Professional obligations are a fundamental part of practice at the Bar. Ethics are – as observed by Sir Gerard Brennan – ‘the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process’[1]. However, as Sir Gerard also observed, ethics are ‘not so much learnt as lived’ and are ‘not what a barrister knows he or she should do: ethics are what the barrister does’[2].
Barristers are, of course, acutely aware of the ‘exceptional privileges’ and the ‘exceptional obligations’ involved in the ‘high task of endeavouring to make successful the service of the law to the community’[3]. Much has been written and said on the topic[4].
This short article is not a further exposition of each of the ethical obligations and duties that apply to barristers or of the barristers’ conduct rules[5]. Rather, it is an attempt to demonstrate that not only are barristers, as members of a profession, expected to abide by the relevant ethical rules, but also that doing so is good advocacy. And good advocacy serves the interests of the administration of justice and, of course, of the barrister’s client.
Counsel’s ethical duties
To frame the brief discussion that follows, it is useful to recount Mason CJ’s description of counsel’s paramount duty to the court in Giannarelli v Wraith[6]:
The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.
It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount. That duty to the court imposes obligations on the barrister with which the barrister must comply even though to do so is contrary to the interests or wishes of the client. Thus, the barrister can do nothing that would obstruct the administration of justice by:
deceiving the court;
withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas;
abusing the process of the court by preparing or arguing unmeritorious applications;
wasting the court’s time by prolix or irrelevant arguments;
coaching clients or their witnesses as to the evidence they should give;
using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.
Moreover, the advocate owes a duty to the court to inform it of legal authorities that “bear one way or the other upon matters under debate”. The duty applies “quite irrespective of whether or not the particular authority assists the party which is so aware of it”.
The obligation of candour, as described by Sir Owen Dixon, is not merely an obligation but ‘in advocacy it is a weapon’[9].
Candour includes identifying the relevant legal principles, including the authorities that are against the case which counsel seeks to advance, and the relevant facts. Doing so concisely and accurately is more likely to demonstrate to the judge that counsel (a) has confidence in the probative value of the evidence, (b) is willing to face the challenges that may be presented by the evidence or the law and (c) can, despite those difficulties, provide the judge with a pathway through the evidence or the law to the result that counsel is seeking for their client. In other words, a solution that the judge can adopt and, at the same time, one that counsel advocated. In this way, identifying and dealing with the strengths of an opponent’s case is persuasive advocacy. Doing so upfront is desirable and may be more successful[10].
“…identifying and dealing with the strengths of an opponent’s case is persuasive advocacy.”
In the context of a trial, properly identifying the factual findings sought at the end of the trial supported by accurate and complete references to the evidence may sound like a basic proposition of trial advocacy (and one that accords with the ethical rules) but doing it well will serve the client’s interests. It is unlikely to be particularly persuasive for a judge to be simply given large extracts of evidence or summaries without identification of the findings that are sought and the precise evidence that supports them. Counsel should avoid imprecise or ambit submissions especially when they are so extreme that if accepted an appeal would inevitably succeed[11].
“Counsel should avoid imprecise or ambit submissions especially when they are so extreme that if accepted an appeal would inevitably succeed.”
If the sought-after findings and evidence are presented properly and with care, the judge will be able to identify precisely the pathway to the desired result and will have confidence that the facts and legal principles – both favourable and unfavourable – have been identified and considered. Of course, the judge may not accept counsel’s submissions as to the law or the evidence and counsel ought not abdicate their essential role of attempting to persuade the judge, but at least the judge will have the confidence of knowing that counsel has not left out anything critical. Additionally, an appeal court, with some well-known exceptions, is not likely to be particularly receptive to an appeal ground that relies upon an argument that was not put, or a finding that was not sought, at trial.
Thus, candour on the part of counsel as to the legal principles and the relevant facts is not only required by the ethical rules but results in better advocacy and is more likely to be rewarded.
Justice Bond recently observed[12] that advocacy is likely to be more effective if the proposition or submission advanced by counsel is framed as part of a ‘solution’ rather than part of a ‘problem’ for the judge. That approach is, in my view, supported by counsel adhering to their ethical duties.
“…advocacy is likely to be more effective if the proposition or submission advanced by counsel is framed as part of a ‘solution’ rather than part of a ‘problem’ for the judge.”
