## **Learning Outcomes**

This article covers professional conduct and duties to the court in oral submissions and courtroom procedure, including:

- The advocate’s primary and overriding duties to the court and their interaction with client duties
- Application of SRA Principles and the Code of Conduct to submissions, case management and courtroom behaviour
- Structuring persuasive, respectful oral submissions aligned with CPR/CrimPR overriding objectives and the duty of candour
- Avoiding conduct that misleads the court, wastes time, or risks contempt and wasted costs orders
- Giving and managing undertakings safely, and recognising limits on the court’s supervisory jurisdiction over LLPs and companies
- Handling privilege and public interest immunity issues in applications affecting disclosure
- Courtroom etiquette and modes of address, and collaborative case management duties
- Ethical responses to client pressure, conflicts or requests compromising independence or integrity, including withdrawal
- Identifying and mitigating professional risks (disciplinary exposure, wasted costs, negligence) through preparation, accuracy and candour

## **SQE2 Syllabus**

For SQE2, you are required to understand professional conduct and duties to the court in the context of oral submissions and courtroom procedure, with a focus on the following syllabus points:

- SRA Principles and Code of Conduct (esp. Code 2 – proceedings before courts and tribunals).
- Overriding duty to the court: candour, independence, honesty and integrity.
- CPR/CrimPR Part 1 overriding objectives and active case management duties (e.g. CrimPR 3.3).
- the duty not to mislead the court, the obligation to correct errors, and the duty to draw attention to adverse authority.
- Undertakings to the court: scope, seriousness, sanctions; limitations of supervisory jurisdiction (Harcus Sinclair).
- Wasted costs orders (Senior Courts Act 1981, s.51); contempt (CPR Part 81).
- Public interest immunity and legal professional privilege (Jet2; Conway v Rimmer; “Bangs” procedure).
- Courtroom etiquette; modes of address; rights of audience and solicitors’ agents.
- Professional misconduct standards (integrity vs dishonesty, Medcalf, Scott, Beckwith).
- Ethical withdrawal; complaints handling; Legal Ombudsman rights.

## **Test Your Knowledge**

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision._

- When must you draw the court’s attention to adverse authorities that materially affect your client’s case?
- What steps must you take if you discover that a factual assertion you made in submissions is wrong?
- What is the court’s power to make a wasted costs order, and what conduct triggers it?
- How does integrity differ from dishonesty for disciplinary purposes, and what test applies to dishonesty?
- What is the “Bangs” procedure and when is public interest immunity likely to be claimed?
- What are the risks and limits of undertakings given to the court by solicitors, LLPs or ABS entities?
- What does CrimPR 3.3 require of parties before and during criminal proceedings?
- How should you address a High Court Judge, a Circuit Judge, a District Judge and an Associate Judge?
- When are you professionally obliged to withdraw, and how do you come off the court record?
- What is the duty to avoid wasting the court’s time, and how does it link to the overriding objective?

## **Introduction**

Professional conduct in oral advocacy is anchored in an advocate’s overriding duty to the court and the proper administration of justice, balanced against duties to clients. The SRA Standards and Regulations (the Principles and the Code of Conduct for Solicitors) set the ethical framework for courtroom behaviour, oral submissions, and case management. Principle-based ethical duties—upholding the rule of law, independence, honesty, integrity, equality/diversity/inclusion, public trust, and acting in each client’s best interests—operate continuously before, during and after hearings. In practice, this means preparing and presenting submissions that are accurate, candid, respectful and structured, while taking active steps to assist the court with procedural fairness and efficiency.

The courts expect advocates to be objective and transparent. In Medcalf v Weatherill [2002] UKHL 27, the House of Lords emphasised that rights of audience carry privileges and immunities accompanied by duties to the court and strict professional standards. Misleading the court, suppressing material facts, or failing to draw attention to relevant legal authorities undermines the administration of justice and invites disciplinary action, wasted costs, or contempt. Honesty and integrity are related but distinct. Cases such as Scott v SRA [2016] and Williams v SRA [2017] confirm that lack of integrity can be found without dishonesty; where dishonesty is alleged, tribunals apply the Ivey v Genting Casinos [2017] UKSC 67 test (assess the defendant’s actual knowledge/belief of the facts, then judge the conduct against ordinary standards of reasonable and honest people).

