Boundaries to Fearlessness

What is the scope of the advocate’s duty to act fearlessly in the conduct of a client’s case?

A hearing was in progress in the UK last week before a Bar Standards Board disciplinary tribunal over the way in which a barrister conducted a criminal defence.

The BSB has charged professional misconduct against the barrister.

Among the five charges is the fact that the barrister cautioned the jury to view the judge’s summing up as they might regard a salesman’s patter.

The defendant was convicted, and appealed on grounds including that his barrister’s conduct at trial was unprofessional and provocative with the result that he was denied a fair trial.

The Court of Appeal dismissed the appeal, but made observations about the conduct of the trial which give guidance on the scope of the barrister’s duty in defending a client.

The court stated, “Something of a myth about the meaning of the client’s “instructions” has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor “instructs” him.”

Here is what the appeal court said about the role of the advocate at para 107 of its reasons:

1. The question was raised whether Mr McNulty discussed his proposed forensic strategy with his client. However, whether he did or not, and even assuming that his client agreed or encouraged it, the client’s “instructions” were irrelevant. The client does not conduct the case: that is the responsibility of the trial advocate. The client’s instructions which bind the advocate and which form the basis for the defence case at trial, are his account of the relevant facts: in short, the instructions are what the client says happened and what he asserts the truth to be. These bind the advocate: he does not invent or suggest a different account of the facts which may provide the client with a better defence.