LAWS5217, The Legal Profession course
Marking feedback for the final exam, semester 1, 2015
Question 1 (20 marks)
ANSWER ALL PARTS (A and B and C)
James is a barrister who becomes angry easily. In one case, frustrated with the crossexamination of his client by the opposing counsel, Fred, he muttered abuse under his breath
loud enough for the presiding judge to hear him. The presiding judge issued a warning that
James would be found in contempt if he repeated his behavior.
Two weeks later, Fred received a brief to act in another (unrelated) matter and saw that James
had been briefed by the other side. Fred sent an email to James suggesting that he might want
to “go easy in his advocacy”. He wrote further: “I’m just trying to help you mate. You don’t
want to a letter from the Commissioner do you?”
James felt threatened by this comment. He did not adequately prepare for the trial. On the
first day of trial, he forgot to call a crucial witness.
During a brief adjournment, James left the court room and bumped into the other party in the
case and his daughter. The daughter was on the list of witnesses to give evidence on the next
day of trial. James said to them: “Go off shopping you two. Get ready for a rough day
tomorrow.”
At the end of the first day’s hearing in court, James told his client to settle the case as the
prospects of winning in court were low. James’ client instructed James to approach opposing
counsel to try to settle his case.
A. If the client discovers later that he has settled his case for a much smaller
amount of money than he was likely to receive if he had been properly
represented and continued his case, what avenues of legal redress does he have
against James? (8 marks)
Feedback:
Students were expected to identify that the client can sue a barrister, even if there is no contract.
Barristers owe fiduciary duties and are liable in tort to the client (eg. Hawkins v Clayton). Good
answers noted that barristers can be in a direct contractual relationship under s322 Legal Profession
Act 2007 (Qld). It is also ethical conduct; for example, as a direct brief under r24B Barristers Rules
2011.
There is no information on the facts as to how the relationship arose. Thus it is best to deal with it as
tortious liability. Students could have referred to any of the cases discussed in the course like Kolavo
v Pitsikas (which involved the barrister and solicitor). The question did not require more than a brief
analysis: clearly duty of care; scope to represent in court; and need to do so competently. Students are
informed of the lack of care in running the trial which caused loss to the client. Might amount to
negligence.
In order to pass the question, students were expected to identify that the question mainly invites a
discussion about advocates’ immunity. Answers should have identified this doctrine and how it
applies to the facts. The barrister conduct concerned is in court (ie. barrister not well prepared and
failing to call a witness), and then poor settlement advice and terms agreed. Australia is a common
law country which recognises advocates' immunity against claims in negligence arising from their
conduct of a case in court, or in work out of court ‘intimately connected with that conduct’ or leading
to a decision which affects the conduct of a case (Giannarelli v Wraith; D’Orta-Ekenaike v Victoria
Legal Aid). The idea, or policy rationale, is ‘finality of judgments’ or to stop collateral attacks on
decided cases. Therefore the client will be, prima face, unable to sue James for any aspect of the way
he chose to conduct the trial as the facts indicate that settlement was reached. This is in-court
negligence not fraud or breach of fiduciary duty (which recent cases say are covered anyway Stillman v Rushbourne [2014] NSWSC730).
Good answers noted the more difficult aspect of settlement advice. While things done before the case
commenced might not be covered, recent cases confirm that lawyer advice or participation in
settlement during the case is likely to be covered. Students could have refered to cases of Goddard
Elliot v Fritsch and Kendirjian v Leparo that were explained in detail in the tutorials. On the facts, the
client was consulted about the settlement, and students can assume that that the barrister had
instructions about quantum (ie actual authority to settle for this on the client’s behalf). Thus the
behavior is not as bad as some reported cases where client not consulted or unable to give competent
instructions. Very good answers pointed out that James had an interest in settling because of his own
negligence, but this is unlikely to make a difference given curial reasoning about the purpose of the
immunity.
Good answers also identified that the former client can always make a complaint to the LSC.
Discipline is not part of the civil jurisdiction and no immunity applies. Students may note that if
prosecuted in QCAT, there is a compensation jurisdiction which allows the complainant to make a
claim for compensation (s456(4) LPA). It is capped at $7500 but is available for pecuniary loss
arising from unethical conduct.
B. Are there any other concerns as to the professional ethics of James’ behavior? If
so, what might be the result? (7 marks)
It is possible that there will be some cross-over of answers to Part A and B. If student answers
addressed all issues raised by the two questions then marks will be allocated for both (ie 15 marks).
