VSCA restates practitioners’ duty of honesty to Court

In Forster v. Legal Services Board [2013] VSCA 73, Kyrou AJA, with whom Weinberg and Harper JJA agreed, restated briefly the law which requires lawyers to be absolutely honest in their dealings with Courts:

‘161 In Meek v Fleming,[85] Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case.[86] A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party.[87] A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position.[88] That obligation continues until judgment is given.[89]

162 Misleading the Court by presenting a misleading or false document is contrary to the lawyer’s duty of honesty and candour, including in his or her capacity as a litigant.[90] In Law Society of New South Wales v Foreman,[91] the New South Wales Court of Appeal ordered that the respondent be removed from the Roll of practitioners, because she had knowingly presented a falsified document to the Court on the basis that it was genuine. Mahoney JA stated that:

A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at 382, 383. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.[92]

163 In Myers v Elman,[93] Viscount Maugham said that: ‘A solicitor who has innocently put on the file an affidavit by his client which he has subsequently discovered to be certainly false owes it to the Court to put the matter right at the earliest date if he continues to act as solicitor upon the record.’[94] Similarly, in Foreman, Giles AJA stated that the respondent’s failure to reveal and correct the conduct by which the Court had been misled, compounded the unacceptable conduct involved in preparing the falsified document.[95]

[85] [1961] 2 QB 366.

[86] Meek v Fleming [1961] 2 QB 366, 379.

[87] Meek v Fleming [1961] 2 QB 366, 380.

[88] Myers v Elman [1940] AC 282, 294.

[89] Vernon v Bosley [No 2] [1999] QB 18, 37, 56, 63.

[90] Coe v New South Wales Bar Assn [2000] NSWCA 13, [8], [10]; NSW Bar Assn v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, 290 [59].

[91] (1994) 34 NSWLR 408 (‘Foreman’).

[92] Foreman (1994) 34 NSWLR 408, 447.

[93] [1940] AC 282.

[94] Myers v Elman [1940] AC 282, 294.

[95] Foreman (1994) 34 NSWLR 408, 466.’

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