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, in promoting in his own sphere of interest, the cause of justice.1 In the Trinidad and Tobago case, In the matter of Gail Robinson and Beverly Scobie, Solicitors and In the Matter of the Inherent Jurisdiction of the Court, it was noted that:
Unprofessional conduct is not limited to cases where the misconduct charged amounts to an indictable offence2 or is professional in character but extends to all cases where the solicitors conduct is improper i.e. such as to render him unfit to be an officer of the court3
The standards of professional conduct in Jamaica is governed by the Legal Profession (Canons of Professional Ethics) Rules. It is prescribed by the General Legal Council pursuant to the provision of section 12(7) of the Legal Profession Act 1971. The Legal Profession (Canons of Professional Ethics) Rules governs and regulates the standards of professional conduct expected of attorneys at law. Other English speaking Caribbean territories have similar Codes/Canons of Ethics. Only Guyana does not have prescribed rules of conduct. However this does not mean that attorneys are not expected to observe standards of professional conduct. The rules that make up the Codes/Canons of Ethics of other English speaking Caribbean territories, are derived from common law principles. The Canons/Codes of Ethics are just codifications of these principles. Therefore the guidelines provided by common law principles are just as applicable in Guyana. The Code/Canon of Ethics provide in effect that specific breaches of the rules contained therein shall constitute professional misconduct and more specifically an attorney who commits such breaches shall be liable to any of the penalties which the Disciplinary Committee and or the court is empowered to impose.4 The standard of conduct expected from an attorney is high. Therefore even though an attorney may do something that is not automatically punishable as
1
Nunez Tesheira, K. (2001) The Legal Profession in the English Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 187 2 The classification of offences as indictable and summary broadly reflects a distinction between serious and minor crimes. For practical purposes it is the question of trial with or without a jury which is the important distinction between trial on indictment and summary trial. Offences triable only on indictment include any offence punishable by death or imprisonment for life on first conviction 3 HCA No. 2 of 1985 Trinidad & Tobago (unreported) at p 24 4 Ibid, Nunez Tesheira, p 187
professional misconduct, he may still be penalised. For instance Canon I (b) of the Code of Ethics states that:
An attorney shall at all times maintain the honour and dignity of the profession and shall abstain from behaviour which may tend to discredit the profession of which he is a member.
iii. deliberately acting without authority; iv. knowingly and deliberately allowing a client to swear to an affidavit which is false; v.
5 6
with the presiding judge7; vi. knowingly submitting in court a document that has not been properly stamped as required by the relevant law; vii. deliberately making a bad point in order to mislead the court. The attorney only becomes guilty of professional misconduct if he acted dishonestly; viii. taking part in the creation of evidence known to be false and using perjured evidence or testimony; and ix. making unfair remarks to the jury, using improper evidence, using irrelevant evidence. 3. Breach of Duty to Client
In General
An attorney is under a duty to always act in the best interest of his client, to represent him honestly, competently and zealously and endeavour to obtain the benefit of any and every remedy and defence which is authorised by law.8 For instance in Sankar v. The State9, a Trinidad and Tobago case, the Privy Council found that a defence lawyer had failed in his duty, because he had not explained the legal implications of giving or failing to give evidence at trial. He had failed to give options to the client, even if he, depending on his clients decision, would feel obliged to withdraw. Another general duty of an attorney relates to his acceptance of a retainer. An attorney will be guilty of professional misconduct if he attempts to advise, before he has obtained full knowledge of the facts. He should therefore avoid making bold assurances and beware of rash and confident guarantees especially when his employment depends on these assurances.10 This means that an attorney must be candid with a client about the likelihood of failure or success. He must not allow his client to embark on useless litigation, particularly when the prospects of success are non-existent. It should be noted however that clients are free to reject this advice and insist on litigation. In such circumstances an attorney at law will not have acted improperly if he acts for a party who pursues a claim or defence that will obviously fail.11
