Hello, my name is Darren Hackley Green and this is film three in a series of films or the SQ A uh in relation to Epics and conduct series of five films. Um This film deals with the start now of the S or a code of conduct, the rules themselves. And we're going to look at in this film. Rules 1 to 3 in, yeah, a little bit more detail. So just as a reminder, of course, in relation to what you're uh required to be aware of the S3 assessment criteria, you're required to know all the rules which apply to you as a solicitor. So you deal with these in turn some of the rules I think are more right for testing than others. Certainly, I think the next um three rules you're gonna see rules 1 to 3 do actually contain some really core elements which is worthwhile, being aware of and could easily be tested as part of the S3 assessment. So let's start off with um rule one, then it's written down to four separate rules. So 1.1 you do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services. I've said before to me in a, in a previous film about how a lot of the time um these rules interact with each other effectively, they overlap as well. They have core set rules cos we have the overriding principles you need to bear in mind. Principle six. Of course, with the gothic quality diversion inclusion tap in relation to this one with the regards of not fairly discriminating. Um because on top of that, of course, don't forget we have the Equality Act 2010 in relation to your duties with regards to the non protected characteristics there as well. So a lot of sort of overlap in relation to um the the rules in question. Um I think the two most important rules in relation to this section are 1.2 and 1.41 0.2. You do not abuse your position. We're taking unfair advantage of clients or others. That's an important um rule, obviously other advantages of clients because of course, you have legal knowledge that your client doesn't have as part of your training. Um And that's the potential there. Arguably you can take unfair advantage of your current with that in that regard. If you imagine a situation where your, your um the case is funded by way of a damages based agreements. So your co damages based agreements are where we take a percentage of the client's damages. For argument's sake. Let's think that, uh, we have an offering of 100,000 pounds for that client. We know that if the grant accepts the offer, we get 25% we get 25,000 pounds, we might look at the case and think. Ok. Right. Actually, we've only done about 5000 pounds worth of work on the case if we settle. Now, the client settles. Now we get 25,000 pounds, we get 20,000 pounds extra for, for work. We haven't done. It's amazing. Um We advise our clients and the risk is, of course, in that situation, it's um potential also for a conflict. But if you advise your client to take the offer when effectively their case might be worth more, you take them for advantage of them, they'll settle at an undervalued just because you get paid a significant amount of money for work. You haven't actually done, just bear that in mind. It's also um a lot more relevant. I think you see it in dispute resolution when you're dealing with litigants in person. So that's when you have an individual who is dealing with the matter themselves. And our justice system actually allows that, you know, the whole purpose, access to justice. You can, if you want to uh as a non legally trained individual, run a case from start through to finish or defend a case from start through to uh to finish, you've got that right, your ability to do so. But the risk of course comes is when you lack the legal knowledge required to actually run that case or defend that case effectively. And also the risk comes as a litigating person when you're dealing with an opponent who is legally trained, that's when this comes in as a bit of a conflict. Um with us all, a bit of a danger zone with regards to how we deal with the matter. Because the risk is of course, that when we're dealing with someone who isn't legally trained, we could arguably take unfair advantage of them because we are legally trained, we know how things work. So how do we deal with the situation where we have a litigant in person? Generally speaking, of course, you've got to remember your first duties to your clients. Ok. So the litigating person isn't your client. So you can't provide them with any form of advice or anything like that. What you can do is you can provide them help, which arguably would act in your client's best interest. Given the litigant in person, the assistance means that maybe the case can move forward in a more progressive way in a quicker, more efficient manner. And that's got to be your client's best interests. So with regards to dealing with litigants in person, one of the things that you can do is obviously explain to them exactly the ramifications of not doing or doing something to tell them. Look, witness statements are due in two weeks. If you do not serve your witness statements on time, there is a sanction for that, that sanction is that you cannot go to trial and give oral evidence because that's the nature of what the rules say. So therefore, please make sure you serve it on time, advise about how it can be served and what serving on time means. What the deemed dates of service are. Ie uh let's serve by