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Mahoney, Richard --- "Lawyers' statements of personal opinion to the Court" [2015] OtaLawRw 10; (2015) 14 Otago LR 147

Last Updated: 27 May 2017

^{Lawyers’ Statements of Personal Opinion to the Court}

Richard Mahoney* I Introduction

Rule 13.5.4 of the Law Society’s Conduct and Client Care Rules (“CC Rules”),¹ which govern New Zealand legal practitioners, states:

A lawyer must not make submissions or express views to a court on any material evidence or material issue in a case in terms that convey or appear to convey the lawyer ’s personal opinion on the merits of that evidence or issue.

This is just one version of what I will refer to as a “personal opinion rule” – there being a variety of such rules in the codes of legal ethics² of other jurisdictions with which New Zealand shares a common heritage.³

It has only been relatively recently that New Zealand lawyers have been governed by an express personal opinion rule in their code of ethics. Rule

13.5.4 first appeared in the new CC Rules that came into existence in 2008 following the enactment of the Lawyers and Conveyancers Act 2006 (the “L & C Act”). As we shall see, the earlier Rules of Professional Conduct for Barristers and Solicitors (created pursuant to the Law Practitioners Act 1982)⁴ contained nothing more than guidance for prosecutors on expressions of personal opinions.⁵ No universally applicable prohibition existed, such as is now found in Rule 13.5.4 (“universally applicable” in the sense of “equally applicable to all lawyers in any court proceedings”).⁶

^* Professor of Law, the University of Otago.

^{1 Rules made by the New Zealand Law Society pursuant to ss 94 and 95}

^{of the Lawyers and Conveyancers Act 2006.}

^{2 Recognising that there may be some controversy over the “ethical” and}

^{“code” labels, I merely use this term for easy reference to published}

^{collections of rules governing the conduct of lawyers which are a principal}

^{focus for disciplinary proceedings taken by their governing law societies.}

^{3 Rule 13.5.4 is a copy of Rule 13.3 of the Model Rules of Professional}

^{Conduct and Practice of the Law Council of Australia. See too the}

^{Australian State rules set out in G Dal Pont Lawyers’ Professional}

^{Responsibility (5th ed, Thomson Reuters, Sydney, 2013) at 592, n 31. For}

^{the UK, see para 708(b) of the Code of Conduct of the Bar of England}

^{and Wales (8th ed, 2004). Canada: although personal opinion rules are}

^{common in the provincial codes of conduct, there are inevitable variations}

^{in the terminology used. See Commentary point 5 of the Canadian Bar}

^{Association Code of Conduct. See too below notes 9 and 24. United}

^{States: ABA Model Rule of Professional Conduct 3.4(e). See too the similar}

^{American rules set out in Donna Lee Elm Vouching: A Defense Attorney’s}

^{Guide to Witness Credibility, Law and Strategy (ABA Publishing, Chicago,}

^{2008) at 12–13.}

^{4 Section 17(d).}

^{5 See below, text accompanying n 43.}

^{6 I do go on to make something of two existing limitations in Rule 13.5.4.}

^{See below, text accompanying notes 24 and 35.}

I am not aware of any particular incident or general call for control leading up to the inclusion of a personal opinion rule in the 2008

CC Rules. Nonetheless, the Law Society decided to copy an existing Australian Rule⁷ and the result is Rule 13.5.4. In this article I question the wisdom of that step.

Let me make it clear that I am not suggesting that there be no controls on the ability of lawyers to state their personal opinions in court. But it is my view that, as was always the case in New Zealand prior to 2008, the best method of control of lawyers’ statements of opinion is for the Law Society to leave the issue to the trial Judge. This reflects my wider concern over indications that New Zealand’s legal profession may be becoming over disciplined in certain areas.⁸ One way such a trend can be limited is to reserve the code of ethics for matters which demonstrably justify the intervention of the Law Society’s disciplinary machinery. Practices such as a lawyer ’s expression of a personal opinion in court – traditionally controlled by quick action by a trial Judge – do not appear to me to fit within such a category.

Despite that disclosure of bias, I recognise that opinions will differ over which issues should or should not be included in a code of ethics. Given that Rule 13.5.4 is already in place and matches similar rules in many other jurisdictions, I accept that inertia alone makes it probably unrealistic to expect that this new status quo can be upset to the extent of a complete repeal. Thus I put my efforts into proposing a reformed and much restricted replacement for Rule 13.5.4.

I proceed by a number of steps. The first is to criticise the current drafting of the rule. But the bulk of this article goes on to suggest five limiting factors that should guide a reformed personal opinion rule for New Zealand lawyers.

⁷ See above n 3.

^{8 It is clear, at least, that the trend in New Zealand is one of increasing}

^{disciplinary action by the Law Society. See John Unsworth “Complaints}

^{and discipline – what is happening?” (2014) 854 LawTalk 2. For the}

^{type of Law Society intervention that concerns me, consider the 2012}

^{proceeding (794 LawTalk 27) where a lawyer was disciplined for breaching}

^{the requirement in the CC Rules to provide a client, prior to commencing}

^{work under a retainer, with a letter of agreement. By virtue of CC Rule}

^{3.4, such a letter must set out a list of information, including instructions}

^{how the client can contact the Law Society in order to lodge a complaint}

^{against the lawyer. The Law Society’s Standards Committee found that}

^{the lawyer ’s breach of Rule 3.4 amounted to unsatisfactory conduct}

^{(s 12(c) of the L & C Act) and the Committee imposed a fine and an order}

^{to pay costs. It appears that the Committee believed that it had treated}

^{the practitioner leniently because it was at pains to point out that “there}

^{were no aggravating features and ... the client had not been prejudiced.”}

^{II Problems With Current Drafting of Rule 13.5.4}

A A minor criticism

I first deal with the least important problem with the drafting of Rule

^{13.5.4. This is the bar on a lawyer ’s statement of his or her personal}

^{opinion on the merits of an issue.}

The meaning of this prohibition is simply not clear to me. I could grasp what the aim of the rule was if it did no more than prohibit a lawyer ’s opinion “about” an issue.⁹ That would mean, for example, that when a criminal court Judge was considering the length of a jail term, the defence lawyer would be barred from saying, “Your Honour, my view is that two years would be sufficient”. But Rule 13.5.4 does not use that terminology.

I have always understood an “issue” to mean a question requiring a decision by the court. I do not see how it makes sense to speak of a lawyer ’s opinion about the merits (the “worthiness” or “goodness”) of any such question. An issue simply exists – until the required decision is reached by the court. I cannot accept that Rule 13.5.4 is meant to be aimed at expressions of opinion about whether any given issue in a case poses a “good” or “bad” question. Thus, in order to proceed further, I do so on the basis that the intended focus of this part of Rule 13.5.4 is the merits of arguments made by the parties on the issues in the case. This means that I see the rule as preventing a lawyer “making submissions” or “expressing views” to a court on a material issue in terms which convey or appear to convey the lawyer ’s personal opinion on the merits of arguments offered by the parties on that issue. In this way, the rule will prevent a lawyer who is acting for a defendant in a civil proceeding from stating that the lawyer believes that the defence argument is far superior to that offered by the plaintiff.

B An unworkable prohibition

Now we turn to more serious problems with the drafting of Rule 13.5.4. I begin with a statement from the 2014 judgment of the Court of Appeal in Orlov v National Standards Committee No 1¹⁰ (hereafter “Orlov #1”)¹¹. This is a judgment upon which I place heavy reliance in my eventual suggestions for a redraft of Rule 13.5.4. The facts are considered in more detail in the concluding section of this article, but for now it need only be said that the Court of Appeal upheld the decision of a High Court Judge to prevent Mr Orlov’s counsel of choice (D) from acting for Mr

⁹ Or, as with Manitoba Code of Professional Conduct Rule 5.1-1 (commentary point [5]), the rule prohibited a personal opinion on the merits of a client’s case.

