By Paul Monaghan -
The legal profession combines both tradition and ethics in the provision of legal services. This is best illustrated when appearing in Court and the ethical obligations that are upon every practitioner come into sharp focus.
One aspect of appearing before the Court and maintaining formality has been on the issue of “Familiarity when appearing before Judicial Officers” and the unwanted implications that may arise. Many experienced practitioners will often be appearing in the same Court, often before the same Judicial Officer and an inadvertent familiarity may develop when addressing the Court.
This unwanted situation should be guarded against and the required ethical and professional standards upheld at all times. Consequently, it is worth reviewing the basic obligations that every practitioner must be aware of.
Fundamental duties
The first issue to consider is the paramount duty to the Court and the administration of justice. This will prevail to the extent of “…..any inconsistency with any other duty and….. will thereby ensure the integrity of the Court process and system of justice.”[1]
This is linked with the other fundamental duties that a solicitor must uphold to ensure there is no compromise to their integrity and professional independence and to the public confidence of an independent Court system.[2]
Formality
The issue that leads from this paramount duty, is to maintain formality before the Court at all times. The nature of maintaining formality is to maintain the integrity of the Court and for ensuring that there is public confidence in a fair, unbiased and disinterested Court. There must be the complete absence of conduct of any informal or personal familiarity to the Court “… that may reasonably give the appearance that a solicitor may have special favor with the Court….”.[3]
The solicitor must be mindful of the role of the Court and any presiding Judicial Officer presiding over a Court is observed to be acting “…. without fear or favor….” in all proceedings.
Familiarity
The solicitor must be ever mindful of not displaying any conduct that may jeopardize the integrity of the Court in the eyes of a reasonable observer. Any act of familiarity is an unwanted behavior during sensitive and contentious litigation and can erode public confidence in the Justice system.
Inadvertent remarks with greetings or salutations to the Court in an overly familiar manner by solicitors or to witnesses may erode the integrity of the Justice system. The practice of using informal words or actions may cause “…..substantial misperceptions …… and are prejudicial to the conduct of a fair trial.” [4]
Formality is more than just a ritual for the sake of Court tradition. It is an important safeguard in maintaining the integrity of the justice system. Perception is important to the lay observer, “……. comments, gestures or mannerism that may be construed as communication on an informal and familiar basis …… may be severely detrimental…” to maintaining the public confidence in an impartial, unbiased and disinterested Court.[5]
This may be extended to the need for formality in all proceedings including when questioning witnesses under cross examination. If any practice of informality is used by any solicitor, it may be viewed as a ‘preemptive’ attack against a witness and be viewed as an attempt to ‘score’ points against the witness.[6]
The lay observer may easily form a perception of ‘favor’ being displayed to one or the other party before an independent Court.[7]
Consequences and recommendations
In summary, the practice of salutations by all advocates “…..should be completely abandoned in all Courts…. in all contentious litigation…” [8]
The need to ensure formality is directly linked to serving the paramount duty to the Court and to ensure the integrity of the administration of justice. It is an important warning to all legal practitioners to maintain their ethical and professional obligations when appearing before the Court.
Good luck to you all.
Paul Monaghan is a Senior Ethics Solicitor at the Law Society of NSW.
