Courting failure

Helping your client is your number one priority but are you doing them justice? Principle 1 of the Code of Conduct (Code) is the Big Brother that watches over you when you act for your client. It can help you explain to your clients where you have to draw the line.

Your clients look to you for advice and they rely on you to get it right. It’s easy to give good news but not so great having to give them bad news. What do you do when you’ve just had a judgement that means your clients haven’t got the result they wanted? You’ve been invested in the case for more than six months and you have a really good relationship with your client so you want to pull out all the stops when they ask you to appeal the decision.

But wait! What does Principle 1 say? Uphold the rule of law and the impartial administration of justice.

What harm will it do to you or your client if you send off a notice to appeal or a judicial review?

  • There’s a risk of abuse of process
  • There’s a possibility of action by the court or your regulator
  • There’s a risk to your client – now labelled a “chancer” – who may at a later date discover real and proper grounds for an appeal or judicial review

The Court of Appeal recently explained what it means by “totally without merit” as a court action that is “bound to fail”.  Or in other words you’re more likely to see “pigs fly”.

Outcome 1.2 of the Code requires that your actions comply with your overriding duty to the court and that they do not knowingly or recklessly mislead the court.

How can you avoid the flying pigs?

  • Don’t leave your client hanging – don’t hide the bad news
  • Be honest about the court’s time – your client needs to know the court will not be pleased with an action that should not have been brought
  • Ask for a second opinion – get your peers to check for you if you’re not sure

If your client knows you’ll tell them the good and the bad they’re more likely to take your advice and understand the bad news however upset they may be.

Take a look at some of our other articles to help you meet your obligations under the Code.


See more