7 8
Ibid Ibid, Nunez Tesheira, p 190 9 46 WIR 452 10 Forrester v. Francis CLE 156/1983 Jamaica (unreported) 11 Ridehalgh v. Hansfield [1994] Ch 205
However on the other hand, an attorney at law must not induce his client to settle against his wishes by misrepresentation.12
In Particular
An attorney is inter alia guilty of professional misconduct vis-a-vis his clients in the following specific instances: (i) Confidentiality Where he fails or neglects to preserve the confidentiality of his client except if such communication has been made in furtherance of a crime, fraud or other unlawful transaction. (ii) Conflict of Interest Where he acts in any manner in which his professional duties and his personal interest conflict or are likely to conflict. (iii) Multiple Representation Where in the case multiple representation, he acts or continues to act where the interest of representatives clients are likely to conflict or his professional judgement is likely to be impaired. (iv) Fees Where he charges fees which are unfair and unreasonable or where he charges fees which are either an over or under-estimate of the services rendered. (v) Duty to Exercise Care and Skill An attorney is under a general duty to act expeditiously in dealing with his clients matters and to bring to the discharge of his duties thereunder, the necessary degree of skill, competence and knowledge. In failing to exercise due care and skill in the conduct of his duties an attorney may be guilty of professional misconduct. This Misconduct may, depending on the facts of the case, be compensatory or punitive in nature.13 (a) Professional Misconduct of a Compensatory Nature Wasted Costs in Proceedings
12 13
Bartrum v. Hopkinson (1931 37) LRBG 69 (Guyana) Ibid, Nunez Tesheira, pp 191 - 192
If a lawyer, whether acting as a solicitor or barrister, will be guilty of professional misconduct if costs are needlessly incurred or wasted. This may be as a result of failure and default to act competently and/or within a reasonable time. In situations like this the court makes an order of costs against the attorney personally. In cases like this the court does not exercise a punitive jurisdiction over the offending attorney. (b) Professional Misconduct of a Punitive Nature Although there is some variation in the actual wording, the respective Code/Canon of Ethics of the various territories, provides that an attorney at law shall not act with unreasonable or undue delay, negligence or neglect and in the case of Jamaica, inexcusable or deplorable negligence or neglect14.15 Such action constitutes professional negligence and may also constitute professional misconduct. In the case of professional misconduct, a competent tribunal or the court may exercise its punitive jurisdiction. This is a mandatory rule. It is important to remember that negligence might amount to professional misconduct if it was inexcusable, and such as to be regarded as deplorable16 by other lawyers.17 It used to be thought that professional negligence could not constitute punitive professional misconduct unless the lawyers actions were dishonourable or morally base. For instance in Witter v. Forbes18, an attorney negotiated on behalf of his client with Citibank, who was owed JA$15,000.00 by the former. In a letter addressed to the client, dated January 27, 1979, Citibank proposed a settlement. The attorney did not communicate this proposal until October 1980. Proceedings were brought before the General Legal Council for professional misconduct. One of the grounds of compliant was the breach of Canon IV (s) which states that an attorney shall not act with inexcusable or deplorable negligence or neglect. It was argued that professional misconduct had to involve an element of wrongdoing, deceit or moral turpitude. It was held that Canon IV (s) had been infringed. It was pointed out that Canon IV (s) did not require the attorneys negligence to involve dishonourable conduct or
14 15
Canon of Ethics IV (s). See also Canon IV (r) Ibid, Nunez Tesheira, p 192 16 Re A Solicitor [1972] 2 All ER 811 17 Canon of Ethics IV (s) 18 CA 1/1986 Jamaica (unreported)
moral turpitude.
