The answer is, at all times.

There are two reasons why lawyers must constantly exercise forensic judgment in proposing and conducting proceedings in court and avoid acting as your mouthpiece.

First, rule 17.1 of the Australian Solicitors Rules says: –

A solicitor representing a client in a matter that is before the court must not act as the mouthpiece of the client…and must exercise the forensic judgements called for during the case independently after the appropriate consideration of the clients… instructions where applicable.

Solicitors have a duty to the court that prevails to the extent of inconsistency with any other duty.

Second, there are limits to what we, as your solicitor, can do with truly hopeless cases lacking prospects.

A recent Queensland Court of Appeal decision (Hookey & Anor v Whitelaw & Ors [2021 QCA 181] and [2021 QCA 213]) is a stark reminder. The Court made the Appellants, the losing party, pay the whole of the costs incurred by the other side. In addition, the costs order was made on the indemnity basis, because the Court found that the Appellants conducted (through his solicitor and with a barrister and QC) an appeal that was hopeless. The court stated: –

… the litigation was unnecessarily prolonged by the Appellants bringing an appeal in the absence of a sufficient prospect of success to justify it.

After a seven day trial the primary judge dismissed the Appellants claim for a declaration of a joint venture and made several adverse findings about the credibility of an individual Appellant. The Appellants were ordered to pay costs of the trial.

The Court of Appeal found that there was an unsustainable contention (that the other party was legally bound by an alleged oral agreement that was manifestly inconsistent with a registered lease), that only some of the terms of the alleged oral agreement were given in evidence, that the individual Appellants’ evidence was incapable of proving the pleaded agreement, that the Appellants did not challenge adverse findings about credibility and reliability of their key witness, that the Appellants attempted to litigate a new case on the appeal, that the evidence they relied on did not support either the alleged agreement or a different agreement (contended for on appeal) and that the Appellants’ evidence did not support the factual basis for an alleged estoppel.

The provision of legal advice and the decision to commence court proceedings requires independent and objective advice.

At Rose Litigation Lawyers were are determined to provide the best advice which may not always lead to an immediate result but will in the circumstances ensure you achieve a remarkable outcome.