Perpetual Trustee v McClelland: To tell or not to tell?
So there you are on your feet in Court putting your client's case as best you can when it dawns on you that something in your submission doesn't quite gel. During a break you investigate and discover that your client has misled you - and as a result, you have misled the Court. What do you do?
The issue of clients misleading the Court is dealt with in Queensland Solicitors' Rule 15. The basic process is that you ask your client for instructions to correct the misleading statement and if they refuse, you withdraw.
But in this case it is you who has misled the Court, albeit because your client lied to you in the first place. Does the Rule 15 process still apply?
In the recent case of Perpetual Trustee v Cowley [2010] QSC 65, Justice Atkinson dealt with a solicitor caught in a similar situation. In this instance the client had falsified documents and the solicitor had unknowingly presented these to the Court as true. He had also presented an affidavit of his own which contained, again unknowingly, a misleading statement. Her Honour treated these as separate issues. On the subject of the false documents, she found that the solicitor, upon becoming aware of the fasehood, should have followed Rule 15, sought permission to correct the error and refused to take any further part in the matter unless permission was granted.
On the subject of his own false statement (and this is where it gets interesting), her Honour applies a different standard based on Queensland Rule 14.2: "A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading."
In swearing an affidavit in support of his client's application, her Honour held that "he expressed a personal opinion which appeared to provide independent confirmation" of the client's assertions. This enlivened the requirements of Rule 14.2 to correct the misleading statement (paragraph 57).
The decision appears to indicate that in such circumstances a solicitor has an obligation to correct the error without reference to the client at all (see in particular paragraph 132).
The solicitor's failure to take either of these actions resulted in a costs order being made against the solicitor and his firm.
What are your thoughts on the decision? Should a solicitor advise the Court without first seeking the client's instructions? What are your own experiences in such situations?
Hi, can you please enable some kind of 'daily/weekly digest' type function, so I can choose to be emailed a summary of recent posts to the blog on a regular basis. Thanks.
Hiya Autobot,
Congratulations, you're the first person to register and comment! Now we know it's working (which we discovered it wasn't until yesterday).
I like your optimism and hope we'll get enough comments to warrant a summary. I'll pass your idea through to our IT folk and see what we can do.
How do others feel this case sits with Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115? There, at [13-14] Ipp J put the lawyer's duty to the court higher: if the lawyer had served a witness statement on the other side and then learnt of its falsity, it was not enough for the lawyer to simply cease acting if the client refused permission to correct the court record; Ipp J thought the lawyer had a positive duty to inform the other side of the falsity of the witness statement. would others agree that this seems to go further than current professional conduct rules and the approach in Perpetual Trustee?
This could be one of those situations where the rule is not the be-all-and-end-all of the lawyer's obligation. Certainly I think the approach taken in relation to r.14 is probably correct, given its wording; but I doubt r.15 is the final word on a lawyer's obligations concerning false statements by a client. The comments of the Tribunal in LSC v Mullins [http://www.lsc.qld.gov.au/documents/MullinsLPT06-012.pdf] would seem to have some application here.
Also, there might be an open question as to what constitutes a "statement" to the court in r.14. Is the tendering of a false document or a witness's affidavit, in itself, a "statement" to the court?
David, I am not certain how Mullins applies in Perpetual Trustee. The issue for the practitioner in Perpetual Trustee is that he entered the arena as a witness. When the practitioner became aware of the misleading or false statement he came under a duty to correct it.
I note Linda's comment on Kyle. I wonder if Ipp J's remark at para [13] may be to wide?
Mullins might be relevant in relation to the issue of "candour". This is certainly a broader issue than the formulation in the rule.
The question is, once the solicitor becomes aware of the false document, is the ethical obligation restricted to what is in r.15 or is it wider?
Kyle (and in my view Mullins) would seem to suggest it is indeed wider. The moot point I guess is how wide it actually is.
David, I agree that there is a broader issue involved.
If in Mullins the practitioners had advised their client that it was necessary for the material previously provided to the insurer to be updated to include details of the prognosis as to life expectancy and the client instucted the practitioners not to do so then in my opinion the practitioners would have been obliged to withdraw but could not disclose to the insurer their former client's illness. Ipp J's statement of principle is wider but I don't necessarily think it relects the common law. I think that the issue is similar to the dilemma captured by rule 15.1.The duty of confidentiality restricts what the practitioner is able to do.