(vi) Fraud/Misappropriation of Clients Funds As a general rule, any form of fraud or dishonesty committed by an attorney against the interest of his client will be deemed to be professional misconduct. This includes misappropriation of clients funds, failure to apply a clients funds for the purpose for which it was intended, overcharging and failing to keep proper accounts.19 The Codes/Canons of Ethics of the various territories provide that: (i) an attorney must never mingle his funds with those of others, and that he should at all times be able to refund money he holds for others; and (ii) an attorney should keep up to date accurate accounts so that his financial position and that of his clients can be distinguished when required. It should be noted that the General Legal Council of Jamaica has provided detailed guidelines for the keeping of client accounts etc, maintaining of books of assets in respect of clients money received, held or paid by the attorney and the payment of interest on clients money.20 4. Breach of Duty to Profession and Fellow Attorneys In General An attorney must behave towards his fellow attorneys with courtesy, fairness and good faith. An attorney should not allow the ill feelings of his clients to affect his relationship with his fellow attorneys. In Particular (i) Undertakings Attorneys must fulfill obligations he has promised to execute in any undertakings21 to the court as well as to his fellow attorneys. Breach of an undertaking constitutes professional misconduct as well as (in appropriate instances) contempt of court.
19 20
Ibid, Nunez Tesheira, p 194 Ibid, Nunez Tesheira, p 195 21 An undertaking is a pledge or promise made by an attorney at law in his professional capacity to do or refrain from doing some act. Although undertakings may be give orally, they should as a general rule be written or confirmed in writing - Ibid, Nunez Tesheira, 156
(ii) Touting and Advertising Attorneys are not permitted to advertise22. However attorneys are permitted to allow dignified identification of themselves as attorneys. Therefore they are allowed to print calling cards, letterheads, office signs or directory listings. It is also a breach of the Canon of Ethics to tout for custom23. Touting is soliciting for custom fraudulently. It is illegal whether the attorney does it or is done by someone paid by him. If an attorney pays or rewards someone directly or indirectly for getting him work he will be in breach of his professional duty. 5. Criminal Offences In General Where an attorney commits a criminal offence which in the opinion of the Court or other competent tribunal is of a nature likely to bring the legal profession into disrepute, the commission of the offence shall constitute professional misconduct. In this regard, the offence must be of a personally disgraceful character, the commission of which would make the attorney unfit to be a member of a strictly honourable profession.24 All that is necessary for a finding of professional misconduct is that the attorneys conduct brings dishonour to the profession generally.25 Once the Court, Disciplinary Committee or other competent tribunal is satisfied about the facts constituting the crime it will not matter: i. if it is contended that the attorney was wrongfully convicted;
ii. that the attorney was not prosecuted; and iii. that the attorney was acquitted on a technical defence. For instance in the case Re King26 an attorney was convicted at first instance of conspiracy to defraud. On appeal the decision was reversed because the indictment was defective. Upon proceedings to strike him off the Roll of the Court, Denman CJ said:
22 23
Canon of Ethics II (d) Canon of Ethics IV (g) 24 Ibid, Nunez Tesheira, pp 196 - 197 25 Re Hill (1868) LR 3 QB 543 26 (1845) 8 QB 129
We must not merely because the indictment is bad in point of law, shut our eyes to the fact that the jury have convicted him of conduct rendering him unfit to be an attorney. Further, it is necessary neither that the offence or crime be of a pecuniary nature nor that the attorney should have been convicted as a practising attorney. All that is necessary is that the offence brings dishonour to the profession generally. In Particular (i) Offences involving Fraud/Dishonesty An attorney who has been convicted of an offence involving frauds or dishonesty will de facto be deemed guilty of professional misconduct in his capacity as attorney.27 Such offences include bribery, forgery, making false affidavits, embezzlement, obtaining money by threats, bribery, frauds and conspiracy to pervert the course of justice.28 (ii) Offences Involving Immoral Conduct This is a second class of cases in respect of which disciplinary sanctions may be imposed against an attorney. Examples of such offences include knowingly permitting premises owned by the attorney to be used as a brothel, acts of indecent assault and using threatening or abusive language intended to provoke a breach of the peace.29
Re Weare [1893] 2 QB 439 Re Blake (1860) E & E 34; Stephens v. Hill (1842) 10 M & w 28; Re Sinanan (1964) 7 WIR 93 29 Ibid, Nunez Tesheira, p 197 30 Myers v. Elman [1940] 1 AC 282 at pp 318 - 319 HL 31 [1982] 2 QBD 440 CA
With the exceptions of The Bahamas, Jamaica and to a limited extent Trinidad and Tobago and St. Lucia, the court exercises a punitive jurisdiction over all lawyers. This means they can fine and suspend lawyers as well as strike lawyers of the Roll. The reason is in the Caribbean, all attorneys are admitted to practice by the court.