^{10 [2014] NZCA 242, [2014] 3 NZLR 302.}

^{11 This label is chosen because I later refer to the subsequent High Court}

^{judgment of Orlov v New Zealand Disciplinary Tribunal [2014] NZHC}

^{1987[2014] NZHC 1987; , [2015] 2 NZLR 606 as Orlov (HC). In Orlov (HC) the High Court}

^{quashed the sentence that was imposed on Mr Orlov after the Court of}

^{Appeal in Orlov #1 had dealt with the preliminary issue of his desire to}

^{be represented by (lawyer) D. See below n 52.}

Orlov in the latter ’s appeal from rulings made against him in Law Society disciplinary proceedings. In the course of its judgment, the Court in Orlov #1 accepted that: ¹²

... there may well be cases where an advocate has strong personal views which would not of themselves debar the lawyer from acting ...

There are some classic illustrations ... for example, the lawyer who favours reform of cannabis or abortion laws is not automatically debarred from appearance to defend someone facing charges in relation to those laws.

This is a welcome breath of fresh air from the Court of Appeal. Until Orlov #1, an observer might well have been led to conclude that the constantly repeated ideals of “independence and objectivity” ¹³ made it impossible for a lawyer to act in any proceeding concerning which he or she had an “interest” in the form of a strong personal viewpoint. It is a relief that we can now put aside any such concern. The opinionated lawyer can still take the case.

In order to help make my point about the drafting of Rule 13.5.4, let me flesh out one of the two examples provided by the Court of Appeal in the above passage from Orlov #1. Imagine that a defence lawyer in a criminal case is strongly of the view that personal use of cannabis ought to be decriminalised. This lawyer believes that cannabis is a natural substance which exists on the planet for the purpose of providing pleasure to humans. Let us assume that the charge being defended is possession of cannabis and the defendant happens to share the reformist views of her defence lawyer. The argument offered by the lawyer at trial is that the governing statutory prohibition on possession of cannabis¹⁴ should be interpreted in such a way¹⁵ that, in the circumstances of this particular case, there can be no conviction. This is because what the defendant was doing was simply exercising her right under s 15 of the Bill of Rights Act. That provision grants to every person “the right to manifest [her] ... belief in ... practice ...”. The exercise of that right exempts the defendant from criminal liability.

My point is that in presenting this argument about the issue of the application and effect of s 15 of the Bill of Rights Act it is all but inevitable that the lawyer will breach Rule 13.5.4. Such a breach will occur the moment the lawyer says to the court: “Sections 6 and 15 of the Bill of Rights Act should lead your Honour to dismiss the charge against my client.” This statement is indeed the lawyer ’s personal opinion on the merits of the argument he has offered in his client’s defence.

The fact that the lawyer may frame his statement in terms other than the blatant, “It is my opinion that ...”, or “My personal view is that ...”, will not change the conclusion that a breach of Rule 13.5.4 has occurred. Still

¹² Orlov #1 at [33]–[34].

^{13 Orlov #1 at [19].}

^{14 Misuse of Drugs Act 1975, s 7.}

^{15 New Zealand Bill of Rights Act 1990, s 6.}

concentrating on the wording of the rule, the lawyer has unavoidably “conveyed” his personal opinion to the court because, if pressed on the matter, he would have to admit that his personal opinion matched precisely the submission he was making.

Other aspects of the wording of Rule 13.5.4 support this conclusion. The Rule’s prohibition on conveying a personal opinion expressly applies whether the lawyer is making submissions or expressing views. This means that prefacing a statement with “It is my submission that ...” does not avoid the rule’s prohibition on (actually) conveying a personal opinion. Additionally, the rule draws a distinction between terminology which (i) conveys or (ii) appears to convey the lawyer ’s personal opinion. The disjunctive “or” emphasises that a breach of the rule still occurs even though the lawyer ’s submission uses terminology that does not appear to convey the opinion. It is enough that the opinion is conveyed – which it will be in any case where the lawyer believes in the argument he or she is making to the court - regardless of the terminology employed.¹⁶

The result is that I do not accept that Rule 13.5.4 can be circumvented in the manner that is often suggested for differently drafted personal opinion rules which are in force in other jurisdictions¹⁷ (such suggestions hardly amounting to a principled argument in support of an ethical rule in any event). The rightly labelled “linguistic game” ¹⁸ of prefacing arguments with the impersonal “I submit” may provide a veneer of compliance in those jurisdictions, but it does not overcome the problem caused by the particular wording of Rule 13.5.4.

C The unpalatable inference arising from “appears to convey”

My final problem with the drafting of Rule 13.5.4 is more oblique. It involves what I see as an unstated but dangerous premise that is inherent in the rule’s prohibition on a lawyer ’s use of terminology that appears to convey the lawyer ’s personal opinion.

¹⁶ This is a point apparently not made with sufficient clarity in a short note I wrote on this issue (“The worst client care rule?” [2009] NZLJ 42). See the response of Douglas White “NZLS – RCCC – Rule 13.5.4” (2009) 730

^{LawTalk 22.}

^{17 The solution suggested by Duncan Webb in “Civil Advocacy and the}

^{Dogma of Adversarialism” (2004) 7 Legal Ethics 210 at 213, in discussing}

^{para 708(b) of (UK) Code of Conduct of the Bar, which prohibits an}

^{advocate from “asserting a personal opinion of the facts or the law”. See}

^{similar advice as “Practice pointers” in the US commentary by William}

^{B Johnson “Propriety and Prejudicial Effect of Comments by Counsel}

^{Vouching for Credibility of Witness – State Cases” (1987) 45 ALR 4th 602}

^{at 613. See too the discussion of “Magic Language” in Ch 4 of Donna Lee}

^{Elm Vouching, above n 3, at 40.}

^{18 GC Hazard Jr and WW Hodes The Law of Lawyering (2nd ed, Aspen Law}

^{& Business, 1990) 3.4.602 (642.2), commenting on United States Model}

^{Rule 3.4(e), which prohibits the statement “of a personal opinion as to}

^{the justness of a cause, the credibility of a witness, the culpability of a}

^{civil litigant or the guilt or innocence of an accused”.}

In many instances there will be a concurrence of form and substance when a lawyer ’s terminology appears to convey his or her personal opinion. In such cases the reason that the lawyer ’s words appear to convey his or her opinion is because they actually do so. But by making the mere appearance of an expression of a personal opinion a distinct way of breaching the rule (supplementing the first way of actually expressing a personal opinion), Rule 13.5.4 must be purposely extending its reach to cover the use of misleading language by the lawyer – although the lawyer appears to be stating a personal opinion, he or she is not actually doing so!

No one doubts that it is improper for a lawyer to mislead the court by making an untrue statement. In the example just posed, the untrue statement is that the lawyer holds a particular personal opinion. The impropriety involved in such a case arises from much more basic rules than Rule 13.5.4. CC Rules 2.1 and 13 reflect s 4(d) of the L & C Act in enshrining the principle that a lawyer ’s highest duty is to the court. For our purposes the most important manifestation of this principle is the statement in Rule 13.1 that a lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.

My final problem, then, with the drafting of Rule 13.5.4 is that the “appears to convey” limb of the rule suggests that while it is improper for a lawyer to make a statement to the court which falsely appears to give the lawyer ’s personal opinion, the impropriety arises (only) from the (personal opinion) subject matter of the statement, rather than from the statement’s falsehood. This cannot be a desirable message. No specific rule is needed to deal with a lawyer ’s false statement of opinion to the court. Existing and fundamental rules such as Rule 13.1 have already covered that ground.

