Donna Cooper, Ethics Consultant and an Australian Legal Practitioner with ethics4lawyers, discusses how lawyers can manage their ethical obligations when they realise that their clients might be lying in the witness box. She gave a presentation on this topic at the 4th Annual Workers Compensation Conference.
ethics4lawyers Director Michael Dolan will discuss “Ethical Time Bombs for Personal Injury Practitioners: Forewarned is Forearmed” at the 13th Annual Personal Injury Conference in March.
Quite often there are very few black and white answers when it comes to ethics. As the Honourable Justice Margaret McMurdo stated in an address given in Queensland in 2013 ‘potential ethical dilemmas are infinite. Their resolution can be difficult and finely balanced, even for experienced practitioners and judges.’
One such delicate situation arises when a practitioner strongly suspects that their client may be lying whilst under cross-examination.
As Australian Legal Practitioners, we have a paramount duty to the court and the administration of justice.We also have a duty to maintain our client’s confidences and to act in our client’s best interests. When these duties conflict with each other, our duty to the court and the administration of justice remains paramount and will prevail to the extent of inconsistency with any other duty.
In light of the above statement of ethical duties, imagine the following perplexing case study:
You are acting for a plaintiff in a common law claim seeking lump sum compensation in the Supreme Court. Your client had previously provided you with detailed instructions on key material factual matters regarding the events leading up to her injuries and the extent of her injuries. During the course of your client’s cross examination, your client says a number of things which are different to what she has previously told you by way of instructions. You believe that your client is lying as you have a lot of corroborative evidence regarding much of what she told you in her original instructions. The hearing is adjourned for lunch and your client is still in the witness box under cross-examination.
What are your ethical obligations when you suspect your client may be lying?
The Australian Solicitors’ Conduct Rules 2015 (‘ASCRs’) can provide some guidance in the above situation, in particular:
ASCR 19 – FRANKNESS IN COURT
19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.
ASCR 20. DELINQUENT OR GUILTY CLIENTS
20.1 A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
20.1.1 has lied in a material particular to the court or has procured another person to lie to the court;
20.1.2 has falsified or procured another person to falsify in any way a document which has been tendered; or
20.1.3 has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;
20.1.4 advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and
20.1.5 refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.
ASCR 26 – COMMUNICATION WITH WITNESSES UNDER CROSS-EXAMINATION
26.1 A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless:
26.1.1 the cross-examiner has consented beforehand to the solicitor doing so; or
26.1.2 the solicitor:
(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
(ii) has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and
(iii) otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.
Some practical guidance
At the earliest opportunity, it would be prudent to advise the client that the court must be informed of the lie, however, the prohibition on communicating with witnesses whilst under cross-examination makes this a little difficult and in most cases you will be unable to do so unless you can obtain the consent of the cross-examiner to speak to your client.
In seeking the cross-examiner’s consent to you speaking to your client, you’ll be quite limited in what you can say to explain why you need to speak to your client. You might, if necessary, say something such as ‘an ethical issue has arisen and I need to speak with my client.’
If permission is not granted by the cross-examiner, then you will need to wait until the client is no longer under oath to speak with her/him.
If permission is granted, then you will be able to advise your client that the lies must be corrected and seek your client’s authority to inform the court, or suggest to the client that they correct their lie when the matter returns after recess. If the client refuses to provide you with that authority or fails to give instructions to permit you to inform the court of the lies, then you should advise that you will be required to withdraw from the case (in accordance with ASCR 20.1). This is so even if ‘other parties and the judge may suspect the reason for the solicitor’s withdrawal, the fact of the withdrawal should not be taken as disclosure of the solicitor’s knowledge of the client’s or the witness’s perjury.’
This scenario is without doubt, one of the more difficult ethical dilemmas which a legal practitioner may face, and maintaining professional independence is of utmost importance. As the Honourable Justice McMurdo stated in her 2013 address mentioned above,
‘As officers of the court, lawyers are concerned in the administration of justice and have an overriding duty to the court, to the legal profession and to the public even where this conflicts with the client’s instructions or personal interests.’
A recap of the ethical obligations listed in the above scenario:
1. A solicitor must not knowingly or recklessly mislead the court: (ASCR 19)
2. A solicitor must not communicate with a witness whilst that witness is under cross-examination (unless certain conditions are met): (ASCR 26)
3. A solicitor must advise the client that the court must be informed of the lie and request the client’s instructions to inform the court of the lie. If the client refuses to provide those instructions, then the solicitor must withdraw from acting further in the case and the solicitor is not permitted to inform the court of the lie or falsification: (ASCR 20.1)
Nb: For information on witnesses generally and contempt of court, the author recommends Gordon Lewis, Emilios Kyrou and Nuwan Dias, Handy Hints on Legal Practice (Lawbook Co, 4th ed, 2018) 375 & 376 – 391.
Donna Cooper is an Ethics Consultant and an Australian Legal Practitioner with ethics4lawyers. Before becoming a member of the ethics4lawyers team, Donna was the Manager of the Ethics & Professional Practice Department at the Law Institute of Victoria for 10 years, as well as the Secretary of the LIV Ethics Committee and the Ethics Liaison Group and Ethics Guidelines Review Sub-Committee. Donna was admitted to practice in 2004, and has worked in both private practice and in government. Donna enjoys assisting legal practitioners with their ethical challenges. Contact Donna at [email protected]
You can also connect with ethics4lawyers via LinkedIn.
 Address by the Hon. Justice Margaret McMurdo AC to the QLS Senior Counsellors Conference 2013, here: http://www.qls.com.au
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 3.1
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 9
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 4.1.1
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 3.1
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 19.1 ; see also comment in Gordon Lewis, Emilios Kyrou and Nuwan Dias, Handy Hints on Legal Practice (Lawbook Co, 4th ed, 2018) at page 406 ‘Finally, never attempt to mislead the court. It is unprofessional conduct to allow evidence that you know to be untruthful to be placed before the court..it is also a breach of your duties to the court.’
 Stafford Shepherd, I have learned that my client has lied when giving evidence before a court. What are my duties? (Queensland Law Society, 2014) http://www.qls.com.au
 Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A commentary for Australian Legal Practitioners (2014).
 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, rule 17 ; also see comments of Atkinson J in Perpetual Trustee Ltd v Cowley  QSC 65 at para  regarding the obligation not to be ‘merely a passionate and gullible mouthpiece’ for our clients.