Professional conduct also extends to an advocate’s private life when it realistically touches on the profession’s standing (Beckwith v SRA [2020] EWHC 3231 (Admin)). Social media conduct, communications with opponents, and the handling of witnesses must reflect respect, equality, diversity and inclusion. In court, advocates support the overriding objective by making focused, fair submissions, meeting deadlines, avoiding procedural irregularities, and drawing the court’s attention to relevant statutes, authorities, and material irregularities—even if adverse.

> **Key Term: duty of candour to the court**  
> A continuing obligation to assist the court by ensuring submissions are accurate, by correcting errors promptly, and by drawing attention to relevant authorities and material procedural points likely to affect outcome.
>
> **Key Term: integrity**  
> An objective standard requiring conduct that withstands scrutiny beyond mere compliance—honesty is a subset; lack of integrity can exist without dishonesty.
>
> **Key Term: undertaking (to the court)**  
> A binding professional promise given by a solicitor in their professional capacity to do or not do a specified act. Breach may attract disciplinary action, wasted costs or contempt; court’s supervisory jurisdiction over LLPs/companies is limited (Harcus Sinclair [2021] UKSC 32).
>
> **Key Term: wasted costs order**  
> An order under Senior Courts Act 1981, s.51 directing a legal representative to bear the costs caused by improper, unreasonable or negligent acts or omissions.
>
> **Key Term: legal professional privilege**  
> Protection of confidential communications for the purpose of giving/receiving legal advice (legal advice privilege) or for litigation (litigation privilege), belonging to the client and capable of waiver only by the client.
>
> **Key Term: public interest immunity (PII)**  
> A judicially controlled exemption from disclosure where disclosure would harm public interest (e.g. national security, law enforcement). The court determines scope via a structured procedure.
>
> **Key Term: overriding objective**  
> The purpose of the CPR and CrimPR to deal with cases justly and efficiently, requiring cooperation, proportionality, and active case management by parties and the court.
>
> **Key Term: contempt of court**  
> Conduct that interferes with or undermines the administration of justice; in civil proceedings addressed under CPR Part 81, with sanctions including fines and imprisonment.

### Professional obligations in submissions

Accuracy, candour and structure are the hallmarks of professional submissions. Whether making an interim application or a trial argument, the advocate’s approach should be clear, logical and responsive:

- Confirm who appears and for whom; state succinctly the order sought and the legal basis.
- Check whether the court has the relevant documents; offer an agreed chronology or skeleton (civil) where helpful.
- Identify issues precisely; apply law to facts without lecturing; flag procedural irregularities affecting fairness.
- Draw attention to adverse authorities that materially affect the outcome—even if harmful to your case—so the court is not misled.
- Conclude with the succinct relief sought; invite questions and answer directly.

### Interacting duties: client interests and court duties

Duties to the court may require advocating against short-term client preferences. SRA Code 2 expects advocates not to mislead, not to tamper with evidence, not to bribe witnesses, to comply with court orders, and to draw attention to material legal/procedural points. If a client instructs you to mislead or conceal material, you must refuse, explain your professional constraints, and consider withdrawal if they persist (civil: CPR 42.3; criminal: CrimPR 46.3 for coming off the record). Complaints procedures must remain available and transparent (Code 8).

### Equality, diversity and inclusion in advocacy

Principle 6 requires advocates to encourage and observe equality, diversity and inclusion. In practice, this means using inclusive language, respecting vulnerable witnesses, and proactively raising the need for special measures or ground rules hearings in criminal proceedings where appropriate. Respectful treatment of all court users supports the overriding objective and public trust.