III Guide for Redrafting

These problems with the current drafting of Rule 13.5.4 could be fixed by relatively minor tinkering. But much greater difficulties would remain, namely those which are inherent in any universally applicable personal opinion rule. In the remainder of this article I argue that, for the purposes of a code of legal ethics, the optimum form of a personal opinion rule should be limited by the following factors:

1. A personal opinion rule should only be concerned with statements

^{in favour of the case being presented by the lawyer.}

2. The terms of the rule should more consistently reflect the message which flows from the current limitations in Rule 13.5.4, that the rule is restricted to statements to the court, and is limited to statements of opinion (not fact).

3. The rule must cater for a lawyer ’s role as an advocate. In doing so, any final version of the rule should distinguish between the position of prosecuting lawyers and lawyers acting for other parties in criminal or civil proceedings.

4. The rule must take into account a lawyer ’s freedom of expression,

^{guaranteed by s 14 of the Bill of Rights Act.}

5. Quick appeals to the amorphous concept of a lawyer ’s independence do not supply a sufficient justification for a personal opinion rule. A more refined consideration of independence is needed. This will assist in articulating the standard at which a disciplinary response by the Law Society is warranted.

Let us examine these limiting factors in turn:

1. The rule should be limited to statements in favour of the client’s case

None of the versions of a personal opinion rule of which I am aware draws any express distinction between statements of opinion by a lawyer that are in favour of his or her client’s case and those statements which are against the case.¹⁹ Nonetheless, I suggest that any search for a valid policy basis for (and hence the optimum form of) a personal opinion rule should recognise that the proper focus for any such rule is solely that of statements in favour of the client’s case.

This point appears to have been grasped by some commentators in the United States. It is true that none of the United States ethical rules openly states that it is aimed only at prohibiting statements of opinion in favour of the client’s case.²⁰ Yet that limitation is reflected with some subtlety in the label commonly employed by commentators when discussing American personal opinion rules. They refer to the rule against vouching

– terminology which reflects that what the rules and the commentators are concerned with is (only) the prohibition on a lawyer offering an opinion in support of matters such as the justness of the case he or she is presenting, or the credibility of a witness who has been called to the witness box by the lawyer.²¹ I believe that this is the correct perspective.

I should not be taken as arguing that there should be no prohibition on lawyers expressing an opinion against their client’s case. My point is that in searching for the justification for a no personal opinion rule we would only be constructing a needless diversion by lumping together statements of opinion against and in favour of the client’s case. These are opposites in every way, including the policies they reflect. If the Law Society actually thinks that a specific rule is required to prohibit statements of opinion against a client’s case then such a rule should be clearly separated from what is in practical terms the true focus of a

¹⁹ See the sources cited above at n 3.

^{20 Many of the United States versions referred to above at n 3 do contain}

^{the inference that this is their sole focus (for example ABA Model Rule}

^{of Professional Conduct 3.4(e): “A lawyer shall not ... state a personal}

^{opinion as to the justness of a cause, the credibility of a witness ...”). It}

^{is difficult to imagine realistic examples of such statements that are not}

^{in favour of the client’s case.}

^{21 See Donna Lee Elm Vouching, above n 3; William B Johnson “Propriety}

^{and Prejudicial Effect of Comments to Counsel Vouching for Credibility}

^{of Witness – Federal Cases” (1986) 78 ALR Fed 23.}

personal opinion rule – a lawyer vouching for some aspect of his or her client’s case.

It is quite difficult to come up with realistic examples where a lawyer would take the remarkable step of stating his or her opinion in the form of an attack on the case being presented by that lawyer.²² But the rare occasions where this might conceivably occur provide no justification for an express personal opinion rule.

Any such statement against the client’s case would be so obvious a breach of the lawyer ’s duty to his or her client – a duty enshrined in other, more fundamental rules than Rule 13.5.4²³ – that any resort to a personal opinion rule would be completely superfluous. We should recognise this and not allow the aberration of statements of opinion denigrating the client’s case to influence the search for a justifiable policy basis for a personal opinion rule. What we are left with is an enquiry into the proper form of a rule which is recognised as aimed solely at prohibiting a lawyer ’s statements of opinion in favour of his or her client’s case. That refinement colours the whole of the following discussion.

B The Rule is limited to statements of opinion made to a court

Despite what I see as the overly broad scope of operation of Rule 13.5.4 (and most of the personal opinion rules in other jurisdictions), it is important to recognise that our rule already contains two limitations: the rule covers only statements of opinion made to a court. I suggest that a consideration of both of these existing limitations provides assistance in constructing a foundation for a properly reformed personal opinion rule.

1 Statements of fact are not within the scope of the rule

In contrast to the ethical rules in some other jurisdictions²⁴, neither Rule

²² One such example often discussed in this general context is Earl of Beauchamp v Overseers of Madresfield [1872] UKLawRpCP 64; (1872) LR 8 CP 245 in which counsel for the appellants advised the Court that there was no argument in support of their case. The Court hearing them appeared to split in approving or criticising the position taken by counsel. See Chief Justice Mathers “Legal Ethics” (1920) 40 Can LT 925 at 927; CH Tuttle “The Ethics of Advocacy” (1931) 18 ABA Journal 849 at 851.

²³ Section 4(d) of the L & C Act (the ‘fundamental obligation’ of a lawyer to protect the interests of his or her client); CC Rule 6 (the duty to protect and promote the interests of the client); CC Rule 13 (the duty to act in the best interests of the client).

²⁴ Statements of fact (unsupported by evidence) are specifically prohibited in some United States Rules. See Donna Lee Elm, above n 3. Canadian codes vary on this issue. Thus in Alberta and Saskatchewan the commentary to Rule 4.01(1) of the respective Codes of Conduct states that lawyers should refrain from expressing their personal opinion on “the facts in evidence of a client’s case”. The Canadian Bar Association Code of Professional Conduct commentary point 5 in Ch 9 and Commentary [1] to Rule 5.2 of the British Columbia Code state “a lawyer should not express personal opinions or beliefs or assert as a fact anything that is subject to legal proof,

13.5.4 nor any other Client Care rule attempts to prohibit a lawyer ’s statement of fact to the court.²⁵ Only a statement of the lawyer ’s personal opinion exposes him or her to potential disciplinary proceedings. This is an important distinction. In the courtroom, a Judge will be equally displeased with statements of fact and statements of opinion that are made by a lawyer “from the bar” (as opposed to statements by a sworn witness, from the witness box). This will be so whether such statements are made openly or under the cloak of some attempt at subterfuge.²⁶ The reaction may range from a raised eyebrow to a sharp rebuke. But a Judge’s understandable concern over a lawyer ’s attempt to “offer evidence” of fact in this improper way has not been reflected in any specific ethical rule.

What I take from this is that Rule 13.5.4’s focus on (only) statements of opinion tells us that the Law Society is concerned with something other than the impropriety of a lawyer offering evidence from the bar. That problem has been left to the control of the court. This is by no means a unique phenomenon. Many matters of lawyers’ courtroom practice are omitted from codes of legal ethics. The most accessible examples of such omissions from our CC Rules are the various “Practice Notes” issued from time to time by the Chief Judge of the District Court and Chief Judge of the High Court. They cover issues as diverse as the use of hypothetical questions in cross-examination²⁷ and counsel dress in District Court jury trials.²⁸ In addition, there are a host of other examples beyond the specific Practice Notes. They too cover a wide range, including asking needlessly repetitive questions,²⁹ showing up late to court, or improperly employing a leading question in examination-in-chief.³⁰

By generally leaving such matters of courtroom practice to the control of trial Judges, the Law Society has acted with laudable restraint. It must be correct to say that at some point in the careers of all litigators, this sort of mistake will be made. As things stand at present, errors such as

cross-examination or challenge. The lawyer should not, in effect, appear

^{as an unsworn witness or put the lawyer ’s own credibility in issue...”.}

^{25 A case can be imagined where a lawyer ’s continual attempts to state facts}

^{and continual disregard of judicial criticism of this practice reach the stage}

^{where the lawyer ’s conduct can be said to have breached a wide ranging}

^{CC Rule such as Rules 2.1 or 13, which require the lawyer to act as befits}

^{an officer of the court.}

^{26 Such as questioning in the form of “was not my attitude so-and-so at the}

^{conference that I had with you? Did I not say this? Did I not say that?”}

^{– criticised by Myers CJ in Hutchinson v Davis [1940] NZGazLawRp 57; [1940] NZLR 490 (CA) at}

^506.

