DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
17 LEGAL ETHICS
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed
Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW
Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
September 2016 Examination
Texts and Materials
Lecture Program
Weekend Schools 1 and 2
Compulsory Assignment
Assignment Questions
Sample Examination Question
Prescribed Topics and Course Outline
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1
1-2
2
3
4
5
6
6
6-8
9-21
1
LAW EXTENSION COMMITTEE
WINTER 2016
17 LEGAL ETHICS
COURSE DESCRIPTION AND OBJECTIVES
Legal Ethics has been designed to avoid a philosophical and purely academic approach to the
recognition of the demands and standards imposed upon or expected of practitioners. Therefore, as
well as stressing the fundamental duties and obligations, the apparent conflicts and their resolution,
time is also spent in considering the disciplinary apparatus and functions.
The course has limited opportunity to consider hypothetical examples but these are considered
important, so as to bring home the point that, in practice, grave problems often arise without warning.
The objectives of the course are therefore:
(a)
to give the student a sound background of the statute, common law and rules and regulations
which govern professional practice as a barrister or solicitor;
(b)
to provide guidance as to what can go wrong, how to recognise a problem, and what help is
available, and what may occur where there has been an ethical breach.
LECTURERS
Mr M P Sindone, BSc (Syd), LLM (UTS)
Mr Mario Sindone is a solicitor practising with a large commercial firm, principally in the areas of
intellectual property and commercial litigation. He holds degrees in science and law from the
University of Sydney and the University of Technology, Sydney. Mr Sindone practised as a barrister
for ten years and during that period he was a member of the NSW Bar Association Professional
Conduct Committee and has represented the NSW Bar Association in matters before the Legal
Services Tribunal.
Mr L W Pierotti, BA, LLB (Macq), LLM (Syd)
Mr Louis Pierotti is the Litigation Manager of the Professional Standards Department of the Law
Society of New South Wales and conducts litigation in disciplinary matters. He is an executive
member of the Society's Professional Conduct Committee.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
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Eligibility to Sit for Examinations
In accordance with the NSW Admission Board Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed the cases contained in the Law Extension Committee's course outline.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
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TEXTS AND MATERIALS
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free
shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting
the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John
Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should,
however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example,
offers a discount on texts sold to its members.
Course Materials


Legal Ethics Coursebook (Available from the “Course Materials” section of the LEC Webcampus.
Please note that updates to materials contained in this coursebook will be provided by the
lecturers as the semester progresses.)
Guide to the Presentation and Submission of Assignments (Available on the LEC Webcampus)
Prescribed Materials



Legal Profession Uniform Conduct (Barristers) Rules 2015 (Bar Rules)
http://www.nswbar.asn.au/)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
http://www.legislation.nsw.gov.au/sessionalview/sessional/sr/2015-244.pdf (Solicitors’ Rules)
Legal Profession Uniform Law (NSW) 2015 (at http://www.lawfoundation.net.au)
(at
Reference Materials




