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Fined for communicating with witness

03 August 2018

Two in-house lawyers have each been fined $2,000 for communicating with a witness between cross-examination and re-examination.

The lawyers standards committee considering a complaint against the lawyers found that this constituted unsatisfactory conduct.

Rule 13.10.7 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 states that “a lawyer must not communicate with a witness during the course of cross-examination or re-examination of that witness or between the cross-examination and the re-examination, except where good reason exists and with the consent of either the judge or the lawyers for all other parties (or, where a party is unrepresented, the consent of that party). This applies during adjournments of the hearing.”

Both lawyers admitted that they had communicated with the witness.

One lawyer said she thought the rule relating to the communication with one’s witness applied only to the time that the witness was being cross-examined. She said she was unaware of the scope of the rule and that it meant she could not confer with the witness before or during re-examination.

She told the committee it was an “open and honest mistake which I sincerely regret”.

The other lawyer said she was unaware that the client conduct rules prohibited discussion between witnesses and counsel after cross-examination and before re-examination.

She told the committee: “I am certain I will not make the same mistake again”.

The committee noted that in this case, the complainants’ counsel raised the matter in chambers and it was agreed that the witness would not be re-examined. Instead, the judicial officer asked the witness a series of questions.

The committee noted that “this approach may not in all cases fix any damage a breach of the rule against conferring with a witness may have caused”.

The most important part of the rule, the committee said, relates to a lawyer talking to a witness during cross-examination.

“The committee accepts that some lawyers (especially those not regularly appearing in court, as appears to be the case here) may not [be] fully aware that the prohibition extends even after cross-examination has concluded. The committee gives both [lawyers] the benefit of the doubt in this regard.”

The committee determined that a fine was appropriate “to signify the importance of the rule in maintaining the integrity of the adversarial process”.

As well as the fine, each lawyer was ordered to pay $1,500 costs.

Last updated on the 3rd August 2018