Ethics in Practice: Duties to the Court

Jurisdiction of HC over lawyers

- The court can exercise an inherent jurisdiction to control the conduct of its
officers/lawyers Black v Taylor
- This jurisdiction is recognised and preserved by s268 (inherent jurisdiction of HC)
and s270 (jurisdiction of HC not limited) of LCA. This jurisdiction is discretionary in
nature, extending to both matters of procedure and substantive relief. It also allows
the Court to punish lawyers who obstruct the administration of justice
- Legal Complaints Review Officer v B, “the starting point is the purpose of the Act,
which is to maintain public confidence and protect consumers, and fundamental
obligation of lawyers to “uphold the rule of law”, and then “the express preservation of
jurisdiction of HC to strike off and discipline lawyers as officers of the HC”

Lawyers as officers of the Court

- Rule 13 states that the overriding duty of a lawyer acting in litigation is to the court,
but also have a duty to act in the best interests of their client without regard for
personal interests of lawyer
- Status of lawyers as officers of the Court has constitutional significance (public
interests of efficient/fair/proper administration of justice, collaborative relationship
with the bench characterised by honesty, integrity and candour, development and
improvement of the law, efficient case management and economic use of limited
resources of state), and the authority of the Courts extends to out-of-Court conduct
such as the enforcement of undertakings etc

Independence of Litigation
- Covered in Rule 13.5, lawyer engaged in litigation must maintain independence at all
times, 13.5.1, 13.5.2 lawyer must not act/continue to act in a proceeding if lawyer
required to give evidence of a contentious nature in the matter 13.5.3 lawyer must
not act if conduct/advice of lawyer is in issue in matter before the court, does not
apply where lawyer is acting for themselves or for member of practice whose actions
are in issue 13.5.4 must not make submissions or express views to court on any
material evidence/issue in terms that convey personal opinion on merits of evidence
or issue
- 13.6 governs rule that lawyers who are members of the same practice must not act
for 2 or more parties whose interests are not the same or where lawyer/practice will
be unable to ensure the discharge of any duty owed to any party to dispute
- Lawyers have to be independent to maintain objectivity, not have unhelpful
aggression or belligerence with other counsel, and maintain authority over their client
and give independent advice
- Vector Gas Ltd v Bay of Plenty Energy Ltd asserts the danger of this, that they
become very similar to witnesses, and hence “defend their actions”, which could also
result in lawyers becoming more focused on their own interests (protecting their
advice) than client, and problem can be compounded by lawyer’s reluctance to refer
client to another lawyer due to concerns about loss of business and implication of an
admission of error
- The overriding principle is that the public interest in the administration of justice
requires “…an unqualified perception of its fairness in the eyes of the general
 public…the issue is not whether any ethical rule has been breached, nor is the issue
solely whether one of the parties has lost confidence in the process. The issue is
whether a fair-minded reasonably informed member of the public would conclude that
the proper administration of justice requires removal of the solicitor” Deliu v Auckland
Standards Committee 1
- Requirement of independence affirms the lawyer’s motives are professional and
fiduciary in nature, not purely commercial, which may mean giving advice which is
unpalatable to the client or even contrary to lawyer’s own interests

Protection of Court processes

- Rule 13.2 states that a lawyer must not act in a way that undermines the processes
of the Court or dignity of judiciary. 13.2.1 must treat others involved in court
processes with respect 13.2.2 lawyer must not discuss any case/matter before the
court with any judicial officer involved in the proceeding either formally or informally
outside of rules of procedure that permit matters to be raised in absence of other
party 13.2.3 lawyer must not have contact with jurors before a verdict and must not
initiate contact with jurors after verdict where the contact is likely to bring the system
of justice into disrepute 13.2.4 lawyer must not engage in any relationship with a
witness that may have the effect or appear to have the effect of interfering with the
fair disposition of the proceeding