Trinidad and Tobago subsequently codified this punitive jurisdiction of the court in s. 42 of the Legal Profession Act 21/1986. The Legal Profession Act of other territories have also inserted an equivalent provision, they are Barbados, Antigua & Barbuda, Jamaica, St. Lucia and Guyana. However Karen Nunez Tesheira writes that regardless of the courts inherent jurisdiction the proper course for the court to adopt, except in the most urgent and exceptional cases, is for the judges to make or cause the Registrar to make a report to the relevant Disciplinary Tribunal where evidence of misconduct is brought t its attention at the hearing of the matter or other proceedings in court.35
32 33
HCA No. 2/1985 Trinidad & Tobago (unreported) Wrongful conversion is A tort, committed by a person who deals with chattels not belonging to him in a manner inconsistent with rights of the owner Osborns Concise Law Dictionary 34 HCA No. 2/1985 Trinidad & Tobago (unreported) p. 24 35 Ibid, Nunez Tesheira, p 207
As a matter of fact s. 12(2) of the Legal Profession Act 1971 expressly provides that: At the hearing of a matter in which a Judge considers that an act of professional misconduct or criminal offence has been committed by an attorney at law, he may make or cause the Registrar to make an application to the Committee in respect of the attorney at law. Antigua & Barbuda, Barbados, Trinidad and Tobago and St. Lucia all have similar provisions in their respective Legal Profession Acts. Alternatively, the court could in cases where there is evidence of criminal wrongdoing, report the matter to the office of the Director of Public Prosecution (DPP)36. The Exercise of the Courts Punitive Jurisdiction in Jamaica Barristers Prior to 1960, the Judges of the Supreme Court, exercised exclusive punitive jurisdiction over barristers. However in 1960, The Bar Regulations Law, Cap. 120 was enacted. This law established a Disciplinary Committee of the Bar Association comprising inter alia of the Attorney General as an ex officio37 member, and six barristers duly appointed by the Governor on the recommendation of the Bar Association.38 The Committee was given full punitive powers, including the power to fine, reprimand, suspend and to debar a barrister at law from practice.39
Solicitors
Pursuant to the Solicitors Law Cap. 363, a Solicitors Disciplinary Committee was established in 1941. In accordance with s. 35(2) on the hearing of an application, the Committee was given the power to inter alia remove from, or strike off the Roll, the name of the solicitor to whom the application relates and to suspend the solicitor from practice.
Current Position
In 1972, the Legal Profession Act was enacted. This Act inter alia fused the legal
36
In the Matter of Jeffrey L Toppin, Attorney at law and In the Matter of the Legal Profession Act Cap 370A. Judgement dated December 2, 1987. No number assigned to the proceedings (Barbados) 37 By virtue of his office 38 Section 5 of the Bar Regulations Law Cap. 120 39 Section 6 of the Bar Regulations Law Cap. 120
profession and established the General Legal Council as the disciplinary body for the newly fused profession of attorneys at law.40 The Council was charged with the general duty to uphold the standards of professional conduct of attorney at law and in particular, was given the full punitive powers as previously enjoyed by the respective Solicitors and Barristers Disciplinary Committees.41
Right of Appeal
Pursuant to s. 16 of the Legal Profession Act, an attorney has a right to appeal to the Court of Appeal against any order made by the Committee. The Court of Appeal: (i) may dismiss the appeal and confirm the order; or (ii) may allow the appeal and set aside the order; or (iii) may vary the order; or (iv) may allow the appeal and direct that the application be re-heard by the Committee. Where it makes an order for the rehearing of an application, s. 17(1) specifically provides that no greater punishment shall be inflicted upon the attorney than was inflicted by the order made on the first hearing. Where the Court of Appeal confirms the order whether with or without variation, the order takes effect from the date of the order made by the Court of Appeal confirming it.4243
Section 11 Legal Profession Act 1971 Section 12(4) Legal Profession Act 1971 42 Section 17(2) Legal Profession Act 1971 43 Ibid, Nunez Tesheira, pp 214 - 215 44 [1993] 49 WIR 213
