ISSUE 5 2008 - Sweet & Maxwell

408 Case & Comment [2008]
defendant’s ‘‘loss of confidence’’ in the representative is often not sufficient of itself.
Loss of confidence will often be a natural result of clients not receiving the advice they
wish to hear.
If there is to be a change of representative then clearly it is the responsibility
of the court to determine the appropriate adjournment to ensure that the new
representatives are prepared for their task, and that the trial is not derailed. The Bar
Standards Board Code of Conduct para.701(b)(ii) directs that a barrister should not
undertake any task for which ‘‘he does not have adequate time and opportunity to
prepare for and perform’’. It is suggested however that this refers to the workloads of
individual barristers and the amount of work they choose to undertake. New counsel
will inevitably face problems when stepping into an ongoing trial but this has to be
weighed against the overall fairness of the trial to all parties and to the public. As
discussed above, the trial judge should seek to alleviate any potential disadvantage to
the defendant but ultimately, should it be felt that the defendant suffered an injustice,
the solution should lie in the hands of the Court of Appeal.
It was suggested that the rules of the Solicitors’ Code of Conduct were not
compatible with this position in that solicitors were entitled to decide which client to
take on and were not subject to the ‘‘cab-rank rule’’. As such, though barristers might
have to pursue a case despite not having the preparation time they might feel is
appropriate, this is not the position for the solicitor. Should solicitors take on a case
without what they would consider to be adequate preparation time, that decision might
fall foul of r.2.01 which states that:
‘‘You are generally free to decide whether or not to take on a particular
client. However, you must refuse to act or cease acting for a client in the
following circumstances ...(b) Where you have insufficient resources or lack
the competence to deal with the matter.’’
However, in cases such as this the problem of preparation time arises not through the
absence of appropriate resources but because of a judge’s ruling. Both barrister and
solicitor owe a duty to the court and that duty is not different in its application. Indeed,
r.1.01 of the Solicitors’ Code states that ‘‘[y]ou have obligations not only to clients
but also to the court and to third parties’’. Ultimately, if there is a lack of preparation
time it is likely to be the defendant who is disadvantaged but this potential problem
can only be appropriately tackled by a case-specific determination of what secures
fairness for the process as a whole. It is submitted that this view of the Solicitors’
Code must be correct. To hold otherwise would be to frustrate the judge’s ruling and
potentially jeopardise the fairness of the proceedings. Given that counsel would be
expected to have ‘‘soldiered on’’ it would be anomalous not to be expect the solicitor
to do likewise.
[N.W.T.]
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