Professional Ethics and Conduct in Civil Litigation
Foundations
Ethical conduct is a duty owed to the court, the client, and the profession. The candidate must know the core duties: competence, confidentiality, candour, avoidance of conflict of interest, and integrity in advocacy.
Concepts to master
- Duty to the court prevails over duty to the client: no misleading the court, no suppression of material authority, no misleading submissions on facts or law.
- Confidentiality survives the retainer; disclosure is permitted only with consent or where required by law.
- Conflict of interest: a lawyer should not act for both sides or accept a brief where confidential information from a former client is relevant.
- Fees and accounts: fees must be reasonable and disclosed; client funds must be handled with scrupulous care.
- Candour in drafting: no false statements, no backdating, no concealment of adverse authority.
- Courtesy and decorum toward the bench, opposing counsel, and witnesses.
Traps in questions
- Assuming client instructions override the duty of candour to the court.
- Believing confidentiality ends when the retainer ends.
- Overlooking conflict-of-interest rules when a former client's matter is related.
- Treating aggressive advocacy as a licence to misstate the law.
Rule of thumb
Court first, client second, self third. When in doubt, disclose the conflict and decline the brief.
Worked example
A lawyer discovers a binding authority against the client's position. The lawyer may argue that the authority is distinguishable, but may not conceal it if the court is likely to be misled. Candour requires disclosure; zealous advocacy does not permit deception.
Drafting and Advocacy Skills
Foundations
Drafting and advocacy convert legal knowledge into effective representation. The candidate must understand the structure of pleadings, applications, affidavits, and written submissions, and the techniques of oral advocacy.
Concepts to master
- Structure of pleadings: heading, parties, jurisdiction, cause of action, material facts, relief, verification, and valuation.
- Applications: precise prayer, supporting affidavit, and legal grounds.
- Affidavits: first-person, factual, free from argument, and confined to matters within the deponent's knowledge.
- Written submissions: issue-by-issue structure, authorities with propositions, and concise reasoning.
- Oral advocacy: open with the relief sought, state the facts briefly, identify the issues, and lead the court through the law and evidence.
- Clarity and precision: short sentences, defined terms, and consistent terminology.
Traps in questions
- Drafting argumentative affidavits that read like submissions.
- Omitting verification or prayer in an application.
- Citing authorities without stating the proposition they support.
- Overloading oral submissions with facts at the expense of the legal issue.
Rule of thumb
Tell the court what you want, why you are entitled to it, and where the law says so. Structure: relief → facts → issue → law → application to facts → conclusion.
Worked example
In an application for an interim injunction, the affidavit should state the facts (contract, breach, threatened harm), the urgency, and the undertaking as to damages, while the submissions should address the three-part test and cite authority for each limb. Mixing argument into the affidavit weakens both documents.