^{27 High Court Procedural Notes: “Use of Hypothetical Question in Cross-}

^{Examination” [1985] 1 NZLR 386.}

^{28 Issued by RJ Johnson, Chief District Court Judge, 11/11/2010 – see Bruce}

^{Robertson (ed) Adams on Criminal Law: Procedure (looseleaf ed, Brookers)}

^{PN 19.}

^{29 Evidence Act 2006, s 85(1).}

^{30 Evidence Act 2006, s 89.}

improperly posing a hypothetical question during cross-examination, failing to use a carrying bag for a barrister ’s gown, or making a statement of fact from the bar, will not bring about Law Society intervention. This lack of involvement by the Law Society provides a useful counterweight to what I suggested earlier may be a growing tendency of over regulation and over discipline of lawyers by their professional body.³¹

In the context of the subject of this article there is good reason to emphasise the Law Society’s “hands off” attitude to the courtroom practice issue of a lawyer making statements of fact. This is because proponents of a broad personal opinion rule such as Rule 13.5.4 commonly offer the justification that such a rule is there to deal with the impropriety of lawyers offering evidence from the bar.³² In New Zealand that argument might be supplemented by reliance on the factor of the actual location of Rule 13.5.4 in the Client Care Rule Book, namely its close proximity to Rules 13.5.1 and 13.5.2. The latter two rules prohibit (with predictable exceptions) a lawyer who is acting in a proceeding “giving evidence “in the ordinary way (as a sworn witness, from the witness box). Supporters of a broad personal opinion rule might argue that, despite the inexplicable omission of “statements of fact” from Rule 13.5.4, its location demonstrates that the rule’s purpose must be to complete the prohibition begun by Rules 13.5.1 and 13.5.2 and prevent even a lawyer ’s covert attempts (from the bar) to give evidence.

A closer scrutiny of the policies at play soon undercuts this argument. The well-accepted reason behind the impropriety involved when a lawyer testifies despite acting in a proceeding, enshrined in Rules

13.5.1 and 13.5.2, has little relevance to a personal opinion rule. The biggest problem that occurs when such a lawyer gets into the witness box³³ is the sharp conflict that arises between the dual roles taken on by that lawyer. He or she will want to promote the interests of the client. But that desire will often run up against the lawyer ’s duty of absolute candour to the court.³⁴

³¹ See above n 8.

^{32 For example, Henry S Drinker Legal Ethics (Columbia University Press,}

^{New York, 1953) at 147:}

There are several reasons for the rule, long established, that a lawyer may not properly state his personal belief either to the court or to the jury in the soundness of the case. In the first place, his personal belief has no real bearing on the issue; no witness would be permitted so to testify, even under oath, and subject to cross-examination, much less the lawyer without either.

This rationale is actually spelled out in the Canadian Bar Association and

^{British Columbia ethical codes – see above n 24.}

^{33 There is also a related problem which arises when the subject upon which}

^{the lawyer gives evidence involves his or her own conduct or advice}

^{(or that of another member of the lawyer ’s practice). But this issue is}

^{specifically dealt with by CC Rule 13.5.3 and requires no supplementing}

^{by a personal opinion rule.}

^{34 Dal Pont, above n 3, at 17.45; Duncan Webb Ethics, Professional}

Nothing involved in this undoubted conflict of interest for a testifying lawyer tells us anything about a personal opinion rule. In saying that I rely on the first of the limiting factors listed earlier, namely that a personal opinion rule is (or should be) concerned solely with statements of opinion in favour of the client’s case. When a lawyer makes such a statement of opinion, he or she will not be caught by the conflict just outlined. This is because the lawyer is simultaneously being completely candid with the court and attempting to promote the client’s case. The lawyer ’s personal opinion is truly that the client’s cause is just, or that the witness produced by the lawyer is credible, and so forth.

The only way in which the same type of conflict could arise would be if the lawyer was lying to the court when expressing an opinion in favour of the client’s case. But once again I suggest that such an attempt to deceive the court is not the proper target of a personal opinion rule – the lawyer has committed the serious offence of breaching CC Rule 13.1 (misleading or deceiving the court). The fact that this occurred through the means of a statement of opinion is largely irrelevant.

If these points are accepted they confirm the view that, as with many other matters of courtroom practice, the Law Society has (rightly) taken the position that insofar as the specific focus of a lawyer giving evidence from the bar, any impropriety can be adequately dealt with by the trial Judge. Some other explanation must be identified as a legitimate justification for a personal opinion rule.

2 Statement of opinions outside the courtroom are not caught by the rule

When attempting to discover what it is about a lawyer ’s statements of opinion that can justify a personal opinion rule, it is worth a brief pause to consider the limitation, expressed in Rule 13.5.4, that only statements of opinion to the court are prohibited.

There is actually some evidence that the Law Society had at one time contemplated the remarkable proposal that the 2008 CC Rules should be used to control lawyers’ statements of opinion in all circumstances – not just in court!³⁵ Happily, that idea died a natural death. Presumably, the Law Society recognised that laws such as those governing contempt of

Responsibility and the Lawyer (Lexis Nexis, Wellington, 2008) at 222–223.

^{35 Thus in “Discussion Draft: Rules of Conduct and Client Care for Lawyers}

^{– A Paper for the Board of the New Zealand Law Society”, 20 February}

^{2007 (which contained initial suggestions for the eventual CC Rules)}

^{Duncan Webb said at 29 (concerning his initial suggested draft of what}

^{became Rule 13.5.4):}

“The rule is limited to conduct in court. Consideration was given to extending the scope of the rule to all conduct but this was felt to be inappropriate. In some cases lawyers may legitimately be asked their views of the merits of a matter and it would be inappropriate to fetter this. It also appears to be the case that lawyers frequently frame their views as personal opinion when corresponding and negotiating with other lawyers in a way which is quite innocu- ous.” (emphasis added)

court³⁶ and defamation provide sufficient controls outside the courtroom. But what is it about statements of opinion made to the court (but not outside that confine) that is of sufficient concern to justify a personal opinion rule?

Orlov #1 has told us that there is no bar on a lawyer acting in a proceeding which involves an issue about which the lawyer holds strong personal views. The fact that the Law Society has made no attempt to curtail lawyers’ expression outside the courtroom of their personal opinions makes it inevitable that occasions will arise when a lawyer ’s opinions have indeed been made known in the wider public arena and thereby have come to the attention of trial Judges. Thus there will be cases where the court is already well aware that the lawyer who is acting in the proceeding personally supports the cause being presented. Against such a background it seems to me that a wide ranging personal opinion rule, by which the Law Society attempts to prevent any statement that may simply repeat what the court already knows full well, is unduly onerous. The possibility of disciplinary proceedings should only arise when some sufficiently serious added factor is present. Let us continue the search for the best articulation of what that added factor is.

C A personal opinion rule should leave some room for lawyers to fulfil their roles as advocates. That general proposition leads to a more particular limitation: A personal opinion rule should distinguish between statements by prosecution counsel and lawyers representing other parties

1 The techniques of advocacy

I began this article by emphasising the fact that New Zealand’s code of legal ethics did not contain a personal opinion rule prior to 2008. The first suggestion to incorporate such a rule appears to have come in Duncan Webb’s 2007 “Discussion Draft” which offered a new set of rules to replace the former Rules of Professional Conduct.³⁷ However, in putting forth his proposal for a personal opinion rule,³⁸ Professor Webb did issue the caveat:³⁹

While the draft rule reflects an important professional principle it is

^{arguably not a matter for the rules themselves, particularly as experience}

³⁶ Despite the recommendation of Duncan Webb (“Discussion Draft”, above n 35, clause 2.2 at 21), the 2008 Rules contain no rule dealing with statements to the press. Guidance on that topic was provided by the earlier Rules of Professional Conduct for Barristers and Solicitors (NZ) 7th ed: commentary to Rule 8.01, but this was not repeated in the CC Rules.

