Professionalism
Traits Theory
•Skill based on theoretical knowledge
•The provision of training and education
•Testing the competence of members
•Organization
•An ethical code of conduct and
•Altruistic service
Millerson, ‘The Qualifying Associations: A Study in Professionalism (1964) Routledge
and Keganpaul.
Power and Resource Theory
“ peculiar type of occupational control rather than an
expression of the inherent nature of a particular
occupation.”
Johnson, T., Professions and Power (1972) McMillan
Benefits of Professionalism
Status
Power
Money
Monopoly on the provision of services
Self Regulation
Professionalism and commercialism –
conflict or harmony in modern legal
practice? Justice Allsop
“The observance of ethical guidelines
and enforcement of ethical principles
was, and remains, the essence of a
profession. Such ethical principles are
the manifested structure of the
minimum required service to the
community”.
Former Chief Justice of Australia, the
Hon Murray Gleeson AC
“[T]he single-minded pursuit of private gain has never
been consistent with a full acceptance of the ideals of
professionalism. It is of the essence of professional
values that the pursuit of personal interest is
modified by an acceptance of responsibilities, to the
public, and in the case of lawyers, to the court. Those
responsibilities may in some circumstances conflict
with the dictates of private interest.”
Chief Justice of New South Wales, the
Hon James Spigelman AC,
In his speech at his swearing-in:
“… the operation of a market gives absolute priority to the
client’s interest. A profession gives those interests substantial
weight, but it is not an absolute weight. In many circumstances,
the lawyer’s duty to the Court prevails over a client’s interest,
let alone the client’s enthusiasms.”
Interior
•
Individual
Collective
Exterior
Disagreement+over+morals+Win+at+all+cost+
mentality+
•
Incivility/”Rambo+tac6cs”+
•
Loss+of+job+sa6sfac6on+
•
Poor+treatment+of+clients+
•
Depression/addic6on+
•
Alcohol/substance+abuse+
•
A;orney+specific+psychological+traits+
•
Breakdown+of+club+
•
More+law+schools+=+more+lawyers+=+more+
•
Postmodern+moral+rela6vism+
•
Lack+of+community+values+Increased+
•
Economic+crisis+
li6giousness+
•
Layoffs/outsourcing+
•
Emphasis+on+money+
•
Failure+of+profession’s+selfLpolicing+system+
•
Public+opinion+of+lawyers+
compe66on+for+clients+
Suttle, Brooks, ‘Reframing ‘professionalism” an integral view of lawyering’s lofty ideals’,
(2011) 61 Emory Law Journal 1 161.
Terrell and Wildman
!
!
!
!
!
!
An ethic of excellence in the services rendered to a client
An ethic of integrity
A positive respect for the legal system and rule of law
A respect for other lawyers and their work
A commitment to accountability
A responsibility for the adequate distribution of legal
services
‘Rethinking Professionalism’ (1992) 41 Emory Law Journal 403.
What is ‘ethics’
!
!
!
‘Ethics’ is defined as the normative study of how to
behave.
normative ethics, looks at the creation of systems of
principles and rules to guide human conduct; and
applied ethics, which relates to ethics in particular
contexts such as bioethics or more focussed topics again
such as legal ethics, nursing ethics, dentistry ethics or
psychology ethics
Deontology
!
the binding duty which is intrinsically right - application of
universal precepts which are right in themselves
!
Immanuel Kant
Teleology
!
!
!
Utilitarianism - Bentham and the
maximization of pleasure/
minimization of pain - greater good
calculation
act utilitarianism when decision
should be made according to the
situation
rule utilitarianism seeks for the
identification of concrete rules to
apply in different situations
Virtue Theory
!
!
rightness and wrongness is derived
from an analysis of what is
considered the necessary qualities
of 'doing' a particular task or living
a particular life - de-emphasizes
rules and principles and duties
Aristotle, Anscombe, MacIntyre,
Nussbaum,
Difference between law and ethics
!
One main difference lies in the ability of law to shut down
debate. Unlike ethics, where reasonable people may
continue to take opposing views and continually justify
them using their own normative ethics, law requires that
debates be finalised.
Questions of legal ethics
1.
2.
3.
4.
5.
6.
Do lawyers owe any duties to the public that go beyond
the interests of their clients?
Do lawyers have an obligation to follow all of their
client’s instructions as long as they are within the law?
Can lawyers represent guilty clients who maintain a plea
of not guilty?
Should lawyers pursue truth, or justice?
What should lawyers do about conflicts of interest?
Do lawyers owe any duties to prevent future harm to
third parties that may be caused by their client’s
actions?
Role of the lawyer (an ethical
dilemma)
However, a lawyer is also an officer of the court, and the purpose of
the court is supposed to be to seek justice. Thus, many observers of
the legal system note, lawyers are caught in an inherent ethical and
philosophical bind between their duties to their client (to win the
combat for the client) and their duties to the court (to seek justice). If
that is so, then there is an inescapable ethical dilemma at the heart of
lawyering. Whether that is true, and if so what it means and whether it
can be overcome in any way, seems to be the most fundamental
questions in legal ethics.
http://www.newworldencyclopedia.org/entry/Legal_ethics
Law Council Of Australia
Ethics and Professional Responsibility
Descriptor: An entry level lawyer should act ethically and demonstrate professional
responsibility and professional courtesy in all dealings with clients, the courts, the
community and other lawyers.
Performance Criteria
1.
2.
Acting ethically
Discharging the legal duties and obligations of legal practitioners
4.
Complying with professional conduct rules
Complying with fiduciary duties
5.
Avoiding conflicts of interest
6.
7.
Acting courteously
Complying with rules relating to charging of fees
8.
Reflecting on wider issues
3.
4 Approaches – Parker and Evans
!
!
!
!
Adversarial advocate
Responsible lawyering
Moral activism
Ethics of care
Regulation of the Legal
Profession
Sources of professional regulation
General law eg. Contract, tort, equity
! Statute
! Professional rules
= The law of lawyering
! Lawyers are subject to criminal law sanctions in
certain situations
! Supreme Court has inherent jurisdiction to supervise
officers of the Court
!
Towards a national framework
!
!
!
!
!
1.
2.
3.
4.
!
!
