Criminal Procedure & Professional Duties

• An advocate should know the principles of criminal procedure to relieve their client of criminal liability without breaching professional duties.

Circumstances to Refuse a Brief

• Counsel can refuse a brief for reasons like:
  • The client cannot afford the fee.
  • The advocate was consulted by the other side.
  • The advocate has confidential information about the other side.
  • The advocate knows one of the witnesses.
  • The brief clashes with the advocate's duties.
  • The advocate lacks the skill to conduct the case competently.
  • The advocate is too busy to carry out the brief.

Cab Rank Rule

• Advocates must accept a brief unless there is a good reason to refuse.
• This rule applies to lawyers practicing as advocates and not attorneys governed by the International Code of Ethics.
• It states lawyers are free to refuse a case unless assigned by a competent body.
• An advocate cannot refuse a brief simply because they:
  • Do not think the client will win.
  • Do not like the client.
  • Think the facts of the case are unsavory.
• Counsel shouldn't assume the role of a judge by refusing to defend someone they believe is guilty, as it undermines the presumption of innocence.
• Article 50 (2)(g)(h) of the Constitution states an accused person has the right to choose and be represented by an advocate and to have one assigned to them by the State at its expense if injustice would occur.
• Lord MacMillan coined the phrase 'cab rank' to mean an advocate is obliged to accept a brief unless there's a good reason not to.

Duties as an Advocate to the Court

• The duty is to fearlessly uphold the interests of the client.
• Advocates must be zealous on behalf of clients and promote their interests by all proper and lawful means without regard to self-interest or personal consequence.
• An advocate should never abandon a case due to non-payment but must conclude the suit and then sue for fees.
• Trial lawyers cannot divulge information confided by their clients as per the International Code of Ethics rule 14.
• Disclosure can be made if the client consents with full knowledge of the consequences as protected under Section 34(1) of the Evidence Act.
• Advocate-client confidentially is protected unless the client gives consent to disclose communications made during the employment.
• An advocate is first an officer of the court, then a confidant to their client, but this privilege isn't absolute and can be overlooked if the disclosure pertains to:
  • Illegal purpose
  • Any fact showing a crime or fraud since employment
• Trial lawyers must speak on behalf of clients and ensure the prosecution discharges its onus.
• Defence lawyers don't have a duty to assist the prosecution by disclosing facts that prove the accused's guilt.

Other Duties

• Duty to disclose the likely success of actions and alternatives to the client.
• Duty not to fabricate defenses. Fabricating or knowingly using fabricated evidence is a misdemeanor punishable by imprisonment.
• Advocates must uphold justice, not mislead the court, fabricate evidence, coach witnesses, or support perjury.
• Advocates must take fairly arguable points on behalf of the client but shouldn't usurp the judge's role or be dishonest.
• Trial lawyers should act as lawyers, not give personal opinions.
• Lawyers shouldn't influence judges unlawfully. The duty to the court is paramount, even against client instructions.
• Lawyers owe a divided loyalty to clients and the court but cannot win by any means.
• Duty to expedite proceedings as stated in Civil Procedure Act Section 1A.
• The parties and their advisors must cooperate with the court via clear pleadings which define the issues for the judge.
• Advocates must respect court orders and avoid issues such as executing decrees without sending drafts for approval.

Creating a Theme

• A case's theme is what the case is about and why it's important, summarized concisely.
• A strong thematic beginning is important to capture attention. Themes should be built around the facts.
• Emphasize the theme in the introduction, factual story, evidence, and conclusion.
• A real theme must be drawn from and supported by facts and consistent with fairness.
• Themes provide mental organization for judges to find supporting evidence.
• Connecting the client's situation to the judge's values is important.
• A right theme helps judges rationalize and justify the desired result.
• Examples are life, liberty, and property.

Rules of Advocacy

• Never express a personal opinion in court.
• Never give or appear to give evidence yourself.
• Submit only evidence that was touched on.
• Do not bring up criminal records or settlement offers.
• Don't put words in your witness's mouth.

