Solicitor & Civil Courts

Duties Owed

A solicitor owes a duty to act in his or her client’s best interest.  However, he also owes a duty to court as an officer of the court.  The administration of justice requires that a court should be able to rely on the integrity of lawyers who appear before it or have dealings with it.

A solicitor should promote and protect fearlessly by all proper and lawful means the client’s best interest without regard to his own interest or any consequence to himself or any other person.  He must keep confidential information about the client and his affairs and must not disclose the facts known to him regarding the client’s character or previous convictions without the client’s expressed consent.

A solicitor has an overriding duty to the court to ensuring the public interest that the proper and efficient administration of justice is achieved.  He should assist the court in the administration of justice and should not deceive or knowingly or recklessly mislead the court.

A solicitor is not under a duty to undo the consequences of the court being misled by the prosecution or by the opposing party otherwise than on a point of law where this occurs due to the other side  lacking certain information or misunderstandings the information available.  The solicitor should not, however, assert that what he knows to be untrue or substantiate a fraud that this would be amount to a deception of the court.

Presenting Evidence

When acting as a solicitor advocate, the solicitor should present his client’s case to his client’s best advantage.  It is not the task of the advocate to vindicate this client at all costs.  The advocate has the duty to assist the court in reaching a just determination and further into that aim he must advise the court of all relevant cases of statutory provisions.

In relation to evidence, the advocate should not deceive the court in relation to facts placed before it.  However, he is not obliged to make available to the court any evidence harmful to his case of which the court or other opposing party is otherwise unaware.

Except when  appearing as an prosecution advocate,  the solicitor is not under the duty to inform the court of the existence of witnesses who would assist the other sides.  However, if the solicitor knows that an affidavit has been made and filed in the case which he is conducting and which is accordingly within the knowledge of the court and the affidavit is such that if it were before the court, it might affect the mind of the judge then the advocate’s duty is to disclose the affidavit to the judge.

It is the advocate’s duty to defend fearlessly the proper interest of its clients and protect the client’s liberty.  He is entitled to state every fact freely and use every argument whether technical or otherwise that maybe used in accordance with the law and rules of professional conduct.  He should resist any attempt to restrict him or his clients in the performance of the task.

Relationship with Client

It is the duty of the advocate to guard against being made the channel of questions which are intended to insult de grade or annoy the other side’s witness or any other person.  He must exercise his own judgment with regard to the substance in form of a question.

He should never allow his personal feelings to intrude upon his task as an advocate.  He should always act with due courtesy towards the court and towards his opponent and all concerned in the case. A solicitor must not call  a witness whose evidence is untrue to his knowledge as opposed to his belief.

It is in implied terms of the solicitor’s retainer that he is free to conduct the proceedings in such a way as he in his proper discretion thinks appropriate.  If his express instructions give rise to a situation in which the inclusion or exclusion of evidence and his duty to the court conflict, he should unless his instructions are withdrawn, withdraw from the case after seeking court’s approval but without disclosing matters which are protected by the clients’ privilege.

A solicitor must decline to act in proceedings where he knows that the client has committed perjury or has misled the court in relation to the proceedings unless the client agrees to make a full disclosure of his conduct to the court.   He may not allow dishonest omissions by a client from an affidavit, statement of truth or discovery.

Witnesses

On the instructions of his client, a solicitor may advertise for witnesses to come forward to give evidence.  It should not invite persons to testify as to particular facts.

There is no property in a witness.  Solicitors are entitled to interview a witness and take statements from in any civil or criminal proceedings whether or not he has been interviewed or called as witness by the other party.  There must be no question of tampering with evidence of a witness or encourage him to change his story.

It is not improper for a solicitor to advise a witness from whom a statement is being sought that he need not make a statement except subject to specific legislative exception.

Where a witness is in the course of being cross examined, a solicitor should not without leave of the court or without consent of the advocate for the other side, discuss the case with the witness whether or not the witness is the client. This includes all adjournments and weekends.

Costs & Financial

A solicitor should not make payments or offer to make payments or agree to make payments to a witness contingent upon the nature of evidence given by the outcome of the case.  There is no objection to the payment of reasonable witness expenses and compensation for time pending court and reasonable fee for the services of an expert witness.

In legal aid cases, a solicitor should draw to the attention of witness the fact that the case is being legally aided, and that witness fees and disbursements will be taxed.  Where costs and expenses are taxed or assessed by the relevant authority being the Legal Aid Board in civil cases and the Department of Justice in  criminal cases, he is  to explain that no payments other than those which the bodies or make will be paid  and that solicitor has no personal liability for payment of fees other than those allowed or any fees in addition to those amounts.

Solicitors should be mindful of the fact that cost will not always be awarded in favour of his client.  If he is of the opinion that this client should not have to bear the expenses of a particular witness on whom he has served the subpoena, he should  bring the matters to the attention of the court and seek an order for cause in favour of this client in relation to those expenses.

Solicitor as Witness

The solicitor should seek to avoid being a witness in his own case or to remain in the case where a member of his firm is called as a witness.  He may give evidence in a case where either the evidence to be given is purely formal such as witnessing deeds or relating to attendance at a Garda station.

In making a decision as to whether to continue or cease acting, consideration should be given to the nature of the case, the nature of the evidence and the circumstances of the client.  The interest of justice real or perceived should be the guiding factor.

Further Duties to Court

A solicitor should not discuss the merits of a case with the judge, registrar, clerk or other official of a court before whom a case is pending. Where written communication is required, during the case, the solicitor should deliver the copy to the representatives of the other side and opposing party.  Where oral communication is proper, adequate notice to the other party or counsel should be given.

If after conclusion of the evidence and legal argument judgment is reserved and a solicitor discovers the proposition of law that is directly in point and proposes to bring it to the attention of the judge, the solicitor on the other side ought to concur in so doing even if he knows that the proposition is against them.  If he does not agree, the first solicitor may submit the additional authority to the judge in writing and the solicitor should at the same time send his opponent the copy of the letter sent to the judge.

A solicitor must comply with court orders requiring him or her to take or refrain from taking a particular course of action.  Failure to do so may amount to contempt of court.  A solicitor should not aid or resist the client where the client refuses to obey the court order.  A solicitor is bound by an undertaking given to the court.

A solicitor appearing in court should dress in a manner which shows respect for the dignity and formality of the court.  He should avoid comments in advance of any determination  which would be prejudicial to the proper administration or outcome of pending litigation or proceeding.