practice by the Ontario Bar. In the meantime, his name was still on the Roll in Jamaica. He returned in March 1985 and resumed practice. The General Legal Council then discovered that McCalla had been struck from the Roll in Canada because: (i) he published as his, the work of other persons without their permission; and (ii) he lied on his application for employment with the Federal Government. He held himself out as a Q.C. and former Deputy Minister of Justice of Jamaica. Taking into consideration the results of its own investigation as well as the charges that had caused McCall to be struck from he Roll in Canada, disciplinary proceedings against McCalla were commenced by the General Legal Council. The purpose of the proceedings, which were initiated by the Chairman, was to have McCall struck off the Roll of the Court of Jamaica. At the Court of Appeal, Wright JA had the following to say about the General Legal Councils entitlement to uphold standards of professional conduct:
There is no qualification attached thereto. Indeed it would be ludicrous in the extreme if a Jamaican attorney were allowed to roam the world conducting himself in a manner which breaches the rules of conduct which govern the profession of which he is a member and be allowed to maintain that he is not subject to the sanction of those rules because his conduct was outside Jamaica.45
Ibid, at p 235
It should be noted that costs can be ordered against as attorney even though he is no longer on record46.
The General Legal Council was constituted under the Legal Profession Act 1971. Under s. 11 the Disciplinary Committee consists of a minimum of 15 persons. The General Legal Council appoints them. Under the Act49, members of the disciplinary committee can be: i. members or former members of the Council; ii. current or former holders of high judicial office;
iii. attorneys who were members of a former disciplinary body; and iv. attorneys who have been in practice for not less than ten years.50 Under r. 2 of the Third Schedule of the Act, the Council will appoint one of the
46 47
Brendan v. Spiro [1937] 2 All ER 496 Since April 1986, R.S.C.O. 62 r. 8 was replaced with R.S.C.O. 62 r. 11. 48 [1988] 2 All ER 611 49 See also the Third Schedule made under s. 11 of the Legal Profession Act 1971 50 Ibid, Nunez Tesheira, pp 222 223
members of the Committee as Chairman. For the sake of speed in the investigation or the hearing of complaints made against attorneys the Committee usually sits in two or more divisions. Each committee is required to appoint its own Chairman, they also need a quorum of three members before they are able to act.
Procedure
The procedure for the exercise of the General Legal Councils disciplinary powers is set out in Schedule Four of the Legal Profession Act 1971. It is as follows: 1. A formal application is made by the complainant to the Disciplinary Committee in the prescribed form. The applicant should set out the facts by affidavit (s). This is usually done by a client, but may also be done by an aggrieved person. 2. The application should be submitted to the Secretary of the General Legal Council51. 3. The Secretary will send the application to the Disciplinary Committee. 4. Apart from setting out the grounds for complaint, the application also calls upon the attorney to answer the allegations set out in the affidavit. The complaint will be referred to the DPP if the complaint is of a criminal nature. 5. The Disciplinary Committee carries out investigations into the allegation. At this stage the Disciplinary Committee may require further documentary proof relating to the allegations. If the Disciplinary Committee finds that there is no prima facie case it will dismiss the application without requiring the attorney to appear to answer the allegation. The Disciplinary Committee will notify the applicant and the attorney of this decision in writing. 6. However if a prima facie case is made out the Disciplinary Committee will fix a date for the hearing of the application. The Marshal of the Court52 will
51 52
The Secretary is appointed by the Committee and usually and is usually not an attorney-at-law In the Queens Bench Division of the High Court, a marshal is an officer who attends each
serve the Notice of the hearing and copy of the affidavit to the attorney. The Notice takes a prescribed form. It includes a request for a list of documents including affidavits on which the attorney will rely in answer to the allegations. 7. In compliance with the Notice the attorney is required to file and serve the requested documents and copies on the Secretary of the Disciplinary Committee and on the applicant. Either party may inspect the documents contained in the list furnished by each other.