Federation: State based regulation and admission
1992 Mutual Recognition Acts
1998 National travelling practising certificate scheme
2004 Model Law scheme introduced by Standing Committee of
Attorneys General
2009 COAG established National Legal Profession Taskforce
Establish a national Australian Legal profession
Reduce the regulatory burden on Australian lawyers
Enhance consumer protection and
Maintain the independence of the legal profession
2011 National Laws Introduced
2015 Uniform Laws introduced in NSW and Victoria
Legal Profession Uniform Law (NSW) No 16a
!
!
!
!
!
!
A primary source of professional regulation in
NSW
Establishes the framework for how lawyers are
accredited and admitted
Establishes the framework for legal practices
Establishes the disciplinary regime and coregulation of the profession
Legal Services Council to make rules for the
profession
Discipline and regulation still State based
Legislation
Legal Profession Uniform Law (NSW) No 16a
Legal Profession Uniform Law Application Act 2014 No16(NSW)
Legal Profession Uniform Regulations 2015
Legal Profession Uniform Admission Rules 2015
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules
2015
Legal Profession Uniform Conduct (Barristers’) Rules 2015
Legal Profession Uniform Law (NSW) No 16a
Part 9.2 Legal Profession Uniform Rules
419 Power to make Uniform Rules
(1) The Council may make Legal Profession Uniform Rules with respect to any matter that by this Law is required or
permitted to be specified in Uniform Rules or that is necessary or convenient to be specified for carrying out or
giving effect to this Law.Notes 1 Uniform Rules cannot be inconsistent with the provisions of this Law.
2 See section 428 for the Council’s obligation to make an Admission Rule as submitted to the Standing Committee
under section 426.
(2) Without limiting the scope of the Uniform Rules, the Uniform Rules may apply to—(a) qualified entities; and
(b) Australian lawyers who are not Australian legal practitioners; and (c) former Australian legal practitioners,
former Australian-registered foreign lawyers and former Australian lawyers; and (d) persons seeking admission;
and (e) lay associates of law practices. (3) The Uniform Rules may provide for the application to and modification
of provisions of this Law for various categories of law practices and for the persons referred to in subsection (2).(4)
The Uniform Rules may authorise any matter to be determined, applied or regulated, from time to time, by any
specified person or body.(5) The Uniform Rules may contain civil penalty provisions.(6) A contravention of a civil
penalty provision in the Uniform Rules is punishable by the imposition of a civil penalty of an amount not exceeding
50 penalty units specified in the Uniform Rules.(7) The power to make Uniform Rules includes power to amend or
repeal Uniform Rules.(8) The power to amend or repeal Uniform Rules is exercisable in the same way, and subject
to the same conditions, as the power to make Uniform Rules, and references (however expressed) in this Law to
developing, making and otherwise dealing with Uniform Rules apply also to the amendment or repeal of Uniform
.
Rules
420 Categories of Uniform Rules
(1) The Uniform Rules may contain provisions designated
respectively as—
(a) Admission Rules; and
(b) Legal Practice Rules; and
(c) Legal Profession Conduct Rules; and
(d) Continuing Professional Development Rules.
(2) Uniform Rules not so designated may be known as
general Uniform Rules or by another designation
specified in the Rules.
Unsatisfactory professional conduct
s296 Unsatisfactory professional conduct
For the purposes of this Act:
"unsatisfactory professional conduct" includes
conduct of a lawyer occurring in connection with
the practice of law that falls short of the standard
of competence and diligence that a member of
the public is entitled to expect of a reasonably
competent lawyer.
s297 Professional misconduct
(1) For the purposes of this Law, professional misconduct includes—
(a) unsatisfactory professional conduct of a lawyer, where the
conduct involves a substantial or consistent failure to reach or
maintain a reasonable standard of competence and diligence; and
(b) conduct of a lawyer whether occurring in connection with the
practice of law or occurring otherwise than in connection with the
practice of law that would, if established, justify a finding that the
lawyer is not a fit and proper person to engage in legal practice. (2)
For the purpose of deciding whether a lawyer is or is not a fit and
proper person to engage in legal practice as referred to in subsection
(1)(b), regard may be had to the matters that would be considered if
the lawyer were an applicant for admission to the Australian legal
profession or for the grant or renewal of an Australian practising
certificate and any other relevant matters
Complaints in NSW
Supreme Court
NCAT
OLSC
NSW Law Society
NSW Bar Association
Disciplinary orders
!
!
!
!
!
Striking off
Suspension
Fine
Reprimand
Payment of compensation
Duty of representation
Cab rank rule
Cab-rank principle
r17. A barrister must accept a brief from a solicitor to appear before a court in a field
in which the barrister practises or professes to practise if:
(a) the brief is within the barrister's capacity, skill and experience;
(b) the barrister would be available to work as a barrister when the brief would
require the barrister to appear or to prepare, and the barrister is not already
committed to other professional or personal engagements which may, as a real
possibility, prevent the barrister from being able to advance a client's interests to
the best of the barrister's skill and diligence;
(c) the fee offered on the brief is acceptable to the barrister; and
(d) the barrister is not obliged or permitted to refuse the brief under Rules 101, 103,
104 or 105.
Giannarelli v Wraith (1988) 165 CLR 543 per
Brennan J
“It is difficult enough to ensure that justice according to the
law is generally available; it is unacceptable that the privileges
of legal representation should be available only according to
the predilection of counsel or only on the payment of
extravagant fees. If access to legal representation before the
courts were dependent upon counsel’s predilections as to the
acceptability of the cause or the munificence of the client, it
would be difficult to bring unpopular cases to court and the
profession would become the puppet of the powerful.”
ALRC
The main practical effect of the rule in New South Wales
is not that it forces reluctant barristers into accepting
unpopular cases, but rather that it reduces criticism of
barristers who do take such cases. Some barristers who
might otherwise be willing to take unpopular cases could
be deterred if such appearances were generally construed
by professional colleagues and the public as expressions
of sympathy for the client’s cause.
ALRC, First Report on the Legal Profession (1982) at 6.82
Objects (Uniform Rules)
r3.
The object of these Rules
is to ensure that barristers:
(a) act in accordance with the general principles of
professional conduct;
(b)act independently;
(c)recognise and discharge their obligations in relation
to the administration of justice; and
(d)provide services of the highest standard unaffected by
personal interest.