Ross and MacFarlane: Lawyers’ Responsibility and Accountability: Cases, Problems and
Commentary, 4th ed. LexisNexis, 2011
Riley Solicitors Manual, LexisNexis (loose-leaf service)
Ross, Ethics in Law: Lawyers’ Responsibility and Accountability, 6th ed. LexisNexis, 2013
Dal Pont, Lawyers’ Professional Responsibility, 5th ed. Thomson Reuters, 2012
LEC Webcampus
Once you have registered online with the LEC, you will have full access to the facilities on the LEC
Webcampus including links to relevant cases and legislation in the Course Materials section.
Useful Website
A website that contains most, if not all, the legislation and unreported cases used in this course is the
Law Foundation website at: http://www.lawfoundation.net.au
NOTE: CASES AND OTHER REFERENCES WILL BE UPDATED DURING THE SESSION
– IT IS ESSENTIAL FOR STUDENTS TO FREQUENTLY CHECK THE COURSE
MATERIALS SECTION OF THE WEBCAMPUS TO OBTAIN THESE UPDATES.
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LECTURE PROGRAM
Evening lectures in Legal Ethics will be held on Fridays commencing at 6.00pm on 13 May 2016. In
the first half of semester, they will be held in New Law School Lecture Theatre 024 (New LSLT 024).
Lecture venues for the second half of the semester have yet to be confirmed.
WEEK
TOPIC
KEY READING
1
13 May
Solicitors’ duties and the regulation of
solicitors
2
20 May
Misconduct and unsatisfactory
professional conduct
Professional Conduct Practice Rules
Harvey v Law Society of NSW
NSW Bar Association v Cummins
Re Mayes and the Legal Practitioners Act
Bridges v Law Society of New South Wales
Legal Profession Uniform Law (NSW) 2015
Allinson v General Council of Medical Education and
Registration
Kennedy v The Council of the Incorporated Law
Institute of New South Wales
The disciplinary apparatus
3
27 May
See week 4
No Lecture (Weekend School 1)
4
3 Jun
The disciplinary apparatus (cont)
5
10 Jun
Confidentiality and privilege
Protecting the client and his/her
lawyer
6
17 Jun
Revision night for
section of this course
Mr
Legal Profession Uniform Law (NSW) 2015
Walsh v Law Society of New South Wales (Beazley
JA)
Evidence Act
Grant v Downs
Baker v Campbell
Sevic v Roarty (1998) 44 NSWLR 287
Esso Australia Resources Limited v The
Commissioner of Taxation
Citibank v FCT
CAC v Yuill
Daniels v ACCC
Stewart v Strevens
Hawkins v Clayton
Field v Commissioner for Railways for New South
Wales
Pierotti’s
Study Break: Saturday 18 June – Sunday 3 July 2016
7
8 Jul
8
15 Jul
9
22 Jul
10
29 Jul
11
5 Aug
12
12 Aug
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The regulation of advocates
Clyne v The New South Wales Bar Association
Admission and expulsion of
advocates
In Re Davis
Ziems v The Prothonotary of the Supreme Court of
New South Wales
Prothonotary of the Supreme Court of New South
Wales v Costello
No Lecture (Weekend School 2)
An advocate’s duty to the court
An advocate’s duty to the client
An advocate’s duty to others
MYS MYS
Meek v Fleming
Rondel v Worsley
Rondel v Worsley
Giannarelli v Wraith
R v Apostolides
Kelly v London Transport Executive
5
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools principally for external students. Weekly lecture students may attend
but should be aware that weekend school classes aim to cover the same material provided in weekly
lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These
programs are a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic
and to encourage further reading. You should not rely on them alone.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Saturday 28 May 2016: 8.00am – noon in New Law School Lecture Theatre 104 (New
LSLT 104)
8.10am-9.20am
Solicitors’ duties and the
regulation of solicitors
As per Week 8
9.30am-10.35am
As above/Misconduct and
unsatisfactory professional
conduct
As above/As per Week 10
10.45am-noon
The disciplinary apparatus
As per Weeks 10 and 11
Saturday 28 May 2016: 4.00pm – 8.00pm in New Law School Lecture Theatre 104 (New
LSLT 104)
4.00pm-5.20pm
The disciplinary apparatus
(cont.)
As per Weeks 10 and 11
5.30pm-6.40pm
Confidentiality and privilege
As per Week 12
6.45pm-8.00pm
Protecting the client and his/her
lawyer
As per Week 12
MAJOR TOPICS
KEY READING
Weekend School 2
TIME
Saturday 23 July 2016: 8.00am – noon in New Law School Lecture Theatre 104 (New
LSLT 104)
8.10am-9.20am
The regulation of advocates
9.30am-10.35am
Candour
Conduct in court
10.45am-noon
An advocate’s duty to the court
Clyne v The New South Wales Bar
Association
In Re Davis
Ziems v The Prothonotary of the Supreme
Court of New South Wales
Prothonotary of the Supreme Court of New
South Wales v Costello
Meek v Fleming
Rondel v Worsley
Saturday 23 July 2016: 4.00pm – 8.00pm in New Law School Lecture Theatre 104 (New
LSLT 104)
4.00pm-5.20pm
An advocate’s duty to the client
5.30pm-6.40pm
An advocate’s duty to others
Rondel v Worsley
Giannarelli v Wraith
R v Apostolides
6.45pm-8.00pm
As above
Kelly v London Transport Executive
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COMPULSORY ASSIGNMENT
In Legal Ethics, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students by the due date. A pass mark is 50%. Refer to the Guide to the
Presentation and Submission of Assignments for the assignment grading and assessment
criteria. Students who fail to satisfy the compulsory requirements will be notified through the
Results screen on the Webcampus before the examination period of their ineligibility to sit the
examination in this subject. The maximum word limit for the assignment is 1500 words
(inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Thursday 14 July 2016
(Week 8)
ASSIGNMENT QUESTIONS
To obtain the Legal Ethics assignment questions for the Winter Session 2016, please follow the
instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
SAMPLE EXAMINATION QUESTION
Jones, solicitor, prepared Smith’s will, and in which will Smith left his entire estate to his beloved wife,
Mabel. Jones was named as executor.
