Learning Outcomes
This article covers solicitors’ duties to the court under the SRA Code of Conduct, including:
- The principle of divided loyalty and when duties to the court override client instructions
- What constitutes misleading the court by act or omission and how to prevent it
- When and how to correct inaccuracies or misunderstandings before the court
- Drawing the court’s attention to adverse authority or material procedural irregularities, particularly where the other party is unrepresented
- The boundary between permissible witness familiarisation and prohibited coaching, and ethical handling of evidence
- Deciding when withdrawal is required where client instructions would breach duties to the court, preserving confidentiality
- Managing communications and case conduct to avoid wasting court time, abuse of process, or contempt
- Applying these standards to realistic scenarios to justify professional decisions in SQE2 assessments
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, with a focus on the following syllabus points:
- understanding the divided loyalty owed to both client and court
- understanding the importance of acting in the interests of justice, above those of an individual client where these conflict
- identifying and avoiding conduct that may mislead the court
- applying 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
- drawing the court’s attention to relevant adverse authority or procedural irregularities that are likely to be material (particularly where the other party is unrepresented)
- ensuring submissions are properly arguable; avoiding abuse of process, contempt and wasting court time
- handling witnesses ethically: no tampering, no inducements, and no coaching
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. In particular, you should be confident about how to prevent or correct misleading the court, when you must raise adverse points of law or procedure, how to handle witnesses without improper influence, and when professional withdrawal is required.
Key Term: rule of law
The principle that the law applies equally to all and is put into effect by individuals and institutions, including through the proper functioning of the justice system.Key Term: overriding objective
The duty in procedural rules (e.g. CPR and CrimPR) that cases be dealt with justly. Parties and their lawyers must help the court to further this objective.
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. You should make clients aware (at appropriate points) that these wider duties may in certain circumstances take precedence over your duty to act on their instructions.
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;
- avoiding interference with justice (e.g. tampering with evidence or intimidating witnesses);
- helping the court further the overriding objective by cooperating with timetables and directions and not wasting court time.
If client instructions or interests conflict with these requirements, those upholding the system of justice must take precedence.
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.
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 after you realise the mistake
- permitting a client or witness to advance a positive case you know is untrue
If you knowingly permit someone else—your client, counsel, or a witness—to mislead the court, you are also in breach. If you inadvertently mislead the court (for example, because you spoke without having sight of a document), you must take prompt steps to correct the position once aware. This duty applies to courts, tribunals and inquiries.
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.
Worked Example 1.2
At a sentencing hearing, the prosecutor hands you your client’s antecedents and asks you to confirm they are accurate. You notice a material previous conviction is missing. Your client instructs you not to disclose it.
Answer:
You cannot confirm accuracy if you know the list is wrong. Seek the client’s consent to correct the record. If consent is refused, you must withdraw for professional reasons and you must not reveal the confidential reason to the court. You cannot remain on the record and allow the court to be misled.
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 or allege fraud without a proper basis
- comply with court orders and not place themselves in contempt of court
- avoid wasting the court’s time, for example by unnecessary applications, prolix submissions, or failure to prepare
- draw the court’s attention to relevant authority and procedural irregularities that are likely to be material to outcome (particularly where the other party is unrepresented)
Conduct that undermines justice includes “predatory” or abusive litigation (threatening or pursuing meritless claims to extract settlement), misleading correspondence, or making baseless threats. Such behaviour risks disciplinary action and costs sanctions.
Key Term: litigant in person
A party engaged in litigation who is not legally represented. The duty to act fairly includes not taking unfair advantage of such an opponent.Key Term: witness familiarisation
Permitted preparation that familiarises a witness with court processes, roles and the experience of giving evidence, without rehearsing answers.Key Term: witness coaching
Prohibited conduct where a witness is practised or guided as to the content of their evidence or how to give answers. This is improper and risks misleading the court.
