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A Lawyer's Duty

Feature Articles

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.34

Lawyers have many duties to uphold, not least of which  is to act honourably, and with honesty and candour.

By The Hon Justice Emilios Kyrou

Ethics special issue

DUTY TO ACT HONOURABLY

Every lawyer has a duty to fellow practitioners, opposing parties and witnesses to conduct themselves honourably. This duty may require a practitioner to refrain from taking unfair advantage of an obvious mistake by another practitioner.

For example, in litigation where issues of privilege are hotly contested, if a lawyer finds a sensitive letter of advice which is not listed in the opponent’s affidavit of documents and which was obviously provided in error, the lawyer must return the letter to the opponent unread. The lawyer should inform their client of what has occurred, as part of the lawyer’s duty to keep the client informed of developments in the litigation, but the lawyer would be acting improperly if he or she complied with any instructions from the client to read the document or forward a copy of the document to the client.1

If a lawyer deliberately reads a document which is clearly privileged and has obviously been provided in error, then, depending on the nature of the document and its importance to the litigation, the lawyer may face an application by the opponent that the lawyer cease to act.

The same standard of behaviour is expected when a lawyer is dealing with unrepresented parties or individuals who are potential witnesses in litigation.

In Hodgson v Amcor Ltd [No 4]2 the solicitors for Amcor, Corrs Chambers Westgarth, served a subpoena on the widow of one of Hodgson’s associates directing her to attend the Supreme Court on the first day of the trial to give evidence and to produce nominated documents. In response, the widow delivered documents not to the Court but to Corrs a week before the trial. Among the documents was a copy letter of legal advice that Hodgson had received. Corrs examined the documents and did not immediately produce them to the Court. When the issue of the subpoena was raised on the first day of the trial, the production of the documents was ordered, and they were then given to the Court. Questions of privilege and waiver of privilege arose when Amcor sought to admit the letter of advice into evidence.

Vickery J held that it was at the very least improper for Corrs to have inspected the documents before obtaining any order from the Court permitting this to occur. If the documents were hand-delivered to Corrs, they should have advised the widow to deliver the documents to the Court. Alternatively, if the documents had been posted by the widow to Corrs, it was their duty either to return the documents to the widow with appropriate instructions as to how she should comply with the subpoena, or take immediate steps to have the documents delivered directly to the Court. Vickery J held that under no circumstances is it permissible for lawyers to examine documents delivered to them in response to a subpoena or make use of them in any way, without first obtaining a court order to do so.3 His Honour concluded that, as the documents had come into the hands of Amcor improperly, there had been no loss of privilege.4

It is self-evident that lawyers should not breach the criminal law in pursuing their clients’ interests. What is less obvious, but nevertheless just as important, is that lawyers must not commit any civil wrong in pursuing their clients’ interests. For example, a lawyer should not defame an opposing party on the steps of the Supreme Court in the middle of a trial with a view to gaining a tactical advantage for the client.

Another example is a lawyer committing trespass to obtain evidence to use on behalf of a client. In a case involving the issue of whether the defendant actively engaged in a business, it may not be a trespass for the plaintiff’s lawyer to enter an open shop owned by the defendant and observe how well it is stocked. This is because the law recognises an implied licence to enter business premises for the purposes of that business.5 However, it would be a trespass if the lawyer proceeded to take photographs of the stock in the shop, as the implied licence does not extend to this activity.

In a case involving the issue of whether a shop sold a particular item, it would not be unethical for a lawyer to enter the shop and purchase the item without uttering a word. ikewise, it would not be unethical for a lawyer to telephone the shop and ask whether that item was available for sale. However, it would be unethical if the lawyer expressly or impliedly misrepresented his or her identity or the purpose of the enquiry. For example, it would be improper for the lawyer to introduce himself or herself as a collector of the item who is interested in purchasing it, or to represent this in response to a question as to why the enquiry was being made.

The above discussion assumes that the shop owner is not legally represented. If litigation is already afoot against the shop owner and the shop owner is legally represented, the plaintiff’s lawyer must not have any communication with the shop owner. All communications must be with the shop owner’s lawyer.

Lawyers must take particular care when communicating with those who are not legally represented. ay people are susceptible to being confused and intimidated by lawyers’ letters. Accordingly, lawyers have a responsibility to ensure that any statements they make are not only literally accurate but also do not convey a misleading impression. A lawyer must not use their superior knowledge of the law in communications with lay people for the purpose of securing an unfair advantage for their client. It is always a good idea to include in your letter a recommendation that the addressee seeks legal advice.