email. Let's serve by 12 pm on the day it's due and we'll exchange it between ourselves. You can have mine by email, my clients by email and you can send me yours by email, that sort of situation. So the lite person is aware of the ramifications of their actions. You're not taking on fair advantage by leaving that to go the and then you email your witness statements over the litigator person posts theirs on that same day. But if it's due that day and they're posting it deemed go to services second business day, which means it will be then out of time, which means they then have the sanction that they haven't complied with the direction. So they can't go to try and give oral evidence, that sort of element on top of that, it could be effectively also letting the Liddington person know the ramifications of not doing something. But for example, entering in a defense, you've got to fire a defense by this date. If you do not do so, we will enter default judgments, explain to the litigant in person what the rules are, send them a copy of the relevant civil procedural. All these things can actually help a litigant in person. You're not giving them advice, but you're not allowed to do that. Then at your clients where you can give them assistance, which arguably is in the client's best interest. As I say, it can move with them out to afford more uh quickly and effectively 1.33 you perform all undertakings given by you and do so in an agreed timescale. If no timescale has been agreed within a reasonable amount of time, I'll explore this with you in a little bit more detail. Um Undertakings are really important so I can really see it come as a question in sqe in essence, you give an undertaking at your peril is what I would say. But we'll, we'll explore that in a little bit more detail in a moment. 1.4 you do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or uh allowing or being complicit in the acts or omissions of others that includes your clients essential, can't mislead and note there as well mislead by omission as well as by act. We look at specific rules in the moment in relation to your obligations uh and your duties to the court and what we need to tell them. Um But uh an example of misleading by a mission is where you make representations to the court. And maybe you say we have this case, uh which is very similar to our, and my client's case would say that the application should be granted and you should find in the client's favor. But you're aware that there's another case, another case which goes against your uh your client's application, which is gonna be unfavorable to your client. So therefore you say that in the client's best interest, I'll only tell the court about the one, the one I want to rely upon can't do that because I believe that's misleading by a mission by failing to mention a relevant case. There are, there are other specific rules in, in relation to that example, we'll look at in a rule two in a moment, we'll just be aware about how the obligation sits there, not just by act, but also by omission and 1.51 0.5 is relatively new. Um By the way, it's a, a recent addition to um the uh the rules. Um you treat colleagues fairly and with respect, you do not bully or harass them or discriminate unfairly against them. If you're a manager, you challenge behavior that does not meet this standard. That's important. Again, ties into equality up with regards to protected characteristics. Again, compli uh ties into 1.1 fairly discriminated, discriminating, again, ties into principle six in relation to equality, diversion and inclusion, all very important um elements right I mentioned in passing the importance in relation to undertaking. So let's explore this in a little bit more detail. So what is an undertaking? Um sr a glossary assists in this regard. Uh It is a statement given orally or in writing. It's important, by the way, an undertaking need not just be written, it can be given orally whether or not it includes the word undertake or undertaking. So it can be an undertaking even if you don't expressly say this is an undertaking or I'm giving this undertaking. Again, we the one there. So someone who reasonably places reliance on it that you are a third party will do something or cause something to be done or refrain from doing something. In essence, an undertaking is a bit like a promise on your behalf or your client's behalf or a third party's behalf. Uh as you saw from the rules, if no time scale has been agreed, the default position is a reasonable amount of time. Uh I say it's not necessary to use the word undertake for it to amount to an undertaking. You're not obliged. That's an important element here. You are not obliged as a solicitor to give or even accept an undertaking and I would say do so at your peril. Ok. I'd avoid giving an undertaking if I were you a lot of firms have strict rules in relation to, they only have certain nominated individuals within their firm who are permitted to give undertakings cos that avoids the problem which we're gonna see in relation to this when you do give an undertaking. And if you can't comply, uh once the undertaking has been relied upon by the recipient of that undertaking, it can be withdrawn only by agreements. Importantly, if a solicitor fails to comply with an undertaking, a solicitor may be sued personally by the