Principles (Uniform Rules)
Principles
4.
These Rules are made in the belief that:
(a)barristers owe their paramount duty to the administration of justice;
(b) barristers must maintain high standards of professional conduct;
(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly,
skilfully, bravely and with competence and diligence;
(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor
colleagues;
(e)barristers should exercise their forensic judgments and give their advice independently and for
the proper administration of justice, notwithstanding any contrary desires of their clients; and
(f)the provision of advocates for those who need legal representation is better secured if there is
a Bar whose members:
(i)must accept briefs to appear regardless of their personal beliefs;
(ii)must not refuse briefs to appear except on proper professional
grounds; and
(iii)compete as specialist advocates with each other and with other legal practitioners as widely
and as often as practicable.
Rule 101
A barrister must refuse to accept a brief or instructions to
appear before a court if:
(a) the barrister has information which is confidential to any
other person in the case other than the prospective client,
and:
(i) the information may, as a real possibility, be material to the
prospective client’s case; and
(iii) the person entitled to the confidentiality has not
consented to the barrister using the information as the
barrister thinks fit in the case;
(b) The client’s interest in that matter is or would be in conflict
with the barrister’s own interest or the interest of an associate
Briefs that must be refused
See rule 101 c-n
Includes:
Situations where there is a personal or professional conflict
of interest
Where barrister might be a witness
Where Barrister is a former member of the Ct in which the
matter will be heard.
Briefs which may be refused
105. A barrister may refuse or return a brief to appear before a court:
(a) If the brief is not offered by a solicitor;
(b) If the barrister considers on reasonable grounds that the time or effort
required for the brief threatens to prejudice the barrister's practice or
other professional or personal engagements;
(c) If the instructing solicitor does not agree to be responsible for the
payment of the barrister’s fee;
(d) If the barrister has reasonable grounds to doubt that the fee will be
paid reasonably promptly or in accordance with the costs agreement;
(e) If the brief may, as a real possibility, require the barrister to crossexamine or criticise a friend or relation
Briefs that may be refused
r105 cont.
(f) the solicitor does not comply with a request by the barrister for appropriate
attendances by the instructing solicitor, solicitor's clerk or client
representative for the purposes of:
(i) ensuring that the barrister is provided with adequate instructions to
permit the barrister properly to carry out the work or appearance
required by the brief;
(ii) ensuring that the client adequately understands the barrister's
advice;
(iii) avoiding any delay in the conduct of any hearing; and
(iv) protecting the client or the barrister from any disadvantage or
inconvenience which may, as a real possibility, otherwise be
caused;
(g) If the barrister’s advice as to the preparation or conduct of the case, not including its compromise,
has been rejected or ignored by the instructing solicitor or the client, as the case may be;
(h) If the prospective client is also the prospective instructing solicitor, or a
partner, employer or employee of the prospective instructing solicitor, and
has refused the barrister's request to be instructed by a solicitor
independent of the prospective client and the prospective client's firm; or
(i) If the barrister, being Senior Counsel, considers on reasonable grounds that
the brief does not require the services of Senior Counsel.
Solicitors Rules – rule 4
Solicitors' Rules - 4 - Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which
the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of
legal practice;
4.1.3 deliver legal services competently, diligently and as
promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional
independence; and
4.1.5 comply with these Rules and the law.
Legal Profession Uniform Law Australian
Solicitors’ Conduct Rules 2015
8 Client instructions
8.1 A solicitor must follow a client’s lawful, proper and
competent instructions
Barbara Babcock – The
Question
How Can You?:
The garbage collector’s answer
The legalistic or positivist answer
The political activist’s answer
The social worker’s answer
The egotist’s answer
Parties to a retainer
“Who is my client?”
Joint clients
!
!
!
Check who has authority to instruct
Owe duties to each of the joint clients
Vukmirica v Betyounan [2008] NSWCA 16
Corporate Clients
!
!
!
Check who has authority to instruct and confirm in
writing
Check status of the corporation
In civil matters involving an insurance firm, it is the
insurer, not the insured who provides the instructions
Solicitors' Rules - 8 - Client instructions
8.1 A solicitor must follow a client's lawful, proper and competent instructions
ASCR Commentary to Rule 8
It is a presumption at common law that every adult person is competent to make their own decisions.
Characteristics which may displace the presumption include old age incapacity, mental infirmity,
suspicion of undue influence or of fraud, or where the client is unable to communicate. Accordingly,
while a presumption of legal capacity lies at the heart of the solicitor-client relationship, solicitors
must be reasonably satisfied that their client has the mental capacity to give instructions, and if not
so satisfied, must not act for or represent the client. A failure to be alert to issues of incapacity has
the potential to generate liability in negligence.
Complex issues can arise when a solicitor has reason to doubt a client’s capacity to give competent
instructions. A number of Law Societies have issued guidance on the ethical responsibilities of
practitioners when faced with such questions. Where a solicitor is unsure about the appropriate
response in a situation where the client’s capacity is in doubt, the solicitor can, pursuant to Rule
9.2.3, seek confidential advice on his or her legal or ethical obligations.
Goddard Elliott v Fritsch [2012] VSC 87
Gibbons v Wright (1954) 91 CLR 423
“The law does not prescribe any fixed standard of sanity as
requisite for the validity of all transactions. It requires, in
relation to each particular matter or piece of business
transacted, that each party shall have such soundness of
mind as to be capable of understanding the general nature
of what he is doing by his participation.”
PY v RJS & Ors [1982] NSWLR 700
"A person is not shown to be incapable of managing his or her own affairs unless,
at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably competent fashion,
with the ordinary routine affairs of man; and
(b) that, by reason of that lack of competence there is shown to be a real risk that
either:
(i) he or she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property which he or she may possess may be dissipated
or lost;
... it is not sufficient, in my view, merely to demonstrate that the person lacks the
high level of ability needed to deal with complicated transactions or that he or
she does not deal with even simple or routine transactions in the most efficient
manner ..."
Children (under 18s)
!
!
!
!
Criminal matters = direct representation
Civil matters = child needs a tutor
Best interest representative = court appointment eg. In
care and protection matters – take views of the child into
account
Guardian ad litem – instructs the solicitor on behalf of
the child
RETAINERS
!