### Courtroom etiquette and modes of address

Etiquette signals respect for the court’s role:

- Stand when the judge enters; bow when the judge bows; sit only when invited or once the judge is seated.
- Speak one at a time; avoid interruptions unless invited; maintain courtesy to all participants.
- Modes of address: High Court Judge or Justice—“My Lord/My Lady”; Circuit Judge—“Your Honour”; District Judge—“Sir/Madam”; Associate Judge—“Judge”. In magistrates’ courts, address a District Judge as “Sir/Madam” and a lay bench as “Sir/Madam” (you may refer to “your colleagues” for wingers).

### Rights of audience and solicitors’ agents

Check rights of audience before any appearance. Unauthorised exercise of rights of audience or conduct of litigation may be a criminal offence under the Legal Services Act 2007, s.14. “Solicitors’ agents” engaged for routine civil hearings must fall within permitted categories; if unqualified, they may not have rights of audience and should remain within the limits set by law and court practice.

### Undertakings: scope and risks

Undertakings carry significant risk. Give them only when necessary, in writing, and in precise terms you can honour. Breaches can lead to contempt or wasted costs. The court’s supervisory jurisdiction is over solicitors as officers of the court, not over LLPs or companies, creating gaps in remedies (Assaubayev; Harcus Sinclair). Always ensure any undertaking is given by an individual solicitor acting professionally, not by the entity, where supervision matters.

### Wasted costs and contempt

Wasted costs orders punish improper, unreasonable or negligent conduct by representatives that causes wasted expenditure (SCA 1981, s.51). Contempt of court—now governed procedurally by CPR Part 81 in civil cases—addresses serious interference with justice (e.g. breaching orders, false statements verified by statements of truth). Professional advocates should pre-empt these risks through accurate preparation, timely compliance and candour.

### Privilege and PII in advocacy

Privilege belongs to the client and protects advice and litigation-related communications. Do not, through submissions, inadvertently disclose privileged content without client waiver. Distinguish carefully between legal advice privilege and litigation privilege; note the Jet2 [2020] EWCA Civ 35 guidance on dominant purpose and legal advice privilege scope. For PII, the court decides whether the public interest requires withholding sensitive material (Conway v Rimmer). A structured procedure—often described with reference to “Bangs”—identifies the material, the basis for immunity, and its relevance.

### Case management duties (CPR/CrimPR)

Under CPR/CrimPR Part 1, parties must assist the court in furthering the overriding objective. CrimPR 3.3 requires active communication of likely pleas, agreed/disputed issues, disclosure, and directions needed. Failure to fulfil these duties may cause adjournments, wasted costs and reputational damage.

### Ethical withdrawal and complaints

Manage disagreements with clients professionally. Explain constraints under the Principles and Code. If the client insists on unethical conduct, refuse, and if necessary, cease to act. Follow procedural steps to come off the record; ensure the client is told how to complain internally and to the Legal Ombudsman, and that complaints are handled promptly and free of charge.

### **Worked Example 1.1**

During submissions on an interim application, you realise a factual assertion you made earlier (about the date a witness statement was served) is wrong and the error favours your case. What do you do?

> **Answer:** Correct it promptly and unequivocally. The duty of candour requires you to inform the court of the mistake, provide the accurate date, and explain any effect on the application and timetable. Do not wait for the opponent to raise it. Offer any necessary procedural adjustment to avoid prejudice. This protects integrity and reduces risk of wasted costs or adverse credibility findings.

### **Worked Example 1.2**

You are invited to give an undertaking to obtain and file a document “by 4 pm tomorrow.” Your team may struggle to meet the deadline. What is the safest approach?

> **Answer:** Do not give an undertaking unless you can personally ensure performance. Propose a realistic timeframe and have the undertaking recorded in clear, precise written terms. If time is uncertain, suggest a court order rather than an undertaking. Breaches risk disciplinary action, wasted costs and potential contempt. Remember the court’s supervisory powers principally attach to solicitors as officers, not LLPs/ABS entities.