Smith was a frugal man who didn’t believe in banks and property; he just liked the idea of shares. His
father had always said to him – people are greedy and will always buy shares so just buy but don’t sell
until you need to. True to his father’s advice, Smith bought but didn’t sell, so much so that by the time
of his death he had amassed a portfolio of shares conservatively worth $5m. Although Smith and
Mabel had no children, they were happy and needed little to live on.
Smith died at the ripe old age of 99, leaving a distraught Mabel, aged 90, behind.
Jones had known Smith and Mabel for many years; they had first come to see him when he had
started practicing some 30 years ago and they had just retired. Mabel trusted Jones as she would
have trusted her son, had she been fortunate enough to have one.
Some days after the funeral, Jones went to see Mabel. She sat him down over a cup of tea and pulled
out an old brown school bag – “This is everything Smithy and I own,” she said.
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Opening the bag, Jones came across share certificate after share certificate – no dividends had ever
been taken, rather they had always been re-invested. Jones tallied up at least $5m worth of shares.
There was also a Certificate of Title to the house.
“What do you want to do Mabel?” asked Jones.
“Oh, without Smithy it’s all too hard. Can you just look after everything? I think I just want to move to
the Gold Coast near my dear friend Shirley and live out the rest of my days in the sun.”
Probate was granted, the house transferred and subsequently sold and the shares transferred to
Mabel.
Jones helped Mabel buy a rather large unit on the Gold Coast overlooking the beach [and next door to
Shirley] and helped her settle down – he loved her like a mother and he felt obliged to make sure that
she was alright.
Just as Jones was about to fly back, Mabel said to him, “Jones, I’ve got all these millions of dollars
which I can never use. Can we do something to help people out?”
Jones thought about Mabel for a few days and then telephoned her, “What about if we sell all the
shares and buy some rental properties. The rent can be used to help old age widows who haven’t
been left in as good a financial situation as you. Maybe we can keep a few units empty and let them
have a good holiday.”
Mabel was pleased with the idea. She gave Jones a Power of Attorney and simply said, “Go do it.”
With a sense of vigour, Jones did just what he said he would do and, 12 months later, he visited Mabel
on the Gold Coast and said, “It’s all done.”
Mabel’s Charity, as it became known, helped many widows over the next few years, but it was clear
that Mabel was becoming more and more frail and increasingly reliant on Jones for any decision.
Jones was using more and more of his time administering Mabel’s Charity.
One day Jones sat in his office; he was despondent. He was in his late 50s and, although he was
working for wealthy clients who were making more and more money, he seemed to be going nowhere.
Yes, he had a nice cottage and a lovely family, but none of the luxuries he saw in his clients – “Why
them and not me?” he said. Well, it was going to be “him” from now on.
Jones took the view that with all the expertise he had acquired he should be able to make a fair profit
for himself and yet not adversely affect his clients.
The rent that Jones received from Mabel’s Charity apartments was substantial: only half was ever
really needed and over the years there had been enough to buy more properties. Jones decided that
the next property would be his. He would take enough money from Mabel’s Charity to buy a property
in his name and with the rent he would pay the money back, with interest – nobody would know. This
he did and within a couple of years the property was paid off. The next property Jones bought [again
using moneys from Mabel’s Charity] was paid off just as Mabel was celebrating her 100 th birthday and
for which Jones held a party in his second unit – just down from Mabel’s.
Alas, Mabel’s 101th year was not her best and all good things eventually come to an end. A few days
before her 101th birthday, Mabel passed away.
Unbeknown to Jones, Mabel had gone to see Shirley’s solicitor and had drawn a fresh will wherein
she had bequeathed her entire estate, now worth many more millions of dollars, to a local charity
which was charged with continuing her work.
Estate matters were rather more complex in Queensland than in NSW and the local charity, before it
could take over Mabel’s Charity, needed to undertake a complete audit of its books for the last 10
years.
Audits being what audits are, Jones’ activities were uncovered and reported to the Law Society of
NSW which then undertook its own enquiries.
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Jones did not take issue with any of the above facts. He nevertheless submitted that he had a Power
of Attorney from Mabel and he could therefore do what he wanted with the moneys he received and
that, in any event, no one had lost any money. In those circumstances, he submitted, the Law Society
should not take any adverse action against him.
You are a member of the Council of the Law Society of NSW and, there having been an
investigation pursuant to Part 10 of the Legal Profession Act, 1987, you are required to prepare
a report for the consideration of other councillors.
In your report you will take the view that, because there are a number of new councillors, you
need to set out the basic law and what action you believe the Society should take.
If it is your view that disciplinary action should be taken, advise the Council as to why you
have formed that view and what orders, for example, should be made against Jones.
(25 marks)
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PRESCRIBED TOPICS AND COURSE OUTLINE
LECTURE 1: Solicitors’ duties and the regulation of solicitors
Issues:





