the breach of any provision of the Advocates
Act. The section provides thus: -
▪ “Nothing in this Act shall supersede, lessen or interfere with the powers
rested in ….. any of the judges of the court to deal with misconduct or
offences by an advocate, or any person entitled to act as such,
committed during, or in the course of or relating to proceedings before
….. any judge.”
▪ The court has jurisdiction to deal with any matter arising out of any misconduct
of advocate or any person entitled to act as such advocate invisaged by any
provision of the Advocates Act. The position remains so even in matters
where the Disciplinary Committee has independent complementary jurisdiction
to deal with the same matter dealt with by the court.

"Lawyers' Duties to the Court" (1998) 114 Law
Quarterly Review 63
▪Justice David Ipp
1. General duty to conduct cases efficiently and
expeditiously
2. Duty to be competent and to make the system of the
administration of justice work effectively
3. Duty of disclosure to the court,
4. Duty not to abuse the court process and;
5. Duty not to corrupt the administration of justice,
"Lawyers' Duties to the Court" (1998) 114 Law
Quarterly Review 63
▪ A competing duty, the duty to take all points for one's client
and the duty to exercise an independent judgment.
▪ This does not mean that counsel must determine which
points are likely to succeed and refrain from presenting or
arguing any others (although that might be excellent
advocacy); on the other hand, it does mean that counsel
must determine which points are reasonably arguable,
and must jettison the rest.

Lawyers' Duties to the Court" (1998) 114 Law Quarterly
Review 63
▪This approach is not radically different to what has been
said in past times, it merely requires counsel not to
waste public resources on points that are in his
judgment bound to fail.

Review 63
▪This general duty requires counsel to present the issues
as clearly and economically as possible and, in
appropriate circumstances, to co-operate so as to avoid
needless disputes.

Review 63
▪Breaches will result when lawyers waste time, and are
guilty of prolixity and repetition, and when the use of
aggressive and discourteous tactics lead to the incurring of
delay, inconvenience and needless cost.
▪ Lawyers who fail to adhere to rules and practices laid
down to speed up litigation may thereby breach their
duty to the court.

Divided loyalty-Lord Hoffman in Arthur J.S Hall and Co.
v. Simons (A.P.)
▪ They should not waste time on irrelevancies even if the client
thinks that they are important.
▪ Sometimes the performance of these duties to the court may
annoy the client.
▪ So, it was said, the possibility of a claim for negligence might
inhibit the lawyer from acting in accordance with his overriding
duty to the court.
▪ That would be prejudicial to the administration of justice.

Divided loyalty-Lord Hoffman in Arthur J.S Hall and Co.
v. Simons (A.P.)
▪ Lawyers conducting litigation owe a divided loyalty. They
have a duty to their clients, but they may not win by
whatever means.
▪ They also owe a duty to the court and the administration
of justice.
▪ They may not mislead the court or allow the judge to take
what they know to be a bad point in their favor.
▪ They must cite all relevant law, whether for or against their
case.
▪ They may not make imputations of dishonesty unless they
have been given the information to support them.
Professional Conduct Rules of the Law Society of Western
Australia – Rule 14
1. Not intentionally deceive or mislead the court.
2. Act with due courtesy.
3. Use best endeavors to avoid unnecessary expense and waste
of the court's time.
4. Inform the court of the probable length of the case, when
requested.
5. Inform the court of the possibility of settlement if possible
without revealing the existence or the content of “without
prejudice” communications.
6. Inform the court of any development which affects the
information already before the court.
Western Australian Bar Association Rules 2006
1. Have a duty to ensure that the court is not misled.

2. Have an express "duty to opponents". For example, they must
not knowingly make a false statement to their opponent.
3. Have a duty to their client, to advance and protect the client’s
interests and to assist them to understand the issues in the
case.
4. Must inform the client or the instructing solicitor about the
alternatives to fully contested adjudication. They must not act
as a mere “mouthpiece” for the client or the instructing
solicitor and must give their truthful opinion on any matter
submitted to them for advice.

The ‘Cab Rank Rule’ –per lord Hoffman Rondel vs
Worsely [1969] 1 AC 191,
▪ It is a valuable professional ethic of the English bar that a
barrister may not refuse to act for a client on the
ground that he disapproves of him or his case.
▪ Every barrister not otherwise engaged is available for
hire by any client willing and able to pay the appropriate
fee.
▪ This rule protects barristers against being criticised for
giving their services to a client with a bad reputation
and enables unpopular causes to obtain
representation in court
When the Lawyer Knows the Client is Guilty
• When the Lawyer Knows the Client is Guilty: David Mellinkoff's
'The Conscience of a Lawyer', Legal Ethics, Literature, and
Popular Culture UCLA School of Law Research Paper No. 06-44
Cardozo Legal Studies Research Paper No. 181
1. Michael Asimow (Stanford Law School) & Richard Weisberg
(Benjamin N. Cardozo School of Law)
• http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948291&dow
nload=yes

▪The classic puzzle in legal ethics: what should a criminal
defense lawyer do when the lawyer is certain that the client
is factually guilty, but the client insists on an all-out
defense?

