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A 2007 CASE before the Court of Appeal (Criminal Division) of England and Wales is instructive on counsel’s duty to soldier on.

In that case, R v Ulcay; R v Toygun [2007] EWCA Crim 2379, when newly appointed counsels who took over from the old ones asked for a seven-day adjournment to prepare the case, the judge refused but agreed to a short adjournment. When counsels reapplied, seeking a two-week adjournment, the judge again refused. He stated that it was not in the interests of justice for a long trial to be allowed to be derailed because the accused person had changed his counsels.

The new team of lawyers then withdrew from the case. The trial proceeded with the accused person unrepresented. He was convicted. He appealed against conviction submitting that the learned judge had been wrong to allow counsels to withdraw from the case and that the learned judge had been wrong not to have allowed new counsels more time to prepare the case.

On the withdrawal of the new counsels, the Court of Appeal recognised the practical difficulties faced by a counsel who was invited to take on a defence case at a very late stage, and even more so, if invited to do so half way through a long trial. The court was not unsympathetic to them.

But counsel must soldier on and do the best he could. The Court said:

“In the … conduct of criminal litigation, [counsel] is an officer of the court. He has an obligation to the court to comply with its orders, and to do his best for his client in the light of those orders. [Counsel] owes a duty to the court. [Counsel] must soldier on.

“[Counsel is] neither in breach of the rules of his profession, nor acting improperly or negligently, if the worse that can be said of him is that he was doing his best to comply with orders of the court which made impossible or difficult for him to look after the client’s interests, to the standard which, without those difficulties, he would normally be expected to achieve.

“It is not a good reason for ceasing to act for a client [because counsel] disagrees with the decision of the court, even if he believes that the order has caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence.

“In our judgment the decisions of the new teams of [lawyers] were wrong.”

The code of conduct prevents lawyers from accepting work over and above their existing commitments which they would not be able adequately to prepare and deal with in a professionally competent manner.

A lawyer is professionally required to do the best he could. He must soldier on.

Now, rule 6 (advocate and solicitor not to accept brief if unable to appear) of the Legal Profession (Practice and Etiquette) Rules 1978 states as follow:

(a) An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

(b) An advocate and solicitor shall nor ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client.

One can humbly submit that there is also a duty to soldier on here unless there is sufficient cause.

(This is the personal opinion of the writer or publication and does not necessarily represent the views of BebasNews

— BebasNews

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