Legal ethics, professional responsibility and practice management in criminal litigation
This domain tests the lawyer's dual duty to the client and to the court, and the management of a criminal practice.
Sources
Legal Profession Act, 1960 (Act 32); Legal Profession (Professional Conduct and Etiquette) Rules, 1968 (L.I. 613); the disciplinary jurisdiction of the General Legal Council; and the fair-trial backdrop of the 1992 Constitution.
Duties to the court
Candour; not misleading the court by act or omission; citing adverse authority; not coaching witnesses; not drafting scandalous or irrelevant matter; not communicating with a witness during testimony; respecting rulings and decorum.
Duties to the client
Competence and diligence; confidentiality and privilege, which survive the retainer; avoiding conflicts, especially representing co-accused with divergent defences; keeping the client informed; agreed and reasonable fees; no champerty or maintenance; handling client money through a designated client account.
Prosecution ethics
Fair disclosure of exculpatory material; no improper pressure to plead; no withholding of evidence; a duty to assist the court rather than merely to win.
Practice management
Engagement letters; diary control of appeal deadlines; secure record-keeping; supervision of juniors; billing and trust accounting; realistic adjournment requests.
Worked example
Defence counsel interviews the alibi witness and concludes the witness is lying. Counsel may not call a witness to give evidence she believes is false. Options: advise the client of the consequences; seek to withdraw with the court's leave without disclosing the privileged reason; if withdrawal is refused, call no evidence and put the prosecution to proof. Counsel must not disclose the perjury to the court without the client's consent, but must not participate in it either.
Traps that cost marks
- Believing confidentiality permits advancing a case known to be false.
- Acting for two co-accused whose defences conflict.
- Paying client money into the firm's general account.
- Treating the duty to the client as superior to the duty to the court.
- Missing appeal deadlines through poor diary control.