Ethics Column

Lawyers and ‘alternative facts’

Gino Dal Pont

Professor, Faculty of Law, University of Tasmania

Ethics Column

• In an era of ‘alternative facts’, truth appears to have become a casualty. • As officers of the court, lawyers must nonetheless not lend themselves to false or misleading conduct. • This involves, inter alia, avoiding the making of serious allegations or aspersions without a proper evidential foundation.

We appear to live in an era of ‘alternative facts’, where notions of what is, and what is not, true lie within the realm of the beholder. In the political arena, in particular, it seems that ‘the truth’ is capable of being twisted, massaged or even downright ignored. Even so, we remain seekers of truth, viewing it as a societal virtue. Recent high-profile defamation claims pursued by celebrities aggrieved by the media’s allegedly untrue imputations illustrate the point. More generally, discovery of the truth is foundational to our legal system. And what is punctuated by dishonesty or conduct that is otherwise misleading, we assume, cannot be consistent with (finding) the truth. It is no surprise that lawyers, in playing an integral role in legal processes, should be subject to stringent standards when it comes to truth-telling. Indeed, lawyer dishonesty or misleading conduct presents as a principal ground for severe disciplinary sanction.1 It stands to reason that lawyers cannot knowingly be parties to presenting false or misleading evidence. But aside from the spectre of perjury (and contempt), it is well established that participants in the curial process enjoy an immunity from liability, expressed by the High Court as follows:2

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. For lawyers, though, this does not translate to a blanket immunity from professional discipline. Evidently, making outright false statements comes within the disciplinary umbrella as noted above. But the spectre of discipline is more encompassing. Making an allegation or suggestion that cannot be substantiated by the evidence misaligns with the lawyer’s role in the administration of justice, which rests on, as an officer of the court, being engaged in ascertaining truth. While made explicit in professional rules,3 this point has long been acknowledged in the case law. In Rondel v Worsley, 4 for instance, Lord Reid wrote that counsel ‘must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession’. There may be a tightrope a lawyer must walk in this context. A client may demand the making of those very aspersions, which, although justifiable in his or her own mind, may be difficult to substantiate. In the New Zealand case of Y v M5 a solicitor argued that he was justified in filing an affidavit in the Family Court attacking the reputation of the other party (in that case, involving allegations of child sexual abuse) without good cause solely upon the basis that the client instructed to that effect. The argument, which was rejected, was mounted on the uniqueness of Family Court proceedings, which are conducted in private and the paramount concern is the interests of the child. Reflecting the goal of truth-seeking, Temm J observed that ‘[i]t is just as important for the Family Court to be correctly informed as it is for any other court or tribunal, perhaps particularly so when the welfare of a child is at stake’.6

It is unsurprising, then, that attacking the reputation of another person without adequate foundation, including by alleging fraud or criminality, can expose a lawyer to disciplinary sanction. After all, as a Victorian judge has remarked, ‘[l]oose allegations of fraud are a blot on the adversarial system’.7 In a recent example, the respondent barrister, on the instructions of the wife in contested family law property proceedings, prepared and relied upon written submissions in which he alleged fraud and criminal conduct by the husband. The Queensland Civil and Administrative Tribunal found ‘scant basis for making allegations of impropriety against the husband, and no independent evidence to support the serious charges of criminality advanced’.8 As a result, the barrister was reprimanded for unsatisfactory professional conduct. In other nondisciplinary cases, the same type of behaviour may generate a personal costs order against the lawyer involved.9

The upshot is that lawyers’ role as officers of the court should not be utilised for the purposes of creating an unsupported alternate reality.

NOTES:

1 See G E Dal Pont, Lawyer Discipline, LexisNexis Butterworths, Sydney, 2020, Ch 10. 2 Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J. 3 Legal Profession Conduct Rules 2010 (WA) r 36. 4 [1969] 1 AC 191 at 227. 5 [1994] 3 NZLR 581. 6 Y v M [1994] 3 NZLR 581 at 589. 7 NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 at [6] per Harper J. 8 Legal Services Commissioner v Wrenn [2020] QCAT 210 at [46]. 9 See, for example, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134.