^{37 Above n 35.}

^{38 The original draft was: “2.75 The personal views of a lawyer should}

^{never affect the conduct of a lawyer in court. When appearing in court}

^{lawyers must not convey or appear to convey the lawyer ’s opinion on}

^{the merits of any legal matter in issue or veracity of evidence.”}

^{39 At 29.}

would suggest that it would be regularly breached by some lawyers.

It is not difficult to imagine why a personal opinion rule will, as predicted by Duncan Webb, be regularly breached. The reason has been well articulated by commentators in the United States – a jurisdiction where personal opinion rules are common and a large body of law has been spawned on this topic.⁴⁰ The point made by these commentators in the face of such ubiquitous prohibitions is that personal opinion rules clash with standard techniques of persuasive advocacy. This observation need not be belaboured and can be nicely summarised by two quotations. The first is the view of a pair of academics about a typical American personal opinion Rule:⁴¹

The rule is troublesome because an advocate’s main objective is to convince the trier of fact of the very propositions to which the rule applies. To do his job well, an advocate usually must exude confidence and enthusiasm that contribute to the credibility of his client’s cause. In practice, this proper “influencing” of the jurors is not far removed from “testifying” about the believability of evidence.

In vigorous cross-examination, for example, advocates often use voice inflection and body language to suggest their disbelief in a witness’s story. These tactics are perfectly proper, but their purpose is to invite the trier of fact to join in the advocate’s apparent disbelief. Likewise, if a lawyer urges in her closing argument that reasonable jurors can only come to a certain conclusion, the jurors may rightly assume that the lawyer has also come to that conclusion. Yet the lawyer is not allowed to say so.

The second is from a US District Judge, rejecting a convicted defendant’s claim for a new trial on the basis of inadequate representation by his trial counsel:⁴²

Insinuously, he placed his own integrity behind that of the defendant, and conveyed subliminally to the jurors by word and manner his absolute personal belief in [the defendant’s] innocence. This common tactic among defense attorneys is difficult to pull off successfully, and apparently considered by some to be unethical. ... Nonetheless, the legendary great advocates of the bar have always done it, and there is little a trial judge can do to prevent an attorney from endorsing personally his client’s protestations of innocence.

It is difficult to imagine many practising lawyers disagreeing with this viewpoint. Surprisingly, the fact that there will always be a tension between a personal opinion rule and the techniques of persuasive advocacy never seems to have provided a sufficient argument to jettison the rule. Yet that tension can at least receive some acknowledgement in

⁴⁰ See above n 3.

^{41 Hazard and Hodes, above n 18, at 646.2, commenting on American Bar}

^{Association Model Rule of Professional Conduct 3.4(e).}

^{42 United States v Sangemino 401 F Supp 903 (1975) at 915-916. I was alerted to}

^{this judgment by Richard Y Holcomb “Lawyer as Advocate and Witness”}

^{[1978] ABA Journal 642.}

the scaled back position I have adopted of searching for a more limited personal opinion rule than the universally applicable Rule 13.5.4. Thus I suggest that we should hesitate before accepting a rule that completely shuts off a technique of advocacy that (remembering limiting factor #1) is nothing more than a (truthful) statement by the advocate that he or she supports the cause, witness, or arguments being presented.

That general approach requires some qualification when we consider the special position of a lawyer acting for the prosecution in a criminal proceeding.

2 The special position of a prosecution lawyer

To support the point I make here I set out (with emphasis added) CC Rule 13.12:

Duties of prosecution lawyer

13.12 A prosecuting lawyer must act fairly and impartially at all times and in doing this must—

(a) comply with all obligations concerning disclosure to the defence of evidence material to the prosecution and the defence; and

(b) present the prosecution case fully and fairly and with

^{professional detachment; and}

(c) avoid unduly emotive language and inflaming bias or prejudice

^{against an accused person; and}

(d) act in accordance with any ethical obligations that apply

^{specifically to prosecutors acting for the Crown.}

As time stretches out from the 2008 date that this and the other CC Rules were introduced, it is worth reminding readers of one subtle change that Rule 13.12 brought into the overall topic of personal opinion rules in New Zealand. The pre-2008 Rules of Professional Conduct contained a single, short rule governing “Advocates[!] for Prosecution”.⁴³ This was Rule 9.01, which stated simply: “A practitioner prosecuting a criminal case must do so dispassionately and with scrupulous fairness”. But the substance of the rule came in the accompanying “Commentary”. Clause (2) of that Commentary read:

Expressions of opinion should be confined to those required for the fair

^{presentation of the case.}

So what we see is that, before 2008, prosecuting counsel were specifically granted a limited permission to express their opinions in court. This permission was given despite the well-accepted stricture in (former) Rule 9.01 that prosecuting counsel were subject to the requirement to prosecute a case “dispassionately and with scrupulous fairness”. Lawyers acting in other capacities in court proceedings were not bound

43. The title of Chapter 9 of the Rules of Professional Conduct – a chapter containing the single rule 9.01 and its commentary points.

by any similar (express) ethical rule in performing their role as advocates. The Law Society was content to leave that issue of practice to the immediate control of the trial Judge.

Suddenly, with little fanfare, the 2008 CC Rules imposed a complete ban on statements of personal opinions in court, subjecting all transgressors to the spectre of disciplinary proceedings. This included the “impartial”, “professionally detached” prosecuting counsel referred to in new Rule

13.12, who were suddenly deprived of their earlier ability to express an opinion when this is required for the fair presentation of the case. But it also included all other litigation lawyers who, as indicated by the lack of any previous specific control in the Rules, had up to then been treated by the Law Society as having even greater freedom to express an opinion than that granted to prosecutors. Does my concern with Rule

^{13.5.4 still appear groundless?}

There is a substantial body of law supporting the message conveyed by Rule 13.12, that prosecuting counsel should avoid employing “emotive or inflammatory” language in presenting the Crown case.⁴⁴ In most of the leading authorities the focus of courts’ attention has been statements by the prosecuting lawyer which can readily be characterised (in terms of Rule 13.5.4) as “conveying or appearing to convey” the lawyer ’s personal opinion. This, at least, is how I view the criticised terminology employed by prosecutors in these cases, such as: [the defence being] “so outrageous it is almost laughable”;⁴⁵ [describing the views of the defence psychiatrist as] “psychobabble”; ⁴⁶ [labelling the circumstances in a sexual violation case as] “every woman’s nightmare”;⁴⁷ [describing the defence as] “desperate”;⁴⁸ and other examples of the prosecutor introducing “inappropriate personal observations” ⁴⁹.

The negative reactions by our appellate courts to these expressions of personal opinion by the prosecuting lawyer are completely predictable. The courts are reflecting Rule 13.12’s requirement that prosecutors act “fairly and impartially” and with “professional detachment”.

