TPagone The Advocates duty to the court in adversarial proceedings Victorian

Tpagone the advocates duty to the court in

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G.T.Pagone, ‘ The Advocate’s duty to the court in adversarial proceedings’ ( Victorian Bar Ethics Seminar, 2008) available at < > accessed on 12 April 2019 21 Kwanza Estate v Dubai Bank Limited [2014] eKLR
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An advocate has to act with integrity and professionalism while maintaining his or her overarching responsibility to ensure civil conduct. 22 Integrity connotes fidelity to what the law prescribes. It is a vital player to the cause of justice as it creates an environment within which justice can be achieved. 23 It is on this basis that the Law Society Code of Conduct prohibits the use of sharp practices such as participating in the deception of a judicial officer or tribunal by offering false evidence and misrepresenting the facts. 24 Norah in this instance is in breach of this rule as she proceeds to use the pleadings that contain factual inaccuracies. The question of balancing advocates duty to the court vs duty to client with reference to Norah’s use of precedent A practicing advocate owes a number of duties to various stakeholders. The stakeholders include; the court, the client, the profession as a whole and the general public among others. More often than not, these duties conflict and an advocate is therefore faced with an ethical dilemma. An advocate, being a member of the legal profession is not only a representative of his client but is also a citizen having special interest in the justice system employed within a particular society. 25 The question then arises, from this apparent multiplicity of roles, which duty should take prevalence over the others? This question is well settled both by local and international jurisprudence and the position has been established that an advocate’s duty to the court is superior to others. This position was enunciated in the case of Rondel v Worsely 26 where an advocate was facing a claim for professional negligence from a client who alleged that the advocate had not asked all the questions that they had agreed during cross examination of a witness and that he had failed to put all the evidence before the court. It was held that advocates are immune form claims of negligence in as far as the conduct of a case in court is concerned. 22 Ibid 2 23 Ibid 1 24 Law Society of Kenya, ‘ Code of Ethics and Conduct for Advocates ‘ ( January ,2016) Available at < -(1ST %20DRAFT).pdf > Accessed on 11 April 2019. 25 Role of the Defence Attorney: Not just an Advocate, Ohio State Journal of Criminal Law, Vol 7, p 647, 2010. 26 (1967) 3 WLR 1666.
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The holding implied that an advocate has total control of how he decides to conduct his or her case in a court of law. The approach may be aggressive or passive depending on the prevailing circumstances. However, the approach an advocate decides to employ must be well aligned to enable the court arrives at a just conclusion. This flows from the fact that an advocate is an officer of the court and this therefore means that his duty to his client is subservient to his duty to the court. An advocate should not mislead the court by making false averments or even by
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