The Advocate's Duty and the Client's Lie
A barrister, Ms. Khan, is defending a client, Mr. Smith, in a civil fraud trial. Mr. Smith is accused of misrepresenting the quality of goods he sold to a buyer. Mr. Smith tells Ms. Khan in conference that he did misrepresent the goods but insists on denying it in court. Ms. Khan prepares a defence denying the misrepresentation. During the trial, Mr. Smith gives evidence denying the misrepresentation. Ms. Khan knows this is false. The judge asks Ms. Khan whether she has any evidence to support the denial. Ms. Khan is unsure what to do. She is also aware that the buyer's lawyer has not disclosed a document that might help Mr. Smith. Ms. Khan considers whether to mention the document or to withdraw from the case.
1. Advise Ms. Khan on her ethical obligations regarding Mr. Smith's false evidence and the judge's question.
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Ms. Khan must not mislead the court. Under the Bar Standards Board Handbook, rC3, a barrister must not knowingly or recklessly mislead the court. If Mr. Smith has told her he lied, she cannot continue to present a case that relies on his false evidence. She must withdraw from the case if he insists on maintaining the lie. However, she cannot disclose his confession to the court because of legal professional privilege. The proper course is to cease acting and inform the court that she is withdrawing, without giving reasons. She should not answer the judge's question in a way that supports the lie. If she has already presented the false evidence, she must correct it, but that may require disclosing privileged information. The guidance in R v Farooqi [2013] EWCA Crim 1649 suggests that if a client admits perjury, the advocate should withdraw. Ms. Khan should not tell the judge that she has no evidence; she should seek to withdraw. She must also advise Mr. Smith that she cannot continue if he persists. If she has not yet presented the false evidence, she should not call him to give it. She should apply to adjourn and then withdraw. The judge's question should be answered by saying she has no further evidence, but she must not confirm the truth of the denial. The safest course is to withdraw immediately.
2. Discuss whether Ms. Khan should use the undisclosed document and what her obligations are regarding disclosure.
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Ms. Khan should not use the undisclosed document if it is privileged or if she obtained it improperly. However, if the document is relevant and helpful to Mr. Smith, she may have a duty to disclose it if it is in her possession. In civil litigation, the rules of disclosure require parties to disclose documents that are or have been in their control and are relevant to the issues. If the document is in Mr. Smith's control, he must disclose it. If Ms. Khan has it, she should ensure it is disclosed. But if the buyer's lawyer has not disclosed it, Ms. Khan cannot simply use it without following the proper procedure. She should apply for specific disclosure. If the document is harmful to Mr. Smith, she must not conceal it. Her duty to the court overrides her duty to her client. She must not mislead the court by relying on the absence of the document. If the document undermines Mr. Smith's case, she must disclose it. If it helps him, she should seek to admit it. However, if she knows it exists but does not have it, she can cross-examine the buyer's witness about it. She should not act improperly. The key is that she must not mislead the court, and she must comply with disclosure obligations. She should advise Mr. Smith to disclose the document if it is relevant. If he refuses, she may have to withdraw.