My concern is that the whole point of Rule 13.12 is to emphasise that the behaviour expected from a prosecution lawyer differs from that of a defence lawyer (or indeed from lawyers acting for parties in civil proceedings). Yet Rule 13.5.4 (and most personal opinion rules in other jurisdictions) draws no such distinction. The rule appears to be nothing less than an attempt to impose the ideal prosecutor ’s attributes of impartiality and professional detachment onto the courtroom personae

⁴⁴ R v Thomas CA305/98, 15 December 1998 at 14; R v Hodges CA435/02, 19

^{August 2003 at [20]; R v Simi [2008] NZCA 515 at [67]; R v Mussa [2008]}

^{NZCA 290 at [19].}

^{45 McLeish v R [2010] NZCA 76 at [20].}

^{46 R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425 at [23].}

^{47 R v Simi, above n 44, at [67]; R v Mussa, above n 44, at [34]; R v Hodges,}

^{above n 44, at [11].}

^{48 Satini v R [2014] NZCA 413 at [14].}

^{49 Hodges, above n 44, at [11].}

of all lawyers. This attempted assimilation is completely at odds with the relevant case law – as well as with what has always been understood as the role of lawyers acting for parties other than the Crown. Lawyers who are not prosecuting should be committed, partisan advocates for their clients. In my view, this role differentiation between prosecuting lawyers and other lawyers must be catered for in any redraft of Rule 13.5.4.

D Freedom of expression: s 14 of the Bill of Rights Act

In performing its statutorily imposed function⁵⁰ of regulating the practice in New Zealand of barristers and solicitors, the Law Society is subject to the Bill of Rights Act. ⁵¹ It is pretty clear that Rule 13.5.4’s prohibition on a lawyer expressing his or her personal opinion amounts to a prima facie breach of s 14 of the Bill of Rights Act. After all, that section provides: “Everyone has the right to freedom of expression, including the freedom to ... impart ... opinions of any kind in any form”.

Rule 13.5.4 appears to demonstrate a complete (and, surely, surprising) lack of concern on the part of the Law Society for a litigation lawyer ’s freedom of expression. If such an approach was ever acceptable, it is difficult to see how it can continue unchanged after another chapter of Mr Orlov’s previously highlighted litigation with the Law Society. Following the Court of Appeal judgment referred to earlier as Orlov #1, in what will be referred to here as Orlov (HC),⁵² a two person bench of the High Court affirmed the Law Society tribunal’s finding of misconduct against Mr Orlov (a practising lawyer) but quashed the tribunal’s order that Mr Orlov be struck off the roll of practitioners. The High Court made it clear that an important factor influencing its decision to quash the tribunal’s sentence was that Mr Orlov’s offending consisted of speech, as opposed to actions directly affecting a client. This distinction became a mitigating factor in the sentencing exercise because, as the Court put it in their review of overseas authorities on a lawyer ’s freedom of expression: ⁵³

We consider it can be taken from these cases that there is no absolute right of freedom of expression, that it is legitimate for states to draw a balance between freedom of expression and the need to protect the authority of the judiciary and the processes of the Court, that a significant degree of robustness is required, and that any punishment should be proportionate bearing in mind the competing interests and the importance of freedom of expression.

^{It is of course true that Orlov (HC) involved a different class of personal}

^{opinion54 than is aimed at by a personal opinion rule. At issue were}

⁵⁰ L & C Act, s 65.

^{51 This appears to have been accepted without question in Orlov v New}

^{Zealand Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606,}

^{discussed in the text below as Orlov (HC).}

^{52 See above n 11.}

^{53 At [92] [emphasis added].}

^{54 The Court made it clear that they were focusing on Mr Orlov’s statements}

Mr Orlov’s allegations against a particular judge, which were made in the course of various proceedings taken by Mr Orlov.⁵⁵ As determined by the High Court, these allegations included Mr Orlov’s views that the Judge was biased against him and was “motivated by spite, by a desire to punish Mr Orlov, by a desire to ruin his career, and dislike of Mr Orlov ...”.⁵⁶ All this necessarily stands outside Rule 13.5.4’s focus of statements of opinion made to a court. Nonetheless, I suggest that the High Court’s treatment of a lawyer ’s freedom of expression must have some influence on any redraft of Rule 13.5.4. It is hard to come up with reasons why a lawyer should be given less leeway to exercise his or her right to freedom of expression when promoting a client’s case in court than when making a complaint about judicial conduct.

Recognising the accuracy of Orlov (HC)’s reminder, quoted above, that there is no absolute freedom of expression, I am content to argue for no more than that a redraft of Rule 13.5.4 should be guided by the same standard of “robustness” that was highlighted in that same passage of the High Court’s judgment. The Law Society should be prepared to accept that not all (in court) expressions of personal opinion by lawyers warrant a disciplinary response. Some matters can be left to the trial Judge.

To proceed further in the quest to articulate the point at which Law Society intervention is justifiable, we now pass on to consider the policy argument that is most often offered in favour of a wide ranging personal opinion rule such as Rule 13.5.4.

E Independence

Rule 13.5.4 is situated in the relatively short “Independence in litigation” section of the CC Rules. This is not surprising. Discussions of a personal opinion rule routinely rely on the justification that such a rule manifests the need for a lawyer to remain independent – a value affirmed by s 4(d) of the L & C Act. That subsection confirms that one of the fundamental obligations of a lawyer is “to be independent in providing regulated services to his or her client”.

The quick way of summarising the problem I have with supporters of a personal opinion rule routinely relying on a lawyer ’s independence is that, in my view, “independence” is the wrong word. Although it is an adequate enough way of conveying some of the obligations which bind lawyers, it falls short in other contexts. In particular, it is not the best way of describing a valid policy basis for a personal opinion rule.

of opinion: see [11]–[12].

^{55 Such as asking the Chief High Court Judge and the Registrar to ensure}

^{that the Judge complained of not hear any future proceedings in which}

^{Mr Orlov was acting; appealing an order by the Judge that Mr Orlov}

^{personally pay the costs of a proceeding; complaints against the Judge}

^{made by Mr Orlov to the Judicial Conduct Commissioner and to the}

^{Human Rights Review Tribunal.}

^{56 At [7].}

^{1 No true independence}

This is a typical issue of semantics. For example, when I think of an “independent” candidate in an election I envision someone who fits the dictionary definition of being “unwilling to be under obligation”. From that perspective it is difficult to see how a lawyer representing a party in litigation can ever hope to be truly independent. After all, the lawyer is (usually) getting paid to promote the interests of a deeply concerned client. The Law Society itself has approved of “the results achieved” by a lawyer as a legitimate factor influencing the amount chargeable for legal services.⁵⁷ In the practice of law, as in every other walk of life, financial reward is acknowledged as about the most obvious destroyer of independence.

Beyond the factor of fees, Orlov #1 has told us that a lawyer can continue to act despite strong personal views in support of the issues being litigated. No client would complain about that conclusion. In keeping with CC Rule 6,⁵⁸ a client can expect his or her lawyer to do nothing less than protect and promote the client’s interests to the exclusion of the interest of third parties. Again, such alignment with the client’s case is hardly suggestive of independence.

But we have still not seen the whole picture. It is well accepted that, in certain circumstances, a lawyer must put aside the client’s interests because of one or more of the demands of the criminal law (eg, the offence of obstructing justice); the law of contempt (eg, comment to the media on current litigation); the lawyer ’s paramount duty as an officer of the court;⁵⁹ or (perhaps) the duty to the public due to the Act’s imposition of a lawyer ’s fundamental obligation to “facilitate the administration of justice”.⁶⁰

⁵⁷ CC Rule 9.1(c). See too Rules 9.8-9.10, which authorise conditional fee agreements, pursuant to ss 333-336 of the L & C Act.

⁵⁸ “A lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interest of third parties.”

