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I INTRODUCTION Lawyer’s owe a number of duties, with such duties stemming from several sources.1 These duties can be categorised into three main groups, being those duties that are owed to the court, clients and third parties.2 It is well known that lawyers are officers of the court and as a result of this position they owe a number of duties to the court and the administration of justice. 3 This essay will assert that a lawyer’s principal duty is owed to the courts. In doing so, this essay will provide an overview of the origins of the duties to the court and the duties themselves and examine why a lawyer’s duty to the court is paramount.

II ORIGIN OF THE DUTIES TO THE COURT Lawyers’ duties to the court have developed over time in the form of practical rules laid down by judges.4 It is the point at which a law graduate presents for admission and makes the oath/affirmation to the court that their duty to the court commences.5 These duties arise out of the special relationship that exists between a lawyer and the court.6 They do not arise as a result of a fiduciary relationship, as is the case between lawyer and a client, but rather they arise out

1 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 63. 2 Bobette Wolski, ‘An evaluation of the rules of conduct governing legal representatives in mediation: Challenges for rule drafters and a response to Jim Mason’ (2013) 16(1) Legal Ethics 1, 6. 3 Bobette Wolski, ‘Ethical Duties owed by Lawyer mediators: Suggestions for improving the NMAS practice standards’ (2017) 26 Journal of Judicial Administration 184, 187; Nigel Stobbs, ‘Duty to the Court and the Administration of Justice: Some examples, implications and clarifications’ (2014) 123 Precedent 16, 17; Joe Harman, ‘The Irenic Lawyer: How Lawyers can and why lawyers should be dispute resolvers’ (Discussion Paper, The Australasian Institute of Judicial Administration, 2017) 12. 4 Ipp, above n 1, 65. 5 Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/ 2011/7.pdf 6 Council of the Queensland Law Society Inc v Wright [2001] QCA 58, [67].

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of the relationship between the court and the public, whereby the court promises to impartially and fairly adjudicate disputes. 7 These duties are personal in nature, non-delegable and are owed to the general public, rather than individual persons, and are not ethical duties.8 Rather, a lawyers’ duty to the court has been said to be incidental to the lawyer’s duty to the proper administration of justice, in which they have a duty to ‘assist the court in the doing of justice according to law’.9 These common law duties owed to the court are now largely codified in rules of conduct published by the relevant law society and bar associations in each state and territory.10

III DUTIES TO THE COURT A lawyer’s role as an officer of the court is established at the time they are admitted to legal practice and involves a duty to not only obey the law but to guarantee the efficient and proper administration of justice.11 The duties to the court and the administration of justice is actually a bundle of duties.12 These duties are individual and cannot be delegated, and ignorance or inexperience in respect of the duties does not excuse a breach.13 The Hon David Ipp, a former 7 Nigel Stobbs, ‘Duty to the Court and the Administration of Justice: Some examples, implications and clarifications’ (2014) 123 Precedent 16, 17. 8 Re B [1981] 2 NSWLR 372, 381; Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 253-4; Bobette Wolski, ‘Ethical Duties owed by Lawyer mediators: Suggestions for improving the NMAS practice standards’ (2017) 26 Journal of Judicial Administration 184, 187; Ipp, above n 1, 63. 9 Giannarelli v Wraith (1988) 165 CLR 543, 578. 10 Joe Harman, ‘The Irenic Lawyer: How Lawyers can and why lawyers should be dispute resolvers’ (Discussion Paper, The Australasian Institute of Judicial Administration, 2017) 15. 11 John McKenzie, ‘Legal Ethics – What are they today’ (Discussion Paper, The Office of the Legal Services Commissioner, 16 February 2017) 2; Bobette Wolski, ‘Ethical Duties owed by Lawyer mediators: Suggestions for improving the NMAS practice standards’ (2017) 26 Journal of Judicial Administration 184, 195. 12 Nigel Stobbs, ‘Duty to the Court and the Administration of Justice: Some examples, implications and clarifications’ (2014) 123 Precedent 16, 17. 13 Law Society of NSW v Harvey [1976] 2 NSWLR 154, 173.

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judge of the Supreme Court of New South Wales, writing extra-curially in 1998 classified the duties to the court into four general categories, being a duty of disclosure, a duty not to abuse the court process, a duty not to corrupt the administration of justice and a duty to conduct cases efficiently and expeditiously.14

A Duty of Disclosure The general duty of disclosure requires lawyers to be honest with the court, and in doing so, to not mislead it in any way.15 This general duty includes the duty to disclosure the law and not mislead it as to facts, 16 duty of disclosure within the context of the adversarial system,17 and the duty of confidentiality owed to the client by way of legal professional privilege.18 A judge cannot undertake independent enquiries into the facts and issues of all cases that come before them,19 and therefore, it is the lawyers duty to make complete disclosure to the court so that any decision can be made on a fully informed basis.20

