How far should lawyers go to win a case?

And how long should judges refuse to sanction counsel’s egregious conduct?

Advocates and solicitors ( ‘lawyer’ and ‘counsel’ are used interchangeably) always must exhibit the highest level of professional conduct. They must always uphold the dignity of the profession and the interest of justice. Towards opposing counsel they must show candour, courtesy and fairness. No one should deceive a court, or his or her opponent. Any sense of animosity as between clients must not influence counsel in their conduct towards each other, the parties or their witnesses: [Rules 31, 16, 17, 18  and 32 of the Legal Profession (Practice and Etiquette Rules, 1978].

Lawyers don’t lurk in the dark, like assassins with drawn daggers. They combat in the open, with all weapons bared.

It is a long-held custom at the Bar for a counsel to send to his opponent all his written arguments, complete with all the cases that he wishes to rely on. This will give the opponent an opportunity to reply.

A recent, but pernicious practice has grown to monstrous proportions.  Lawyers tend to hand over their cases only seconds before the judges take their seat. This catches one’s opponent by surprise. He cannot reply. He loses his right to a fair hearing. Lawyers often do this deliberately.

This is wholly unfair. And entirely unethical.

Some years ago, there was an appeal before a High Court judge. I appeared for the respondent. When the appeal was called, my opponent rose to argue. She had not given me any of her cases. I thought perhaps she hadn’t any.

Suddenly she told the judge that she wished to cite some cases to support her arguments. She pulled out a stack of cases. She cited a case and handed the judge a copy. We asked for our copy. She completely ignored us, and carried on.

Livid, but not wishing to interrupt proceedings, I remained stolid. This happened twice. I did not know what the cases stood for.

The judge had noted my discomfiture.

At the end of her arguments, he asked her coldly,

‘Perhaps your opponent might need to have a look at your cases?’

Only then were copies reluctantly handed over. There was a good deal of pouting emanating from the opposing side. It wasn’t a pretty sight.

It was my turn to reply. I recall saying,

‘Since I have not had the benefit of studying these cases, I shall not to assist the Court; but could I be permitted to answer my learned opponent’s arguments by resorting to first principles?’

Of course the judge granted us the permission. I completed my arguments. The judge did not even glance at my opponent’s cases. And that was that. She lost.

We don’t get judges like that anymore.

When something like this happens at the Courts of Appeal or the Federal Court, the victims, themselves senior practitioners, are usually too embarrassed to bother the court. They are too gentlemanly. They don’t like complaining. They don’t like distracting the court. They don’t wish to appear churlish.

But it happens these days – and it seems to me, all the time.

There was a time the judges would correct any kind of misbehaviour – at once.

This has stopped.

As I was writing this piece, a friend called to complain. He had represented a defendant at a High Court trial. The Plaintiff’s counsel had introduced documents that went against his pleaded case. This material fell outside what the Plaintiff said were the parameters of his case.

My friend had objected saying,

‘My opponent is bound by the case that he has described. He has now twice travelled outside those parameters, and I now protest. These documents should not be admitted into evidence.’

He thought the way the judge had responded was rather troubling.  The judge had said,

‘I overrule these objections now. When it is time for you to make your Closing Argument, you may raise objections, then.’

My colleague replied,

‘By that time the document would have been marked as an exhibit, and would have been admitted. It would be too late. The court must intervene at once.’

The judge response was,

‘Please stop interrupting the trial. If you think these documents are irrelevant, then you must elect right now that you will not cross examine on these documents. But that is your prerogative and I leave that to you.’

This had been going on for a few days, and driven to distraction, my colleague asked,

‘What should I do?  Should I write to the Chief Justice?  That will then turn the judge against me. If I wait till the end of the Closing Speech, the judge is likely to make an adverse ruling against my client.  By the time our client appeals to the Court of Appeal, the judges there will say that I did not object on time!’

He was quite beside himself. He asked what to do. I said,

‘Why don’t you make a written application, with a sworn affidavit, setting out what the judge said, and then asking him to rule that the court should not admit certain documents?’

My friend looked aghast: –

‘What?  During trial?  The judge would turn against us!’

It is quite wrong for counsel to lead evidence on points that he has not pleaded. It is far worse when the judge notes the discrepancy, but holds his hands.

Should my friend’s client lose the case, when they get to the Court of Appeal they’d be confronted with a single question:-

‘Why didn’t you object when these discrepancies were taking place?  It is too late now!’

And so the vicious circle will grows.

It is often said that lawyers are ‘officers of the court’.  This phrase has two meanings: it refers to anyone who has an obligation to promote justice in the judicial system. It includes within its embrace judges, counsel, bailiffs, and clerks. As officers of the court, lawyers have an absolute ethical duty to speak the truth and act with honour: [Legal Dictionary, Farlex].  The other is that lawyers enjoy certain protections.  So long as they do it courteously and fairly, counsel can say anything they like to secure their client’s victory.

In the United Kingdom, barristers are not officers of the court: [Assaubayev v Michael Wilson & Partners [2014]). They fall under the jurisdiction of their Inns: [Roscoe Pound, 1944]. But solicitors are subject to the court’s supervisory jurisdiction.

In Malaysia, every advocate and solicitor comes directly under the jurisdiction of the court.

On the one hand, it would be terribly unfair for a judge, holding such an Olympian position to tick counsel off in public. It is an improper interference and a deprivation of the right of due process. It discomfits counsel and creates a rift between the Bench and the Bar.  Judges are very slow to castigate lawyers in public: being genteel, judges expect counsel to behave themselves. This is quite right.

Yet Superior Courts have a supervisory jurisdiction over all legal practitioners.

Courts  are universally acknowledged to be vested with power to impose decorum: [Ex. p. Burr, 22 U.S. (1824)].

It is a power incidental to all Courts.  It is necessary for the respectability of the legal profession. But it is a power that ought to be exercised with great caution: [McMorrow, Rule II and Federalizing Lawyer Ethics, 1991].

In as much as the courts have asserted an inherent power to regulate the practice of law, yet they have not treated all wrongful conduct as sanctionable: [Zacharias & Green, Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory, (2003)].

But where injustice, and unethical conduct rears its ugly head, a judge must intercede and set matters right.

Judges can be and ought to be key figures in maintaining integrity and professionalism in the practice of law: [Randall T. Shepard, What Judges Can Do About Legal Professionalism, (1997)].