Managing Yourself and Your Work

(SQE Advocacy Assessed skill - see www.sra.org.uk)

A competent advocate should be able to:

• Clarify client instructions to avoid mistakes and misunderstandings.

• Use all available resources in an efficient way so that work activities can be planned and executed.

• Control budgets and have a good grasp of resource needs and other financial matters to complete work in practice.

• Manage their time effectively by meeting deadlines and dealing with unfore­seen circumstances as they arise.

• Keep the client informed of progress at regular intervals.

• Pay attention to detail so as to ensure high standards of work and eradicate errors.

Key Practice Case

The case of Arthur JS Hall & Co v Simons and Ansell and Others [2000] UKHL 38 concerned conjoined appeals of three separate cases. One of the cases related to a building dispute and the other two cases related to family proceed­ings. Solicitors’ negligence was alleged in all three cases. The question for the court was whether an advocate should continue to have immunity for pros­ecution in criminal proceedings or a claim being brought against them in civil proceedings for the way they handled their client's case at trial. The House of Lords recognised the difficulties of retaining the common law position in an earlier case that confirmed advocate immunity. This was because ultimately the nature and purpose of civil and criminal litigation was to protect public inter­ests and not private interests.

The House of Lords had previously decided in a landmark case in 1967 (Rondel v Worsley [1969] 1 AC 191) that it was in the public interest for barristers to retain their immunity from suit in respect of the conduct of litigation. This decision did not specifically extend to solicitor advocates. However, this immunity was removed for both barristers and solicitor advocates following the decision in ArthurJS Hall.

The House of Lords held that an advocate's immunity in civil proceedings was no longer defensible for the following reasons:

In civil litigation, defining the boundaries of what constitutes advocacy and would therefore qualify for the advocacy immunity is a serious problem not capable of satisfactory solution. The position has been made more difficult by the CPR. There is not a single moment of confrontation. The exercise of advocacy extends over a series of processes of which the trial is only one and the advocacy may be conducted as much in writing as orally.

In terms of criminal litigation, the court noted that the criminal advocate takes on a public duty to enforce the criminal law to see justice done in public and therefore advocates should not enjoy a different treatment to other participants:

The prosecuting advocate has a duty to see that the prosecution case is, on behalf of the Crown, presented effectively and fairly. That of the defending advocate is to see that the defendant has a fair trial, that the prosecution case is properly probed and tested both in fact and in law and that his fac­tual and legal defences are properly placed before the court supported by the available evidence and arguments.

The court noted advocates, like other professionals, were bound by ethical codes. In addition, they owed a duty to the court. Any advocate acting ethically and fol­lowing their duty to the court would be unlikely to be prosecuted or sued and that was essentially an implicit protection that remained despite the decision. The House of Lords was of the firm view that to leave the question of immunity from suit for Parliament to decide (by passing appropriate legislation) would have “the unfortunate consequences of plunging both branches of the legal profession in England into a state of uncertainty for a prolonged period”.

Practice Tips

• Remember that advocacy is a craft that can be improved upon with experi­ence and training and so always keep your skills and knowledge up to date.

• Ensure that you familiarise yourself with the rules and codes of conduct for your profession.

• If you are in any doubt as to how to make an ethical decision then refer to guidance from your professional body or contact their practice advice hel­pline (where relevant) - see information at the end of this chapter.

Practice Risks

• Failure to acquaint yourself with professional rules and codes of conduct.

• Undue pressure from the client that could lead to unethical behaviour on your part.

• Unilaterally taking action that would be regarded as unethical.

• Failure to seek advice from your professional body when you are unclear how to proceed in terms of conflicting ethical dilemmas.

• Assuming that ethical behaviour only applies when you are at work.

EXERCISE A

Test Your Knowledge - Problem Scenario

Refer to the SRA Standards and Regulations and consider the following problem scenario:

You are an advocate involved in your first criminal trial. You are acting for the defendant in a theft trial. Before trial, and as part of the disclosure process, the prosecution sends a list of the defendant’s previous convictions to you. The list shows that the defendant has five previous convictions (two for GBH and three for ABH). Your client however tells you that the prosecution has missed two con­victions, these are both for theft and were committed in the last 12 months.

Your client says that it would not help his case if the prosecution were to be made aware of their omission.

Which rules/principles/code of conduct would you need to consider in order to decide how to proceed?

Go to Part C for a suggested answer.

EXERCISE B

Test Your Knowledge - MCQs

Test One

You are due to represent a claimant client at a personal injury trial in which the client seeks extensive damages for a debilitating back injury. You are waiting for the client to attend court when you see him get out of his car and run to the court building and enter the court using his crutches. What would you do? Select ONE of the following:

1. Pretend that you have not seen the client running because you have a duty of confidentiality to the client and what you have seen would prejudice his case.

2. Quickly approach the client and tell him to be careful about his movements and behaviour in court and explain that you have seen him running from the car park.

3. Immediately inform your opponent and the court about what you have seen.

4. Take your client to one side and explain that what you have seen means that you cannot present any case on his behalf that would involve present­ing evidence (including calling and/or examining witnesses) that would suggest his back injury is so debilitating that it prevents him from running. You will need to stop representing him if he disagrees.

5. Tell the judge, but not your opponent, what you have seen. This is because you have a duty to the court.

Test Two

You are acting for a defendant client in a criminal trial for murder. The defend­ant has raised a defence of diminished responsibility. Your expert, who is due to give evidence in the next 30 minutes, takes you to one side and says that she has some reservations about the defendant’s defence and the conclusions contained in her earlier report. The expert asks you what she should do. How would you reply?

1. Tell the expert that it is now too late for her to change her evidence and she will not be allowed to refer to her reservations during her testimony and so should keep quiet.

2. As the evidence she wishes to give is unlikely to help your client's case, tell the expert that she must give evidence that supports her previous report.

3. Accept that the expert will have to refer to her reservations when giving evi­dence and if she does then you can deal with this through your questioning and witness examination during the trial.

4. Tell the court and your opponent that you will no longer be calling this expert because she is ill and cannot come to court.

5. Tell the client to plead guilty, as their chance of reducing the charge of mur­der to one of manslaughter is now unlikely.

Go to Part C for the suggested answers.

Self-Reflection Checklist