recipient. That's a, a risk, isn't it? You know, if you're in practice, you make an undertaking and then you can't comply with it. You end up being on the other side of litigation and the risk is, of course, apart from the fact that you're on the other side of litigation by the recipient, um which is a bit of a concern for you personally, you're also breaching the s or a code of conduct there in relation to non compliance with an undertaking. Therefore, as I say, give an undertaking at your parent, uh the court can enforce a solicitor's undertaken against an individual solicitor or the firm as well. And of course, the solicitor will breach the code of conduct conduct. They may end up being disciplined by the sr a even the solicitor disciplinary tribunal don't um get in trouble with that. Basically. Um So avoid an undertaking if you can uh undertakings given by solicitors non omitted staff or anyone held out as representing the firm of binding on the firm, an undertaking is binding r uh regardless of whether it's or, or in writing, it's an important thing that in relation to that undertaking, if you're a solicitor in your firm, in practice in our quantities in the moment, and you give an undertaking, not only are you bound by that undertaking, but the firm is also bound by that undertaking. So in essence, arguably, apart from the double whammy of the fact that you give an undertaking, you can be sued if you can't comply and you get in trouble with the sr a potentially in the S DC. And also your employer may take an issue with you, the fact that you've given an undertaken without undertaken without any sort of authority or without due consideration as to whether you can comply with this, which may end up being a breach of your contract and employment could be gross misconduct. Arguably. So lots of different concerns and considerations there. Uh a system may be called upon to undertake to perform an act which is outside of their control. That could be um for documents that aren't in your possession. Um just because you're unable to perform the undertaking without the co-operation of the client or another third party, doesn't discharge your obligation to perform and the undertaking remains enforceable. So the idea is if you give an undertaking over something, you have no control of, you can still have that enforced against you. Despite the fact, you've got no control. You're not gonna get away with actually saying, well, I gave the undertaking but I haven't got the documents. I can't, what can I do if they don't send them to me? I can't send them on to you. You're not gonna get away with that. Ok. If you give an undertaking, you comply with the undertaking, that's where you never give an undertaking. Uh If you are not able to comply or if the undertaking uh actually relies upon compliance by someone else because the risk is too great that providing an unsafe air safety is wholly reliant on the actions or the actions of a third party should be avoided due to the binding nature of that undertaking, it remains uh the undertaking remains binding and upon the solicitor, even if the circumstances change, it's impossible to fulfill or even wholly or partially. However, the recipient may greet its variation or discharge. Thinking about that, you give an undertaking to provide um a certain document and arguably uh before the undertaking comes to you, come to comply without undertaking that document that disintegrates burns or something like that. Of course, you can no longer comply cos that document doesn't exist, generally, the recipient should be reasonable in relation to that because its variable discharge it because obviously you can't comply because the thing doesn't exist different whether actually when it rests with the in the hands of a third party just hasn't been sent on to you. But the document still is in existence for an intake to be binding upon a solicitor. It must be given by an individual in their capacity as a solicitor, as opposed to a personal business capacity by someone who just happens to be a qualified solicitor. That's important. Ok, so I talk about these undertakings, I talk about look, avoid them, be very cautious, which is right. But the undertaking, the binding nature of undertaking only occurs when you are in practice as a solicitor. So we saw uh and we've seen some of the films about the fact that the code of conduct, the principles all apply uh for your in all walks of life as you a solicitor. When you are on social media, when your personal life and your work life, the rules apply to you no matter what. However, the distinction here with undertakings is if for argument's sake, you are the secretary of the, of the PT A for your kids' school and you give an undertaking uh in your capacity as a secretary of, of the PT A um that can't be enforced against you personally. It's not as if it were an undertaking. Given your profession, the sr A wouldn't get involved. There's no breach there. OK. That's important when you look. So if you look at the question in the multiple choice question in uh SQ A just be aware when and how the undertaking is given cos that's important. Also bear in mind you can give it orally and in writing, uh Leo, the legal ombudsman, Sr A and the SDT um have no power to enforce the performance of an undertaking. It's a matter for you and the court, in