For example, in the context of modern case management principles, a fight about the adequacy of a pleading can be presented as either pedantic quibbling over form[13] or a necessary part of ensuring procedural fairness for the parties and a proper delineation of the boundaries of the dispute (and the necessary findings that the judge will be asked to make)[14]. The former is a problem with which a judge may be reluctant to deal while the latter presents as a solution which is much more likely to result in a favourable outcome for the party seeking relief.
It may be an obvious matter to observe, but in my view, proper preparation and the persuasive framing of the case (such as the example above concerning the pleadings fight) and disclosure of the law (consistently with the duty to the court) increases the chances that counsel’s submissions will be, and will be seen by the judge as, part of the solution rather than as an impediment or problem.
Duty to the client and independence
Counsel’s duty to their client is to promote and protect fearlessly the client’s interest to the best of the barrister’s skill and diligence[15]. Counsel is not to act as a mere mouthpiece of the client and is to exercise appropriate forensic judgments. Justice Ipp has observed[16]:
Whilst lawyers, in fulfilling their duties to their clients, are allowed, even expected, to be committed to their cause and to act zealously; nevertheless as officers of the court they must be rigorously dispassionate. Even in the most hostile litigation, lawyers must be scrupulously fair and not take unfair advantage of obvious mistakes by the other side.
Counsel’s independence means that it is for counsel to exercise their forensic judgment to[17]:
confine or limit a hearing to what the barrister believes are the real issues in the case;
present the case as succinctly as robust advancement of the client’s interests permit;
inform the court of persuasive authority against the client’s case.
It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. [It is not right to] make every point conceivable and inconceivable without judgment or discrimination.
Doing those things will give the judge confidence that counsel (a) has properly thought through the issues in the case, (b) has distilled the points to those that counsel considers have the best prospect of success, and (c) can be trusted to have identified the correct legal principles to be applied.
There can be little doubt that a judge would prefer to hear an argument about the real points in issue rather than a complete excursus on all points regardless of whether they are good points or ones that are only barely arguable. Brevity, in accordance with counsel’s duties, is good advocacy[19].
A lawyer is often in a difficult position when a client wishes to pursue what he may regard as a hopeless case. If the lawyer is of the view that the client’s case is certainly hopeless, he would be obliged to advise the client of that conclusion and urge that the case not be brought. A lawyer who proceeds with a case in such circumstances in order to make costs for himself would be guilty of a breach of his duty. …
But if the lawyer could not come to the certain opinion that the case is hopeless, and informs the client of the risk involved, and advises the client most strongly not to proceed, and the client still insists on going on (without having any ulterior motive), the lawyer would commit no breach in taking those instructions. As Sir Thomas Bingham MR said in Ridehalgh v Horsefield [[1994] Ch 205 at 233-234]:
A legal representative is not to be held to acted improperly, unreasonably or negligently, simply because he acts for a party who pursues a claim or defence which is plainly doomed to fail…Legal representatives will, of course, whether barristers or solicitors, advise the clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. [It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved…[and that it is] one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of process of the court.]
In Queensland, the Court of Appeal has suggested a different view. Justice Davies has said that it is counsel’s duty to exercise his or her own independent judgment including as to whether there is any point that can be argued and ‘if the case [either as to fact or law] is plainly unarguable it is improper to argue it’[21]. As Justice Fraser has noted extra-judicially[22], the issue is not without controversy. The Full Federal Court in Dyczynski v Gibson[23], after referring to the above statement by Justice Davies in Steindl Nominees, said[24]:
“…if the case [either as to fact or law] is plainly unarguable it is improper to argue it”
But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 at [92(c)] (McColl JA, with whom Hodgson and Ipp JJA agreed)[25]. For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated: Ridehalgh v Horsefield [1994] Ch 205 at 234; [1994] 3 All ER 848. The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.
“But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits”
As Justice Fraser has rhetorically asked, if counsel is obliged[26] to seek to ensure that the case is confined to identified ‘issues which are genuinely in dispute’, how can an issue be ‘genuinely’ in dispute if counsel has formed the view that it is unarguable? As Justice Ipp has pointed out (emphasis added)[27]:
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.