!
!
What are they?
How are they brought into existence?
When can they be terminated?
RETAINERS
• Has to be agreement: whether orally or in writing, or
inferred by the conduct of the parties
• Proof of consideration (consideration is the price that is
asked by the promisor in exchange for their promise)
• Must have been created in circumstances where the
parties had the intention to enter into a binding legal
relationship
• Must comply with any statutory formalities
• Must be created in circumstances in which the client
has the capacity to enter into a contract
• Must have the full and free consent of the client to
enter into the contract
Is there a contract?
– it turns on the facts
See Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd
(1988) 14 NSWLR 523
Pegrum v Fatharly (1996) 14 WAR 92
"A contractual relationship of solicitor and client will
therefore be presumed if it is proved that the relationship
of solicitor and client existed de facto between a solicitor
and another person. Upon proof of that kind it would not
be necessary to prove when, where, by whom or in what
particular words the agreement of retainer was made. “
Per Ipp J
Steele v Marshan [2012] NSWCA 141
Mr Steele claims that he doesn’t have to pay his solicitor Mr Marshan because
there was no retainer. The Court disagreed and found that the retainer could
be inferred from the facts.
“I accept that Mr Steele may have hoped that he would not have to pay for it,
particularly if he did not agree with it. However, on his own case there was no
agreement that the work would be performed without payment.”
“The agreement to meet Mr Marshan at court carries with it an inference that
Mr Steele had agreed that Mr Marshan would in fact appear for him at court.”
“The case turned on the inference to be drawn from the facts. The inference
that there was a contractual relationship was undoubtedly open.”
Legal Profession Uniform Law (NSW) No 16a
Part 2.1 Unqualified legal practice
s9 Objectives
The objectives of this Part are—(a) to ensure, in the
interests of the administration of justice, that legal work is
carried out only by those who are properly qualified to
do so; and (b) to protect clients of law practices by
ensuring that persons carrying out legal work are entitled
to do so.
Duties under the retainer
• Confidentiality of information received from
clients
• Maintain The client’s legal professional
privilege
• The duty to the court and proper
administration of justice not to advise or
allow a client to act in a manner that would
be in breach of the law or mislead the court
• Avoidance of conflicts of interest
• Compliance with statutory and regulatory
requirements as to costs and
• Maintaining a professional relationship and
sufficient objectivity to ensure that the
client is afforded proper advice.
Australian Solicitors’ Conduct
Rules 2015
13 Completion or termination of engagement
13.1 A solicitor with designated responsibility for a client’s matter must ensure completion of the legal
services for that matter UNLESS:
13.1.1 the client has otherwise agreed,
13.1.2 the law practice is discharged from the engagement by the client,
13.1.3 the law practice terminates the engagement for just cause and on reasonable notice, or
13.1.4 the engagement comes to an end by operation of law.
13.2 Where a client is required to stand trial for a serious criminal offence, the client’s failure to make
satisfactory arrangements for the payment of costs will not normally justify termination of the
engagement UNLESS the solicitor or law practice has:
13.2.1 served written notice on the client of the solicitor’s intention, a reasonable time before the date
appointed for commencement of the trial or the commencement of the sittings of the court in
which the trial is listed, providing the client at least 7 days to make satisfactory arrangements for
payment of the solicitor’s costs, and 13.2.2 given appropriate notice to the registrar of the court in
which the trial is listed to commence.
13.3 Where a client is legally assisted and the grant of aid is withdrawn or otherwise terminated, a
solicitor or law practice may terminate the engagement by giving reasonable notice in writing to the
client, such that the client has a reasonable opportunity to make other satisfactory arrangements for
payment of costs which would be incurred if the engagement continued.
Legal Profession Uniform Conduct
(Barristers) Rules 2015
105 Briefs which may be refused or returned (see details of this rule online)
106 A barrister may return a brief accepted under a conditional costs agreement if the barrister considers on
reasonable grounds that the client has unreasonably rejected a reasonable offer to compromise contrary to the
barrister’s advice.
107 A barrister must not return under rule 105 a brief to defend a charge of a serious criminal offence
unless:
(a) the barrister believes on reasonable grounds that:(i) the circumstances are exceptional and compelling, and
(ii) there is enough time for another legal practitioner to take over the case properly before the hearing, or
(b) the client has consented after the barrister has clearly informed the client of the circumstances in which
the barrister wishes to return the brief and of the terms of this rule
108 A barrister must not return a brief to appear in order to accept another brief to appear unless the
instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the
barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister
wishes to return the brief and of the terms of this rule and rule 110
109 A barrister must not return a brief to appear on a particular date in order to attend a social occasion
unless the instructing solicitor or the client has expressly permitted the barrister to do so.
Fiduciary Duties
Breen v Williams (1996) 186 CLR 71.
“the law of fiduciary duty rests not so much on morality or
conscience as on the acceptance of the implications of
the biblical injunction that "[n]o man can serve two
masters". Duty and self-interest, like God and Mammon,
make inconsistent calls on the faithful. Equity solves the
problem in a practical way by insisting that fiduciaries
give undivided loyalty to the persons whom they serve.”
Per Gaudron and McHugh JJ par 285.
Fiduciary relationship
!
!
!
!
!
A duty of loyalty
No conflict
No profit
Equity intervenes to enforce proscriptive duties
“A demanding level of propriety of conduct exceeding the
tortious standard of care and usually also the standards
imposed by contracts” Gino Dal Pont
Maguire and Tansey v Makaronis [1997] HCA
23 (25 June 1997)
465. Equity intervenes ... not so much to recoup a loss
suffered by the plaintiff as to hold the fiduciary to, and
vindicate, the high duty owed to the plaintiff ... [T]hose in a
fiduciary position who enter into transactions with those to
whom they owe fiduciary duties labour under a heavy duty
to show the righteousness of the transactions.
Clark Boyce v Mouat [1994] 1 AC 428
"The classic case of the [fiduciary] duty arising is where a
solicitor acts for a client in a matter in which he has a
personal interest. In such a case there is an obligation on
the solicitor to disclose his interest and, if he fails so to do,
the transaction, however favourable it may be to the client,
may be set aside at his instance".