In this sub-question students needed to make a call about what might be the result (procedurally and
as an order) either collectively or on each individual aspect identified in a disciplinary context.
Students should have mentioned the following about the disciplinary regime. The LSC has the power
to investigate if a complaint made by the client (or court, say) (s435 LPA). The LSC can prosecute
behaviour in QCAT which will make a finding as to two charges - professional misconduct (s419
LPA) or unsatisfactory professional conduct (s418 LPA). This tribunal has power to impose a range
of sanctions under s456 LPA. The purpose of discipline is ‘protection of the public’ (Mellifont; Zeims)
and to a lesser extent the ‘reputation of the profession’.
There are four issues that may raise concerns about James’ professional ethics. Students were
expected to raise two or three with a reasonable coverage:
1. Issue of lack of competency and care.
There are requirements for competency as an ethical standard under the ‘principles’of the
ethical code: BR r5(c). He is supposed to be a ‘specialist advocate.’ Thus the minimum seems
to be getting things right in the basic conduct of the case. There isn’t much disciplinary
jurisprudence on ethical standards of competency for barristers, and none specifically
discussed in the course (Giniarellli v Wraith; Clyne are mostly about limits of advocacy).
Good answers mentioned cases like LSC v Mackie; Clough v QLS Inc [2000] QCA 254
covered in the course. Such conduct can result in findings of professional misconduct (s419
LPA) or unsatisfactory professional conduct (s418 LPA).
Good answers noted that barristers are supposed to exercise forensic judgment and can decide
how to run the case. BR r 25 – overriding duty to the court to act with independence; r 41 –
no mere mouthpiece to client; r 42 – don’t have to call any witnesses the client wants to, but
this must be because of the exercise of good judgment as to how to conduct the case. This can
be a fine judgment. Nevertheless, the idea is that the barrister does this competently: r 57
imposes positive duties to the court for appropriate conduct of a trial.
2. Talking to witnesses: Most students identified this as a potential ethical concern. Students
often referred to BR r 68 not to ‘advise or suggest to a witness that false or misleading
evidence should be given nor condone another person doing so’. It is hard to see that this is
what James did on the facts. Rules 72 and 73 are also about conferring with witnesses. The
comments might go towards trying to get the witness not to testify. (Not trying to stop her
conferring with the other side.)
Students were expected to identify a case discussed in the course: Attorney-General &
Minister for Justice v Gregory [1998] QCA 409. Not quite the same sort of conversation;
could perhaps be distinguished.
3. Pressure to settle: This aspect was less frequently identified by students. Some students noted
that both the BR and ASCR now have positive obligations on lawyers to encourage ADR (BR
38). Still the issue here seems to be whether it is in the client’s best interest to settle – a
barrister must ‘promote fearlessly ... [the] client’s best interests’ (BR 37). No ethical problem
with the barrister negotiating settlement per se (BR 15(c)) and he seems to have done this
with instructions (r 39). Good answers mentioned the case from Learning Guide of Algar v
Gall Stafield & Tiley [2000] QSC 85 about how to go about competently settling.
Pressuring the client to settle would be unprofessional: NSW Bar Ass v Bland [2010]
NSWADT 34. Students can assume that these negotiations with the other side’s counsel are
competent. Nevertheless, good answers might identify that there might be some self-interest
by the lawyer in this process to cover his poor advocacy. As in Part A, he is a fiduciary and
not allowed to prefer his own interests and can’t accept a brief if there is a conflict (BR
95(b)).
4. A second part to this question is that there are some concerns to be raised about James’
behavior in court in the first trial. While the judge has exercised inherent jurisdiction to
control the administration of justice and thus somewhat disciplined the lawyer, it is still poor
form. The judge could refer to matter to the LSC. Good answers mentioned cases that have
been discussed in the course including LSC v Winning and LSC v Baker. The Learning Guide
also refers to LSC v Turley [2008] LPT 4 and Council of NSW Bar Ass v Slowgrove [2009]
NSWADT 150 which both involved bad behavior in court (ie threatening or rude language).
Good answers distinguished these cases from the above facts as not as ‘scandalous or
offensive’ as the prosecuted cases. Indeed, in Winning a number of cases where he swore at
the other side were not considered to be sufficiently serious (in context) to bring the
profession into disrepute. Of course this is in court and more serious. The BR 2011 r12
requires the barrister not to engage in conduct which is ‘dishonest or otherwise discreditable
to a barrister’; ‘prejudicial to the administration of justice’; or ‘likely to diminish public
confidence in the legal profession or the administration of justice or otherwise bring the legal
profession into disrepute’.