▪Literature casts doubt on whether a lawyer can ever

know with the requisite certainty whether a client is
guilty
▪A lawyer ought not to be a judge in his clients cause
▪The client has no duty to prove his innocence

Polk County v. Dodson, 454 U.S. 312 (1981)
454 U.S. 312
▪ Respondent brought suit in Federal District Court under 42
U.S.C. 1983 against petitioners Polk County, its Offender
Advocate, its Board of Supervisors, and Martha Shepard,
an attorney in the Offender Advocate's Office. As the
factual basis for his lawsuit, respondent alleged that
Shepard, who had been assigned to represent him in an
appeal of a criminal conviction to the Iowa Supreme Court,
failed to represent him adequately since she had moved
for permission to withdraw as counsel on the ground that
respondent's claim were legally frivolous
454 U.S. 312
▪In his complaint in the District Court the respondent had
alleged that Shepard's actions, especially her motion to
withdraw, had deprived him of his right to counsel,
subjected him to cruel and unusual punishment, and
denied him due process of law

454 U.S. 312
▪Held, inter alia,

▪Although a defense attorney has a duty to advance all
colorable claims and defenses, the cannons of
professional ethics impose limits on permissible
advocacy.

454 U.S. 312
▪It is the ethical obligation of any lawyer - whether
privately retained or publicly appointed - not to clog the
courts with frivolous motions or appeals.
▪ Respondent has no legitimate complaint that Shepard
failed to prosecute a frivolous appeal on his behalf

454 U.S. 312
▪Within the context of our legal system, the duties of
defense lawyer are those of a personal counselor and
advocate.
▪It is often said that lawyers are "officers of the court.“

454 U.S. 312
▪ The system assumes that adversarial testing will
ultimately advance the public interest in truth and
fairness.
▪ But it posits that a defense lawyer best serves the public,
not by acting on behalf of the State or in concert with it,
but rather by advancing [454 U.S. 312, 319] "the
undivided interest of his client." This is essentially a
private function, traditionally filled by retained counsel, for
which state office and authority are not needed

David Alan Westerfield
▪ David Alan Westerfield (born February 25, 1952), of San
Diego, California was convicted and sentenced to death
for the murder and kidnapping of seven-year-old Danielle
Van Dam in 2002.
▪ He was a successful, self-employed engineer who owned
a luxury motor home and lived two houses away from Van
Dam.
▪ At the trial the defence advanced a theory that
someone else may have been the killer

▪ There was an outrage after the trial when the evidence of
the prior plea talks surfaced in the media.
▪ Many people were concerned Westerfield attorneys
misled the jury by fabricating the unknown kidnapper
scenario when they clearly knew their client was involved
in the crime because he knew the location of the body.

▪ The press reported that defense counsel had approached
the prosecution before trial and offered to have their
client disclose the location of the body if the state
would agree not seek the death penalty.
▪ A T.V. personality immediately seized upon this
information, claiming that defense counsel were “liars”
who “misled” the jury during the trial. He also charged that
the attorneys violated the state ethics rules by their
“misleading” tactics.

▪ A defense attorney said that the job of the defense is to
seek “truth and justice.”
▪ A judge said that Westerfield’s defense attorneys were
wrong to “suggest to the jury another theory of how
[Danielle] died, because in doing so, they’re perpetrating a
fraud on the jury by suggesting something they know in
their own minds and hearts to be false.”

▪If criminal defense counsel believes his or her client to be
guilty, does it mean the case is over?
▪At that point, does counsel “mislead” the judge or jury by
vigorous cross-examination of prosecution witnesses, or
by arguing alternative interpretations of the evidence?

▪Is Counsel is morally and ethically bound not to dispute
evidence and theories he or she “knows” to be true?
▪Should counsel disclose information obtained in
confidence from the client if such disclosure is for the
“greater good”?

▪Given the failure of the plea negotiations, what should the
attorneys have done at trial?
1. Declined to cross-examine the state’s witnesses?
2. Refused to raise and argue reasonable inferences
from the evidence?
3. Concede that the evidence proved their client to be
guilty beyond a reasonable doubt?

▪What exactly were Westerfield’s defense attorneys
supposed to do?
1. Refuse to negotiate a plea bargain that would save
their client’s life?
2. Disclose the confidential information obtained from
their client, thereby potentially further incriminating
him?
3. Declare a conflict-of-interest and get off of the case?

