Your duties to the court

There are regulatory requirements imposed by the SRA in relation to litigation and advocacy. The Code applies to all firms and all solicitors. It might not technically apply to barristers, but we believe it reflects best practice that Keystone barristers should nevertheless follow.

Under the SRA Code, there are a number of standards that all lawyers must observe in the conduct of any litigation. The Code is briefer than before but, if anything, it places more rather than fewer duties on you.

You must:

• act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice (Principle 1)
• act in a way that upholds public trust and confidence in the legal profession (Principle 2)
• only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable (paragraph 2.4)
• comply with court orders which place obligations on you or the firm (paragraph 2.5)
• draw the court's attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings (paragraph 2.7)

You must not:

• abuse your position by taking unfair advantage of clients or others (paragraph 1.2)
• mislead or attempt to mislead the court either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client) (paragraph 1.4)
• misuse or tamper with evidence or attempt to do so (paragraph 2.1)
• seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence (paragraph 2.2)
• provide or offer any benefit to witnesses dependent on the nature of their evidence or outcome of the case (paragraph 2.3)
• place yourself in contempt of court (paragraph 2.5)
• waste the court's time (paragraph 2.6)

What litigation is covered?

A 'court' is any court, tribunal or inquiry of England and Wales, a British court martial or any court of another jurisdiction. Technically, alternative methods of resolving disputes (ADR) such as mediation or arbitration are not conducted before a court. However, it would be wise to adopt the same standards of behaviour for all methods of ADR.

Balancing your duties

In the event of a conflict in your duties, your duty to the court and to upholding the administration of justice takes precedence. However, (see the Introduction to the SRA Principles) if this happens, then you €˜should, where relevant, inform your client of the circumstances in which your duty to the court and other professional obligations will outweigh your duty to them.' In some cases, it will be a simple matter of not being able to accept the client's instructions if such go against the Code. However, where your duty to the client and your other duties conflict, then you may be subject to an Own Interest Conflict and you may need to withdraw. If you are concerned that you might be in a position of an Own Interest Conflict, then you should contact the Compliance Team without delay.

The SRA published a Risk Resource paper on the need to balance the duty fearlessly to advance a client's case with the duties owed to the court and third parties in a paper entitled €˜Balancing duties in litigation'. Although the paper pre-dates the current Code, it still provides useful guidance on integrity and ethics in litigation; breach of duties to others and breach of duties to the court.