Another aspect to this conduct some students identified is that the barrister could be seen as
expressing a view in breach of the Rules: BR r 43 not make submissions or express views to a court
on any material evidence or issue in the case which convey or appear to convey the barrister’s
personal opinion on the merits of that evidence or issue.
C. Has Fred done anything wrong? (5 marks)
Students are expected to identify that Fred has arguably threatened James. (This is not an issue of
interfering with a witness or contacting other party directly.) There are in court advocacy rules
associated with curbing behavior that is threatening and not probative (ie rr 59-67 BR). These do not
quite fit this situation prior to the trial. Good answers compared these facts to breaches of court
privilege by barristers in an attempt to gain collateral advantage, such as Clyne v NSW Bar Ass (1960)
104 CLR 186. Trying to put off an opponent is not a legitimate part of the adversary system, and
suggesting that the person ‘go easy’ might mean that he not represent his client adequately. Obviously
this is a perversion of the adversary approach. (Still good answers noted that James is nevertheless a
professional and expected to provide that level of competency for his client.)
As above, students were expected to refer to BR r12 which requires the barrister not to engage in
conduct which is ‘dishonest or otherwise discreditable to a barrister’; ‘prejudicial to the administration
of justice’; or ‘likely to diminish public confidence in the legal profession or the administration of
justice or otherwise bring the legal profession into disrepute’.
There is no counterpart to ASCR rule 32 associated with unfounded allegations of unethical behavior.
Of course, there is some reason to say that the previous behavior of James was unacceptable. Good
answers made reference to this sort of expectation.
Students were expected to make a call about what they think of the behavior. The question did not
require the student to decide whether it would be prosecuted by the LSC.
Question 2 (15 marks)
ANSWER ALL PARTS (A and B)
You are a solicitor acting for a client in a matter at trial in the District Court. There is a costs
disclosure and agreement signed by the client in accordance with the Legal Profession Act
2007 ('’client agreement’).
You have drafted pleadings based on information supplied by your client. However, during
discussion with the lawyers acting for the other party to the proceeding it becomes clear that
the information provided to you by the client is wrong. The documents filed by your firm on
behalf of the client contain false statements. It now becomes clear that the case has no merit.
When you raise this point with the client says she wants to have her day in court and is not at
all unhappy to make the other side “hurt”.
A. What do you do now? (10 marks)
Students were expected to note two things that are of concern for the lawyer ethically:
there has been false material filed in the court so there is a material representation being
positively made;
and the case is meritless.
Most students identified both of these issues. Students were then expected to discuss how these arise
on the facts and what the lawyer must/should do.
Students frequently began by noting the balance between ASCR r3.1 (duties to the court; Giannarelli
v Wraith (1988) 165 CLR 543) and r4.1 (acting in the best interest of the client) and r8.1 (follow
lawful instructions). The duties to the court are ‘paramount’ and trump duties to client when in
conflict.
In court, the manifestation of this is that the lawyer is ‘no mere mouthpiece’ (r 7.1) and must make
sure their representations are truthful (r19.1: Meek v Fleming). Of particular relevance here is the
continuing duty to be truthful such that the record must be corrected (r19.2) and for the opponent
(r22.2). (Some students also identified r19.12 relating to civil proceedings.) Thus many students
advised that you must immediately correct the record and withdraw the pleadings. Some students
noted that the client should be consulted about this. Given that the client is likely to instruct you not to
change the pleadings, students needed to decide what to do.
Rule 9 also obliges a solicitor to keep a client’s confidences, even after the retainer is finished. If the
client does not give permission, the lawyer cannot breach this duty. There is probably no legal
requirement to disclose the information (cf cases of ‘fraud on justice’ or ‘public interest’: AttorneyGeneral (NT) v Kearney (1985) 158 CLR 500). Some students raised the issue that the information
may not be privileged as it came from another party (not the client). This is unlikely to waive the
privilege persisting in the information provided to the lawyer by the client for the purposes of
litigation.