What are the essential obligations imposed on a practitioner?
When does a retainer commence?
Is there a hierarchy of duties?
What are the prescribed duties and what duties are implied or imputed into the retainer?
The general ethical obligations of a Legal Practitioner.
Desired Outcomes:



An understanding of the express and implied duties bearing on the discharge of the
professional relationship.
An appreciation that the “fundamental” rules have not lost their importance when
committed to written form.
An appreciation of the care that is required in practice to balance the competing interests
and to maintain the standard required when this may, and often does, conflict with the
client’s aims and perceptions.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
A solicitor's duty to the court
A solicitor's duty to the client
Fiduciary duty
The retainer
Regulation of solicitors
Trust accounts
Control of unqualified persons
External Intervention
Solicitors and third parties
Solicitors and other lawyers
Solicitor's liability for acts of partner
Duty to report offences/bankruptcy
Legal Profession Uniform Law (NSW) 2015
Riley Solicitors Manual, LexisNexis (loose-leaf service) (Riley)
Solicitors’ Rules
Re Mayes and the Legal Practitioners Act (1974) 1 NSWLR 19*
Bridges v Law Society of New South Wales (1983) 2 NSWLR 361*
Legal Profession Act 2004, Chapter 2, Part 2.4, Division 7
Murphy v Bar Association of NSW [2001] NSWSC 1191 (unreported 21.12.2001)
NSW Bar Association v Cummins (2001) 52 NSWLR 279*
NSW Bar Association v Somosi [2001] NSWSC 285
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LECTURE 2: Misconduct and unsatisfactory professional conduct
Issues:




What really is involved in the concepts of professional misconduct and unsatisfactory
professional conduct?
Is there a concept of strict or vicarious liability operating between partners?
How is wilful conduct important, and what are the limited areas in which it operates?
What conduct comes under scrutiny?
Desired Outcomes:


An understanding of the subjective nature of misconduct when the objective criteria are
applied.
The wide criteria that can apply to catch improper conduct inside and outside practice.
1. Misconduct/unsatisfactory professional conduct
(a)
Inclusive
Legal Profession Uniform Law (NSW) 2015
(b)
Common law
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750*
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
Qidwai v Brown [1984] 1 NSWLR 100*
2.
Conduct otherwise than in connection with the practice of law
(a)
Ignorance alone can be sufficient
Law Society of New South Wales v Bolster*
Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 757
(b)
Wilfulness
Re Hodgekiss [1962] SR (NSW) 340*
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LECTURE 2/3: The disciplinary apparatus
Issues:


What is the essential character of the jurisdiction exercised by the Tribunal (NCAT) and
the Supreme Court?
What is the actual procedure involved in the complaints process, and what can you do to
get help or protection?
Desired Outcomes:


