Your client and the court
Version 17 of the Handbook was published on 12 August 2016. For more information, please click "History" above.
Chapter 5: Your client and the court
This chapter is about your duties to your client and to the court if you are exercising a right to conduct litigation or acting as an advocate. The outcomes apply to both litigation and advocacy but there are some indicative behaviours which may be relevant only when you are acting as an advocate.
The outcomes in this chapter show how the Principles apply in the context of your client and the court.
You must achieve these outcomes:
you do not attempt to deceive or knowingly or recklessly mislead the court;
you are not complicit in another person deceiving or misleading the court;
you comply with court orders which place obligations on you;
you do not place yourself in contempt of court;
where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client;
you comply with your duties to the court;
you ensure that evidence relating to sensitive issues is not misused;
you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.
Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles:
advising your clients to comply with court orders made against them, and advising them of the consequences of failing to comply;
drawing the court's attention to relevant cases and statutory provisions, and any material procedural irregularity;
ensuring child witness evidence is kept securely and not released to clients or third parties;
immediately informing the court, with your client's consent, if during the course of proceedings you become aware that you have inadvertently misled the court, or ceasing to act if the client does not consent to you informing the court;
refusing to continue acting for a client if you become aware they have committed perjury or misled the court, or attempted to mislead the court, in any material matter unless the client agrees to disclose the truth to the court;
not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice.
Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:
constructing facts supporting your client's case or drafting any documents relating to any proceedings containing:
any contention which you do not consider to be properly arguable; or
any allegation of fraud, unless you are instructed to do so and you have material which you reasonably believe shows, on the face of it, a case of fraud;
suggesting that any person is guilty of a crime, fraud or misconduct unless such allegations:
go to a matter in issue which is material to your own client's case; and
appear to you to be supported by reasonable grounds;
calling a witness whose evidence you know is untrue;
attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement;
tampering with evidence or seeking to persuade a witness to change their evidence;
when acting as an advocate, naming in open court any third party whose character would thereby be called into question, unless it is necessary for the proper conduct of the case;
when acting as an advocate, calling into question the character of a witness you have cross-examined unless the witness has had the opportunity to answer the allegations during cross-examination.
The outcomes in this chapter apply to your in-house practice.