The profession of English solicitor is a peculiar one, because as well as your legal duties to clients (to take good care in executing their work, etcetera) and regulatory obligations (conditions and behaviour treahhokds you are obliged to meet as a condition of your icence to practiiae law), a aolicitor is said to have an 'overriding duty to the court". However it is far from clear whether it is overriding in practice.
Before we go any further, we should define our terms. An English solicitor has a general duty known as 'integrity', and although this is a concept it is not easy to unpack one element of it is a duty not to mislead the court. This is the core duty of the solicitor's duty to the court, and there is no better summary of this duty than in a Solicitors' Regulation Authority practice note:
Misleading the court
Solicitors who are complicit in their client misleading the court, or who do so themselves, risk serious consequences. The courts have made it very clear that they regard this as "one of the most serious offences that an advocate or litigator can commit".
Examples include:
Knowingly helping a criminal client to create a false alibi, for which solicitors have been struck off.
Attempting to convince expert witnesses to alter their reports to the benefit of the solicitor’s client
Knowing that a client obtained information for use in their case by illegal means, but helping the client provide a false explanation of where the evidence came from.
It is also possible for prosecuting solicitors to mislead the court by failing to disclose important evidence or precedents. In 2017, 916 criminal cases failed due to failures by the police or prosecution to disclose evidence that would have assisted the defence case, a number that has risen by 70 percent since 2014–15.
Criminal defence work can involve a significant risk of conflict between duties where the solicitor knows or reasonably suspects that their client is in fact guilty, but the client wishes to plead not guilty. It is the defendant's right to require the state to prove its case. It is in the public interest that the state be required to do this to the necessary standard before it can make a finding against a person. Even where a defendant has informed their solicitor that they are guilty, the client cannot be prevented from pleading not guilty and their discussions with the solicitor are covered by the duty of confidentiality and by legal professional privilege.
Solicitors must still, however, take the greatest care not to mislead the court or to permit their client to do so. If their client continues to do so despite advice, the solicitor should cease to act.
Thus spoke the SRA.
Now let us attempt to deconstruct this complex array of assertions. It is all very well saying that solicitors have an overriding duty not to lead the court: but if one took that too strictly one would never have any clients or any court cases. That is because clients habitually lie to their solicitors and all solicitors know it. Then the client asks the solicitor to present their fictitious case to the Court, and the solicitor knows it is fictitious because he or she has been around the block a few times. What does the 'solicitor's overriding duty to the Court' (not to mislead the court) boil down to in such circumstances?
If you are obliged not to mislead the court in a case where what your client is saying is obviously a bunch lies (as is often the case), are you allowed to participate in the process of bringing the client's fictitious case before the court? Or do you have to ditch all but the rarest, and exceptionally honest, of clients? That is the nub of the dilemma presented by the concept of 'the solicitor's overriding duty to the court'.
What the SRA (and the courts) have basically said is this:
If your client tells you 'I am going to lie in court" then you must not be complicit in this and you must resign.
If your client tells you "I am guilty" (or equivalent words of culpability in a civil case) then you may continue to represent them on a not guilty plea (or a substantive defence to the civil action) as long as they do not tell you in advance that they intend to perjure themselves (i.e. lie to the Court under oath).
Those are the easy rules. From now on, everything gets very sticky and tricky.
What do you do with a client who tells you in a private privileged meeting 'events went in way A' but then stands in court and says 'events in went in way B', and A and B are inconsistent with one-another? Do you resign because you know your client is misleading the court? Bit that is not a safe inference. He may have been deceiving you, not the court. Or he may have changed his honest recollection (such things are far commoner than you may think). Nor are you required to cross-examine your own testimony-switching client just after they have finished giving evidence B, and try to reconcile A and B or work out whether and to whom the client / witness was lying. That would be far too onerous and anyway by that point it's all over. the short answer to this dilemma #4 is that the solicitor typically chews on it and their duty to represent the client overrides the solicitor's duty not to mislead the court. Were it otherwise, we could be expecting solicitors to resign after the call of virtually every witness, because witnesses change their stories all the time.
Another conundrum arises where a client tells you of his case before the Court but it's all absolute bullshit: lies, fictitious witnesses, false documents and incoherent narratives. Russian clients are particularly adept at this sort of thing. Hence you are either an idiot or you know your client is making it all up. Are you supposed to resign then?