^{59 Paramountcy confirmed in s 4(d) of the L & C Act.}

^{60 Section 4(a) of the L & C Act lists as the first fundamental obligation of}

^{lawyers, the obligation to “... facilitate the administration of justice in}

^{New Zealand”. Section 4(d) lists the final fundamental obligation as}

^{protecting the interests of the client. However, the latter obligation is}

^{expressly qualified by being subject to the lawyer ’s duties “under any}

^{enactment”. This suggests the worrisome conclusion that a lawyer ’s}

^{obligation to protect his or her client’s interest under s 4(d) is subject to}

^{the lawyer ’s duty under the particular enactment that is s 4(a) of the L &}

^{C Act – the duty to facilitate the administration of justice: a concern that}

^{was voiced some time ago by Don Sweet in “Fundamental obligations of}

^{lawyers” [2003] NZLJ 337 at 338. This whole argument is over in some}

^{other jurisdictions. Thus, by Rule 3.1 of New South Wales Professional}

^{Conduct and Practice Rules (2013) (Solicitor ’s Rules), a solicitor ’s duty to}

^{the court and to the administration of justice is paramount and prevails}

^{to the extent of an inconsistency with any other duty.}

The result of all this is that quick justifications of personal opinion rules which do no more than rely on the shibboleth of “independence”, or near synonyms such as “objectivity” or “professional detachment”, do not take us very far. Such terminology is blatantly contradicted by the reality that lawyers are continually subjected to a host of conflicting pressures, obligations, and allegiances. ⁶¹

2 An alternative phrase

I cannot come up with a single word substitute for “independence” which will provide more assistance in an attempt to identify a valid policy basis for a personal opinion rule. However, I suggest that CC Rule 5 may provide a starting point for a more useful phrase. This rule states that “a lawyer must be independent and free from compromising influences or loyalties when providing services to his or her clients”.

Although I want to rely on Rule 5, my first comment on that rule is negative. For the reasons set out above, I see only confusion resulting from Rule 5’s suggestion that (due to the “and” which I have italicised) independence somehow differs from the need for a lawyer to be “free from compromising influences or loyalties”. My view is that it is this latter phrase, on its own, that is valuable for our purposes. Here in a nutshell is what I believe is the concern that should dictate the form of a redrafted personal opinion rule.

When a reader of the CC Rules passes on from Rule 5 to consider the individual rules in Chapter 5 (the “Independence” Chapter of the Rules) and in Chapter 6 (“Conflicting Duties” and “Conflicting Office”), it becomes apparent that the sort of “compromising influences or loyalties” that are prohibited by Rule 5 have largely been spelled out. This is the sort of guidance in the Rules that offers more assistance than any quick reliance on the protean concept of independence. The benefit of these provisions in Chapters 5 and 6 is that they openly recognise and provide solutions for handling the pressures exerted on a lawyer by his or her obligations to the client, the court, and the public.

Using the phraseology of Rule 5, we know that what the lawyer must not do is to place himself or herself in a position whereby he or she will be influenced by (or even tempted by) some improper (compromising)

⁶¹ There may be a degree of irony in the fact that the same concerns I have with the ideal of a lawyer ’s independence appear to be shared by Duncan Webb, the drafter of the first version of what became Rule 13.5.4. He concludes his textbook treatment of the topic by saying:

The requirement for independence accepts that a lawyer can exer- cise independent judgment even on matters for which the lawyer holds strong personal views, but requires a lawyer to eschew any appearance of personal, as opposed to professional, partisanship. The position is one that has considerable internal tension, if not inconsistency.

(Duncan Webb Ethics, Professional Responsibility and the Lawyer (5th ed, Lexis Nexis, Wellington, 2008) at 427.)

“influence” or “loyalty” which will conflict with the well-recognised obligations to the client, the court, or the public. Added to this is the necessity for lawyers to ensure that they do not find themselves in a situation where they will be confronted with an insoluble conflict among their fundamental obligations.⁶²

Accordingly, I propose to focus on the need for a lawyer to be free of improper competing influences or loyalties as the best encapsulation of what lies at the heart of the justification for a personal opinion rule. But there is one more task to undertake before suggesting how this idea combines with the other limiting factors that have been discussed to guide a redraft of Rule 13.5.4. This is to attack the specific argument which is invariably given as a justification for the sort of wide ranging personal opinion rule that is exemplified by Rule 13.5.4. This is the argument based on that flagship of independence – the “cab rank rule”.

3 Extension of the cab rank rule

It has become common for justifications of a personal opinion rule to focus on two venerable pronouncements – neither of which were in any way directed at such a rule!⁶³ The first of these comes from Dr Samuel Johnson when answering Boswell’s query: what do you think of a lawyer supporting a cause which the lawyer knows to be wrong? Johnson’s much quoted answer is: ⁶⁴

Sir, you do not know it to be good or bad till the Judge determines it. ... An argument which does not convince yourself, may convince the Judge to whom you urge it, and if it does not convince him, why then Sir you are wrong and he is right. It is his business to judge, and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge’s opinion.

The second pronouncement is taken from the judgment of Baron Bramwell in a split (civil) decision of the Court of Exchequer⁶⁵ against the defendant, who was a lawyer. When representing a client in an earlier lawsuit, the defendant had obtained a decree of bankruptcy against the

⁶² The Rules are most helpful when they settle in favour of a particular obligation owed by the lawyer what otherwise could be seen as a potential conflict. A good example of this is Rule 13.13.5, which prevents a lawyer disclosing a client’s previous convictions without the client’s authority. Without this guidance, some lawyers might have chosen to avoid being accused of misleading the court by their silence.

⁶³ Perhaps following the lead in Showell Rogers “The Ethics of Advocacy” (1899) 49 LQR 260 at 263. See Lord MacMillan Law and Other Things (Cambridge University Press, London, 1938) at 183; Richard Du Cann The Art of the Advocate (Penguin Books, London, 1964) at 39; Chief Justice Mathers “Legal Ethics” (1920) 40 Canadian Law Times 925 at 936; Duncan Webb “Civil Advocacy and the Dogma of Adversarialism” (2004) 7 Legal Ethics 210 at 213, n 21.

^{64 James Boswell Life of Johnson (B Redford & E Goldring eds, Edinburgh}

^{University Press, Edinburgh, 1998) vol 2 at 25.}

^{65 Johnson v Emerson [1871] UKLawRpExch 29; (1871) LR 6 Exch 329 at 367.}

litigant who became the current plaintiff. That plaintiff now alleged that, in obtaining the earlier decree, the defendant lawyer had acted maliciously and without reasonable cause. In supporting the conduct of the defendant in that earlier litigation, Baron Bramwell said:

A man’s rights are to be determined by the Court, not by his advocate or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their own opinions. A client is entitled to say to his counsel, “I want your advocacy, not your judgment: I prefer that of the Court”.

Supporters of a personal opinion rule who call in aid these statements by Dr Johnson and Baron Bramwell rest their argument on one of the main pillars of the ideal of independence – the cab rank rule. This rule, enshrined in CC Rule 4, requires a lawyer to accept instructions from any client (subject to some exceptions). This obligation to take on any client (in the same way that a taxi driver accepts whoever is first in the queue) operates to ensure that even the most unpopular clients, whose cases engender the most strident public antipathy, will still be able to secure legal representation.⁶⁶

Adherents of the cab rank rule take the position that because lawyers are thereby forced to take on unpopular causes, there can be no legitimate way for them to be criticised as personally supporting that unpopular cause. It can therefore be said that the lawyer ’s “independence” from the client’s case insulates the lawyer from any such attack.

In view of our particular focus, there is one additional factor which needs to be mentioned. Supplementing CC Rule 4’s “unpopular cause” limb of the cab rank rule is the proposition in Rule 4.1.1(c) that a lawyer cannot refuse to accept instructions merely because he or she considers that the case lacks merit (it is weak).⁶⁷

The reader will see that in the above outline of the cab rank rule there is – equally with the statements of Johnson or Bramwell – nothing of obvious relevance to a personal opinion rule. Nonetheless, proponents of a personal opinion rule rely on the following line of reasoning:

(1) Despite the requirement to take on the client’s unpopular or weak case, the lawyer is still obliged by CC Rule 5.3 to exercise “independent professional judgment” on the client’s behalf and give “objective advice” to the client.

(2) That obligation (to give objective advice) allows the lawyer to forcefully advise the client of the difficulties facing the client in the proposed litigation.

