Professional Obligations

Important:  content on this page was last updated in 2018.  It may not reflect the current law or practise.

Information in this article is taken from from Practice Standards for Legal Aid Providers (Ministry of Justice February 2017); Mason v Glover [2013] NZHC 1321; and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

General professional obligations

As a lawyer acting for a client you must:

• Protect and promote the client’s interests and act free from compromising influences or loyalties

• If appropriate, seek the use of a qualified interpreter. If legal aid funding is required for this, apply for and obtain that funding in a timely manner in advance.

• Obtain relevant disclosure from the prosecution, and discuss it with the client.

• Advise the client of the steps that he or she can or ought to take in order to assist the efficient and effective conduct of the matter (you can advise your client that it is their responsibility to put forward their best case to you).

• Make inquiries yourself concerning evidence that might assist in the defence of a criminal charge.

• Be satisfied that all relevant information for the purpose of conducting the defence has been obtained.

• Discuss the information in his or her possession with the defendant prior to taking instructions on the conduct of the defence.

• Give timely, appropriate and sufficiently detailed advice and explanations to the client to enable him or her to make an informed decision about the matter.

Comment – a common complaint is that advice that there is no defence is given for the first time on the eve of trial, when the opportunity to benefit from the full guilty plea discount has passed. If the situation looks grim, advise your client about this early

• At appropriate times, reassess and again advise the client of the relevant aspects of the matter.

• Where appropriate and practical, advice should be provided to the client in writing and a copy retained.

Comment – putting it in writing also sharpens your own focus on the evidence and the issues.

• Consider issues such as any intellectual disability or mental health issues – when and how are they to be addressed?

• Are there any addiction, alcohol or drug issues that require addressing?

• Be familiar with a client’s previous convictions before a plea is entered.

• Where appropriate discuss the availability of a sentencing indication hearing with the client.

• Decline to accept or return for reassignment any matter where you have a conflict or potential conflict of interest.

• When acting for more than one co-accused, take particular care to ensure you have considered the duties owed to each client and any potential conflicts, and, if any doubt that there may be conflicting duties, you must decline to accept the matter or return it for reassignment.

• Advise the client at the first reasonable opportunity and throughout the case about the sentencing discounts for pleas of guilty in terms of  Hessell v R [2010] NZSC 135  [2011] 1 NZLR 607  (2010) 24 CRNZ 966.   Remind the client of the discounts prior to any status hearing or call-over, and before any trial or hearing.

• Wherever practicable, obtain instructions in writing concerning the incident or events giving rise to the charge(s). Details as to the client’s background, physical health and other relevant details should be obtained. When it is not possible to obtain instructions in writing, a lawyer should make clear file notes of instructions (or the lack of instructions).

Comment – when you do this may be a matter of professional judgment, particularly in a complicated or serious case where a client may be juggling other relationships such as family or co-accused, or where you believe that the client will be more forthcoming when a level of trust has been established. Sometimes it is useful to provide your advice on what the Crown evidence appears to show, or is capable of proving, before beginning to take detailed instructions.

• Record the client’s factual instructions in a signed brief of evidence unless there is a good reason not to, for example where a client is not a witness or has already given a full account such as in a Police interview or where the evidence will be in an affidavit.

Comment – prior to trial is the best practice deadline for this – explain to your client that you need this as a blueprint for how to challenge the Crown evidence.

• When taking instructions from a client, including instructions on a plea and whether or not to give evidence, you must ensure that your client is fully informed on all relevant implications of his or her decision and you must then act in accordance with the client’s instructions.

• You must protect your client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must— (a) put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion you hold as to your client’s guilt or innocence; and (b) put before the court any proper defence in accordance with your client’s instructions— but must not mislead the court in any way.

• You must not attribute to another person the offence with which your client is charged unless it is necessary for the conduct of the defence to do so and the allegation is justified by facts or circumstances arising out of the evidence in the case or reasonable inferences drawn from them.

• You must not disclose a client’s previous convictions without the client’s authority.

• If at any time before or during a defended trial a client makes a clear confession of guilt to you, you may continue to act only if the plea is changed to guilty or you — (a) do not put forward a case inconsistent with the confession; and (b) continue to put the prosecution to proof and, if appropriate, assert that the prosecution evidence is inadequate to justify a verdict of guilty; and (c) does not raise any matter that suggests the client has an affirmative defence such as an alibi, but may proceed with a defence based on a special case such as insanity, if such a course appears in your professional opinion to be available.

• Where you are told by your client that he or she did not commit the offence, or where you believe that on the facts there should be an acquittal, but for particular reasons the client wishes to plead guilty, you may continue to represent the client, but only after warning the client of the consequences and advising the client that you can act after the entry of the plea only on the basis that the offence has been admitted, and put forward factors in mitigation.

Professional Obligations – Witnesses

• A lawyer engaged in any proceeding does not have the sole right to call or discuss the case with a witness.

• You must not suggest to a witness or potential witness, whether expressly or impliedly, that false or misleading evidence ought to be given or that evidence should be suppressed.

• You may assist a witness in preparing to give evidence by assisting in the preparation of a brief of evidence, and by pointing out gaps, inconsistencies in the evidence (with that witness’s evidence or the evidence of other witnesses), the inadmissible nature of proposed evidence, or irrelevancies in evidence that the witness is proposing to give.

• A lawyer acting for one party may interview a witness or prospective witness at any stage prior to the hearing, whether or not the witness has been interviewed by the lawyer acting for the other party.  Where you propose to interview a witness for the other side, it is prudent to inform the lawyer representing the other side of this fact, especially in respect of sensitive criminal matters where it is important to take steps to avoid any suggestion of interfering with the course of justice.

  • Note that the Criminal Committee of the ADLS caution against defence counsel speaking with a complainant at all – see Defence counsel beware when speaking to the complainant. If a Crown witness invites an approach, in my view you are obliged to consider what is in your client’s interests, and take instructions. Seek advice from a senior colleague if in doubt.

• You must not treat a witness or potential witness in an overbearing or misleading way and if asked you must inform a witness or potential witness of his or her right to decline to be interviewed.

• You must not discourage a witness or potential witness from discussing the case with the lawyer acting for the other party or otherwise obstruct access to that witness or potential witness by the lawyer acting for the other party.   You are, however, entitled to inform a witness or potential witness of the right to decline to be interviewed by the other party and of any relevant legal obligations.  You are also entitled to remind a potential witness of any legal obligations of confidence or privilege that may be attached to information he or she holds.

Professional Obligations – Evidence

• You must not adduce evidence knowing it to be false.

• When cross-examining you must not put any proposition to a witness that is either not supported by reasonable instructions or that lacks foundation by reference to credible information in your possession.

• You must not put questions regarding allegations against third parties to a witness when you know that the witness does not have the necessary information or knowledge to answer questions in respect of those allegations, or where there is no justifiable foundation for the allegations.

• You must not communicate with a witness during the course of cross-examination or re-examination of that witness or between the cross-examination and the re-examination, except where good reason exists and with the consent of either the judge or the lawyers for all other parties (or, where a party is unrepresented, the consent of that party). This applies during adjournments of the hearing.

• If a witness (not being your client) gives material evidence in support of the client’s case that you know to be false, you must, in the absence of a retraction, refuse to examine the witness further on that matter.

• If your client gives material evidence in support of the client’s case that you know to be false, you must, in the absence of a retraction, cease to act for that client.

Comment – make sure that there is the opportunity for a retraction. Ask for an adjournment, speak to your client, and explain the consequences.