Students were expected to identify that a similar case was discussed in the course in Perpetual Trustee
v Cowley [2010] QSC 65 (also LSC v Mullins [2006] LPT 012). In this case, Justice Atkinson
indicated that the lawyer must ask the client to correct the record and then refuse to act further if
not given these instructions. Good answers compared this to Ipp J’s view in Kyle v Legal
Practitioners' Complaints Committee [1999] WASCA 115 where his Honour thought it was not
enough to cease acting when a false witness statement was revealed. Some students referred to ASCR
r20.1.2 as setting out this process. While this rule is not quite on point, the authority indicates this is
the correct ethical process to follow.
Some good answers noted that the duty to keep client confidences and act for the client is still of
crucial importance: Tuckiar v The King [1934] 52 CLR 335. Thus the requirement appears to be that
the client be consulted and if they do not authorise a correction to refuse to act further. Some good
answers noted that this may alert the other side to an issue. Others noted that, should the documents
filed in the court amount to personal representations, such as an affidavit as in the case of the Cowely
case, the lawyer should withdraw this. Good answers noted that need to point out specifically to the
client that they may be committing perjury and the serious implications for them in doing so.
Meritless case:
Students must first have identified that this is a case about whether a lawyer can bring a claim with
little or no merit, knowing that the case is probably to further ulterior motives of the client: Flower &
Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773. If the case is for an entirely ‘ulterior
purpose’ it is an abuse and the lawyer must not continue to act. Students had to decide whether this is
the case on the facts (the client says ‘make them hurt’).
ASCR r 21 deals with use of court process and privilege. Students should have cited specific rules
such as r 21.1.3 – not act principally to harass or embarrass; 21.1.4 – no seeking of collateral
advantage (of settlement). (Students mentioned the original decision in Ashby v Cth or in a different
way to do with abuse in terms of over-loading: Yarra Australia Pty Ltd v Radhika Oswal [2013] VCA
356.) Good answers noted ASCR r 34.1.3 – must not ‘use tactics beyond legitimate advocacy which
are primarily designed to embarrass or frustrate the other person’; Clyne v NSW Bar Association
(1960) 1-4 CLR 186.
Students were expected to briefly note the apparent judicial uncertainty about what a ‘meritless’ case
is or what it obliges the lawyer to do. In Steindl Nominees Pty Ltd v Laghaifar members of the court
indicated differing interpretations of the rules from Myers v Elman which express caution in awarding
costs against lawyers for assisting to bring weak cases and which assert the client’s right to counsel of
their choice. Here students do not have enough information to discuss this in any more detail, but on
the facts, it appears that the lawyer must not continue to act for the client if the case has no merit.
B. If the costs agreement did not have a clause which addressed this situation,
would the law firm be able to terminate the client agreement? (5 marks)
Students were expected to briefly mention the nature of lawyer-client relationships as
presumed to be ‘entire contracts’ (eg Cutter v Powell; Groom v Croker). The client can
terminate at will for any reason, or no reason. The lawyer cannot. Nevertheless, the case law
has developed various ‘just causes’ for leaving a relationship which involve a material breach
by the client (eg refusal to pay for work at an increment agreed by both) or a wholesale
breakdown in relationship (eg. the client makes a complaint to the LSC against the lawyer).
The ethical rules also allow for the lawyer to ethically terminate a retainer if there is a ‘just
cause’ and on ‘reasonable notice’: ASCR r 13.1.3. Most students identified that it is likely to
be a just cause as the client has made a material misrepresentation and/or continuing to act
would be a breach of a duty owed to the court: Adamson v Williams [2001] QCA 38.
Good answers noted the facts and concluded that this was probably be possible for the
lawyer here as the case was at a very early stage and reasonable notice could be given that
would not greatly prejudice the client’s case.
Question 3 (15 marks)
ANSWER ALL PARTS (A and B)
In Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467 a practitioner
was found guilty of unsatisfactory professional conduct for cross-examining a recently
former client. The cross-examination involved facts which she came to know through her
professional work for that client. However, these facts were no longer confidential or subject
to legal professional privilege.
A. On what basis did the Full Court of Western Australia’s Supreme Court decide
that Ms Fordham had engaged in unprofessional conduct? (5 marks)
Malcolm CJ cast the test for determining if the lawyer was unprofessionally in a position of conflict as
‘whether a reasonable observer, aware of the relevant facts, would consider that the confidential
information given to the solicitor by the former client was being used by the solicitor to advance the
interests of the new client to the detriment of the former client.’ (at 488) Many students simply
transcribed this quote. However, the point of the decision on the facts (provided in the question) was
that:
•
her actions amounted to a breach of loyalty to her client irrespective of any breach of
confidentiality;
•
her actions could have led a ‘reasonable observer to conclude’ that she had indeed used
confidential information when obtained in the lawyer client relationship to the detriment of
her former client.