Hearing
Applications are heard in private. The hearing is conducted in conformity with the rules of evidence of a normal court hearing. The Disciplinary Committee may act in whole or in part upon the evidence given by the affidavit. If it is required the Disciplinary Committee may summon deponents53 to give oral evidence.
Standards of Proof
The standard of proof required goes beyond a balance of probabilities. Therefore the standard of proof is high. This is not surprising since allegations of misconduct involve elements of deceit or moral turpitude.
Role
Today law is very much a business, than it is the pursuit of justice. But the traditional role of lawyers is to represent his clients best interests to the court. This said, it is important to remember that lawyers are officers of the court. Their primary allegiance is therefore not owed to their client, but to the bench.
attitude to the court in the discharge of his functions and responsibilities. Canon V (a) of the Canon of Ethics requires that an attorney does not behave in a manner that is degrading to the court. His conduct must be dignified and courteous. In the Bahamas, consistent rude, disruptive and provocative behaviour can invoke discipline, even though it has not punished as contempt.58 Consequently an attorney: (i) shall not make scandalous statements or statements which are solely intended to insult or intimidate witnesses or other persons; (ii) shall as an officer of the court and in the administration of justice be punctual when attending court. He should also be concise and direct in trial and in the disposition of cases. He should inform the courts of the estimated length of proceedings before the court when asked by the court. He should also inform the court of any changes that might affect the estimated length of proceedings.59 (iii) is required to reveal authorities or documents which are disadvantageous to his client, if he is required to make them available by the law or professional standards. Also when relying on authorities in support of his cases he is required to ensure that the decision has not been overruled.60
Code of Professional Conduct Rule III, Commentary 12 Canon of Ethics, Canon V (q) 60 Rondel v. Worsley [1969] 1 AC 191 at p. 227 also Young v. Morales (1995) 50 WIR 61 Canon of Ethics, Canon IV r (e) 62 Canon of Ethics, Canon V (c) 63 Canon of Ethics, Canon V (b)
pretended concern for their personal comfort; (c) Communicate with a juror as to the merits of such proceedings, except where authorised by law or the practise in the court or in the normal course of proceedings with a judge or person exercising judicial functions.6465 (iii) Witnesses Attorneys are under a duty not to withhold facts or secret witnesses in order to show the guilt or innocence of the accused. He should not advise witnesses to make themselves unavailable to the court, for instance by leaving the courts jurisdiction.66 Attorneys must not pay witnesses or offer to pay witnesses for giving evidence. But they can pay reasonably incurred expenses as well as reasonable compensation for loss of time in testifying in court as well as time taken to prepare for testimony. This also applies to expert witnesses67, but he should only be paid a reasonable fee for his professional services.68 Attorneys must not abuse, harass or intimidate witnesses.69 An attorney must not appear as a witness for his client except in formal matters where his appearance is essential to the ends of justice.70 Therefore if it is necessary for an attorney to be a witness in a formal matter, the conduct of the case should be entrusted to another attorney. Also, he is not to act as advocate in any appeal to the decision of the proceedings in which he was an attorney.71 (iv) Perjured Evidence/Fraud/Illegal Conduct As an officer of the court an attorney must never knowingly mislead the court. He should also avoid implying things about the other party or witnesses when he has insufficient information to that effect. An attorney:
64 65
Canon of Ethics, Canon V (i) Nunez Tesheira, K. (2001) The Legal Profession in the English Speaking Caribbean. Jamaica: The Caribbean Law Publishing Company, p 237 66 Canon of Ethics, Canon V (k) 67 A person with special skill, technical knowledge or professional qualification whose opinion on any matter within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant; e.g. a doctor or surgeon, a handwriting expert, a foreign lawyer. It is for the court to decide whether the witness is so qualified as to be considered an expert. In any case to be tried without a jury, the court may appoint an independent expert, called the court expert, to inquire and report, Osborns Concise Law Dictionary 68 Canon of Ethics, Canon IV (l) 69 Canon of Ethics, Canon V (p) 70 Canon of Ethics, Canon V (p) 71 R v. Harris Hoo Shue [1936 40] 3 JLR 108
(a) must not knowingly use perjured or false evidence, he must not help create or use evidence which he knows is untrue;72 (b) must not knowingly make a false statement of law or fact; (c) must not knowingly present to a judge, court or other tribunal that a particular state of facts exists. If he knows that this has been done with the intention of misleading the court he must disclose this to the court or promptly cal on a witness to rectify the same;73 and (d) must not help or advise his client or a witness in fraudulent or illegal conduct.
