A recent news report has provided a timely reminder of the importance of ensuring that you never mislead the Court as an advocate, whether actively or by omission.
The issue arose in a case where the advocate, Bina Maistry who was a partner in her firm was running late for a hearing, and when she arrived failed to correct the judge’s impression that she was a barrister. Indeed, she went further, suggesting that inadequacies in her bundle were the fault of those who instructed her, rather than of her own firm. She also referred to having been “instructed” in the case. The SRA contended that this (taken with other matters) added up to having dishonestly misled the Court and she was struck off the Roll.
Although quite an extreme example, it does underscore the importance for solicitor advocates (like any professional who appears in Court) to remember the duties that they owe to the Court. In particular they must ensure that the judge is not misled in any part of their submissions. With the perception, however justified or unjustified, of judicial bias against solicitor-advocates, the temptation may be strong to “level the playing field”. Indeed some advocates may even find it flattering to be referred to as counsel, or “my learned friend”. But that temptation must be resisted.
Solicitor-advocates can be rightfully proud of the qualification that they have earned, and the profession that they form a part of. They have no need to pander to prejudice, or to take advantage of inaccurate assumptions. If, even by omission, they hold themselves out to be something other than they are, then they can and will suffer the most serious of consequences.
The full judgement is here
Former SAHCA Chair