B Duty not to abuse the Court process 14 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 65. 15 Giannarelli v Wraith (1988) 165 CLR 543, 556; Rondel v Worsley [1969] 1 AC 191, 227; Guss v The Law Institute of Victoria Ltd [2006] VSCA 88, [39]; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 104. 16 Giannarelli v Wraith (1988) 165 CLR 543, 556; Guss v The Law Institute of Victoria Ltd [2006] VSCA 88, [39]; Rondel v Worsley [1969] 1 AC 191, 227; Glebe Sugar Refining Co Ltd v Trustees of the Port & Harbour of Greenock [1921] UKHL 435, 435.; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 67. 17 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 68. 18 Rondel v Worsley [1969] 1 AC 191, 227; R v Derby Magistrates Court; ex parte B [1995] 4 All ER, 527; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 71. 19 Giannarelli v Wraith (1988) 165 CLR 543, 556. 20 Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 259.

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The administration of justice requires that the procedures of the court are shielded from abuse.21 This general duty includes the duty to desists from making accusations or commencing proceedings for ulterior purposes,22 to avoid excessive zeal,23 and to abide by any undertakings given.24 These duties, in part, originate from the premise that lawyers must always conduct cases in accordance with the highest dictates of justice.25

C Duty not to corrupt the administration of justice This general duty to not corrupt the administration of justice requires lawyers to manage cases with due propriety and not to further dishonest conduct on the part of the client.26 This duty includes the duty to not abide by any wrongdoing of the client,27 and not to assist in dishonourable or improper conduct.28 To assist, foster or induce such conduct would be detrimental to the relationship between lawyers and the administration of justice and public interest.29

D Duty to conduct cases efficiently and expeditiously The general duty to conduct cases efficiently and expeditiously is derived from attempts to keep pace with the changing demands of society, whilst ensuring 21 D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 120; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 105. 22 Ridehalgh v Horsefield [1994] Ch 205, 225; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 79. 23 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 83. 24 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 86. 25 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 83. 26 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 105. 27 Legal Profession Complaints Committee v Chin [2012] WASAT 77, [67]; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 87. 28 D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 120; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 89. 29 Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148, 155; D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 120.

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the proper administration of justice, with specific consideration to the vast increases in litigation.30 This general duty includes the duty to take care and skill,31 and the duty to conduct cases expeditiously.32 The duty requires lawyers to present the issues at hand in a way that is as clear and economic as possible, and in appropriate circumstances, to cooperate so as to avoid unnecessary disputes.33

IV PARAMOUNTCY OF DUTY TO THE COURT Of all the duties owed by lawyers, the duty owed to the court is paramount and overrides all others.34 In 2007, the Hon John Dyson Heydon, writing extracurially observed that modern conditions have made it acutely difficult for practitioners to comply with the duty to the court, stating that every aspect of litigation has become ‘sprawling, disorganised and bloated’.35 It is evident that the dual role of legal practitioners, as both officers of the court as well as service providers, has evolved however, the duty of the court remains the foundation of our legal system and is at the core of all litigation.36 30 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 106. 31 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 95. 32 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 95. 33 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 106. 34 Legal Profession Conduct Rules 2010 (WA) r 5; Giannarelli v Wraith (1988) 165 CLR 543, 555; Rondel v Worsley [1969] 1 AC 191, 227; Guss v The Law Institute of Victoria Ltd [2006] VSCA 88, [39]; D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 98; Council of the Queensland Law Society Inc v Wright [2001] QCA 58, [67]; John McKenzie, ‘Legal Ethics – What are they today’ (Discussion Paper, The Office of the Legal Services Commissioner, 16 February 2017) 2; Joe Harman, ‘The Irenic Lawyer: How Lawyers can and why lawyers should be dispute resolvers’ (Discussion Paper, The Australasian Institute of Judicial Administration, 2017) 12; Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 253. 35 Deyson Heydon, ‘Reciprocal duties of Bench and Bar’ (2007) 81 Australian Law Journal 23, 28-9. 36 Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf.

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A Administration of Justice & Public Interest Historically, a profession was differentiated by a public declaration, such as the oath or affirmation taken at admission, to serve others and devote their efforts to the public good.37 However, this devotion to the public good is not a matter of blind selflessness, but rather it is the foundation upon which lawyers earn the confidence and trust of the public, thus allowing them to play their essential role in the administration of justice.38 A lawyer’s duty to the court relates directly to their role as a professional who serves, not only clients, but the public interest as well.39 The proper administration of justice requires the court to have complete faith in lawyers and their commitment to resolve any conflict, perceived or otherwise, with any other duties that they may owe in favour of their duty to the court.40

B Conflict with other duties It is evident that the duties owed to the court and client advance the same object, being the interests of justice.41 However, misconceptions and misunderstandings within the public as to the role of a lawyer often results in

37 Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 2. 38 Law Society (SA) v Rodda (2002) 83 SASR 541, 546; Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 3; Chris Gunson, ‘Ethical Obligations and Duties in Family Law’ (2016) 6 Family Law Review 114, 120. 39 Giannarelli v Wraith (1988) 165 CLR 543, 555; Re B [1981] 2 NSWLR 372, 381; Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 2. 40 Nigel Stobbs, ‘Duty to the Court and the Administration of Justice: Some examples, implications and clarifications’ (2014) 123 Precedent 16, 17. 41 Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 269.