(a)
A clear understanding that the whole of the disciplinary apparatus is protective and not
punitive.
An understanding of the elements in the process and the ways in which a practitioner
with a problem can seek help.
Standard of proof
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Evatt: ex parte New South Wales Bar Association [1967] SR (NSW) 236*
(b)
Standard – fitness to remain on the Roll
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444
(c)
The disciplinary apparatus
(d)
Nature of disciplinary proceedings
Walsh v Law Society of New South Wales (unreported) Dec 97 (Beasely JA)*
Harvey v Law Society of New South Wales (1975) 7 ALR 227; (1975) 49 ALJR 362 at 364*
Clyne v The New South Wales Bar Association (1960) 104 CLR 186*
(e)
No unilateral right to have name removed from Roll
Leaver and Legal Practitioners Act (1966) 83 WN (Pt 1) (NSW) 278*
(f)
Court's inherent jurisdiction
Legal Profession Uniform Law (NSW) 2015
Myers v Elman [1940] AC 282*
Weaver v Law Society of New South Wales (1979) 142 CLR 201*
Chamberlain v ACT Law Society (1993) 118 ALR 54 at 58, 59
(g)
Court may depart from complainant’s approach
Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 30
(h)
Legal Services Commissioner
Legal Profession Uniform Law (NSW) 2015
(i)
Complaints
Legal Profession Uniform Law (NSW) 2015
(j)
Investigation of complaints
Legal Profession Uniform Law (NSW) 2015
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(k)
Ethical rulings and assistance
Ethics Officer, Senior Solicitors Scheme
(l)
NSW Civil and Administrative Tribunal [NCAT]
Legal Profession Uniform Law (NSW) 2015
Civil and Administrative Tribunal Act, 2013
(m) Obligations of practitioners to assist enquiry - candour
Malfanti LPDR 4 of 1993
Re Veron: ex parte Law Society of New South Wales (1966) 84 WN (Pt 2) (NSW) 136 at 141-142
New South Wales Bar Association v Liversey [1982] 2 NSWLR 237
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230-231
Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605
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LECTURE 4: Confidentiality and privilege
Issues:




Does the Evidence Act alone now prescribe the test(s) for the protection of confidential
documents and communications?
If not, in what circumstances does the common law apply?
If privilege does not apply to all communications between lawyer and client, then do the
restrictions amount to qualifications on the duty to the client?
How permeable and satisfactory is a “Chinese Wall”? Do the Courts help build them or
destroy them?
Desired Outcomes:


1.
An appreciation of the relevant test for and use of legal professional privilege.
The ability to work out whether future instructions could give rise to a conflict with the
rights of a former client and what to do about it.
Confidential communications and privilege
Evidence Act 1995 (Cth), ss 118-126*
Grant v Downs (1976) 135 CLR 674
Baker v Campbell (1983) 153 CLR 52*
Nickmar v Preservatrice Skandia Insurance (1985) 3 NSWLR 44*
Privilege – Compulsion of Law Sevic v Roarty (1998) 44 NSWLR 287
Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 (21.12.99)
Citibank v FCT [1985] ATC 4714*
CAC v Yuill (1991) 172 CLR 319
Daniels v ACCC [2002] HCA 49
2.
Qualifications on duty to the client
A-G (NT) v Kearney (1985) 158 CLR 500*
O'Donovan v Vereker; O'Donovan v Forsyth (1987) 76 ALR 97*
3.
Government and corporate lawyers
Farrow Mortgage Services Pty Ltd (in liqu) v Webb 39 NSWLR 601*
Waterford v The Commonwealth (1987) 61 ALJR 674
Grant v Downes (1976) 135 CLR 674
A-G (NT) v Kearney (1985) 151 CLR 500
Citibank v FCT (1988) 88 ALR 144
4.
Confidential information
5.
The Chinese Wall problem – conflicts of interest
Mallesons Stephen Jaques v KPMG Marwick (1990) 4 WAR 357
Prince Jefri Bolkiah v KPMG [1999] 2 WLR 215
6.
Search warrant guidelines
Law Society website: http://lawsociety.com.au/
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LECTURE 4 (Cont): Protecting the client and his/her lawyer
Issues:




Can “without prejudice” be a shield of substance?
What are its applications?
How far can a lawyer protect his rights against clients’ property or money under his
control?
How will you protect yourself in practice against the creeping power of “proximity” and the
wider range of persons affected by your actions?
Desired Outcomes:



