Alistair Brett brought his appeal and the High Count found he had not deliberately misled the court, but only done so recklessly. That’s something of an improvement, but sullied somewhat having been found to have acted without integrity. The final words of the LCJ are also interesting (see below). For my part, one of the fascinating things about this is that I suspect Brett knew exactly what he was doing, but thought it was all part of the ‘rules of the game’ of litigation. I also suspect he was motivated by a higher ideal: freedom of the press – an ideal of his business but not of his profession. This kind of higher ideal problem is a common factor in ethical blunders, a point I will return to another day.
I also suspect he also thought was walking the dicey line between advocacy for one’s client and misleading with dexterity. Brett knew what he was doing, but saw it as legitimate tactics for his client rather than misleading the court. Hence the slightly unsatisfactory conclusion that he was reckless. He didn’t recklessly allow the court and opponent to be misled, he designed it that way. He wanted the court and his opponent to have a belief at variance with his own. That’s what advocacy is sometimes about and that is also what misleading someone is sometimes about. He thought he could legitimately do so and he did it in a ‘fantastically precise’ way (to pick up on a phrase from the Leveson Inquiry). In sum, the SRA’s finding that deliberately misled but was not dishonest is probably the better one.
The Lord Chief’s agrees with his learned colleague but the exhortation at the end of the judgment is interesting both for its general importance and for the coda they add to this tragic case:
Every lawyer must be alive to the fact that circumstances can arise during the course of any lawyer’s professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the court his paramount duty and to act in the interests of justice. In many cases it will be clear what course the lawyer must take, either through the way in which the case is presented or by withdrawing from acting for the client. In others it may be more difficult. The lawyer may not be absolutely sure that his actions will discharge his duty to the court. In such a case, for reasons which I shall explain, a lawyer would be ill-advised if he did not put the matters before a person more senior within his firm or before independent counsel, making full and complete disclosure to such a person of all the relevant circumstances.
The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court.
Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession.
As conduct that is dishonest, such as misleading the court with such knowledge will inevitably be, is so serious, it is of the utmost importance that in difficult circumstances which can confront any advocate or litigator, that advocate or litigator has at the forefront of his mind his duty to the court, the necessity to avoid breach of that duty and, if he has any doubt as to how to discharge that duty, by taking independent advice.
The penultimate paragraph could be headscratchingly applied to this case, though I am glad that Alistair Brett is not besmirched with a finding of dishonesty. I think he probably thought he was, or was, engaged in litigation tactics which were (close to) normal, a bit like polishing witness statements. Perhaps his case will cause a pause for rethink amongst litigators and those who professionals who instruct him. Whether getting protective opinions will help anyone other than the excellent professionals who get the work remains to be seen.
A final, quick point: its a shame the privilege/confidentiality issues were not properly ventilated. The case proceeded on the assumption that there was privilege or confidentiality in the communication from the journalist in question, but the case for privilege looks very weak (and this raises a rather clear conflict of interest). Confidentiality may be more interesting. There’s a set of considerations that are, I suspect, crucial to many in-house lawyers in particular and they need a good, hard, thoughtful look.