3 professional conduct issues in criminal litigation course
ONE - conflict of interest
TWO - disclosure and confidentiality
THREE - misleading the court
exam structure
IPOD
Identify
Principle
Outcome
Discuss
DISCUSS
Discuss principles and outcomes by reference to the IB set out in the chapter to reach a conclusion
- Can you act for the client?
- what steps must you take?
- what steps must you follow to avoid not being able to act for both clients?
- What IB must you follow?
MISLEADING THE COURT AT POLICE STATION
I - misleading the court (because duty starts as soon as you’re instructed; if they lie in police station, that can mislead the court) confidentiality/disclosure
P - 1,2,4,6
O - 5.1, 5.2, 5.5 and IMP. 4.1
D -
can act for client as long as we are not complicit in his misleading the court
- if u let him lie (5.1, 5.2 NOT met), if u let him lie in court (IB(5.9))
- cannot act for him if lie (p1,2)
- must withdraw and keep confidential (4.1)
- OR PUT PROSECUTION TO PROOF (remain silent at interview, good option if evidence is weak, but cannot assert innocence at any point in proceedings or interview or 5.1 breach)
MISLEADING THE COURT AT COURT
IPO same as misleading court at police station
D
- cannot comply with instructions (breach 5.1, not comply with IB(5.9)
- Breach p(1), (2)
- might be best interest to lie p(4) BUT if two principles conflict, the one that takes precedent is the one serving public interest
- MUST WITHDRAW and not disclose confidential info (4.1) and court can’t pressure you to provide reasons or get you to reconsider
- BUT YOU CAN PUT PROSECUTION TO ACT (but cannot raise positive case)
CONFLICT OF INTEREST
I - conflict of interest
P - p(2), (4)
O - 3.5 (exceptions in 3.6, 3.7 do not apply in CRIM lit)
D
1. LSCPNCI 2.1 - examples of conflict of interest (does one apply here? or likely one will arise?
- if conflict of interest, you cannot act for the 2nd person you see because can’t act in best interest of both parties (IB(3.2), P(4))
- advise 2nd person to seek rep from another firm (and don’t reveal confidential info to the police)
CONFIDENTIALITY AND DISCLOSURE
I - confidentiality and disclosure
P - P(2), P(4)
O - 4.1-4.3
D
1. If you have info from D2 that is material to D1’s case, prima facie u must disclose it to D1 (O(4.1))
- BUT duty of confidentiality (to D2) continues even if D2 dies or retainer ends and confidentiality overrides disclosure (O(4.3))
- Cannot act for D1 (cannot disclose material info to him) so must cease to act for both (LSPNCI 2.4)
CONFLICT OF INTEREST (where D1 denies and will lie and tells you to tell D2)
I - misleading court + COI
p - p(2), (1), (4)
o - 3.5, 5.1, 5.2
CANNOT ACT FOR D2
- passing on message raises issues of conflict of interest (obvious attempt to influence D2 - inequality between parties?)
- if conflict, cannot act in best interests of both
IF D1 TRYING TO LIE
- misleading court (5.1)
- cannot act for D1 either
ASKING U TO KEEP QUIET (misleading the court)
I - misleading the court
P - P(2), P(1), (4), (6)
O - 5.1, 4.1
D - act for D1 if u do not mislead the court
COMPLYING W INSTRUCTIONS
- mislead court (5.1) and not complying with p(1), (2)
- doesn’t matter that it is in her best interests (p4) because if conflict, the principle that takes precedence is the one that best serves public interest (esp. administration of justice)
CHOICES:
- try to get her consent to tell truth in writing
- withdraw (if she says she will lie)
- act but make no positive case - you can not disclose but this means you cannot make a positive case and if direct Q asked, must withdraw from acting (and cannot tell court why (4.1)