1.
The ability to make offers and conduct negotiations to your clients’ advantage whilst
protecting their rights.
An understanding of the way in which a lien and other avenues can protect your right to
reward from action for clients.
An awareness of the breadth of potential claimants outside the retainer waiting to pounce
on your failure causing loss.
Without prejudice communications
Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285*
Amev-U D C Finance v Artes Studios Thoroughbreds (1988) 13 NSWLR 486*
2.
Loans and liens
Stewart v Strevens (1976) 2 NSWLR 321*
Akki v Martin Hall Pty Ltd v Anor (1994) 35 NSWLR 470
3.
Duties and liabilities to third parties
Hill v Van Erp High Court decision (1997) 142 ALR 687
Ross v Caunters (1979) 3 All ER 580*
Hawkins v Clayton (1988) 164 CLR 539*
LECTURE 5: Revision Lecture
Revision night for Mr Pierotti’s section of the course.
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LECTURE 6: The Regulation of Advocates
Issues:


The Significance of Ethics for Advocates.
The Regulation of Advocates
o
o
o
The Legal Professional Act
The Bar Rules
The Common Law
Desired Outcomes:


An understanding of how and why ethics play a major role in the manner in which a legal
practitioner conducts himself or herself.
Knowledge of the rules which govern the conduct of solicitors and barristers.
Lecture Topics
1.
The Significance of Ethics
2.
The Regulation of Advocates
(a)
Legal Profession Uniform Law (NSW) 2015, ss 296-298;
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Lopes J)
Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 (Rich J)
(b)
Bar Rules, rr 23-34, 42-68, 79-95, 114-122
(c)
Common Law
Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at p.198-204; Bar Rule 59, 60
Walsh v Law Society of New South Wales (unreported) Dec 97 (Beasely JA)
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LECTURE 7: Admission and Expulsion of Advocates
Issues:




Good Fame and Character
o Non-disclosure of misconduct prior to admission.
Honesty and Truthfulness.
Interference with the Administration of Justice
o Bribery
o Suborning witness
o Conduct in court
Conduct Outside Practice.
Desired Outcomes:

To develop a set of guidelines as to the qualities expected of a legal practitioner
regarding their conduct before and during their practising as a solicitor or barrister.
Lecture Topics
1.
Non-Admission and Expulsion from the Profession
(a)
Pre-admission non-disclosures – prior misconduct
In re Davis (1947) 75 CLR 409
New South Wales Bar Association v Jetnikoff (Court of Appeal, 18.12.1993, unreported)
New South Wales Bar Association v Moore (Court of Appeal, 2.11.1993, unreported)
New South Wales Bar Association v Thomas (No 2) [1989] 18 NSWLR 193
Prothonotary v Del Castillo (Court of Appeal, 6.4.2001, Unreported)
(b)
Honesty and Truthfulness
Re B (1981) 2 NSWLR 372
Wentworth v New South Wales Bar Association (Court of Appeal, 14.02.1994, unreported)
Coe v NSW Bar Association [2000] NSWCA 13
2.
Interference with Administration of Justice
(a)
Bribery
New South Wales Bar Association v Moore (Court of Appeal, 2.01.1993, unreported)
Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77
(b)
Suborning witness
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
(c)
Conduct in court
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
3.
Conduct Outside Practice
Legal Profession Act 2004, s 297 (1)(b)
Re H [1981] 3 All ER 205*
New South Wales Bar Association v Harrison LPDR 6 of 1997
NSW Bar Association v Hamman [1999] NSWCA 404
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
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LECTURE 8: An Advocate’s Duty to the Court
Issues:


Scope and aspects of the duty:
 An advocate’s “paramount duty”
 Tension between Duty to the Court and Duty to the Client
 To act independently
Some elements of an advocate’s duty to the court
o
o
o
o
o
Honesty and candour
Courtesy
Not to frustrate court process
To efficiently administer justice
Responsible exercise of court process
Desired Outcomes:


