The Gazette 1974

word "diplomacy". Each party in this rather peculiar relationship has a job to do and a clear but sympa- thetic understanding of the others position and role is the best recipe for the effective discharge of their respective functions. Confrontation has no place in the atmosphere of the Courtroom, either with Judges or witnesses. It should always be borne in mind that it is the duty of the Lawyer to present the facts in the clearest and fairest manner possible in such a way as will assist the Court to discharge its essential function which is the dispensation of justice. In the context of litigation, a Solicitor has very grave duties and re- sponsibilities to discharge, in aid of his role in the entire process of the dispensation of justice and the judicial function. In this respect it must always be borne in mind that a Solicitor, as distinct from a barris- ter for that matter, is an officer of the Court and as such is required and can be expected to give the Court every assistance possible, subject to the paramount con- sideration of the interest of his client. Obligations Probably the most important obligation of a Solicitor is the essential requirement to which reference has already been made as an integral part of a Solicitor's makeup that he be completely honest and this does not apply to money matters alone. "Honeste vivere, non alienum laedere, suum cuique tribuere". These words are taken from an inscription on the wall of the Harvard Law School Library which reads. "The pre- cepts of the law are these: to live honourably, not to injure another, to render to each his due." It is surely reasonable to expect that those who practise the law would keep these precepts clearly in their mind and it begs the question whether the last precept is the obligation referable to justice? Are the duties of good faith and due care legitimate concerns of law and society but not exactly of justice? Professor Paul A. Freund of the Harvard Law School in a Treatise 011 "Social Justice and the Law" suggests that instead, each of these precepts ought to be comprehended in justice and that each is an aspect of a more general notion. He goes on to pose the question whether each of Justinian's precepts is not an instance of the fulfil- ment of reasonable expectations : that a person may rely on the good faith of another, that he may expect another not to injure him carelessly or wantonly, that he may expect to receive what reasonably may be deemed to be due to him? Hopefully it is not necessary to labour this point but for no man is honesty more important than for a Solicitor. It is the quality of honesty that creates the essential bond of confidence that must exist between Solicitor and client, because, without confidence on the part of his client in him both as a practitioner and a person, a Solicitor will not be able to serve his client to the fullest extent desirable. The duty of a Solicitor to respect the confidence of his client is intimately allied to the right of a Solicitor to claim privilege in respect of virtually all Solicitor and client communications and his obligation to preserve the utmost secrecy with regard to his client's affairs- This obligation in turn derives from the Solicitor's right of privilege which simply stated means that a Solicitoi may never, without the permission of his client, he 284 Solicitor should respect confidence of his client and his right to privilege

practice as a Solicitor it is necessary from time to time to give written undertakings, whereby a Solicitor under- takes to do certain things. The common form of under- taking is that given to a Bank on a client's behalf to lodge either the proceeds or the net proceeds of the sale of property with the Bank on completion. It cannot be emphasized too strongly that the very greatest care must be taken with the wording of an undertaking to ensure that it correctly covers the posi- tion, that it is in accordance with your instructions and above all that you are absolutely certain that you will be able to comply with its obligation. It must never be forgotten that a Solicitor is personally liable on foot of his undertaking and this is the reason why he must have clear instructions and the fullest authority necessary to give the undertaking in the first place. Diplomacy before the Judge It is quite obviously not possible to adequately cover in one lecture the range, extent and scope of a Solicitor's duties and responsibilities and these will become very apparent as one acquires experience in practice, because in any event they derive from the essential standard that, as a Solicitor, you will be required to maintain. There is one area in the field of litigation and in particular with regard to advocacy where an inexper- ienced Solicitor may have considerable difficulty in appreciating his duties and responsibilities to his client and to a considerable extent these derive from the nature of the practical application of the rules of evidence that obtain in our Courts and our adversary trial system. This could be summed up by saying that a good pleader knows the law and a better one both knows the law and knows the Judge. While it is not only desirable but usually essential to know the law with regard to any particular point, it is also most important to have the common sense to resist the temp- tation to expound one's knowledge where the Judge is not particularly interested in the point of law but may, if properly handled, nevertheless give the desired decision. An advocate must at all times bear in mind that he is in Court to serve the best interests of his client and he must never indulge his fancies or expound his knowledge or in fact enjoy himself at the expense of his client. His duty is to achieve a particular result. The art of knowing when to speak up and when to shut up, which is largely bound up with the essential requirement of having some knowledge of the personality of the Judge, is usually a greater advantage than the most expert knowledge of the particular point of law in question. It should at all times be borne in mind that Judges are human and while they usually appreciate and welcome assistance from the members of the legal profession who appear before them, and with- out which they could not properly discharge their functions and exercise their jurisdiction, they do not like being told their business. It should therefore always be remembered that Judges usually do, or can reason- ably be expected to know more about the Law and in particular its practical application, than a young legal practitioner is likely to do. The showing of respect and deference for the occupant of the bench will achieve greater results even in a bad case than a most expert knowledge of the Law or its most brilliant exposition or presentation is ever likely to do. If one word were to be selected to summarise the essence of the proper relationship within the atmosphere of the Courtroom between the Judge and the Solicitor I would choose the