Learning Outcomes
After studying this article, you will be able to identify and apply the key SRA Code of Conduct provisions relating to a solicitor's duties to the court. You will understand the concept of divided loyalty, recognise what amounts to misleading the court, and consider best practices for managing ethical dilemmas during contentious proceedings. This knowledge is essential to answer SQE2-style scenarios and justify your professional decisions in context.
SQE2 Syllabus
For SQE2, you are required to understand how the SRA Code of Conduct governs solicitors' duties during litigation and interaction with courts and tribunals. In your preparation, focus on the following points:
- the divided loyalty owed to both client and court
- the importance of acting in the interests of justice, above those of an individual client where these conflict
- identification and avoidance of conduct that may mislead the court
- application of the rule that public interest and justice can override client instructions
- managing instructions that risk breaching the duty to the court, including when to withdraw from acting
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 does "divided loyalty" mean in the context of a solicitor's professional duties?
- You become aware your client wishes to give false evidence in court. What are your main obligations under the SRA Code of Conduct?
- When might a solicitor's duty to the court override their duty to act in the best interests of the client?
- Give two examples of conduct that would be considered misleading the court.
Introduction
A solicitor’s role in contentious matters means balancing robust advocacy for clients with strict obligations to the court and the proper administration of justice. For SQE2, you must be able to demonstrate understanding of when client instructions may conflict with duties owed to the court, what the SRA Code of Conduct expects in these situations, and how to proceed if you are asked to act in a way that is not compatible with the interests of justice.
Duties to the Court: The Principle of Divided Loyalty
Solicitors are sometimes instructed to pursue their client's interests as vigorously as possible. However, you owe a "divided loyalty": while you must act in the best interests of your client, you must also safeguard the integrity of the judicial process.
Key Term: divided loyalty
The obligation on solicitors to serve both their client's best interests and, separately, duties owed to the court and the administration of justice. Duties to the court may override duties to the client in defined situations.
This dual responsibility is reflected in both the SRA Principles and the Code of Conduct. If a conflict arises, the obligations that preserve the justice system—such as upholding the rule of law—override those to an individual client.
Upholding Justice: Priority of the Court
The SRA’s Principle 1 requires solicitors to act in a way that upholds the proper administration of justice. That means:
- never seeking to win “by any means,” but only through lawful and honest conduct;
- refusing to assist in deception of the court or in the abuse of legal process.
If client instructions or interests conflict with these requirements, those upholding the system of justice must take precedence.
Exam Warning
A common error in SQE2 assessments is to treat the solicitor’s duty to the client as absolute. Remember: duties to the court and justice can override client instructions. Failing to spot this in scenarios is a key reason for lost marks.
Misleading the Court
Solicitors and all legal representatives are strictly prohibited from misleading the court, whether intentionally or by omission.
Key Term: misleading the court
Any act, statement, or omission by a solicitor that causes the court to be misinformed or fails to correct a misunderstanding, regardless of intent.
Examples include:
- knowingly or recklessly allowing false evidence to be presented
- drafting or supporting documents the solicitor knows are inaccurate
- remaining silent if the court accepts an incorrect version of facts in your client’s favour
If you knowingly permit someone else—your client, counsel, or a witness—to mislead the court, you are also in breach.
Worked Example 1.1
A client has admitted guilt to you in a criminal matter, but still wishes to plead not guilty and testify that he is innocent at trial.
Answer:
You must not facilitate your client giving evidence that you know is false. You must advise your client that you cannot allow this. If the client insists on proceeding, you must withdraw from acting without disclosing reasons—this avoids misleading the court and complies with your duty to the justice system.
Proper Conduct During Litigation
Your duty to the court applies throughout all legal proceedings, including pre-trial steps, hearings, and dealings with other parties. The SRA Code of Conduct requires solicitors to:
- only present arguments that are properly arguable based on law and evidence
- not assert anything they know to be false
- disclose to the court any material errors, facts, or law that could significantly affect the outcome (especially where the other party is unrepresented)
Key Term: properly arguable
A legal or factual submission that is justified based on the evidence and law, and not speculative, vexatious, or knowingly false.
Worked Example 1.2
You discover during a hearing that the other side—unrepresented—has misunderstood a material procedural rule. The judge asks if both parties agree with a proposed course of action, which would disadvantage your client if correct rules were followed.
Answer:
Your duty to the court requires you to inform the court of the relevant rule or procedural requirement, even if this puts your client at a disadvantage. Not doing so would mislead the court and violate your professional obligations.
Exam Warning: Litigant in Person
If the other party is a litigant in person and a point of law arises which may affect the outcome, you must draw the court’s attention to it. Failure to do so could be misconduct.
When to Withdraw From Acting
If you cannot continue to act without breaching your duty to the court, you must withdraw. Common triggers are:
- the client insists on false evidence or misleading the court
- you discover you have been complicit in misleading the court (even unintentionally)
- your continued representation would compromise justice
In such cases, you must not disclose confidential reasons to the court or others. You can say you are withdrawing “for professional reasons”.
Worked Example 1.3
A client instructs you to pursue a procedural step only as a tactic to delay proceedings, with no genuine legal basis.
Answer:
You must refuse to take that step if it is improper or would mislead the court or waste its time. If your client insists, you should withdraw from acting, as continuing would breach your duties under the SRA Code of Conduct.
Handling Real-Life Ethical Dilemmas
Ethical challenges often arise "on the ground." For SQE2, you must be able to apply the rules clearly and act swiftly:
- if unsure, seek guidance from a senior colleague or the SRA Professional Ethics helpline
- keep full notes of all decisions and your reasoning
Revision Tip
Always ask: “Would this step risk misleading the court or breaching my divided loyalty?” If in doubt, consult SRA guidance or decline to act.
Key Point Checklist
This article has covered the following key knowledge points:
- Duties to the court take precedence over client instructions where these conflict
- Misleading the court, whether by act, omission, or silence, breaches the Code of Conduct—even without intent
- Only properly arguable legal and factual submissions may be made
- When ethical conflict arises, solicitors must withdraw rather than breach duties to the court
- Accurate, objective application of these duties is required for SQE2 scenarios
Key Terms and Concepts
- divided loyalty
- misleading the court
- properly arguable