Right to choose Counsel

A lawyer can only be excluded from acting as counsel where it is not in the interest of justice, or there are reasonable grounds to believe they will not be able to exercise their professional obligations and duties; otherwise, it is up to the lawyer to identify this and decline to act. Loughlin v The Director of the Serious Fraud Office [2017] NZHC 1847 (4 August 2017) speaks to this point.

Mr Loughlin was summoned to appear for an interview with the SFO on the basis that they had to attend and could not refuse to answer on the basis of self-incrimination. Mr Loughlin was entitled to counsel, but the SFO informed him that his current lawyer was excluded on the basis of the same lawyer having attended SFO interviews with other people in relation to the same matter. The High Court listed a number of instances where particular counsel may be excluded (for example requiring a hearing to be held on a particular date, the scheduling of which may prevent a particular lawyer from attending, or where legal aid is concerned, and a lawyer is assigned. (at [19] and [21]). In the Court’s words, there are a number of cases “which confirm the Court has power to restrain particular counsel from acting in particular cases where the interests of justice so require.” (at [23]). It is conceded that the Director of the SFO has the implied power to exclude counsel in particular cases, either where they are unavailable and to include them would invite unreasonable delay, or the investigation may be compromised because of the lawyer’s personal circumstances. It then becomes a question of whether in the context and circumstances the power was exercised lawfully. (at [25])

The exercise of such a power is assessed through a reasonability lens (at [26] and [32]). With reference to a number of foreign cases, the Court concluded that the power may be exercised on if it is concluded on reasonable grounds and in good faith that to allow the particular representation will or is likely to prejudice the investigation. (at [46]). This assessment is highly fact specific, and it is therefore necessary to consider the matter in the context of the particular facts. (at [47]). Lawyers can be assumed to fulfil their professional duties and obligations, and to identify conflicts and decline to act. (at [60]). Provided the lawyer accepts and adheres to their compliance obligations it will be difficult to identify the practical reality of concerns to the contrary.

If you have any questions about the right to choose counsel, please contact Troy Stade by email troy@maritimelaw.co.nz; phone +64 3 544 1967.