Learning Outcomes
After studying this article, you will be able to explain and apply the main duties of professional conduct expected of advocates in oral submissions and courtroom procedure under SQE2. You will understand the solicitor’s overriding duty to the court, identify and handle conflicts between client instructions and duties to the court, and recognise typical ethical challenges faced in oral advocacy. You will also be able to avoid common pitfalls that can lead to professional or disciplinary complaints.
SQE2 Syllabus
For SQE2, you are required to understand professional conduct obligations and ethical duties relating to oral submissions and courtroom procedure. In your revision, pay particular attention to:
- The nature and scope of a solicitor's duty to the court
- Professional conduct rules for oral submissions and courtroom behaviour
- Managing conflicts between duty to the client and duty to the court
- Recognising and dealing with ethical dilemmas during advocacy
- Maintaining standards of honesty, integrity and independence in court
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the solicitor’s overriding duties to the court during oral submissions?
- If a client insists you make a legal argument you know is unsupported or misleading, what should you do?
- Give one example where the duty to the court may override a solicitor’s duty of confidentiality to a client.
- Name a professional consequence for an advocate found to have knowingly misled the court.
Introduction
When you represent clients in court, your primary obligation goes beyond client instructions: you have a professional duty to help the administration of justice. This article outlines the main professional conduct duties relevant to oral advocacy in the courtroom. These include the duty to the court, the duty to act with honesty, integrity and independence, and the expectation that you resolve ethical conflicts appropriately during submissions and other courtroom proceedings.
Duty to the Court
The primary ethical obligation of any advocate is the duty to the court. This duty takes priority over the duty to act in a client’s best interests.
Key Term: duty to the court
The obligation of legal representatives to act in a way that promotes and protects the proper administration of justice, even where this conflicts with the client's aims.
This duty underpins all courtroom conduct and is reflected in the rules of professional bodies and case law. It means you must never mislead the court, must act with honesty, and must ensure the court is provided with all material law and facts, even if unfavourable to your client.
Key Term: overriding duty
A duty considered to take precedence over any conflicting professional obligations, such as the advocate’s primary duty to the court over the duty to the client.
Professional Duties During Oral Submissions
You must comply with standards of professional conduct set out by the Solicitors Regulation Authority (SRA), the relevant Codes of Conduct, and the core SRA Principles.
These include:
- Not misleading the court about facts or law, whether by statement, omission, or concealment
- Disclosing relevant adverse authority, even if detrimental to your case
- Acting independently and not allowing yourself to be influenced by your client to breach professional rules or the duty to the court
- Managing client expectations regarding possible outcomes and the ethical limits imposed on their representation
Key Term: professional conduct
Behaviour required of solicitors and advocates, as stipulated by rules and codes of the legal profession.
In the context of oral advocacy, these duties apply not only to direct submissions to the judge but also to conduct in pre-trial conferences, negotiations in court, and any spoken interaction during live proceedings.
Key Term: oral submission
Any spoken representation, legal argument, or statement made by an advocate during a court or tribunal hearing.
Conflicts Between Duties
Advocates commonly face situations where client instructions conflict with duties to the court. The professional obligation to act in the client's best interests does not permit deceiving or misleading the court, failing to disclose relevant law or making submissions which are dishonest or unsupported.
Key Term: conflict of duties
A scenario where two professional duties, such as the duty to the court and the duty to act in the client’s best interests, are incompatible in a particular situation.
Common rules include:
- If a client wishes to present misleading or false evidence, you may not help them to do so or condone their actions.
- If you become aware of an error made by yourself or the court, you are required to correct it, even if this damages your client's position.
- You are required to inform the court of any relevant procedural or legal authority you know about, including those unfavourable to your case.
Key Term: misleading the court
Any action by an advocate which results in the court being given an incorrect or incomplete impression of the law or facts relevant to the matter.
Worked Example 1.1
During trial, your client instructs you to tell the court they were not present at the scene of the alleged incident. However, you have video evidence which proves otherwise, and your client has privately admitted to you that they were there. What must you do?
Answer:
You cannot knowingly make a statement to the court that is false or allow your client to mislead the court. If the client insists, you must withdraw, explaining to the court (without breaking privilege) that you are professionally embarrassed and cannot continue.
Honesty and Integrity
You have a duty to act honestly and with integrity at all times. This means:
- Never presenting false information in submissions, even under client pressure.
- Never making or supporting allegations of fraud, impropriety or criminal conduct unless objectively justified by evidence.
- Acting openly with all parties and the court.
Key Term: integrity
Acting with moral uprightness and upholding the standards expected of a legal professional, even when no one is watching.Key Term: honesty
Telling the truth and not misleading others, either by your direct statements, omissions or by permitting misleading impressions.
Independence and Management of Influences
You must always maintain your independence. You are prohibited from allowing your own interests, the interests of others, or those of your client to affect your professional judgment.
Key Term: independence
The requirement for a lawyer to form objective legal judgment untainted by client wishes, third party influence, or personal interest.
If you are pressured to act contrary to the specified ethical rules — for example, if your client insists on making an unmeritorious application in the hope of delaying proceedings — you must refuse.
Dealing with Ethical Dilemmas
Advocates are often faced with ethical dilemmas which are not "black and white." In such cases:
- If unsure about the correct course of action, seek guidance promptly from your line manager, SRA guidance, the Law Society Ethics helpline, or your own professional body.
- If faced with an irreconcilable conflict, act in accordance with the duty that most advances the public interest and the administration of justice.
Worked Example 1.2
You discover after submissions that your opponent has made a legal error which you know materially misrepresents the law. What should you do?
Answer:
You must inform the court of the correct law, even if it undermines your case and benefits your opponent.
Consequences of Misconduct
Failing to meet professional conduct standards during oral advocacy can result in:
- Disciplinary action by the SRA or your professional body
- Professional negligence claims
- Wasted costs orders
- Reputational harm and loss of audience rights
Exam Warning
The SQE2 will expect you to apply ethical reasoning to practical scenarios, not just recite rules. In situations where client instructions conflict with duties to the court, always consider which duty takes priority and be able to explain your ethical reasoning.
Courtroom Procedure – Etiquette and Behaviour
During submissions and all court proceedings, you must:
- Always address the judge and other parties using the correct forms of address
- Stand when addressing the judge (unless directed otherwise)
- Remain courteous to all participants, including opponents and witnesses
- Avoid emotional, aggressive or overly familiar language
Key Term: courtroom etiquette
The rules and conventions governing respectful and professional behaviour in court, covering speech, conduct, and formalities.
Conduct which breaches etiquette can undermine your credibility and may result in your submissions being disregarded.
Revision Tip
Practice responding to short scenarios where your client’s instructions directly contradict your duty to the court. State in one sentence which duty you must prioritise and how you would proceed.
Key Point Checklist
This article has covered the following key knowledge points:
- The duty to the court is an overriding professional obligation.
- Solicitors must not mislead the court and must always act with honesty and integrity.
- You must manage conflicts of duties, and in case of conflict, the duty to the court prevails.
- Ethical dilemmas require the application of judgment, and reference to professional guidance where necessary.
- Breaching professional duties may result in disciplinary proceedings or wasted costs orders.
- Always maintain courtroom etiquette and professional manners.
Key Terms and Concepts
- duty to the court
- overriding duty
- professional conduct
- oral submission
- conflict of duties
- misleading the court
- integrity
- honesty
- independence
- courtroom etiquette