Solicitors' Rules - 4 - Other
fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in
which the solicitor represents the client;
Lawyers’ immunity from suit
Ridealgh v Horsefield [1994] CH205
“… an advocate in court, like a commander in battle, often
has to make decisions quickly and under pressure, in the fog
of war and ignorant of developments on the other side of
the hill. Mistakes will inevitably be made, things done which
the outcome shows to have been unwise. But advocacy is
more an art than a science. It cannot be conducted
according to formulae. Individuals differ in their style and
approach. It is only when, with all allowances made, an
advocates conduct of court proceedings is quite plainly
unjustifiable that it can be appropriate to make a wasted
costs order against him.”
Giannarelli v Wraith (1988) 165 CLR 543
Keefe v Marks (1989) 16 NSWLR 713 NSW
CA
D’Orta-Ekenaike v Victoria Legal Aid (2005) 79
ALJR 755
Public opinion following D’Orta
“High Court, Low Decision”
“It is all right for barristers to pursue other professions with a
vengeance for negligence, but for themselves to remain
immune from their own cock-ups in court.”
“How can we ever hope to convince ourselves, or anyone else,
that we're a lawful society if we're happy to shield lawyers
from negligence claims?”
Letters to the editor, Sydney Morning Herald, March 12, 2005
Abolished in the UK
Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615
! “the cab rank rule cannot justify depriving all clients of a
remedy for negligence, causing them grievous financial
loss.”
! “there is no reason to fear a flood of negligence suits
against barristers. The mere doing of his duty to a court
by the advocate to the detriment of his client could never
be called negligent.”
! “The courts can be trusted to differentiate between
errors of judgment and true negligence”
NSW Immunity cases
Bott v Carter [2012] NSWCA 89;
Young v Hones [2014] NSWCA 337;
Nikolaidis v Satouris [2014] NSWCA 448;
Chamberlain v Ormsby [2005] NSWCA 454;
Donnellan v Woodland [2012] NSWCA 433).
Negligent settlement advice
Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (4
May 2016)
(5) The authoritative test for the application of the
immunity stated in D'Orta and Giannarelli is not satisfied
where the work of the advocate leads to an agreement
between parties to litigation to settle their dispute.
Summary
!
!
!
!
Immunity applies to both solicitors and barristers
It applies where there is a ‘functional connection’ between
work done by the practitioner and a judicial outcome
Advice that leads to a case not being presented (for example if
it was settled, or if it was not presented in time) does not
attract immunity.
The underlying rational is to protect the finality of judicial
decisions and protect them from collateral attack.
The Lawyers’ Duty of Care
Liability in tort
Professional rules
Uniform Solicitors’ Rules
4.1.3 deliver legal services competently, diligently and as
promptly as reasonably possible;
Uniform Barristers’ Rules
Duty to client
35. A barrister must promote and protect fearlessly and by all
proper and lawful means the client’s best interests to the best
of the barrister’s skill and diligence, and do so without regard
to his or her own interest or to any consequences to the
barrister or to any other person
Elements of the tort of negligence
!
Duty of care
!
An act or omission which could cause foreseeable harm
!
The act or omission was the cause of the loss
Carradine Properties Limited v DJ Freeman &
Co [1999] Lloyd’s Law Rep PN 483
!
“An ‘inexperienced client’ will need and be entitled
to expect the solicitor to take a much broader view
of the scope of his retainer and of his duties than
will be the case with an experienced client.”
CIVIL LIABILITY ACT 2002 - SECT 50
Section 50 Standard of care for professionals
(1) A person practising a profession ( "a professional") does not incur a
liability in negligence arising from the provision of a professional service if
it is established that the professional acted in a manner that (at the time
the service was provided) was widely accepted in Australia by peer
professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes
of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted
in Australia concerning a matter does not prevent any one or more (or
all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.
Midland Bank Trust Co Ltd v Hett
Stubbs & Kemp [1979] Ch 384 at
402–403
“The standard of care required of a solicitor is that of a
reasonably competent legal practitioner and not that of “a
particularly meticulous and conscientious practitioner”
Roberts v Cashman [2000] NSWSC 770
Hawkins v Clayton (1988) 164 CLR 53
The critical factors of the relationship between the testatrix and
the firm which gave it the character of a relationship of
proximity with respect to economic loss of the kind sustained in
the present case are those related elements which lie at the
heart of the ordinary relationship between a solicitor and his
client, namely, assumption of responsibility and reliance.
The solicitor, as a specially qualified person possessing expert
knowledge and skill, assumes responsibility for the performance
of professional work requiring such knowledge or skill. The client
relies upon the solicitor to apply his expert knowledge and skill
in the performance of that work.
Per Deane J
Hill (t/a RF Hill & Associates) v Van
Erp (1997) 142 ALR 687 HCA
“Although a solicitor’s contractual duty is owed solely to
the client, the existence of that duty does not necessarily
negate a duty of care owed to a third party in tort. To the
contrary, the undertakings of a specialist task pursuant to a
contract between A and B may be the occasion that gives
rise to a duty of care owed to C who may be damaged if
the task is carelessly performed.”
Australian Consumer Law
!
Misleading and deceptive conduct could give rise to a claim
Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (14 March 2012)
See 518 (extracted in textbook) and
519. In the present case, the representations and further
representation were allegedly made by a solicitor and two barristers
(senior and junior counsel) to their client in the course of property
settlement proceedings in the Family Court. The representations
and further representation were made out-of-court, albeit at the
door of the court, in the course of legal advice which the lawyers
gave to their client and were not made in court documents or in
giving evidence or making submissions. The relationship between
the lawyers and the client was commercial in the sense that the
lawyers were providing legal services to him for fee and reward.
Therefore, in my view, the alleged representations and further
representation were made ‘in trade or commerce’ .....
!
Lawcover
Communication breakdown with clients is the largest
cause of professional negligence claims against
solicitors. Clients’ instructions are either not followed
or there is a failure to obtain instructions. Or the
solicitor sometimes fails to advise of all the options
available to the client or gives an incomplete
explanation and/or advice. Concentrate on the
process of communication and take the time to
provide a complete service to your clients.
Concentrate also on communicating with your staff.
