PE SGS 2: SAQs
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. What would you like to do?
You are representing Richard Smith who is pursuing an action in contract against a science fiction memorabilia shop called ‘Dark Star’. Richard makes bespoke shelving and display units to order. The shop ordered a large quantity of display units but when they were complete they refused to accept delivery. Just before the trial and some time after you advised in writing and settled the pleadings, Richard attends a conference and produces his file of original documents. You have a file of the copies which you used to advise upon the case but you decide to check through the originals for the purposes of the conference today. Mr Smith’s claim for damages is based in part on the assertion that because the units were manufactured to order he was unable to mitigate his losses and sell them elsewhere. During the conference you come across an invoice in the file that shows that they were in fact sold to another shop. You bring this to Mr Smith’s attention but he says ‘we don’t need to tell the other side about that do we’. What should you do?
You owe an overriding duty to the court.
If the client refuses to disclose the document, the court would be being misled.
Therefore you must advise the client that the document has to be revealed.
If he refuses to do this, you would be in a position where you should withdraw and return your instructions.
You must explain your reasons for withdrawing to the client.
You represent the defendant in his Crown Court proceedings on an allegation of theft from employer. In conference with the client shortly before the trial you advise him that he is likely to get a custodial sentence in the event of conviction. The client said he was thinking of “legging it” before the trial. What should you advise him?
You have an overriding duty to the court and must not engage in dishonest or discreditable behaviour.
Therefore you should advise the defendant not to abscond as you have an overriding duty to the court.
You have a duty of confidentiality to the client.
Therefore you would not tell the court what the defendant had said.
However,you cannot make any assertion in anything you say on court that would be misleading in the light of what you have been told.
In the course of legal argument, your opponent advances a proposition of law to the court in support of her client’s case, but fails to produce a particular reported decision of which you are aware and which would plainly be of assistance to her. Without it she is likely to lose; with it she may well win. What do you do? Does your answer depend upon whom you are acting for and whether in civil or criminal proceedings?
A barrister must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware
Even if the effect is favourable or unfavourable towards his case
The Code makes no distinction between civil and criminal cases.
You are appearing at Gladbury Magistrates’ Court. Your client, Stephen Clarke, was convicted at a trial on an earlier date of an offence of assault and sentencing was adjourned until today. When you arrive at court you speak to the prosecutor who tells you that Mr Clarke has no previous convictions. When you speak to Mr Clarke in conference he tells you that in fact he has a previous conviction in the last six months for a public order offence. In court the Prosecutor sets out the facts of the offence and tells the Court that Mr Clarke has no previous convictions. What should you do?
There is a conflict between the primary duty to the client and the over-riding duty to the Court. Regard must also be had to the duty of confidentiality between Counsel and Client.
Defence Counsel is under no duty to reveal the previous conviction to the Prosecution or the Court. However,you must be careful to ensure that the Court is not misled.
You cannot endorse the Prosecutor’s assertion that there are no previous convictions and you cannot assert that the defendant is a man of good character or mitigate on any basis that suggests the previous conviction does not exist
You have been instructed to represent Janet Bramwell, who was seriously injured in an industrial accident. 12 months ago, you advised your Instructing Solicitors that a civil claim for personal injury was likely to succeed, and that proceedings should be commenced as soon as possible as the limitation period was going to expire in 6 months time. Today, your Instructing Solicitors inform you that proceedings were not commenced within the limitation period,and that a recent application to the court to allow proceedings to commence outside the limitation period was unsuccessful. You are also told that the solicitors failed to commence proceedings because the solicitor in the case was overworked and was unable to turn his attention to the case in time. What should you do?
Where there is a conflict of interest between a lay and professional client, for example, where the professional client may have been negligent, you must consider whether it would be in the lay client’s best interest to instruct another firm of solicitors.
If you consider that it would be, you must so advise, and take all steps you consider necessary to communicate this advice to the lay client – including sending her (and your Instructing Solicitors) a copy of your advice in writing
You are friends with are searcher for a television company. She knows that you recently defended a man charged with rape. The man was acquitted after a 4-day trial. Her company is interested in making a documentary about rape trials, and she has asked you for information about the case:
a) she has asked for copies of the case papers; b)she has asked for your opinion on the case. Can you do so? How will you respond to this request?
