3. Paramount duty to the court and the administration of justice

1. A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

Commentary

3.1 Duty to court overrides duty to client

The duty to the court is well-established at common law, and has four mutually supporting categories:

• a duty of disclosure to the court;
• a duty not to abuse the court's process;
• a duty not to corrupt the administration of justice; and
• a duty to conduct cases efficiently and expeditiously.¹

It has been said:

"The first three mentioned general duties are derived from the public interest in ensuring that the administration of justice is not subverted or  distorted by dishonest, obstructive, or inefficient practices. The essence of these duties is the requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the course of justice. By their nature, these requirements are immutable, but the content of the particular duties that flow therefrom may change over time as litigation practices and social values change".²

The duty to the court prevails to the extent of inconsistency with any other duty, including a solicitor’s duties to the client or others: Giannarelli v Wraith (1988) 165 CLR 543, 555-6 (Mason CJ), 572 (Wilson J). As Lord Reid put it in Rondel v Worsley [1969] 1 AC 191, 227 ('Rondel'):

"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests."

The duty involves 'candour, honesty and fairness': Council of the Queensland Law Society Inc v Wright [2001] QCA, 58 [67]. For example, a solicitor must not mislead the court, make unfounded aspersions against other parties or witnesses or withhold authority or documents unfavourable to the client: Rondel at 227. Solicitors therefore must inform the court of legal authorities that may be unfavourable to their client's case: Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees [1921] SC (HL) 72,74, cited in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [112].

Duty as officers of court. The ASCR glossary defines 'court' to mean any body described as such; any tribunal exercising judicial or quasi-judicial functions; an investigation or inquiry established or conducted under statute or by a Parliament; and an arbitration or mediation  or any other form of dispute resolution. Accordingly, a solicitor's conduct in mediation is subject to this duty: Legal Services Commissioner v Mullins [2006] LPT 12 and Legal Services Commissioner v Garrett [2009] LPT 12.

The duty derives from the lawyer's special role as an officer of the court: Myers v Elman [1940] AC 282 316-19. A lawyer becomes an officer of the Supreme Court on admission to the legal profession: LPA s 38(1). A similar provision is contained in section 23A LPA (SA), which ensures interstate solicitors practising law in South Australia are officers of the Supreme Court. As McMurdo P noted in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, [67] the duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner.

1  David Ipp, 'Lawyers' Duties to the Court' (1998) 114 Legal Quarterly Review 63, 65.

2 Ibid.