The SRA guidance note suggests that in such circumstances as a solicitor, you ought to resign. But really that is a nonsense. Not only would you not have many clients (at least in commercial litigation, in which everyone lies comprehensively) or you take the view that it is for the Court, not you, to determine the veracity of all your client's spurious assertions and you present your client's palpable nonsense as best you can: mutton dressed as lamb. That in practice is what most solicitors do, as a piece of pure pragmatism.
In such cases you are turning a 'blind eye' to the client's intention to deceive. You reasonably suspect your client's story is lies but you don't care and plough on nonetheless. The SRA is noteworthy in not addressing 'blind eye' cases, and we respectfully suggest that the reason this is so ix because if the logic of its guidance were carried through to 'blind eye' cases, the system of justice would fall to pieces.
However the above 'blind eye' rule, which illustrates the tensions between duties to clients and to the courts at their most acute, not being written down anywhere but just being understood between fellow solicitors, is occasionally overridden by a stroppy judge who decides (a) he is personally sick of that solicitor bringing hopeless cases on behalf of shifty clients; and/or permitting cases of this kind (often publicly funded on both sides) is a social harm to be addressed. So the Judge reports the solicitor to the SRA for misleading the court where such treatment is not fair havong regard to the fact that virtually all litigation solicitors do this sort of thing routinely - presenting God-awful cases constructed on what turn out to be mountains of lies is just part of the profession.
Then the SRA has a habit of unthinkingly following the Judge's condemnation, neglecting the possibilities that Judges, like all human beings, are imperfect and may be fuelled by personal animosity, a particular grudge they have about wasteful publicly funded cases (the judicial system is overstretched with such cases) or that he simply got out of bed on the wrong side that morning.
The SRA should not rubber stamp Judges' complaints of this kind. They should be subject to another level of quasi-judicial review - e.g. a desktop review by the Attorney General's office - before being referred to the SRA for regulatory prosecutions as a default course (and with the highest penalty - striking off).
There have been a few (in)famous cases of the Court and the SRA acting too precipitately in such instances; in one well-publicised case a Judge condemned a solicitor for misleading the Court on the basis of a document presented to the Court about which the solicitor and the barrister retained in the case had exactly the same knowledge. The barrister was not publicly shamed and disciplined but the solicitor was.
The legal profession is far from perfect and its practitioners are a mottled lot. There are some really bent solicitors out there. The iron fist of disciplinary regulation ought to be preserved for them, not for solicitors making daily on-the-spot judgments about whether to believe their clients' typical webs of lies as they get ever further immersed in litigation. Most solicitors are actually an alright lot, struggling to run a successful business and contribute to the economy while maintaining their integrity in the face of the lies and misleading instructions of their clients. Everyone has the right to legal representation - even liars and the obviously guilty.
Lawyers cut one-another some slack over these issues because they understand that these sorts of dilemmas arise all the time and they think 'there but for the grace of God go I'. Judges and SRA investigators ought to cut their fellow lawyers the same slack, and go after the solicitors sho are real criminals (of which there are actually few).
Finally, we speculate whether an independent 'duty to the court' is necessary at all. It is an offshoot of a historical relic within English legal history, to the effect that solicitors are 'officers of the court' in some inchoate way charged with upholding justice, whereaa barristers (freelance advocates associates with historical institutions called 'Inns' that are now little more than dining clubs and libraries) are 'independent' of the court. The distinction between solicitors and barristers has virtually collapsed as a de jure matter, with each profession now permitted to undertake the tasks traditionally ascribed to the other.
So why make the obscure historical syllogism from 'solicitors being officers of the court' to 'solicitors owing a duty to the court'. The solicitor's duty to the court is surely the same as anyone else's: not to give perjured testimony; and not to participate knowingly in crimes relating to the administration of justice (e.g. aiding and abetting the perjury of others). Surely this legal framework, already existing in the criminal law and highly developed, is sufficient to regulate solicitors' obligations towards judicial process. The additional notion of owing some distinct 'duty to the court' might just be a historical overhang, serving to confuse and obscure the contents of solicitors' ethics rather than to add anything substantive to them.
Finally, we make the point that there can be no duty to the Court if there is no court - e.g. in the context of a matter subject to arbitration. Arbitrators are paid by the parties to sign documents. This is typically a project in which financial issues dominate rather than questions of the integrity of the court process. Arbitrators can and do sign any document the parties want if they are paid for doing so. Thr flip side of this is that arbitration awards' have privity - they are legally irrelevant to anyone except the parties, who have elected to replace judicial decision,-making in court with a private finance-based procedure (the more you pay, the longer and presumably better the award). But that is the subject of another essay on another day.
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