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Solicitor as material witness – duty to the court

Solicitor as material witness – duty to the court

by Michael Dolan.

It is by no means uncommon for a solicitor acting in a matter to be called as a material witness in a court or tribunal proceeding. What does being a “material witness” mean? Once it becomes apparent that this is to occur what are the solicitor’s ethical obligations? Is the solicitor conflicted? If so, can the matter be resolved by another solicitor in the law firm taking over the running of the proceeding with the law firm staying as the solicitor on the record? What if the client insists that the solicitor continues to act in the matter and is prepared to given informed consent in writing?

Fortunately there has been much judicial guidance on this topic given in recent years and the matter is also addressed by the Conduct Rules (1) which provide:

“27. SOLICITOR AS MATERIAL WITNESS IN CLIENT’S CASE

 27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.  

 27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.”

 On the face of it, this rule would appear to allow a solicitor material witness or a solicitor’s law firm to continue acting in a proceeding provided that doing so would not prejudice the administration of justice. However, the words of the rule have been considered in 2014 by the Court of Appeal in New South Wales (2)  Adamson J, with whom the two other judges of appeal, agreed wrote:

  1. “It is necessary to emphasise the risk posed to the administration of justice in New South Wales by solicitors remaining on the record when they are, or may be, witnesses in proceedings. This risk is heightened when they have a personal interest in the outcome of litigation beyond recovery of their fees. Courts rely on legal practitioners to discharge their duties to remain objective and professional in the preparation and presentation of proceedings. Such duties are susceptible to compromise where a practitioner is also a witness and even more so when he or she has a financial interest in the outcome: see, for example the observations made by Brereton J in Mitchell v Burell [2008] NSWSC 772 at [20].
  2. As referred to above, rule 19 was modified after the proceedings in the Court below had been determined. The present rule, rule 27.2 of the Solicitors’ Rules, provides:

‘In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.’

  1. The effect of the amendment is to change the rule from a prohibition qualified where there are “exceptional circumstances justifying the practitioner’s continuing retainer by the … client” (Rule 19) with a qualified permission that allows a solicitor to continue to act for the client unless doing so would prejudice the administration of justice (Rule 27.2). I do not discern any change in the purpose of the provision, which is to protect the administration of justice by circumscribing the circumstances in which a solicitor who is, or may be, required to give evidence in proceedings is permitted to act.”

The matter has been considered judicially in a decision of the Supreme Court of Victoria by McMillan J (3)

In the Bailey v Richardson decision Her Honour wrote:

188 A purpose of Rule 13 is to prevent a practitioner from being in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence. The role of a lawyer as a witness has been succinctly dealt with in the important article written in 1998 by Ipp J (as he then was) ‘Lawyers’ Duties to the Court’ article when wrote of the ‘lawyer as a witness’ in the following terms:

‘It is undesirable for a lawyer to appear as a witness in the same case as he is instructing solicitor (and, a fortiori, counsel). Similarly, it is undesirable that, when an affidavit has been filed by a lawyer in support of an application by a client, the lawyer appear as solicitor or counsel. The reason for this is that the lawyer would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence…

 Where a lawyer is guilty of a conflict of interest in representing a client he will have committed a breach of duty. That duty is usually expressed as a fiduciary obligation arising out of the relationship between solicitor and client. But there is a similar duty owed by a lawyer to the court (as well as an ethical duty). The duty to the court arises from the court’s concern that it should have the assistance of independent legal representation for the litigating parties. The integrity of the adversarial system is dependent on lawyers acting with perfect good faith, untainted by divided loyalties of any kind. This is central to the preservation of public confidence in the administration of justice.’ ”

These decisions make it clear that a solicitor material witness owes a duty to the court not to continue to act in a proceeding in which the solicitor is to be a material witness. A useful summary of the case law and solicitors’ duties in this regard may be found in a leading Australian text book on ethics and professional responsibility in legal practice. (4)

 References:

  1. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law, Rule 27
  2. Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395
  3. Bailey v Richardson [2015] VSC 255
  4. P Macfarlan and Y Ross, Ethics, Professional Responsibility and Legal Practice, 2017 at pages 368-372