Preliminary Objections

• A preliminary objection is a point of law pleaded or implied from pleadings that can dispose of the suit if argued.
• Examples include:
  • Objections to jurisdiction
  • Pleas of limitation
  • Submissions that parties are bound by a contract to refer the dispute to arbitration.
• Sub judice exists when a case is under judgement, and other courts are barred from trying the same issue.
• Section 6 of the Civil Procedure Act states that if an issue is pending adjudication between the same parties, any other court is barred from trying that issue as long as the first suit continues.
• The term 'sub-judice' means "Before the Court or Judge for determination" in Black's Law Dictionary 9th Edition. The rule stops multiplicity of suits, prevents court abuse, and diminishes conflicting court decisions.

Res Judicata

• All have to be demonstrated to invoke in a civil matter:
  • A prior judgment or order was final
  • The judgement or order was on merit
  • The order or judgment was rendered by a court with jurisdiction over the parties/subject matter
  • There had to have been subject matter, identical parties, and cause of action

Contempt of Court Examples

• Judges expect lawyers to be punctual. Repeated tardiness without adequate explanations may be treated as contempt of court.
• Exaggerated, reckless, or incautious language may result in contempt.
• Contempt of court is categorized into civil and criminal contempt.
• Civil contempt occurs when someone refuses to obey a court order, resulting in fines or jail.
• Sanctions coerce compliance rather than punish.
• The person guilty is committed to civil jail and released upon compliance.
• Criminal contempt involves hindering or obstructing justice and is punishable by fine or jail. Examples include threatening or insulting a judge or witness, or disobeying a court to produce evidence.

Court Etiquette

• Refer to the Advocates (Professional Conduct And Etiquette) Regulations 2008.
• Key elements are dress, punctuality, and introductions.
• For introductions include a greeting, name, firm, who you appear for, and when the case is due.

Other Items

• Mode of address should be considered.
• Court behavior is very important.
• Proper terminology is a must.

Recusal

• JSCCE Rule 5 says a judicial officer must recuse himself if there's a reasonable question about impartiality.
• An advocate may petition a judicial officer recusal.
• Justice Warsame underscored the importance noting there needs to be confidence and trust in the determination.
• Grounds for:
  • Pecuniary reasons if the officer or family has a financial interest that could be affected.
  • Served as a lawyer in the matter
  • Personal bias
• Arises from Logical prejudices for conduct in court, outside court, and ex parte communication.
• Exceptions include Quorum & The Supreme Court.

UN Principles on Lawyers

• Access to Lawyers and Legal Services: Everyone has a right to legal help from an independent lawyer.
• Governments must ensure effective access, especially for disadvantaged groups.
• In Criminal Justice Matters: Any person arrested must have access to a lawyer.
• Lawyers must meet clients confidentially and without delay.
• Lawyers must be properly qualified and trained.
• Continuing legal education should be encouraged.
• Lawyers must maintain ethical standards, defend clients diligently, and uphold justice. They must respect secrecy and avoid conflicts.

Lawyer Functioning Guarantees

• Lawyers must perform duties freely, without intimidation.
• Lawyers shouldn't suffer consequences for representing any clients.
• Lawyers have freedom of expression, belief, and association.
• They can form and join independent professional associations.
• Associations regulate the profession and protect rights, ensuring ethics and defending members.
• Disciplinary actions must be based on fair procedures handled by an impartial authority.

Appeals

• Appellate advocacy is something that needs to be understood.
• Criminal appeals are split into either subordinate court appeals - Section 347 or the CPC/Section 10 of the Magistrates Courts Act or from higher courts - Section 379 of the CPC/Section 349 of the CPC/ Section 279 (2) СРС/Section 361 СРС.
• Appeals are not allowed from a court martial.
• Civil appeals are under Section 11 of the Magistrates Courts Act.
• Appeals are through a memorandum of appeal.
• Judicial review isn't challenging the decision, but the legality.
• Differences between trial advocacy and appellate advocacy are:
  • The forum
  • The stage of the case
  • The scope
  • Witnesses
  • The number of judges
  • The pleadings
  • The rules
  • The reliefs

Court Techniques

• Techniques that one should invoke in court are:
  • Opening Statement
  • Examination in Chief
  • Closing Statement
  • Cross Examination
  • Re-examination
  • Persuasion
• Use language/vocab, demeanor, eye contact, voice projection, pace, silence, cadence, facial expressions, and posture. Avoid distracting gestures/verbal habits.