essence, the court can enforce. Yeah. Um nor can they direct the solicitor pay compensation to the degree third party gets a matter through litigation. The remit of Leo the sr A and the SDT simply to investigate your conduct and of course, impose disciplinary sanctions in like you've given an undertaking, you haven't complied with an age old question of acting for a guilty client, I think really see this coming up in the sqe as well. Um You have a client who confesses their guilt to the criminal charge with which the criminal with which they've been charged but wishes to plead not guilty. Can you continue to act? Would that be considered as misleading the court? Uh The, so the client tells the court not guilty when, in fact, you, they've told you I didn't do it. Simple answer says, yes, you can represent them. There are limitations. Uh I'll go through these in a moment. Um But yes, if a client says, uh I am guilty of this offense, but I wish to plead not guilty. You can continue to act um just dealing with that in general terms, duty of confidentiality. Of course, requires you to tell no one except colleagues within your own firm. If you're a solicitor of your client's statement to you, and if we look at the elements of a client who tells you they committed an offense, um they haven't confessed in the formal sense and nor are they guilty? Couple of reasons and technical reasons in relation to that. Firstly, the definition of confession is a statement adverse to the interests of the maker. It's not adverse to the interests of a client that they confide in their lawyer. And also equally only a quarter of a jury can decide on guilt. The finding of guilt or guilty is something said by a magistrate, jury or appellate judge appeal and no one else. But it's entirely appropriate for a lawyer to act for a client who suggests they have committed a crime to which they intend to plead not guilty. Guidance to the code of conduct for barristers statute states and specifically in uh guidance in relation to this, they state if your client were to tell you that they have committed the crime with which they are charged, you would not be misleading the court. If after your client had entered a plea of not guilty, you were to test in cross examination the reliability of the evidence of the prosecution witnesses and then address the jury to effect that the prosecution had not succeeded in making sure of your client's guilt. And those rules would apply equally to and, and this comes down of course, to remembering elements of burden of proof. Yeah, burden of proof is for the prosecution to prove that your client is guilty. It's not for your client to prove their innocence. Ok? So the burden rest of the prosecution, if they fail to discharge that burden on the standard on the ba uh on the standard of proof being beyond a reasonable doubt, then the claim will not succeed. Um, the idea is in relation to this situation is you put the prosecution to strip proof. You simply say it's your job, you prove my client's guilt off, you go and best of luck. And importantly is, you can't mislead the court by actively suggesting your client's uh innocence. So, argument's sake, you wouldn't be allowed to, uh, have your client take the stand and give evidence because the client said, um, I wasn't there. That's misleading. The court cos can well say, you know, they were there because they tell you they, they committed the offense same way as well. If you're questioning a witness, you can test their uh, evidence, but you can't put to them a case which uh, is not your client cos your client uh says they're guilty. You can't put to the witness when our client wasn't there. Were they, uh because of the elements of an alibi or whatever it may be because that is different. I put down the positive defense um route, you can test the evidence so we can do it and put the current district proof in relation to that. Um Just be aware of your right to uh refuse to deal, refuse to act in relation to a client. There's never, never an obligation to take on work. So you can always say to your client thanks um for coming to me in relation to your case. No, thank you. II I won't be taking that uh that uh case. Um However, there are, there is a limit limitation in relation to that exercise of that discretion. Of course, um You can't unfairly discriminate by an angle used to affect your professional relationships and the way in which you provide services, we saw that from 1.1 of the uh the code of conduct. So, um if you were to refuse instructions because you are unfairly discriminated on the grounds and some race or sexuality, that would be a breach of the code of conduct. So now looking at rule um two and part two of the, of the rules again, really important elements here which we need to draw out and come back into and I was talking about 1.4 and misleading uh the court or others. So 2.1 you do not misuse uh misuse or tamper with evidence or attempt to do so. 2.2 you do not seek to influence a substance of evidence, including generating false evidence or persuading witnesses to change their evidence. That's important when we utilize the, the phrase no property in a witness. So when we have uh an accident, say so broke up the accident and you have an independent witnesses who uh sees the accident, it may be that both claimants and