Canon of Ethics, Canon V (m) Canon of Ethics, Canon V (n) 74 Ibid, Nunez Tesheira, p 238 75 Rondel v. Worsley [1967] 3 All ER at p 998 76 Canon of Ethics, Canon V (j) 77 Canon of Ethics, Canon III (g) 78 Ibid, Nunez Tesheira, pp 238 239
court. In the situation where a client does confess to a crime an attorney must consider two facts; (a) whether the accuseds confession of guilt is clear and unequivocal; and (b) the stage at which the confession is made.
The Code of Conduct for the Bar of England and Wales 1990 para 12.5 Ibid 81 The Code of Conduct for the Bar of England and Wales 1990 para. 13.3 and R v. Lyons [1978] 68 Cr App 104 82 The Code of Conduct for the Bar of England and Wales 1990 para. 13.3
In particular, defence counsel may not protest his clients innocence nor set up an affirmative case consistent with the clients confession by e.g. asserting or suggesting that some other person committed the offence charged or by calling any evidence in support of an alibi intended to show that the accused is taking the stand against his advice. Although defence counsel is severely restricted in the conduct of the accused clients defence in cases where the client has confessed his guilt, the attorney may nevertheless present a technical defence by, inter alia, objecting to the competency of the court, the form of the indictment and the admissibility or sufficiency of the evidence.83 In attacking the evidence for the prosecution, he is entitled to test the evidence of each individual witness for the prosecution by, inter alia, cross examination or in his speech to the tribunal and to argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offences charged, but he should go no further than that.84 (ii) Disclosure of Previous Conviction of Client Defence counsel is under no duty to disclose the fact that a client has a previous conviction if the prosecution has lead the court to believe that the accused client has no previous conviction. (iii) Withdrawing from case Counsel can refuse to act for a client who has confessed guilt but is still determined to plead not guilty. However the Canon of Ethics, Canon IV (q) lists the general circumstances in which an attorney can withdraw his services from an undecided case before the court or other tribunal. They are: (a) where the attorney cannot conscientiously represent a claim or defence that the client insists upon; (b) where the client wants to pursue an illegal path or deceive the court; (c) where a client has committed fraud during proceedings but will not rectify or cannot rectify the matter when asked to by counsel; (d) where to continue acting is tantamount violating a law or disciplinary rule; (e) where the client by any other conduct renders it unreasonably difficult for the Attorney to carry out his employment as such effectively or in accordance with the judgement and advice of the Attorney, or the Canon of
83 84
The Code of Conduct for the Bar of England and Wales 1990 para. 13.4 The Code of Conduct for the Bar of England and Wales 1990 para. 13.5
professional ethics85; and (f) where counsel cannot carry out his services effectively for any other good and compelling reason.
Canon of Ethics, Canon IV (v) Code of Professional Conduct for the Bar of England and Wale para 11.11 87 Ibid 88 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d) 89 Abbot v. Refuge Assurance Ltd [1961] 1 QB 433 at 451 90 Ibid, Nunez Tesheira, p 242 91 A formal document setting out the charges against the accused. An indictment consists of three
promptly. He should also refrain from overloading it with too may defences or too many counts.92 Prosecution counsel should not attempt by advocacy, to influence the court in sentencing. If the defendant is unrepresented, prosecution counsel is duty bound to inform the court of mitigating circumstances he is
parts: (1) the introduction indicating the venue and defendant; (2) the statement of offene; and (3) particulars of the offence 92 See on this the Code of Professional Conduct for the Bar of England and Wales para 11. 4 (d)