Concurrent client conflicts
Blackwell v Barroile Pty Ltd (1994) 51 FCR
347
Fundamental duty:
“to provide a client with professional advice and skill
uncompromised by the performance of a like duty to
another whose interests conflict with those of the client.”
Uniform Solicitors’ Rules
11.1 A solicitor and a law practice must avoid conflicts
between the duties owed to two or more current clients,
except where permitted by this Rule
11.3 Where a solicitor or law practice seeks to act in the
circumstances specified in Rule 11.2, the solicitor may,
subject always to each solicitor discharging their duty to
act in the best interests of their client, only act if each
client:
11.3.1 is aware that the solicitor or law practice is also
acting for another client; and
11.3.2 has given informed consent to the solicitor or law
practice so acting.
Extent of the proscription
Conflict
!
Village Roadshow Ltd v Blake
Dawson Waldron (2004)
Aust Torts Report 81-726
No conflict
!
Australian Liquor Marketers
Pty Ltd v Tasman Liquor
Traders Pty Ltd [2002] VSC
324
Rule 11 of the Uniform Rules
11.4.1 a solicitor may act where there is a
conflict of duties arising from the possession
of confidential information, where each client
has given informed consent to the solicitor
acting for another client; and
11.4.2 a law practice (and the solicitors
concerned) may act where there is a conflict
of duties arising from the possession of
confidential information where an effective
information barrier has been established.
Barristers’ rules
Rule 119
A barrister who is briefed to appear for two or more
parties in any case must determine as soon as possible
whether the interests of the clients may, as a real
possibility, conflict and, if so, the barrister must then
return the brief
Consequences for breach of “No Conflict”
rules
!
!
!
!
Injunction restraining firm from acting
Damages for breach duty
Account of profits/ constructive trust
Professional misconduct findings
Legal Writing
Dr Joel Harrison
Why write effectively?
!
!
!
!
!
!
Obliged to communicate well with clients, third parties, and the court.
Good communication skills demonstrate respect for your client.
Many of the decisions that a lawyer makes with their client need to be
documented and confirmed with the client to avoid future complaints and
litigation (see Ch7 text).
Lawyers should send copies of all correspondence (both incoming and
outgoing) to their clients. This includes written summaries of instructions
clients give orally. A clear written record is kept of the steps that the lawyer
is (or is not) to take on the client's behalf.
You are wordsmiths.
Argument – the medium is the message.
Writing Effective Paragraphs
!
!
Each paragraph should make one point
The first sentence of each paragraph should be a “topic”
or “thesis” sentence.
!
Thesis sentence: Asserts a position that the paragraph will
support or explain.
!
!
E.g. “Confidentiality is a fundamental element of the fiduciary
relationship.”
Using a thesis sentence advances your analysis rather than
simply introducing the next point.
Essay Topic
Analyse the arguments in favour of a client centred
approach to the lawyer’s role. What are the main
criticisms of this approach?
Key elements in the question
! Analyse
! Client centred
! Criticisms
!
Sample introduction
Thesis statement; what is the argument of this essay?
The literature on client-centred lawyering, although offering
insights, too often neglects the power disparity between lawyers
and clients.
Elaborate context – what is the controversy?
Client-centred approaches to lawyering, based in a greater
awareness of an ethics of care, have been proposed as a way of
facilitating client autonomy. However, I argue a true ethics of
care would recognise the necessary and beneficial role of
hierarchy.
Detail the structure of the essay, and the core argument
you will make to support your thesis: After describing the
core claims of client-centred lawyering and its benefits, this essay
discusses … .
Writing Effective Paragraphs
!
Paragraphs should be moderately short
!
!
!
!
1/3 to 1/2 of a double-spaced page
This keeps you focused on the thesis of the paragraph
One main point per paragraph
Each paragraph should fit smoothly and logically between
its neighbors
E.g. body paragraph
!
Paragraphs follow a decreasing level of abstraction
!
E.g.: [Topic/Thesis statement] To be a contract, an
agreement between two parties requires consideration.
[Legal Principle/Rule] A friend’s promise intending only to
extend the friendship, without a bargained-for exchange, is not
consideration. [Example with application] If Steve
promises to lend Bill his car to help Bill get the groceries, this
does not amount to a contract. Steve and Bill have not
engaged in a bargain. Rather, Steve is engaged in a social
promise that is unenforceable.
E.g. Body paragraph
Topic sentence, sets out the subject-matter/orientation of this para.
Lawyers have traditionally assumed a hierarchical relationship exists between
themselves and clients. Judicial statements have supported this. Evidence/
argument. Establish the proposition in the topic sentence. For
example, in Case Name, Heraldic J stated, ‘ … ’.[FN]
Continue this for as long as you need – establishing context, the
judge’s argument. We can call this position ‘the traditional understanding’
Here I’m doing something useful – labelling an argument. Transition
sentence – still within the main topic sentence, so still in this
paragraph: Although it has drawbacks, the traditional understanding has
been useful.
[What would the next paragraphs go on to consider?]
Structure
!
Each paragraph should fit smoothly and logically between its
neighbors
!
Use a transitional word, phrase, or sentence to move on to a
new point
!
!
!
!
!
!
The court in X case applied this rule …
On the other hand …
When this rule is applied to …
This …
Further, also, therefore …
[Or echo a phrase, key term]
Complete sentences
!
As you write (and rewrite), ask yourself whether the words,
phrases, and sentences convey precisely the meaning you
intend
!
Always ask: How does this word fit into the sentence’s logical
structure?
!
!
Subject – action [verb] – [typically]object (“doer-doing-done to”)
E.g. The Court ruled against the plaintiff. Kirby J wrote a
stinging dissent.
Simple sentences
!
Generally you should strive for short, strong sentences
!
BUT variety
!
The High Court has considered s 116 of the Constitution only a few
times and on each occasion has not reached a final view as to what
the section requires because different judges see religion differently
within a society experiencing increasing secularisation.
!
Contrast: Consistent with the founder’s vision, the Constitution focuses
on governmental frameworks and excludes a bill of rights.
!
Re-write
One sentence = one proposition
Plain English
!
