Advocacy, Fairness and Communications with Other Parties
The advocate's role
An advocate has a duty to present the client's case firmly and fearlessly, but within the bounds of fairness. The advocate must not misstate the evidence, must not make submissions that cannot be supported, and must not express personal opinions on the merits or on the credibility of witnesses.
Communications with other parties
A solicitor must not communicate directly with a party known to be represented by another solicitor about the matter, except with that solicitor's consent or in urgent circumstances. Communications should be courteous, accurate and not misleading. Correspondence must not be used to harass, to make threats of criminal proceedings to gain a civil advantage, or to misrepresent the solicitor's instructions.
Fairness in advocacy
Key obligations include: not coaching witnesses to give false or tailored evidence; not knowingly adducing inadmissible evidence; not making allegations without a proper basis; and not using derogatory or inflammatory language. The advocate must also correct any misstatement of law or fact made to the court as soon as it is discovered.
Traps
- The "vigorous advocacy" trap: questions reward aggression. The correct answer is firm but fair.
- The "represented party" trap: a party who has a solicitor on the record is represented even if that solicitor is not presently contactable.
- The "threat of criminal proceedings" trap: using criminal process to obtain a civil settlement is improper.
- The "personal opinion" trap: advocates may submit on credibility but must not assert personal belief as evidence.
Worked example
Opposing counsel is on leave. The solicitor wants to write directly to the opposing party to speed things up. This is improper absent consent or genuine urgency; the correct course is to contact the opposing solicitor's firm or seek the court's directions.