defendants to that accident um wish to speak to that witness to find out what they say, so they can evaluate the success or otherwise of, um, the, the claim that's being brought that is fine. There's no property in a witness. So each party can speak to that witness, um, of their own right? There's no problem draft witness statements accordingly. That's ok. The problem comes obviously is if you seek to try and persuade that witness to change their evidence. Ok. So, uh, if the witness says, well, I'm, I'm sure the defendant was indicating. Are you really sure it was nice and sunny? Was the sun not in your eyes, et cetera, et cetera. Don't do that to you. Listen to the witness, you take a note of their evidence. Yes, you question it. Don't cross examine them in a sense or persuade them otherwise you can't do that. And certainly when you've got, um, an issue where you've got a witness who's been spoken to by both parties, the risk is that if, um, that witness has to speak and say to the defendant then speaks to you and changes their evidence, then the defendant may have an issue and say, hang on. What, how come they change their evidence after having spoken to you? Was there a breach of rule 2.2? Did you seek to persuade that witness to change their evidence? 2.3 you do not provide or often provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case, bribe a witness to go and give evidence in your client's favor. In essence, and be aware that you can compel a witness to attend a trial by way of a witness summons and the rules in relation to a witness summons is you tender uh as you give or you offer um travel expenses and conduct money as part of the right to attend um trial. So travel expenses will cover them, getting the bus or the train or their petrol to drive to the court, including parking and conduct money is effective. If they had to take time off work and paid, then you pay them their, their loss of earnings. In essence, you can do that. That is fine. What you can't do is say, look, I'll give you 100 and 50 quid. If you turn up and um tell the, the court, it wasn't my client's fault. Can't do that. Uh 2.4 you only make assertions and put forward statements, representations or submissions to the court or others which are properly arguable. Um This actually could easily overlap uh with the risk of about acting in your client's best interest. So what you have a situation where a client wants you to make an application, but that application is doomed to fail. It's doomed to fail, maybe because you haven't met the requisite criteria in relation to that application itself. Um So the situation is if you make the application, so therefore you're putting forward representation statements by way of that application, which are not properly arguable. You reach 2.4. Also, you're not acting in your client's best interest by making that application. Yes, you may be acting upon your client's instructions, but there's always a limit to that. And by the way that you can't utilize that as an excuse, you can't say, look, my client instructed me to do this. Therefore, I have to do it that doesn't wash. OK. Simple fact is it doesn't change or duty in relation to the, the rules here. So, and also your uh right to advise your client in relation to the nature of success or errors of this application. The simple fact is if your client says wanting to submit its application, you say no, I can't, I can't do that because it's not properly arguable, it's bound to fail and there's a risk in relation to that. OK? And then we'll see later in a different film about how that works when you have, then the risk of a conflict where you have that falling out between you and your client. You can't not you to do something you say, no, I'm not doing it and how that impacts on the retainer. But we'll look at that in a, in a different film 2.5. You do not place yourself in contempt of court and you comply with court or orders, which place obligations on you. So we saw earlier back failing to file a witness statement on time as a sanction, you can get around that with uh making an application for relief from sanctions. The risk is it's still contempt of court. And also on top of that, there's a breach of the sr a code of conduct if you fail to comply with the court's order, generally, with regards to the Sr A's involvement with regards to compliance or non compliance with the code of conduct, they only tend to look at the most serious uh issues as we've seen to risk based assessments. Um So things like you've missed, uh uh the date for firing witness statements. No, you're not gonna find, find yourself dragged up in front of the SDT in relation to failure to do so. Um There is this option of the 2.5 that really looks at more uh sort of core elements of a wilful disregard for compliance with, uh with court orders or directions of the court 2.6. You do not waste the court's time that can tie in again with um, making some issues which aren't properly arguable. Um You don't waste the court's time as well in relation to that. And 2.7 is very important. You draw the court's attention to relevant cases and statutory provisions or procedural regularities of which you are aware and which are likely to have a material effect on the outcome of the proceedings. We saw earlier 1.4 and I gave you the example of not misleading the