“Know all persons by these present that I hereby give, grant,
release, convey, transfer and quitclaim all my right, title,
interest, benefit and use whatsoever in, or and concerning this
chattel, otherwise known as an orange, or citrus aurantium,
together with all the appurtenances thereto of skin, pulp, pip,
rind, seeds and juice to have and to hold the said orange, for
his own use and behoof, to himself and his heirs, in fee simple
forever, free from all liens, encumbrances, easements,
limitations, restraints or conditions whatsoever, any and all
prior deeds, transfer, or other documents whatsoever, now or
anywhere made to the contrary notwithstanding, with full
power to bite, cut, suck or otherwise eat the said orange or to
give away the same, with or without its skin, pulp, pip, rind,
seeds or juice.”
What is wrong with legalese?
Jargon and Legalese
!Examples
!
!
!
!
!
!
Whereby
Hereby
Hereinafter
Aforementioned
Foregoing
“Threw the case out”
Jargon: Examples
Before
After
Subsequent to
After
Subject to exemption
Exempt
By the clear language of
Under
Takes the position
Claims
Has no bearing on this case
Is irrelevant
Question at issue
Issue
Concerning the matter of
About
Exercises
Re-write
Attn: Robert Roberston esq, c/- Roberts and Roberts Associates,
Re: Termination of residential lease at 14 Primrose Close, Auburn.
This firm and, in particular, the writer (who has carriage of this matter), have
recently received instructions to act on behalf of Ms Jane Miller in relation to the
matters set out in the subject line above.
During our initial conference with her on even date, Ms Miller has provided to us a
copy of your correspondence issued on 4 August 2015 and received by her on 6
August 2015, which we are presently reviewing.
Following the completion of our review and consideration, and the taking of further
instructions from Ms Miller, we will revert to you by way of further
correspondence.
We remain, dear sir, your faithful servants,
Eagle, Concord, Badger, Unicorn and Smith
Dear Mr Robertson,
We act for Jane.
We have a copy of your letter dated 4 May 2014 and will respond
shortly.
Yours faithfully,
Plain English Lawyers
http://www.tipsforlawyers.com/an-exercise-in-legalese-legal-writing-at-its-best/
Throat-clearing
!
Malady: a clause is added to a sentence that either (a)
does not add to the argument; (b) prolongs the sentence
unnecessarily; or (c) explains a mental thought process
prior to the point.
!
i.e. the equivalent of throat-clearing
!
!
At its worst (the ‘Perd Hapley’ of writing):
!
There are many legal issues to discuss and consider / These facts
raise a number of issues.
!
In considering this question, I must have regard to the law …
!
As a solicitor, I am under certain obligations …
But also within sentences …
Before&
“Junk”&or&“Throat1clearing”&
After&
Some examples of unnecessary
words
Whether$
The$question$as$to$whether$
In$a$reckless$manner$
Recklessly$
For$the$purpose$of$
For$
In$the$event$that$
If$
In$the$same$way$as$
Like$
Until$such$time$as$
Until$
It$has$been$held$by$most$courts$that$
Most$courts$have$held$
Due$to$the$fact$that$
Because$
I$should$like$to$call$your$attention$to$
the$fact$that$
[Begin$with$concrete$person$etc.$$“The$
Court$…”$“Ms$Woodward$…”$
During$the$time$that$
While$
A$state$supreme$court$considered$this$
issue$in$Colorado'Carpet.$There$the$
court$held$that$
In$Colorado'Carpet,$the$state$supreme$
court$held$that$
The$question$is$whether$$
Did$…$
We$must$now$consider$$
Did$…$Was$…$
Unnecessary Words: Exercise
!
It appears that the defendant left the jurisdiction to avoid
testifying, so it should be clear that the sanctions would
apply.
!
Because the defendant left the jurisdiction to avoid
testifying, the sanctions would apply.
“There” and “It”: Exercise
!
!
!
!
!
!
It is important for the stability of the legal system to ensure consistent
decisions from the courts.
Consistent decisions from the courts are important for the stability of the
legal system.
There is a cause of action because the passenger suffered from the reckless
conduct of the driver.
The passenger has a cause of action against the driver because of the
driver’s reckless conduct.
It is the well-settled law in New South Wales that
The law in New South Wales is that/New South Wales law requires/holds
Active and Passive Voice
!
“The unmarked raised curb on the sidewalk disrupted the
motion of plaintiff's foot.”
!
Why write this way? A reason in advocacy?
!
Re-write
Passive Voice
“The lecture was given by Joel.”
!A
be-verb (such as is, are, was, were) is followed by a past
participle, usually a verb ending in –ed (was considered by; was
given by).
! The subject of the sentence (the actor) [Joel] has been turned
into a prepositional phrase. That is, ‘by Joel’ – a phrase denoting
a relationship.
“Joel gave the lecture”.
The Cure:
!Make the agent of the action the subject of the
sentence. Re-write the sentence so that a subject,
whether a person or a thing, does something.
!Aim for a definite subject: ‘The Court …’, ‘Justice X’
…, ‘Scholar Y …’, ‘Person Z …’.
Passive Voice: Examples
!
Sue was hit by Nancy.
!
!
The relevant market was analysed by the Court.
!
!
Nancy hit Sue.
The Court analysed the relevant market.
All relevant information shall be disclosed to the
requesting party.
!
The department shall [must/will] disclose all relevant
information to the requesting party.
Passive Voice: Exercise
!
After a notice of appeal was filed by the defendant, the
assessment of attorneys’ fees was entered and payment
was made a condition of probation.
!
After the defendant filed a notice of appeal, the Court
entered the assessment of attorneys’ fees and made
payment a condition of probation.
Passive Voice: Examples
Before&
After&
Sue$was$hit$by$Nancy$
Nancy$hit$Sue$
The$relevant$market$was$analysed$by$
the$Court.$
The$Court$analysed$the$relevant$
market.$
All$relevant$information$shall$be$
disclosed$to$the$requesting$party.$
The$department$shall$disclose$all$
relevant$information$to$the$requesting$
party.$
There$was$a$modification$in$the$
program$by$the$Agency.$
The$Agency$modified$the$program.$
The$lease$was$signed$by$the$tenant.$
The$tenant$signed$the$lease.$
Exercises
Nominalisations
“The open-endedness of the rule in Capterton was the
subject of criticism by Justice Scalia. The ruling engaged in
a conflation of best practice and constitutional law, in
Justice Scalia’s consideration.”
