GOOD MORNING FROM LONDON

DISPUTE RESOLUTION – #318

08 APRIL 2024

BEING AN ADVOCATE – FINAL EPISODE

EPISODE 7 CONCLUDED;-

“It is the Client’s case and not your case. So unless the Client is asking you to lie for him you put his case to the Tribunal and you do so with all the presentation skills you can muster. So Head Up, Take a Deep Breath, Be Strong of Voice and Clear of Purpose and Do Your Very Best.”

People have enquired about the outcome of the real life Taking and Driving Away case I handled when I was a legal aid lawyer working in Hackney in the mid 1970s. You will recall the narrative. A chap – he was a bus driver with London Transport – initially denied the offence with which he had been charged by the police of stealing a motor car. His account seemed quite frail to me and I probed his account. This led to the client telling me that he was guilty but wanted to do his best to be found not guilty so that he could save his job.

I told him I could not represent him if he wanted to go into court and deny the offence because he had admitted to me that he had stolen the vehicle and was guilty as charged. I referred him to another firm of solicitors, bid him farewell with the advice that if he wanted to contest the charge and plead not guilty he should not tell the new solicitor that he was guilty. I closed my file.

About four months later I bumped into the new Solicitor. We exchanged pleasantries and this case came up. He thanked me for the referral and told me that the chap instructed him to represent him in court. He pleaded not guilty and he was found not guilty! The Solicitor then asked my why I had referred the case to him and I replied “Because he told me he was guilty!”.

Naughtily – I was pleased. I liked the chap. He had got away with it, kept his job and his marriage but I could not – and did not – condone what he had done. If you are a solicitor you cannot advise people to break the law.

And if you are a Trade Representative appearing on behalf of a party in an arbitration who wants you to lie on their behalf – you can’t. There is a line to be drawn and just as I could not go into court and represent the bus driver with an account I knew to be untrue, so you – the Advocate – must ensure you do not allow yourself to become part of an attempt to mislead the Tribunal by relying on evidence you know to be false.

The key word is “know”. If you become aware that the contract is false you cannot represent the client. The position is different if you suspect but do not know that the contract is false. Knowledge is the key. Suspicion is quite different. That said if you do suspect but do not know that the contract is false you can suggest – quite clearly – to the client that the arbitrators may well conclude that the client’s evidence is not reliable and find against him. They will likely use a formula of words in the award that amount to a conclusion that the contract is not a reliable document with the implication that the client’s integrity has been called into doubt because he/she relied on a document that the Tribunal have disregarded with a degree of suspicion.

An Advocate’s reputation is very valuable. Lose it and you will struggle to regain it. Stay Straight.

NEXT TOPIC IS A NEIGHBOUR’S DISPUTE WHICH GOT OUT OF CONTROL AND LED TO ONE NEIGHBOUR BEING PENALISED £20,000 IN COSTS AND DAMAGES.