▪ His attorneys were obliged to do their damnedest to obtain the
best result possible for him.
▪ They sought an advantageous settlement for him.
▪ They did not (and could not) present any false evidence or
perjured testimony at the trial.
▪ They did challenge the government’s proof and argued that it had
failed to meet its burden.
▪ They did argue reasonable inferences that could be drawn from
the evidence, including the possibility that someone other than
their client committed the murder.
▪ Some say that not only was their conduct ethical, it was both
ethically and constitutionally required of them.
▪The Westerfield case got complicated when, post-
conviction, a serial hardcore offender who had been linked
with several rapes kidnappings and murder confessed to
the killing.
▪ Prosecutors declined to believe him!

▪Criminal defense attorneys are never the judges of the
facts.
▪ Indeed, they are not even always right in their
assumptions of what the facts are.

David Alan Westerfield – a Comment
▪ I am a capital defense attorney. No matter how strongly I
believe that I “know” what happened, my job is not to
decide guilt or innocence.
▪ My job is to vigorously defend my clients, to make sure
that their constitutional rights are scrupulously honored, to
require the government to prove its cases beyond a
reasonable doubt, and to maintain the confidences of my
clients at all peril to myself.
▪ And I intend to continue doing my job properly and
ethically”
Air Alfaraj Ltd VS Raytheon Aircraft Credit
Corporation & anor 2000 KLR 315
▪An advocate may not approbate and reprobate at the same
time
▪The practice of taking technical points on the narrowest
basis without any real substance (raising arguments that
split legal hairs) is contrary to the code of conduct and
ethics and is to be deprecated

Representations by a Lawyer
▪An advocate is responsible for pleadings and other
documents prepared for litigation, but is usually not
required to have personal knowledge of matters
asserted therein, for litigation documents ordinarily
present assertions by the client, or by someone on the
client's behalf, and not assertions by the lawyer

▪However, an assertion purporting to be on the lawyer's
own knowledge, as in an affidavit by the lawyer or in a
statement in open court, may properly be made only when
the lawyer knows the assertion is true or believes it to be
true on the basis of a reasonably diligent inquiry.

▪There are circumstances where failure to make a
disclosure is the equivalent of an affirmative
misrepresentation.
▪There is an obligation not to counsel a client to commit or
assist the client in committing a fraud applies in litigation.

Offering Evidence
▪Lawyers should refuse to offer evidence that they know to
be false, regardless of the client’s wishes.
▪This duty is premised on the lawyer’s obligation as an
officer of the court to prevent the trier of fact from being
misled by false evidence.

Offering Evidence
▪If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer
should seek to persuade the client that the evidence
should not be offered.
▪ If the persuasion is ineffective and the lawyer continues to
represent the client, the lawyer must refuse to offer the
false evidence

Offering Evidence
▪ If only a portion of a witness's testimony will be false, the
lawyer may call the witness to testify but may not elicit or
otherwise permit the witness to present the testimony that
the lawyer knows is false

Offering Evidence
▪The prohibition against offering false evidence only applies
if the lawyer knows that the evidence is false.
▪A lawyer’s reasonable belief that evidence is false does not
preclude its presentation to the trier of fact.
▪ A lawyer’s knowledge that evidence is false, however, can
be inferred from the circumstances.

Offering Evidence
▪Thus, although a lawyer should resolve doubts about the
veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.

Legal Argument
▪Legal argument based on a knowingly false representation
of law constitutes dishonesty toward the tribunal.
▪A lawyer is not required to make a disinterested exposition
of the law, but must recognize the existence of pertinent
legal authorities.

Legal Argument
▪Furthermore, an advocate has a duty to disclose directly
adverse controlling authority in the jurisdiction that
has not been disclosed by the opposing party.
▪The underlying concept is that legal argument is a
discussion seeking to determine the legal premises
properly applicable to the case.

Ex-Parte Proceedings
▪ Ordinarily, an advocate has the limited responsibility of
presenting one side of the matters that a tribunal should
consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party.
▪ However, in any ex parte proceeding, such as an
application for a temporary restraining order, there is no
balance of presentation by opposing advocates.

Ex-Parte Proceedings!
▪The object of an ex parte proceeding is nevertheless to
yield a substantially just result. The judge has an
affirmative responsibility to accord the absent party just
consideration.
▪The lawyer for the represented party has the correlative
duty to make disclosures of material facts known to
the lawyer and that the lawyer reasonably believes are
necessary to an informed decision.