DUTY TO THE COURT

A duty of honesty and candour, both in presentation of the law and presentation of the facts, is owed to the court. As with all other duties to the court, it will override a lawyer’s duties to the client in the event of inconsistency.

First, lawyers must not mislead the court as to the law. All relevant law must be disclosed to the court even if it is against the interests of the client.

Second, lawyers must not present any evidence to the court that is known to be false or misleading, including concealing a material fact. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the court and breach their duty to the court.

A lawyer has an obligation to correct a misleading impression as soon as they become aware of the true position. That obligation continues until judgment is given.

A lawyer must not be a party to the presentation of evidence or make allegations that lack an evidentiary foundation. Where the client’s instructions involve serious allegations against another person, the lawyer must take reasonable steps to verify the client’s allegations.

The duty of candour does not require a lawyer to disclose information that is protected by client legal privilege. Nor does it require a lawyer to volunteer information which is against the client’s interests. However, there is a clear distinction between not volunteering information and being a party to conduct which actively misleads the court. This distinction is well illustrated by the English case of Meek v Fleming.6

Meek, a press photographer, claimed damages against Fleming, a chief inspector of police, for assault and wrongful imprisonment. The parties’ credit was of critical importance and by the time the case was heard, Fleming had been demoted to the rank of station sergeant for being a party to an arrangement that had the effect of deceiving a court in another proceeding. Fleming’s lawyers knew these facts, but took deliberate steps to conceal them from Meek and the court.

During the trial, Fleming appeared in plain clothes so as not to reveal his rank of sergeant, whereas the other officers who gave evidence appeared in uniform and their rank was evident. When Fleming entered the witness box, he was not asked his name and rank in the usual manner. Fleming’s counsel addressed him by the title “Mr” rather than his rank. Meek’s counsel and the judge, however, addressed Fleming as “inspector” and nothing was done to correct this. In cross-examination, when Fleming was asked: “You are a chief inspector . . .?” he answered, “Yes, that is true”.

After the jury found for Fleming, Meek sought, and was granted, a new trial on the basis that the judgment in favour of Fleming was procured by deceit. The court held that a party need not reveal something to the discredit of that party but this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party.7

Misleading the court by presenting a misleading or false document is contrary to the lawyer’s duty of honesty and candour, including in their capacity as a litigant. This principle is well illustrated in Law Society of New South Wales v Foreman.8 Foreman was a partner of Clayton Utz. She was a very experienced family law solicitor who was involved in a costs dispute with a former client. The client made an application for the taxing of a bill for work performed in relation to a property settlement. Foreman wished to show that she had given the client a costs agreement during their first meeting, however her time sheet for that meeting did not record that she had done so.

Foreman destroyed the original time sheet held by the firm’s accounts department and the copy time sheet in her file and substituted false versions on which she added the words, “Gave her costs agreement”. The original false time sheet was later tendered at the hearing of the costs dispute in the Family Court and the false copy was included in an affidavit of documents. Foreman’s misconduct came to light when it was discovered that the accounts department had retained a copy of the genuine time sheet. Until then, she did not confess her wrongdoing.

Foreman’s actions in intentionally presenting a false document to the Court, knowing that the Court and her opponent would be misled into believing that it was genuine and then perpetuating that falsity, resulted in the New South Wales Court of Appeal ordering that her name be removed from the Roll of Practitioners. Mahoney JA stated that:

“A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false”.9

Ironically, it is unlikely that Foreman’s dishonest conduct would have materially assisted her in the dispute with the former client because the former client did not dispute that she had been given a costs agreement. Rather, she claimed that she had never signed that costs agreement. Had Foreman refrained from altering the time sheet, the worst that could have happened was that the firm would not have been able to recover costs above scale. By breaching her duty of honesty and candour, Foreman lost her reputation and livelihood and forfeited her membership of the legal profession.

The Foreman case demonstrates that a lawyer’s behaviour after the initial wrongdoing can be highly significant for their fate. If the lawyer perpetuates the wrongdoing by concealment and deception, the consequences will usually be far more serious than if the lawyer promptly confesses the wrongdoing and takes corrective action.

The different facets of the duty of honesty and candour are well illustrated in the Victorian Court of Appeal decision in Forster v Legal Services Board.10 For the purposes of defending proceedings by the Legal Services Board (LSB) for the appointment of receivers to his practice, Forster obtained various documents from the LIV pursuant to a subpoena. One of those documents was a redacted document headed “Item 10” which was an extract from a letter that another law firm had sent to the LIV. Forster did not know this and believed that the document was an extract from the minutes of the executive Council of the LIV. When he asked officers of the LIV whether the document was an executive Council document, they neither confirmed nor denied that it was. There was no statement by the LIV that the document had any connection with the executive Council and nothing on the face of the document to indicate any such connection.