Reputation of other parties

- Rule 13.8 states that a lawyer engaged in litigation must not attack a person's
reputation without good cause in court or in documents filed in court proceedings.
13.8.1 must not be a party to the filing of any document in court alleging fraud,
dishonesty, undue influence, duress, or other reprehensible conduct, unless the
lawyer has taken appropriate steps to ensure that reasonable grounds for making
the allegation exist. 13.8.2 allegations should not be made against persons not
involved in the proceeding unless they are necessary to the conduct of the
litigation and reasonable steps are taken to ensure the accuracy of the allegations
and, where appropriate, the protection of the privacy of those persons.
- Obligation to refrain from these harmful allegations against parties and Judges is to
main standards of decency and fairness, that the privilege of freedom in a speech in
a courtroom setting should not be abused, especially if the allegations cannot be
substantiated or justified by evidence Gazley v Wellington District Law Society
- In cases of such sensitivity, clients would have heightened expectations and
subjective views about their own position or merits of their own case, hence lawyer
must exercise independence to exercise control over client and not to make
assertions unsupported by reliable evidence

Presenting Evidence and Witnesses

- Rule 13.10, a lawyer must not adduce evidence knowing it to be false, answering
“how can you defend a guilty person”
- Rule 13.10.4 states that a lawyer engaged in any proceeding does not have the
sole right to call or discuss the case with a witness. A lawyer acting for one party
may interview a witness or prospective witness at any stage prior to the hearing,
whether or not the witness has been interviewed by the lawyer acting for the other
 party. 13.10.5 A lawyer must not treat a witness or potential witness in an
overbearing or misleading way and if asked must inform a witness or potential
witness of his or her right to decline to be interviewed.
- In Harold v Legal Complaints Review Officer, Harold was approached by a witness
for prosecution against his client, despite nothing objectionable occurring, a
complaint was made, Harold should have notified prosecution first?
- R v Taffs asserts that attempting to influence a witness could constitute the crime of
obstructing justice, he threatened to “mince boy up in Court tomorrow and crucify
him”. “Dangerous to allow a lawyer to threaten to use legal proceedings to publically
humiliate the adversary”

Discovery and privilege

- 13.9 states that a lawyer who acts for a party in a proceeding must, to the best of the
lawyer's ability, ensure that discovery obligations are fully complied with by the
lawyer's client and that the rules of privilege are adhered to. A lawyer must not
continue to act if, to the lawyer's knowledge, there has been a breach of discovery
obligations by the lawyer's client and the client refuses to remedy that breach.
- 13.9.1 a lawyer acting for a litigant must advise the client of the scope of the client’s
obligations in respect of discovery, including the continuing nature of those
obligations up to and including the time of final judgment, and that discovered
documents may be used only for the purposes of the litigation and not for any other
purpose. The lawyer must, to the best of the lawyer's ability, ensure that the client
understands and fulfils those obligations.
- 13.9.2 A lawyer must not claim privilege on behalf of a client unless there are proper
grounds for doing so
- 13.9.3 A lawyer must not, other than by application to the court, seek to obtain on
behalf of a client information or documents that the lawyer knows to be privileged
unless every person holding that privilege, after having been advised of the existence
of the privilege and consequences of waiver, waives that privilege.
- 13.9.4 If a lawyer becomes aware that privileged information or documents have
been inadvertently released in circumstances where privilege has not been waived,
the lawyer must not disclose the contents of the material to a client, must inform the
other lawyer (or litigant if unrepresented) of the release, and must return any
documents forthwith. This rule applies despite the rules relating to disclosure
contained in chapter 7.
- Lawyer must remember that privilege is to protect the client. S65(4) of the Evidence
Act covers what happens when there is an involuntary or mistaken disclosure of a
privileged document, and it does not constitute waiver. They must then follow the
procedures set out in 13.9.4

Submissions on law
- 13.11 The duty to the court includes a duty to put all relevant and significant law
known to the lawyer before the court, whether this material supports the client’s case
or not. Subject to the procedure required by the practice direction contained in
Practice Note [1968] NZLR 608, this duty continues until final judgment is given in the
proceeding

Hopeless cases
 - Lawyers have an obligation to carry out client’s instructions and cannot lightly be
criticised or punished for running hopeless cases. The advancement from legitimate
fearless advocacy into endorsement and advancement of a hopeless case, causing
potential professional consequences for the lawyer
- Harley v McDonald asserts that with the whole public interest and fear of treating
“hopeless cases” as a sign of incompetence means that there has to be something
more than mere fact that case is hopeless is required to abandon?

