AVOIDING A BREACH OF THE PROFESSIONAL CONDUCT AND …

PROFESSIONAL CONDUCT AND ADVOCACYAVOIDING A BREACH OF THE PROFESSIONAL CONDUCTAND PRACTICE RULESVIRGINIA SHIRVINGTON , (SYD)SENIOR ETHICS SOLICITORLAW SOCIETY OF NEW SOUTH WALESP rofessional CONDUCT and Advocacy AVOIDING a BREACH of the ProfessionalConduct and Practice Rules Any judge who is invited to make or contemplates making an order arisingout of an advocate s CONDUCT of court proceedings must make full allowance forthe fact that an advocate in court, like a commander in battle, often has tomake decisions quickly and under pressure, in the fog of war and ignorant ofdevelopments on the other side of the hill. Mistakes will inevitably be made,things done which the outcome shows to have been unwise. But advocacy ismore an art than a science. It cannot be conducted according to formulae These observations by Sir Thomas Bingham (now Lord Bingham ofCornhill) in Ridehalgh v Horsefield [1994] are described as instructive by Lord Browne-Wilkinson in the recent House of Lords decision abolishingadvocate s immunity (Arthur J S Hall and Co v Simons (AP) Barratt v Anselland Others (Trading As Woolf Sebbon (A Firm) Harris v Scholfield Roberts andHill (Conjoined Appeals) [2000] UKHL 38 (20 July 2000) ).)

of the barrister’s duty of candour to the courts in New South Wales Bar Association -v- Thomas (No 2) (1989) 18 NSWLR 193, a matter involving a failure of counsel to disclose during criminal proceedings how certain statements had been obtained. Kirby P said at p204: “The rank of barrister is one of status. With it go obligations which cannot be

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