Despite these facts, Forster wrote the words “Executive Council” at the top of a copy of the document and exhibited that copy to an affidavit that he swore. In the affidavit, Forster described the document as “a copy of the Law Institute of Victoria Executive Council Minute Item 10”.

Emerton J appointed receivers to Forster’s legal practice on the basis of trust account deficiencies. Subsequently, the LSB refused to renew Forster’s practising certificate on the basis that Emerton J’s findings meant that he was not a fit and proper person to continue to hold a practising certificate. Forster applied to VCAT for review of the Board’s decision. VCAT agreed that Forster was not a fit and proper person to continue to hold a practising certificate but did so not because of the trust account deficiencies but due to his conduct in the Supreme Court and VCAT proceedings. This conduct included breaches of Forster’s duty of honesty and candour to the Supreme Court in relation to the exhibited document.

On appeal, the Court of Appeal decided that VCAT was justified in finding that Forster was not a fit and proper person to continue to hold a practising certificate and dismissed his appeal.

In relation to the exhibited document, the Court found that Forster had breached his duty of honesty and candour to the Court in the following four respects:

  • ascribing to the document the unqualified description “the Law Institute of Victoria Executive Council Minute Item 10” in his affidavit;
  • not disclosing that he had written the words “Executive Council” on the document;
  • standing by while his counsel asked questions that were premised on the document being a document of the executive council and on the words “Executive Council” having been written by a person other than Forster; and
  • not informing Emerton J of the correct position at any time prior to the making of the receivership order.11

The Court of Appeal also upheld VCAT’s decision that Forster had breached his duty of candour by failing to disclose a material fact to the Supreme Court. After the receivers had been appointed, without disclosing to the Court that he had sold the business premises of the practice or that he was proposing to practise from his home, Forster applied for a stay of the receivership order on the basis that the receivership was causing “mortal damage to the practice”. The Court of Appeal concluded that, as the sale of the premises and the other steps that Forster had taken to effectively close his practice were relevant to the stay application, by withholding that information, Forster created a misleading impression and breached his duty of candour.12

Forster highlights some of the common errors that lawyers make in affidavits. It is not unusual for affidavits to describe exhibited documents as true copies when even on a cursory reading it would be clear that they are not true copies because they are redacted, incomplete or covered in handwritten comments. While these misdescriptions may not be sinister, at best they indicate a poor attention to detail and at worst they disclose an unacceptable, cavalier attitude to the duty of candour.

The duty of candour has particular relevance in ex parte applications. In such cases, a lawyer must disclose all non-privileged matters within their knowledge that are relevant to the application, even if they are adverse to the client’s position. Ex parte applications eventually become contested proceedings. It is not unusual for a defendant to allege that the ex parte order was obtained in breach of the duty of candour to the court. Although ex parte applications usually involve great urgency and the preparation of affidavit material in a limited time frame, the plaintiff’s lawyer must nevertheless be scrupulous to ensure that they have not omitted any information which is of relevance, irrespective of whom that information favours.

Where a lawyer makes a disclosure to the court pursuant to the duty of candour, the disclosure must be sufficient to inform the court of the substance of the matter being disclosed. The disclosure must not be incomplete, cryptic or selective.

The duty of honesty and candour — as with all other duties to the court — is an incident of a lawyer’s status as an officer of the court. Compliance with the duty is fundamental to ensuring that the court makes the correct decision in the particular case in which the lawyer is involved. It is also essential to the administration of justice.


THE HON JUSTICE EMILIOS KYROU is a judge of the Victorian Court of Appeal and the Victorian patron of the Hellenic Australian Lawyers Association.

*This article is adapted from a paper delivered by Justice Kyrou at an Hellenic Australian Lawyers Association event on 29 May 2014.

  1. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 303 ALR 199, 213 at [64]–[67].
  2. (2011) 32 VR 568.
  3. Note 2 above, 581–2 at [61]–[62].
  4. Note 2 above, 585 at [79].
  5. Slaveski v Victoria [2010] VSC 441 (1 October 2010) [290].
  6. [1961] 2 QB 366.
  7. Meek v Fleming [1961] 2 QB 366, 380.
  8. (1994) 34 NSWLR 408 (“Foreman”).
  9. Foreman (1994) 34 NSWLR 408, 447 (citations omitted).
  10. [2013] VSCA 73 (11 April 2013) (“Forster”).
  11. Note 10 above, at [170].
  12. Note 10 above, at [183].

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