court. You've got two cases. One supports you, one that doesn't support you and the fact that they just mentioned that supports you, forget about the one that doesn't support, you can't do that. Apart from misleading the court, it's a breach of 2.7 cos you need to draw the court's attention to this other uh contradictory case and arguably rules of stare decisis, you shouldn't have two different binding authorities which say different things, but often you have quite fine line distinctions between two cases which look like they've been decided on uh for uh uh or deciding the same thing in different ways, but they're not, they decide in a certain way because of the nature of the specific facts behind that case. So the skill in, in you being a lawyer is you say to the court, look, we've got these two contradictory binding authorities. However, authority, one which favors my clients is more similar to the circumstances of my client's application of my client's case and the facts of my client's case. And therefore, this is the judgment that should be followed. Judgment two, case two can be distinguished because it involved this, this and this, which is not similar to my grant's case, that's the skill of a lawyer and that's what you need to put in place. Not just simply forgetting about the things you don't want to deal with because they're not helpful but also being aware as well of the rules involving if you're gonna make an application to court and that application say for argument's sake is an interim payment. The rules state what you need to include and deal with as part of your application for an interim payment, go through them all. You can just pick the ones that help your case and ignore the others cover off every element you're required to comply with in order to actually be successful in that application relation to service and confidence, uh competence. In uh rule three, you only ask for clients and instructions from the clients or someone or from someone properly authorized to provide instructions on their behalf. So, uh arguably that would be where you have a litigation friend who's um, instructed to act on behalf of a child because of course, child can't pursue litigation without uh an adult to support them. Um If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you're satisfied yourself that they do. However, in circumstances where you have legal authority to act. Notwithstanding. And that could be where you act as a deputy over someone who has, uh, maybe lax mental capacity to deal with the matter themselves. Um, that's not possible to obtain and ascertain the instructions of your client. Then you're subject to the overriding obligation to protect your client's best interests. You fall back on the steps you take if you can't obtain these instructions to act in your client's best interests, but also this actually places an onus on you if you suspect, um, the instructions don't represent your clients, which is, it means you need to be, um, sort of more alert and aware of those who are vulnerable, the elderly, mentally infirm Children, be more, uh, aware of those who are vulnerable and the fact that they are susceptible to being taken advantage of 3.2 you ensure that the service you provide to clients is competent and delivered in a timely manner that sits in the act in your client's best interest. Here's a new file, you're too busy to deal with it. Therefore, um, you're not gonna act in your client's best interest by taking it on. Also, you're gonna reach 3.2. If you can't deal with it in a competent and timely manner. 3.3 you maintain your competence, you carry out your role and keep your professional knowledge and skills up to date the essentials of ongoing training, keeping a continuing professional development, CPD record of all the training you've um you've been given you've undertaken essential uh obviously in the key role that you do, but also essential in relation to if you're instructed in relation to a case where your uh legal knowledge, you know, isn't up to date because you haven't practiced in that field for a long time. It's important decline the case, your knowledge is not up to date. Alternatively, if your knowledge can be brought up to date very quickly with some updated training, that is an option that's open to you. But you simply, you can't just take on the f and hope for the best and assume your knowledge from five years ago is still up to date. Certainly in the fi fields of dispute resolution, personal injury, the rules change an awful lot and where you haven't practiced for a couple of years, things will have changed potentially significantly. 3.4 you consider and take a hand of your client's attributes, needs and circumstances. This ties in with elements of vulnerability. And we see this with regards to the practice of dispute resolution, the vulnerability of a client is really important consideration as to how that case is managed and whether any specific steps are put in place by the court to help clients who or witnesses who are vulnerable. 