On occasion I receive inquiries from practitioners regarding ethical challenges that they or their practice are confronting. Almost invariably the inquirer has already given due consideration to the issue, and inclines toward a solution, but at the same time desires a second (hopefully confirmatory) opinion or perspective. This also serves to alert me to some of the ethical issues facing practitioners that may not be (yet) evident in the case law or commentaries.
This column reflects one such instance. The inquirer was a member of a law practice that, on behalf of a client, was advancing submissions on the interpretation of regulatory standards to which the client was subject. It was in the interests of the client to urge a narrow construction of the standards, so as to reduce the regulatory impact. It transpired that, in another matter, the law practice was representing (or was seeking to represent) another client whose interests aligned with a broader interpretation of those standards. The question, therefore, was whether the law practice could legitimately represent both clients in these discrete matters while making what might be perceived as inconsistent submissions.
Let’s return to this in a moment. A reason why the public sometimes views lawyers with suspicion is a belief that lawyers will make any argument in support of whoever is their master (ie the client), whether or not they personally support the client’s cause or the interpretation proffered (sometimes termed the ‘hired gun’ notion). Yet were lawyers to take on only causes or interpretations they personally supported, this could amount to an illegitimate pre-judgment, with potential detriment to access to justice. This is not to say that lawyers must eschew some preliminary assessment of the merits of the claim, defence or submission; after all, they should not proffer what is doomed to fail. At the same time, there is nothing to preclude lawyers putting to the court an argument that they are not personally convinced of.
In so doing, though, the lawyer must not mislead the court. Evidently, submitting what is inconsistent with what the lawyer understands as the factual reality is a flagrant breach of professional and legal obligations. The court relies heavily on the verity of the lawyer’s word pertaining to the facts, chiefly because the lawyer is likely to be privy to more than emerges in court, coming under the veil of confidentiality.
Misleading the court as to the law, while likewise an ethical breach, is the subject of greater controls, and so is arguably less likely to adversely effect the quality of justice. First, the judge is legally trained and presumably able to assess the legal merits of a submission. Second, the opposing lawyer will challenge an incorrect statement of law (and, in the ex parte context, a lawyer is expected to present the case for and against). Third, appeals on questions of law are typically as of right. Moreover, there may be alternative but nonetheless arguably valid opinions as to the law.
The latter point feeds into the scenario presented at the outset. There should logically be little in the way of constraint on a law practice, in discrete matters and for different clients, making seemingly inconsistent submissions as to law, provided that the respective submissions do not misrepresent the law. (This might be subject to a caveat, though, in the event that the respective clients’ interests conflict, which might prove so if, inter alia, the scenario involves the same matter.)
A law practice making inconsistent submissions as to the facts in different matters is problematic, though. The point was brought home by the English Court of Appeal’s decision in Vernon v Bosley (No 2), where the plaintiff had witnessed unsuccessful attempts to rescue two of his daughters from a motor car which had plunged into a river while driven by the children’s nanny (the defendant). His claim for post-traumatic stress disorder succeeded before the trial judge but was appealed by the defendant. Prior to judgment being delivered on appeal, counsel for the defendant received information that, in (separate) child custody proceedings between the plaintiff and his wife, different psychiatric evidence had been given by the psychiatrists called by the plaintiff in his tort action. In the custody proceedings, the psychiatrists had indicated that the plaintiff’s psychiatric condition had greatly improved.
While different lawyers had represented the plaintiff in each proceeding, the Court of Appeal found that counsel in the tort matter was aware of the change in the psychiatric opinion. It followed that the court was misled ‘by the failure of the plaintiff and his advisors to correct an incorrect appreciation’; the plaintiff should not have withheld from the court hearing the tort action information that would have disclosed that the case, as the plaintiff’s counsel had conducted it before the court, did not represent the true position as to an essential part of the plaintiff’s case. The case would have been even clearer, it could reasonably be concluded, had the same law practice represented the plaintiff in each matter.