In exercising independent forensic judgment so as to confine issues, selecting and limiting the number of witnesses to be called and deciding what questions will be asked in cross-examination, topics will be covered in address and points of law will be raised[28], counsel is not only complying with their ethical duties but is maximising the chances that the case as presented will be accepted by the judge. As Justice Ipp said, doing so can be excellent advocacy.
On a more prosaic level, exercising that judgment to limit the documents that are put before the court – whether in trial bundles or in interlocutory application bundles, to appropriately limit the objections to evidence that require judicial resolution (including during oral evidence[29]) and to limit (or modify) the evidence[30] including for example, where the fact to which it is relevant is not seriously in dispute[31] – is also a means by which counsel not only complies with their ethical obligations but is also likely to improve the persuasiveness of their advocacy.
Justice Kenneth Martin observed that it is appropriately within the duties of counsel – and I would add, good advocacy – for a barrister to robustly ‘flex their muscles’ as ‘true quality controllers in relation to the issues, documents and evidence brought before the court’ while remaining appropriately cognisant of a litigant’s interests[32].
Conclusion
Judges are aiming to achieve a result which is just according to law. But it is not for the advocates to leave it to the judges to do so. As Justice Heydon has pointed out, justice depends on the interplay between bench and bar. Barristers are there as a ‘helper in the administration of justice’[33]. Complying with their duties to the court and the administration of justice – particularly where to do so coincides with persuasive presentation of the case – advances that purpose.
[1] Quoted in Thomas and Manson, Professional Responsibility and Legal Ethics in Queensland, (3rd edition, Thomson Reuters, 2024) at [12.05]
[3]Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298 (Kitto J)
[4] See, for example, the seminal article by Justice David Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63, Justice Heydon’s article Reciprocal duties of Bench and Bar (2007) 81 ALJ 23, Justice Kenneth Martin’s article Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court (2011) 35 Australian Bar Review 252 and Justice Hugh Fraser’s speech The Ethics of the Advocate delivered on 17 February 2012 at the Queensland Bar Practice Course Final Address
[9] Quoted by DJS Jackson KC in Evidence, Practice and Procedure: Persuasion, Hearsay Issue 28: June 2008 (from Jesting Pilate, Law Book Co, 1965, p253-354)
[11] Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 30
[12]‘Sam and Ralph’ – The Role and Practice of Counsel in the System of Justice, Hearsay Issue 98: December 2024 (speech given at the Closing Address to the Queensland Bar Practice Course, October 2024)
[13] See e.g. Pigozzo v Mineral Resources Limited [2022] FCA 1166 at [19]-[24] (Feutrill J)
[14]Forrest v ASIC (2012) 247 CLR 486 at [25] (French CJ, Gummow, Hayne and Kiefel JJ)
[18]Ashmore v Corporation of Lloyd’s [1992] 2 All ER 486 at 493; cited in Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 30
[19] DJS Jackson KC in Evidence, Practice and Procedure: Persuasion, Hearsay Issue 28: June 2008 recounting a speech by one of the English Law Lords, likely Lord Diplock, as told by two Supreme Court judges
[20] Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 86 (citations omitted) (part of the quote in brackets added in]
[21]Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [27] (Davies JA) (Williams JA agreed with Davies JA and Philippides J agreed with both Davies and Williams JJA)
[22]The Ethics of the Advocate – speech delivered on 17 February 2012 at the Queensland Bar Practice Course Final Address, [43]-[54]
[23] (2020) 280 FCR 583; [2020] FCAFC 120 (Murphy, Lee and Colvin JJ)
[25] See also the views of Lord Denning expressed in Tombling v Universal Bulb Co Ltd [1961] 2 TLR 289 at 297 quoted in Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 98-99
[27] Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 100
[28]Giannarelli v Wraith (1988) 165 CLR 543, 556-7 (Mason CJ)
[29] Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 27-28
[30]Rondel v Worsley [1969] 1 AC 191, 283 (Lord Upjohn)
[31] For example, by utilising s 129A of the Evidence Act 1977 (Qld)
[32] Kenneth Martin, Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court (2011) 35 Australian Bar Review 252 at 269; see also Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 28-29
[33]Beevis v Dawson [1957] 1 QB 195 at 201 (Singleton LJ with whom Parker LJ concurred), cited in Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 25