3.5 and 3.6. In essence, deal with the same elements, save for the fact that owner put on uh managers, uh and those who supervise the onus, there is making sure that the people they supervise, um know what they're doing and are effectively supervised in relation to that. And in fact, you remain accountable for the, the work carried out through those individuals if you're a manager or a supervisor. And that means obviously ensuring that they are competent and their knowledge uh of their role and their skills is up to date and correct. So we look at a practice question in this area that so a solicitor is representing a woman charged with criminal damage to her ex partner's motor home for at case preparation. The woman vehemently denies any involvement in the offense. Despite the acrimonious divorce proceedings she's currently going through. However, on the day before her court appearance, she contacts the solicitor in a state of anxiety stating that she wants to plead guilty despite her innocence as she fears the stress of a trial. This is different to the scenario we saw earlier where we said that was a client who wants to plead not guilty when we know she's guilty. This is the reverse. A client who now wants to plead guilty despite the fact she is not guilty. Um The solicitor's attempts to dissuade the client from this course of action proved unsuccessful, which of the following accurately describes the appropriate conduct of the solicitor in this situation. So a the system must withdraw from the case immediately and inform the court of the reason for ceasing to act as con continue to represent the woman would involve knowingly misleading the court. The assistant can continue to upset the woman and has no restrictions on the mitigation they can present during the sentencing hearing. Even if, even if she insists on pleading guilty while maintaining her innocence, see if the woman insists on entering a guilty plea despite maintaining her innocence, excuse me, the sister must inform the court that she's pleading guilty against legal advice but can continue to represent her. D the sister can, can continue to represent the woman if she insists on pleading guilty despite maintaining her innocence. But there are limitations to what the solicit can say regarding mitigation during sentence in hearing. And e the system must be drawn from the case immediately. If the woman insists on pleading guilty, excuse me, while maintaining her innocence as continuing to represent her would involve knowingly misleading. The court state is a crap answers can continue to represent the woman if she insists on pleading guilty despite maintaining her innocence. But there are limitations on what the solicit can say during mitigation during any sentencing hearing. Again, this is a very similar course of the situation we saw um earlier when you want, you can want to plead not guilty being guilty. The difference here, of course is a client saying I'm I'm innocent, but I, you can't face it. I just don't want the stress and time and trouble. Now, the problem comes in relation to mitigation because of course, when pleaded guilty, then uh you can enter what's called a plea mitigation where your counsel, who you can actually say. Well, look, you know, these are the reasons why a a lower sentence should be given in relation to this criminal charge. And one of the problems there is one of the key elements of a plea mitigation um is generally the fact that you say, look, you're sorry, genuinely sorry for committing this offense. Uh And that's important, the recognition of uh the fact that you apologize, the recognition that you realize what you do is wrong, really important in relation to mitigation uh in relation to a criminal charge. The difficulty here, of course, is the barrister can't do that. We us and solicit cannot do that because you can't say our client is really sorry that she committed this offense because she didn't commit the offense. So that would be misleading the court. So really the, the uh by doing this, this lady is really tying your hands in relation to what you can and cannot say during the course of uh your plea mitigation. Um A um states the system must withdraw from the case immediately and inform the court of the reason for a start. Um You don't need to withdraw from the case immediately, obviously, as a uh because these is the correct answer and also you never inform the court. There's no, never an obligation to tell the court why you're taking steps to withdraw from the case that would actually breach uh client confidentiality in any event. Um And also it's a states this is knowingly misleading the court. It's not uh as long as you don't make representations which would mislead the court talking about affecting her sorrow at committing this crime. Um Then it's fine for you to continue to act. B sister can continue to represent the woman and has no restrictions on the mitigation. That's wrong. Of course, because the restrictions mean sometimes that what you say could mislead again c um is about the list informing the court and that again is the, the wrong answer there. You never, there's never an obligation to inform the court of the reason uh behind uh a client not taking your advice or whatever it may be. Uh And he concludes this, this one draw from the case immediately um because that would involve the uh her decision would involve knowingly misleading the court. And as we saw, um that's not the case. The risk only comes in relation to your representations at the court, to the court in relation to the plea mitigation. Thank you very much.
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