### **Worked Example 1.3**

An authority adverse to your case materially affects the legal test the court must apply. Opponents have not cited it. Must you raise it?

> **Answer:** Yes. SRA Code 2 requires drawing the court’s attention to relevant cases and statutory provisions likely to have a material effect on the outcome. Cite and distinguish if possible; but do not suppress. Failing to raise it risks misleading the court and contravening your overriding duty, inviting sanctions and reputational harm.

### **Worked Example 1.4**

In a disclosure dispute, the prosecution asserts public interest immunity over sensitive material. What structured approach should you request?

> **Answer:** Ask the court to follow a structured process: identify precisely the materials and parts over which PII is claimed, the public interest basis (e.g. national security, informant protection, ongoing investigations), and assess relevance to live issues. The court may inspect material and balance competing interests (Conway v Rimmer). Tailor your submissions to necessity and proportionality under the overriding objective.

### **Worked Example 1.5**

A client wants you to post a rebuttal on your personal social media to “correct” allegations about the case. The proposed post includes criticism of opposing counsel. What is your professional response?

> **Answer:** Decline and explain your duties under Principles 2, 4, 5 and 6. Social media conduct must not undermine public trust, mislead, or harass. Communications should be professional, accurate and respectful. Direct the client to appropriate case communications through formal channels. Remind them of potential contempt risks and reputational harm.

### **Worked Example 1.6**

Your opponent arrives unprepared; the hearing is adjourned. The judge indicates wasted costs may be considered. What should you address in your submissions?

> **Answer:** Identify the improper, unreasonable or negligent acts that caused wasted costs; quantify the costs wasted; show causation and fairness (SCA 1981, s.51). Emphasise the impact on court time and the overriding objective. Be measured and evidence-based; do not overreach. If you are the party causing delay, take responsibility and propose remedial steps.

### **Worked Example 1.7**

In a criminal case management hearing, you have not clarified likely pleas or agreed issues. What are your obligations?

> **Answer:** CrimPR 3.3 requires active engagement: communicate likely plea, identify agreed/disputed issues, address disclosure, expert needs, and directions. Rectify promptly, liaise with the court officer and defence/prosecution, and propose a realistic timetable. Non-compliance risks adjournments, cost consequences and undermines fair trial rights.

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- The advocate’s overriding duty to the court and the administration of justice takes precedence over client interests when duties conflict.
- SRA Principles require independence, honesty, integrity, equality/diversity/inclusion, public trust, and acting in clients’ best interests; they operate in court and in relevant private conduct.
- SRA Code 2 imposes specific standards: do not mislead; do not tamper with evidence; comply with orders; draw attention to relevant authorities and material irregularities.
- Oral submissions must be clear, logical, responsive and candid; correct errors; avoid wasting the court’s time.
- CPR/CrimPR overriding objectives require collaboration and active case management; CrimPR 3.3 sets explicit duties to assist the court.
- Undertakings must be written, precise and realistic; breaches risk disciplinary action, wasted costs and potential contempt; court supervision over entities remains limited (Harcus Sinclair).
- Wasted costs orders (SCA 1981, s.51) sanction improper, unreasonable or negligent conduct causing wasted expenditure.
- Privilege belongs to the client; respect legal advice and litigation privilege; public interest immunity is judicially controlled using a structured process.
- Courtroom etiquette and correct modes of address are essential; only one advocate stands and speaks at a time; show courtesy to opponents and court staff.
- Rights of audience must be checked; unauthorised exercise may be a criminal offence (LSA 2007, s.14).
- Ethical withdrawal steps: refuse unethical instructions, explain constraints, and come off the record through correct procedure if necessary.
- Professional standards apply beyond the courtroom where private conduct realistically touches on the profession’s standing (Beckwith).

## **Key Terms and Concepts**

- duty of candour to the court
- integrity
- undertaking (to the court)
- wasted costs order
- legal professional privilege
- public interest immunity (PII)
- overriding objective
- contempt of court


Oral submissions and courtroom procedure - Professional conduct and duties to the court