Drafting a Witness Statement: Client Instructions and Conflict
You are instructed by a solicitor to settle a witness statement for an elderly client, Mrs Patel, in a boundary dispute. The solicitor sends you a draft statement written by Mrs Patel's son-in-law, who manages her affairs informally. The draft says the fence was erected in 1998. The registered title plan and a 2001 aerial photograph suggest the fence was moved in 2003. The solicitor says, 'Mrs Patel is forgetful; just put 1998 because that is what she believes. Don't bother her with the documents.' The solicitor also tells you that his firm acts for Mrs Patel, but that his partner is a solicitor at the firm acting for the defendant, and that they have agreed not to discuss the case. The client has capacity but has not seen the draft. The trial is in eight weeks. The solicitor asks you to 'turn the draft into a proper statement' and to keep costs down by not arranging a conference.
1. What ethical issues arise from the instructions, and what should you do?
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Core duties. CD2 (best interests), CD3 (independence), CD5 (integrity), CD6 (confidentiality) and CD7 (conflicts).
Instructions. You cannot settle a witness statement on the say-so of the son-in-law. The statement is Mrs Patel's evidence; she must verify it with a statement of truth. You need to take instructions from her, either in conference or by a structured telephone call. The son-in-law may attend if she wants, but he is not the client.
Misleading. The draft's 1998 date conflicts with the title plan and aerial photograph. You cannot simply 'put 1998' because that is what she believes if the documents show otherwise. You must put the discrepancy to her and ask for her account. If she maintains 1998, you can record her belief and the documents, but you cannot draft a statement that you know is false.
Conflict. Your solicitor's partner works for the opponent's firm. That is not an automatic bar, but you must assess whether there is a real risk that confidential information will be shared or that your independence is compromised. Ask for written confirmation that the partner has no involvement and that information is screened. If not, decline the instructions.
Costs. A conference is necessary; you cannot sacrifice competence for costs.
2. The client tells you in conference that she now remembers the fence was moved in 2003, but she wants to say 1998 because 'it is better for us'. What do you do?
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Advice. Explain that a witness statement is evidence on oath and is verified by a statement of truth. Knowingly making a false statement can lead to contempt, and in criminal proceedings to perjury.
Options. Ask her to give her true recollection: perhaps the fence was moved in 2003 and she misremembered. If she insists on 1998, tell her you cannot draft a statement that you know to be false. You can draft a statement that says she believes the fence was in its current position since 1998, but only if that is genuinely her belief and you do not know it to be false. If the documents show otherwise, you must not conceal them.
If she refuses. You cannot continue to act in drafting the statement. Inform the solicitor that you must withdraw from the drafting, and if necessary from the case, subject to the court's permission. Do not reveal privileged information to the court beyond what is necessary.
Record. Make a file note of the advice and her instructions. If she later gives a true account, you can continue.