Handling witnesses ethically requires you not to misuse or tamper with evidence, persuade a witness to change their testimony, or offer benefits linked to evidence or outcome. You may engage in proportionate witness familiarisation (e.g. explaining who sits where, to speak slowly and listen to the question), but must not cross the line into coaching.
Worked Example 1.3
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.
Worked Example 1.4
Your client insists you send a letter to an unrepresented opponent threatening to report them to regulators and seek indemnity costs unless they accept an undervalued offer, despite you knowing the claim has no real prospect of success.
Answer:
You must not make threats without a proper legal basis or pursue a case that is not properly arguable. Explain that this would risk abusing the process and wasting court time. Decline to send the letter and advise on merits and alternatives. If the client insists, consider withdrawing.Key Term: properly arguable
A submission you can responsibly advance on the available facts and law, not a speculative or vexatious point.
Drawing the court’s attention to law and procedure
When a point of law, rule, or procedural irregularity may materially affect the outcome, you must draw it to the court’s attention. This can include adverse authorities or an error in the court’s own process. The obligation is underlined where the opponent is a litigant in person. It does not require you to refer to irrelevant authorities, nor to volunteer evidence harmful to your client (save for ex parte contexts, where full and fair disclosure duties apply).
Correcting mistakes and avoiding waste
If you become aware you or counsel have made an inaccurate statement or the court has proceeded on a misunderstanding, you must correct it promptly. Preparation and focused submissions are part of the duty not to waste court time. Comply with directions and timetables and avoid duplication or prolixity.
Worked Example 1.5
In a civil interim hearing, your counsel states that a key document was served before a deadline. You later confirm service occurred one day late and the judge relied on counsel’s assertion.
Answer:
Inform the court promptly of the error, apologise, and address any consequential applications. Allowing the misunderstanding to persist would mislead the court. You should also review internal processes to prevent a recurrence.
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 become aware you have misled the court and the client will not permit you to correct it
- your continued representation would compromise justice (e.g. persistent instructions to advance an unarguable or abusive case)
- you are asked to influence the substance of evidence or to offer an inducement linked to a witness’s testimony
In such cases, you must not disclose confidential reasons to the court or others. You can say you are withdrawing “for professional reasons”. Where procedural rules require permission to come off the record, follow the correct process while preserving confidentiality.
Worked Example 1.6
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:
- pause and assess whether a proposed step could mislead the court, waste time, or improperly influence evidence
- give clear advice on professional constraints and record it fully in attendance notes
- if unsure, seek guidance from a senior colleague or the SRA Professional Ethics helpline
- if a serious breach by a regulated person may have occurred, consider reporting duties under the Code and Enforcement Strategy; take remedial action promptly where something has gone wrong
- keep full, contemporaneous notes of all ethical decisions, advice given, and client responses
Key Term: positive case
Going beyond testing the opponent’s case to affirmatively advance your client’s version of the facts or innocence. Where you know that version is false, you must not put a positive case.Key Term: put the prosecution to proof
In criminal proceedings, requiring the prosecution to prove its case without advancing a positive defence that you know to be false.
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
- You must correct inaccuracies promptly once discovered; never permit a positive case you know to be false
- Only properly arguable legal and factual submissions may be made; avoid abuse of process, contempt and wasting court time
- Draw the court’s attention to relevant adverse authorities or procedural irregularities likely to be material, especially where the other party is unrepresented
- Handle witnesses ethically: no tampering, no inducements tied to evidence or outcome, no coaching; limited familiarisation is permitted
- When ethical conflict arises, solicitors must withdraw rather than breach duties to the court, stating withdrawal is for professional reasons without revealing confidential details
- Keep clear notes, seek guidance when uncertain, and consider reporting obligations for serious breaches
Key Terms and Concepts
- divided loyalty
- misleading the court
- properly arguable
- rule of law
- overriding objective
- litigant in person
- witness familiarisation
- witness coaching
- positive case
- put the prosecution to proof