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clients, and the public, believing that the primary objective and duty of a lawyer is to secure a judgement in favour of the client.42

One historical view from that of Henry Lord Brougham was that the duty owed to a client is the first and only duty. 43 However, this view is now seen as unacceptable, with the Hon David Ipp stating that the lawyer’s duty to the client is neither the only duty, nor the first duty.44 Further case law and literature makes it clear than while both a duty to the court and a duty to the client are recognised, any conflict should be resolved in favour of the court. 45 This is also confirmed in various professional conduct rules, such as the Legal Profession Conduct Rules 2010 (WA), which makes it clear that where a practitioner’s duty to the court is inconsistent with another duty the duty to the court shall prevail.46 It is clear that whilst lawyers have an undoubted duty to carry out the instructions of their client, that ‘duty is not an unbridled one’.47

42 Giannarelli v Wraith (1988) 165 CLR 543, 578; Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf; Joe Harman, ‘The Irenic Lawyer: How Lawyers can and why lawyers should be dispute resolvers’ (Discussion Paper, The Australasian Institute of Judicial Administration, 2017) 2. 43 Joseph Nightingale, Trial of Queen Caroline (J. Robins & Co, 3rd ed, 1821) 8. 44 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 83.

45 Giannarelli v Wraith (1988) 165 CLR 543, 555; Rondel v Worsley [1969] 1 AC 191, 227; Guss v The Law Institute of Victoria Ltd [2006] VSCA 88, [39]; Re B [1981] 2 NSWLR 372, 382; Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 15; Bobette Wolski, ‘Ethical Duties owed by Lawyer mediators: Suggestions for improving the NMAS practice standards’ (2017) 26 Journal of Judicial Administration 184, 213; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 65; Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf. 46 Legal Profession Conduct Rules 2010 (WA) r 5. 47 Legal Profession Complaints Committee v Chin [2012] WASAT 77, [67]; Chris Gunson, ‘Ethical Obligations and Duties in Family Law’ (2016) 6 Family Law Review 114, 118.

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Mason CJ has labeled the conflict between the duty to the court and the duty to the client as a ‘peculiar feature of counsel’s responsibility.’48 However, there is case law that argues that there is never any real conflict between the duties as the duty to the court is always paramount.49 Though the duty to the court prevails over the duty to the client, this does not mean that it is always simple to differentiate between and give preference to the duty to the court. 50 On one hand lawyers are asked to ‘raise fearlessly every issue, advance every argument and ask every question … which he thinks will help his client’s case … ’, 51 yet at the same time they are asked to prioritise their duty to the court over all others.52 Whilst the duties do not necessarily require a balancing act, as the duty to the court is paramount, they oftentimes come into collision and require a lawyer, on occasion, to act to the possible disadvantage of their client.53 In effect, these duties are so connected that the duty to the client could be said to be dictated by the duty to the court.54 Situations may arise where the duty to the 48 Giannarelli v Wraith (1988) 165 CLR 543, 555. 49 Giannarelli v Wraith (1988) 165 CLR 543, 555; D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 98; David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 The Law Quarterly Review 63, 103; Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 255. 50 D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 98; Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 257-8. 51 Rondel v Worsley [1969] 1 AC 191, 227. 52 Giannarelli v Wraith (1988) 165 CLR 543, 555; Rondel v Worsley [1969] 1 AC 191, 227; D’Orta-Ekenaike v Victoria Legal Aid (2005) 214 ALR 92, 98; Re B [1981] 2 NSWLR 372, 382; Council of the Queensland Law Society Inc v Wright [2001] QCA 58, [67]; Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 4; Chris Gunson, ‘Ethical Obligations and Duties in Family Law’ (2016) 6 Family Law Review 114, 116; Kenneth Martin, ‘Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court’ (2011) 35 Australian Bar Review 252, 253; Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf. 53 Giannarelli v Wraith (1988) 165 CLR 543, 556; Caroline Abela and Robert Bell, ‘A Lawyer’s Duty to the Court’ (2009) 1 Advocates’ Society 1, 15; Marilyn Warren, ‘The Duty owed to the Court: The Overarching purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) http://classic.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf. 54 Joe Harman, ‘The Irenic Lawyer: How Lawyers can and why lawyers should be dispute resolvers’ (Discussion Paper, The Australasian Institute of Judicial Administration, 2017) 14.

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court is inconsistent with that to the client,55 thus leading to conflict with the client’s wishes and instructions.56 Although the client may prefer it was not the case,57 the lawyer must act for the client, whilst adhering to and respecting the law.58 In such cases, where there is any possibility of conflict between the two duties, the duty to the court will a...