Lewis v His Honour Judge Ogden (1984) 153 CLR
682
▪Robust action in front of a judicial officer is warranted
and sometimes necessary.
▪At times allegation of bias and application for
disqualification of a judicial officer is also required.
▪Contempt used only to protect integrity of court and
proceedings not to protect the sensitivities of the
judge.

Do not be a witness in your clients cause!
▪East African Foundry Works (K) Ltd vs. KCB 2002 (2)
KLR 443
▪Advocates must avoid swearing affidavits based on
contested facts on behalf of the client

682
▪The High Court considered whether a barrister should
have been found guilty of contempt of the court for his
address to the jury, in which he sought to redress an
imbalance which – he perceived – had arisen from various
comments made by the judge.

682
▪The relevant legislation provided that a finding of contempt
required the barrister to have willfully insulted the judge,
and the High Court concluded this to mean “‘intentionally’
or ‘deliberately’ in the sense that what is said or done is
intended as an insult; it does more than negative the
notion of "inadvertently" or "unconsciously", and imports
the notion of purpose.
▪ Discourtesy is disciplinary – Contempt is criminal

682
▪Rudeness and discourtesy in court can amount to
contempt of court. "Discourtesy is not limited to the tone of
correspondence or the vigour of its language.
▪ Those members of the legal profession who seek to win a
momentary advantage for their clients without observing
the usual and proper courtesies invite correction by the
court and the disapprobation of their colleagues

Remedial Measures
▪ Having offered material evidence in the belief that it was
true, a lawyer may subsequently come to know that the
evidence is false.
▪ Or, a lawyer may be surprised when the lawyer’s client, or
another witness called by the lawyer, offers testimony the
lawyer knows to be false, either during the lawyer’s direct
examination or in response to cross-examination by the
opposing lawyer

Remedial Measures
▪ In such situations or if the lawyer knows of the falsity of
testimony elicited from the client during a deposition, the
lawyer must take reasonable remedial measures. In such
situations, the advocate's proper course is to remonstrate
with the client confidentially, advise the client of the
lawyer’s duty of candor to the tribunal and seek the client’s
cooperation with respect to the withdrawal or correction of
the false statements or evidence.

Remedial Measures
▪If that fails, the advocate must take further remedial action.
If withdrawal from the representation is not permitted or will
not undo the effect of the false evidence, the advocate
must make such disclosure to the tribunal as is reasonably
necessary to remedy the situation, even if doing so
requires the lawyer to reveal information that otherwise
would be protected.

Remedial Measures
▪ The disclosure of a client’s false testimony can result in
grave consequences to the client, including not only a
sense of betrayal but also loss of the case and perhaps a
prosecution for perjury.
▪ But the alternative is that the lawyer cooperate in
deceiving the court, thereby subverting the truth-finding
process which the adversary system is designed to
implement

Evolving Culture
▪Most codes of conduct and ethics now require lawyers for
the opposing parties to agree to the sensible resolution of
issues without the constant intervention of the court.

Evolving Culture
▪This requires lawyers to be competent, but also to
understand the significance of the duty they owe the court,
and the broader community, to advance matters to trial on
the real issues, plainly stated, with the relevant, not
marginally relevant documents filed in support of the case.

Evolving Culture
▪It means argumentative applications about pleadings, that
can be worked out at trial should not be brought to
obfuscate and delay the determination of the real issues
between the parties.
▪ It requires a changing culture to the proper conduct of
litigation.

Our Local Experience
▪What is important however is that highly professional and
competent legal practitioners accept and actively seek to
realize the duty they and their clients bear to cooperate
and act in good faith so that this becomes the prevailing
culture within the system of administration of justice.

▪ Advocates are admitted to practice by the High Court
▪ It is the registrar of the High Court who issues practicing
certificates
▪ The primary responsibility to discipline advocates is with
the court
▪ They have an exclusive right to bow
▪ They have a special bench (the bar)
▪ They have a right of audience in court
▪ The court determines their remuneration
▪.
▪The new civil procedure rules have adopted case
management procedures which emphasize expeditious
disposal of cases
▪A pre trial settlement conference is now mandatory
▪Disclosure requirements have been enhanced
▪Advocates have a responsibility in case management and
docket clearance
▪.
STEPHEN MALLOWAH 2016 05-Apr-16 88

ATP 105 Professional Ethics - 2023 Lecture 4 - Rights Duties and Obigations of Advocates

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ATP 105 Professional Ethics - 2023 Lecture 4 - Rights Duties and Obigations of Advocates

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ATP 105

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Moral expectations • These are mutually

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▪An attorney must act as an officer of the court, respecting

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▪ Officer of the court; any person who has an obligation to

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to deal with the same matter dealt with by the court.

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1. Have a duty to ensure that the court is not misled.

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▪Literature casts doubt on whether a lawyer can ever

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▪Held, inter alia,

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