•
In doing so, she had breached a duty not to adopt a ‘position hostile’ to a former client in the
same or a related matter.
Good answers also mentioned the comments made in the transcript of the High Court special leave
application and the decision to refuse leave. Kirby J described it as something practitioners ‘just know
in their bones’ not to do even if it doesn’t involve using information that is currently confidential.
Gaudron J distinguished the professional ethics from the civil principles applying to a grant of an
injunction against a lawyer.
B. With reference to other cases, describe the approach of courts to a conflict
between a legal practitioner’s duties to a current client and a former client. Does
it differ to the decision in Fordham v Legal Practitioners Complaints Committee?
(10 marks)
Many answers address this part of the question well in so far as the laws concerning conflicts for
lawyers, but failed to either focus on conflicts between former and current clients and/or make a
comparison to the decision in Fordham.
Good answers noted the comment by Gaurdron J (above). Importantly, good answers begun by noting
the different jurisdictions. One decision concerns professional ethics and the other the standard at
which a civil court will intervene. While these both have an impact on lawyers, they can apply
differing tests/standards.
Nevertheless, some suggested that the reasoning in that case is more in line with the jurisprudence
from Victoria relating to civil cases based on a continuing duty of loyalty to the client after the end of
the retainer (Spinicode v Look Software [2001] VSCA 248; Dale v Clayton [2013] (No 2) VSC 54).
Students were expected to identify that in Queensland the duty of loyalty does not survive the end of
the lawyer-client relationship: Gillies v Dibbets [2001] QSC 459; Kallinicos v Hunt (2005) 64
NSWLR 561. However, the duty to maintain confidences persists forever.
Students were expected to explain how conflicts arise between current and former clients – ie.
continued duty of confidentiality (former) vs. duties of fiduciary and under contract and professional
ethics to be competent for client, including to disclose to the client or put at the client’s disposal all
information within lawyer’s knowledge that is relevant in order to act in their best interests (ASCR r
4.1.1; Littler v Price).
Students were expected to make reference to the Queensland cases prescribed as reading for the
course (ie. Gillies v Dibbets [2001] QSC 459; Pott v Jones Mitchell [2004] QSC 48). Students were
expected to explain that the law regarding conflicts arises generally as a civil application to enjoin a
lawyer from acting. It is a discretionary remedy for the court. The test is the degree of risk of
disclosure must be ‘real’ not merely ‘fanciful’ and there is a ‘real possibility’ of confidential
information being used. In order to satisfy this test, the confidential information held for the former
client must first be identified as relevant and material to what the lawyer is doing for the next client:
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222.
Students were expected to briefly describe the ethical rules which track the common law principles:
BR r 95; ASCR r10.1 ‘A solicitor and a law practice must avoid conflicts between the duties owed to
current and former clients’; r10.2 ‘A solicitor and a law practice who or which is in possession of
confidential information of a former client where that information might reasonably concluded to be
material to the matter of another client and detrimental to the interests of the former client if
disclosed, must not act for the current client in the matter unless:
the former client has given informed written consent to the solicitor or law practice to so act;
or
an effective information barrier has been established’.
Good answers note that the ethical rules seem to put the obligations of the lawyers to resolve the
conflict lower than the common law cases allowing informed consent ‘or’ an information barrier to be
established. Student answers also noted the court’s traditional scepticism about information barriers
and why: Ipp J in Malleson Stephen Jacques v KPMG Peat Marwick (1990) 4 WAR 357.
Good answers considered that the inherent jurisdiction of the court to manage its process is
manifested in some cases as a type of apprehended bias doctrine. In Kallinicos v Hunt (2005) 64
NSWLR 561 the court articulated the test as as ‘whether a fair-minded, reasonably informed member
of the public would conclude that the proper administration of justice requires that a legal practitioner
should be prevented from acting, in the interests of the protection of the integrity of the judicial
process and the due administration of justice, including the appearance of justice’ (and Rv Szabo). The
jurisdiction is to be regarded as exceptional and is to be exercised with caution. This might be said to
be more like what the court had in mind when describing a breach of ‘loyalty’ by Fordham in crossexamining a former client. In this context, perhaps the civil test for an injunction is similar to the
professional ethical standard imposed in that case.