Dispute Resolution
- 13.4 states that lawyer assisting client with dispute resolution must keep client
advised of alternatives to litigation that are reasonably available, unless lawyer
believes on reasonable grounds that client already has understanding of those
alternatives, to enable client to make informed decisions regarding the resolution of
the dispute
- Lawyers must not adopt an inflexible approach to litigation as sole means of dispute
resolution

Duties of Prosecution/Defence Lawyer

- Duties of prosecution lawyer set out in 13.12, while defence lawyer set out in 13.13
- DLawyer is devoted to protecting a client so far as is possible from being convicted,
while the PLawyer has a lot more restrictions. A need to balance the public’s interest
in seeing an innocent person acquired as much as seeing a guilty person convicted
- A and B v Legal Complaints Review Officer, senior officer let junior officer do stuff,
failed. Senior officer seen to have “fallen short of standard of competence”, failed to
act fairly and impartially while junior also fell short of expectations of what member of
public is entitled to expect of a reasonably competent lawyer
- “Members of the public generally would not expect junior practitioners to be trained
during a trial, being given responsible and difficult tasks for the first time. This
practice requires some explanation. It is longstanding, going back centuries. There is
no doubt that senior practitioners in our legal system, and in all our counterpart legal
systems, have a professional duty to train junior practitioners. I deliberately use the
word “train”, because that is the customary description of the practice. A lawyer can
have an academic education, and indeed a lot of experience, but unless the lawyer
has been trained, he or she is likely not to acquire the skills necessary to be
competent”
- But public interest also meant that junior lawyers had to be trained on the job, and
this was necessary during trials and this is not a risk-free exercise
- Inexperience is a factor for disciplinary proceedings, test set out by LCRO was too
high so that no junior lawyer could actually hear a proceeding

- s132 states that any person may complain about conduct of a practitioner or former
practitioner

NZLS v Burton, NZLS v Camp

- Initiated by High Court, and HC refers decision to strike a lawyer off to the CoA to
approve the decision
- Both are decisions by Moore J
 - Justice Asher also discussed when the HC’s jurisdiction should be used, or when the
disciplinary proceedings should be used
- These 2 cases are examples of when they must go through the HC as opposed with
the normal disciplinary proceedings
- They had already given up practising law, and were former practitioners under
s132
- This is therefore a situation when the only process that can be used is the HC, due to
the wording in the Act
- Because a “practitioner” under s6 means a lawyer, and a lawyer is defined as a
“person who holds a current practising certificate as a barrister or
barrister/solicitor”
- s130(c) states that the disciplinary proceedings’ investigation must relate to a matter
that appears to indicate there may have been misconduct/unsatisfactory conduct on
part of a practitioner, and s7 defines misconduct as “conduct of the lawyer”
- Justice Moore states that former practitioners convictions cannot constitute
misconduct on the part of a practitioner as it is confined only to conduct of a lawyer,
hence the drafting does not extend to former practitioners. However is it sensible to
have these 2 separate ways of proceedings?

s266, 267
- Lawyers’ name may be struck off on application to the HC is the heading although
the content refers to barristers and solicitors
Rule 10.8 also states that a lawyer must not in the course of their professional activity, make
a video/sound recording of any person without first informing person of lawyer’s intention to
do so
Rule 15.2 states that when an in-house lawyer provides regulated services to the non-lawyer
by whom he or she is engaged, they must conduct themself as in a lawyer-client
relationship, and 15.3 an in-house lawyer must in that capacity comply with the provisions of
the LCA and these rules, apart from chapter 4 (availability of lawyers to the public) and 9
(fees)