⁶⁶ We can put aside the reality discussed by Duncan Webb in “Civil Advocacy and the Dogma of Adversarialism” (2004) 7 Legal Ethics 210 at 214 that “for a number of reasons the fact is that the cab rank rule may be of little practical significance to clients, or indeed to the administration of justice more widely”.

⁶⁷ Rule 4.1.1(c) states that “the merits of the matter upon which the lawyer is consulted” is not good cause to refuse to accept instructions.

(3) However, if the client instructs the lawyer to proceed with the litigation, CC Rule 13.3 requires the lawyer to follow those instructions. As stated by Dr Johnson and Baron Bramwell, the lawyer ’s negative view of the litigation is of no (further) consequence. The lawyer ’s personal distaste for the cause being promoted or the lawyer ’s pessimistic view of the probable outcome cannot be allowed to weaken the resolve with which he or she must fight for the client. In that context the lawyer ’s personal opinion has become “irrelevant”.

(4) Being rendered irrelevant in this way, the lawyer ’s personal opinion cannot properly be expressed to the court.

It is not surprising that against the background of my earlier discussion of the (proper) aims of a personal opinion rule, I suggest this cab rank argument is insufficient to justify a wide ranging rule, such as Rule 13.5.4.

The main (but not the only)⁶⁸ reason I say this is that the cab rank argument is dealing with nothing more than a lawyer ’s statement of opinion against his or her client’s case. The argument can only apply to a case where the personal opinion of the lawyer is that the client’s cause is unpalatable or that it has little merit. This tells us nothing about what my earlier discussion attempted to demonstrate – that a personal opinion rule is properly aimed only at a lawyer ’s statement of opinion in favour of his or her client’s case. That class of opinion does not become “irrelevant” in the way suggested in step 3 of the argument. Step 3 requires that the lawyer put aside his or her negative opinion and get on with the case – the opinion having been rendered irrelevant in the sense of “must not be permitted to have any influence”. But matters are quite different when the lawyer ’s opinion favours the client’s case. Orlov #1 recognises the propriety of the lawyer continuing to act in such circumstances and the Court of Appeal’s judgment in that case gave no hint that it is improper

⁶⁸ It should not pass without comment that steps 3 and 4 of the argument rely on the conclusion that the lawyer ’s (negative) opinion about the client’s case becomes “irrelevant” once the lawyer takes on the case. But step 3’s use of the concept of irrelevance is different than that employed in step 4. Step 3 uses “irrelevant” to mean that, ethically, the opinion must not influence the lawyer ’s conduct. In contrast, step 4 is relying on irrelevance as a matter of evidence law as the reason why it is improper for the statement of a lawyer ’s opinion to be made to the court (section 7(2) of the Evidence Act 2006 confirms the universally accepted proposition that irrelevant evidence is not admissible). It is by no means clear that the lawyer ’s personal opinion in favour of his or her client’s case is irrelevant under the low threshold for relevance that is set by s 7(3) of the Evidence Act (a mere “tendency to prove or disprove anything that is of consequence...”). But whether or not such an opinion is irrelevant as a matter of evidence law, the true reason why it is improper “to offer such evidence” to the court is because, relevant or not, the lawyer is attempting to do so “from the bar”. And we saw earlier at text accompanying n 24 that the Law Society is (rightly) not sufficiently concerned with that aspect of practice to prohibit it in the CC Rules.

^{for the lawyer (as is surely inevitable) to be influenced by that favourable}

^{opinion in his or her handling of the case.}

Accordingly, I find the cab rank argument to be an unconvincing justification for a personal opinion rule. In the following conclusion I fall back on the pivotal policy reflected in CC Rule 5, discussed and adopted above,⁶⁹ that lawyers must be free from compromising influences or loyalties.

IV Conclusion – Guidance from Orlov #1

Orlov #1 helped stimulate me to write this article, given its liberating acknowledgement that lawyers may continue to act in a proceeding where they have strong personal views in favour of a proposition which is advocated on their client’s behalf. But the judgment also offers assistance in establishing the standard at which a no personal opinion rule should be pitched.

As alluded to earlier,⁷⁰ in Orlov #1 the Court of Appeal upheld the ruling that D, Mr Orlov’s counsel of choice, could not act for Mr Orlov in the latter ’s appeal from rulings made against him in Law Society disciplinary proceedings.⁷¹ In prohibiting D from acting, the Court of Appeal emphasised that D was himself facing disciplinary charges which were similar to those that had been laid against Mr Orlov. D had sworn an affidavit at Mr Orlov’s request that formed part of the evidence in the initial disciplinary tribunal hearing against Mr Orlov. In the Court’s view, D’s affidavit not only contained “commentary” by D, but was “advanced as a factual response” to the charges faced by Mr Orlov.⁷²

This led to the Court concluding that D had “an immediate conflict of interests” preventing him from acting. This conclusion was in keeping with the view of the Judge in the High Court judgment appealed from,⁷³ that if D were to act as Mr Orlov’s lawyer he would essentially be arguing his own case.⁷⁴

This seems to me to be a useful articulation of the proper tipping point for a personal opinion rule. Without repeating the list of limiting factors that were earlier discussed, I can summarise my position by stating that Law Society discipline of a lawyer ’s statement of personal opinion should only be triggered by a serious transgression. Once it can be said that a lawyer ’s statements of opinion have become sufficiently extreme

⁶⁹ Above, text accompanying n 62.

^{70 Above, text accompanying n 11.}

^{71 We have also seen above, text accompanying n 52, that Mr Orlov was}

^{eventually successful in that appeal to the extent that the High Court}

^{quashed the striking off order against him.}

^{72 At [25].}

^{73 Orlov v National Standards Committee No 1 [2014] NZHC 257.}

^{74 Orlov #1 at [14]. See too the similar phraseology of Woolford J in Deliu}

^{v Auckland Standards Committee [2014] NZHC 2530, [2014] NZAR 1473 at}

^{[31] where the Judge disqualified a lawyer from acting in order to prevent}

^{him becoming “an advocate in his own cause”.}

to demonstrate that he or she has crossed the line and begun to argue his or her own case, the probability exists that the particular interests of the client will no longer be paramount.

Any experience in litigation will show that occasions constantly arise in which a client’s interests will best be served by moderation, compromise, and reasonableness on the part of the client’s lawyer. These are precisely the techniques which stand in jeopardy of being disregarded by a lawyer who, through his or her strong personal beliefs, begins to argue his or her own case. In terms of Rule 5’s encapsulation of the ideal of a lawyer ’s independence, in these circumstances the lawyer has succumbed to the improper competing influence of his or her personal interest in the success of the case.

In the context of a personal opinion rule, this test of a lawyer arguing his or her own case marks out a legitimate trigger for disciplinary intervention by the Law Society. Personal opinions expressed to the court which do not cross that line can be left (as with all statements of fact made from the bar) to the control of the trial Judge. Such a standard reflects a necessary level of “robustness” – a concern for which Orlov (HC) reminded us is required by the Bill of Rights.

Accordingly, I propose that a redrafted personal opinion rule should: (1) Repeat the pre-2008 position that prosecuting counsel⁷⁵ limit

^{expressions of opinion to the court to those required for the fair}

^{presentation of the case.}

and

(2) Prohibit expressions of personal opinion to the court by all other classes of litigation counsel only when it can legitimately be said that such statements demonstrate that counsel has gone beyond advocating the interests of his or her client and has passed on to argue counsel’s own case.⁷⁶

⁷⁵ Above, text accompanying n 43.

^{76 In response to anticipated criticisms that such a standard lacks the black}

^{and white certainty of the current absolute prohibition on expressions}

^{of personal opinion, I point out that the vast majority of the rules in the}

^{CC Rules present similar question of degree, requiring an assessment of}

^{the facts of any individual case.}