An understanding of an advocate’s paramount duty to the court being above the duty to a
client or the duty to others.
The importance of the manner in which an advocate conducts himself or herself in court.
Lecture Topics
1.
Aspects of an Advocate’s Duty to the Court
(a)
Paramount duty
Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 198
Rondel v Worsley [1969] 1 AC 191 at 227-228
(b)
Tension between Duty to the Court and Duty to the Client
R v O'Connell (1844) 7 Ir LR 261 at 313
Rondel v Worsley [1969] 1 AC 191 at p.227-228
(c)
To Act Independently
Bar Rule 23, 42-44
Giannarelli v Wraith (1988) 165 CLR 543
Swinfen v Lord Chelmsford (1860) 157 ER 1436
2.
Some Elements of an Advocate’s Duty to the Court
(a)
Honesty and candour
Bar Rules, rr 24-26, 29
Heydon v NRMA Ltd & Ors [2000] NSWCA 374 (21 December 2000)
Tombling v Universal Bulb Co [1951] 2 TLR 289*
Meek v Fleming [1961] 2 QB 366*
(b)
Courtesy
Lewis v His Honour Judge Ogden (1984) 153 CLR 682*
(c)
Not to frustrate court process
Ex parte Bellanto: re Prior [1963] SR (NSW) 190*
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
Kennedy v The Council of the Incorporated Law Institute of New South Wales (op. Cit.) (McTierran J)
Mechanical and General Inventions Co v Austin [1935] AC 346 at 359 (see Bar Rule 57(d))
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(d)
To efficiently administer justice
Bar Rules, rr 58-58
Mechanical and General Inventions Co v Austin [1935] AC 346 at 359 (see Bar Rule 57(d))
(e)
Responsible exercise of court process
Bar Rules, rr 60-65
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LECTURE 9: An Advocate's Duty to the Client
Issues:

Scope and aspects of the duty:
o

Immunity Against Suit of an advocate
Elements of the Duty
o To act in client's best interests
o To act within authority
o Confidentiality of instructions
o Avoiding conflict of interest
Desired Outcomes:




An appreciation of what is constituted by a barrister’s duty to the client.
Under what circumstances a barrister is or is not immune from suit for preparation of a
matter or conduct in court.
The “tension” between the duty of confidentiality to a client and the administration of
justice.
An understanding of the issues relating to a barrister’s conflict of interest – when the
conflict arises and how to deal with the conflict.
Lecture Topics
1.
Aspects of an Advocate’s Duty to the Client
(a)
Immunity of an Advocate
UK
Rondel v Worsley [1969] 1 AC 191 at 227 (see Course Materials, bottom p.28)
Rees v Sinclair [1974] 1 NZLR 180
Saif Ali v Sydney Mitchell and Co [1978] 1 QB 95; [1980] AC 198
Arthur J.S Hall and Co. v Simons and others [2000] UKHL 38 (20th July, 2000)
“Barristers Immunity”, Bar News, Spring 2000, p.5
AUST
Giannarelli v Wraith (1988) 165 CLR 543
Keefe v Marks (1989) 16 NSWLR 713
Yates Property Corp v Boland (1997) 145 ALR 169 (first instance); (1999) 167 ALR 575 (HC)
Donnellan v Woodland [2012] NSWCA 433
D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA (12 March 2005)
NZ
Chamberlains v Lai [2006] NZSC 70
2.
Some Elements of an Advocate’s Duty to the Client
Bar Rules, rr 25-37
(a)
To act in client's best interests
Smout v Smout [1989] VR 845
(b)
To act within authority
Harvey v Phillips (1956) 95 CLR 235, Bar Rules 105(g)
R v Birks (1990) 19 NSWLR 677
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(c)
Confidentiality
Bar Rules, rr 114-118
Tuckiar v R (1934) 52 CLR 335 and Bar Rules, rr 79-81, 107
(d)
Conflict of Interest
Bar Rules, r 119-121
Nangus v Charles Donovan [1989] VR 184*
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LECTURE 10: An Advocate’s Duty to Others
Issues:



Duty to Other Parties
Duty to an Opponent
The duties of a Prosecutor
o
o
General Duties
Duty to Call a Material Witness
Desired Outcomes:


An understanding of the role of a prosecutor and the boundaries within which a
prosecutor must pursue the Crown's case.
An explanation of why a barrister has a duty to the public and examples to illustrate
breaches of that duty.
Lecture Topics
1.
Duty to other parties
Kelly v London Transport Executive [1982] 2 All ER 842*
2.
Duty to the opponent
Bar Rules, rr 49-51
3.
Duties of a prosecutor
(a) Generally
R v Bathgate (1946) 46 SR (NSW) 281
R v Pernich (1991) 55 A Crim R 464
R v Meier (1982) 30 SASR 126
R v Glover (1987) 46 SASR 310
Bar Rules, rr 83-86
(b) Does a Prosecutor have a “duty” to Call a Material Witness?
R v Lucas [1973] VR 693
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Richardson v R (1974) 131 CLR 116
Whitehorn v R (1983) 152 CLR 657
R v Apostolides (1983) 11 A Crim R 381; (1984) 154 CLR 563
Bar Rules, rr 89-90
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