Disclosure of confidential information to a 3rd party (other than another barrister, pupil or European Lawyer who needs to know for the performance of their duties) requires the consent of the lay client or must be permitted by law.
This rule applies whether or not the counsel/lay client relationship is still in existence or has ended.
So you would need to get your client’s consent to disclosure of information about the case.
Part(b) – your OPINION on the case:
The case is now concluded and therefore the rule in para 709.1 prohibiting a barrister from expressing their personal opinion to the media about a case does not apply.
However, there are still the issues of confidentiality to consider, referred to above.
A barrister may express a personal opinion in an academic context too if a case is ongoing or contemplated.
You represent a firm of surveyors, Fordham Smith & Co., who are defendants in a professional negligence case. Shortly before the trial of the case you are given a cheque for £5,000 by the senior partner of the firm, ‘as a token of our appreciation for doing such a great job’. What should you do?
The cheque should be returned, as you could be seen to be doing something ‘in such circumstances as may lead to the inference that [your] independence may be compromised’.
You represent Craig Moss, a defendant in a robbery trial. During the course of the trial, it becomes apparent that photographs of the locus in quo are required for the following day’s proceedings. You telephone your Instructing Solicitor, who tells you that she does not have the time to arrange for a photographer to attend the locus and take the photographs. You have a camera in chambers, and could take the photographs and have them developed in time. Should you take the photographs and try to admit them in evidence?
The answer to this question revolves around what your role is in the court proceedings and what purpose of the photographs is and their relevance to the issues in the proceedings. In these particular circumstances, it would seem wise not to take the photographs. The concern is that you may become a witness in the trial.
401: A self-employed barrister whether or not he is acting for a fee:
must not in the course of his practice, except as permitted by the Public Access Rules:
conduct a case in court if the barrister has previously investigated or collected evidence for that case unless the barrister reasonably believes that the investigation and collection of that evidence is unlikely to be challenged.
You are an Asian barrister, instructed to represent a white defendant accused of murdering an Asian teenager. The prosecution case is that the defendant is a member of the neo-Nazi organisation that killed the teenager in a racist attack. The defendant freely admits to you that he is a member of the neo-Nazi organisation, that he is racist and that he killed the teenager. However, he claims that he was acting in self-defence when attacked by a gang of Asian youths.Both the defendant and your Instructing Solicitors are keen that you represent the defendant at his trial. Are you obliged to represent the defendant?
NB The question assumes that the barrister is an experienced criminal practitioner, competent to conduct the case and that he has no other professional commitments that would prevent him from preparing the case, or appearing for the defendant at the trial. It also assumes that a proper fee for the case has been offered.
602. A self-employed barrister must comply with the ‘Cab-rank rule’
A barrister who supplies advocacy services must not withhold those services: (a) on the ground that the nature of the case is objectionable to him or to any section of the public;
(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
You represent Peter Ball,who is seeking a contact order to allow him to see his son, who lives with his ex-wife. His ex-wife is resisting the application for the order. You are at the County Court where you are to make your application for the order. Mr Ball, his ex-wife and her solicitor are there. Emotions are running high. Mr Ball is getting angry and upset, and feels that you are not doing your best for him.Before going into court to make the application Mr Ball tells you that if you don’t obtain the order he is ‘going to punch you in the head’. You take his threat seriously. What are you going to do?
Although it is unlikely that Mr Ball has withdrawn his instructions, you may withdraw from the case if ‘there is some other substantial reason for so doing’ (paragraph 609(d) of theCode)
As he has made a threat, which you take seriously, it is submitted that you do have a ‘substantial reason’.
You must inform Mr Ball why you intend to withdraw, and ensure that he will be able to find other legal assistance ‘intime to prevent prejudice being suffered[by him]’. This might be achieved by seeking an adjournment of the case or arranging for another advocate to attend court that day.
What would you like to do?
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