“The open-endedness of the rule in Capterton was the
subject of criticism by Justice Scalia. The ruling
engaged in a conflation of best practice and
constitutional law, in Justice Scalia’s consideration.”
!
“The open-endedness of the rule in Capterton was the
subject of criticism by Justice Scalia. The ruling engaged in a
conflation of best practice and constitutional law, in Justice
Scalia’s consideration.”
!
What are the verbs in this sentence?
!
!
!
!
‘To criticise’
‘To conflate’
‘To consider’
Change to: “Justice Scalia criticised the open-ended rule in
Caperton. He considered the rule conflated best practice and
constitutional law.”
Nominalisation: Examples
!
The court made a decision to conduct a review of
the matter.
!
!
The investigator carried out an analysis of the blood
sample.
!
!
The court decided to review the matter.
The investigator analysed the blood sample.
The search was a violation of the defendant’s rights.
!
The search violated the defendant’s rights.
Nominalisations: Exercise
!
New York law is very protective of medical peer review
procedures, so a challenge to the procedures would not
be beneficial to our client.
!
New York law protects medical peer review procedures,
so challenging the procedures would not benefit our
client.
Nominalisations: Examples
Before
After
The court made a decision to conduct a
review of the matter.
The court decided to review the matter.
The investigator carried out an analysis of
the blood sample.
The investigator analysed the blood
sample.
The search was a violation of the
defendant’s rights.
The search violated the defendant’s rights.
The opinion of the Supreme Court in
In Miranda, the Supreme Court criticised
Miranda is reflective of the Court’s
various custodial interrogation techniques
disfavor of various techniques of
in the absence of counsel.
interrogation of suspects in custody in the
absence of counsel.
Grammar Hiccups
!
!
!
!
Semi-colons and commas
Apostrophes
Capitals
British [Australian] spelling!
Semi-colon
!
When can you use a semi-colon?
!
The jury considered he was guilty of murder; as well as shoplifting post-it notes. [?]
!
Breaking client confidentiality; the lawyer told the news about Mr Fernanderez’s illegal
kiwifruit smuggling gang. [?]
!
The accused was guilty; he would hang at sundown. [?]
!
Joel was hungry; his stomach growled like a rabbit. [?]
!
When watching rugby, you must observe three rules: first, no extraneous talking; second,
no laughing (it’s serious); and third, respect Ritchie McCaw as the greatest. [?]
Apostrophes
!
When must you use an apostrophe?
!
Possessives only
!
The girls’ were hanging out at the bar. [?]
!
Batman’s approach to violence is part of the problem. [?]
!
The brothers’ car was described as ‘sick’. Its speakers are ‘mad cool’.
[?]
Capitals
!
Madeleine, you were driving North from Sydney towards
hawks Nest on 1 march 2007. Unfortunately for You, you
took your trip too late. New Legislation was passed by
the Legislative Council on 22nd January, and received the
governor’s assent 8 days later. This Law penalises
Plaintiffs. As my Client, I advise you to drop the Case. In
Jones v Smith, the court gave a clear reading of Section 7.
Simple, but elegant
This Is Just to Articulate
It appears that the plums,
species prunus, contained within the box wherein ice is found,
were eaten by me
And aforementioned prunus,
Were assumably and doubtlessly being economized by you
For the purposes of the meal eaten in the morning
It is essential that I be exculpated
They were arguably satiable
And cold as ice.
Jane Norton
Simple, but elegant
This Is Just to Say
I have eaten
the plums
that were in
the icebox
and which
you were probably
saving
for breakfast
Forgive me
they were delicious
so sweet
and so cold
William Carlos Williams
Successive Client Conflicts
Spincode Pty Ltd v Look Software
Pty Ltd & Ors [2001] VSCA 248
But why should we not say that "loyalty" imposes an abiding
negative obligation not to act against the former client in
the same matter? The wider view, and the one which
commends itself to me as fair and just, is that the
equitable obligation of "loyalty" is not observed by a
solicitor who acts against a former client in the same
matter.
Australian Solicitors’ Rule
10
A solicitor or law practice who or which is in possession of
confidential information of a former clients where that
information might reasonably be 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 that matter UNLESS:
10.2.1 the former client has given informed written consent
to the solicitor or law practice so acting; or
10.2.2 an effective information barrier has been established.
Carindale Country Club Estate Pty Ltd v Astill
(1993) 115 ALR 112
“a solicitor is liable to be restrained from acting for a new
client against a former client if a reasonable observer,
aware of all the relevant facts, would think that there is a
real, as opposed to a theoretical possibility that
confidential information given to the solicitor by the
former client might be used by the solicitor to advance
the interests of a new client to the detriment of the
old client.”
Strict view
Mallesons Stephen Jacques v KPMG Peat Marwick (1990) 4
WAR 357
“even with the best will in the world, the confidential
information would colour, at least subconsciously, the
approach of the solicitors and influence them in the
performance of their tasks.”
!
Prince Jefri Bolkiah v KPMG (a firm)
[1999] 2 AC 222
Effective information barriers require:
! The physical separation of various departments
! An educational program emphasizing the importance of
maintaining confidential information
! Procedures for situations where the wall might need to
be crossed and the proper documentation of such a
sequence
! Monitoring by compliance officers
! Disciplinary sanctions where there has a been a breach.
Client Privilege
Baker v Campbell (1983) 153 CLR
52
“The privilege is commonly described as legal professional
privilege, which is unfortunate, because it suggests that
the privilege is that of the members of the legal
profession, which it is not. It is the client's privilege, so
that it may be waived by the client, but not by the lawyer”
“The privilege is granted to ensure that the client can
consult his lawyer with freedom and candour, it being
thought that if the privilege did not exist ‘a man would
not venture to consult any skilful person, or would only
dare to tell his counsellor half his case…..”
Privileged communications
!
!
!
Privileged communications are those confidential
communications between a lawyer and client
made for the purpose of advice or for use in
existing or anticipated litigation.
s118 &s119 Evidence Act 1995 (Cth)
Onus of proof is on the person claiming privilege
Legal Professional Privilege
!
!
!
!
!
!
Public policy rationale – frank disclosure
does not rest in contract
cannot be extended
is absolute and unqualified
Does not protect against communications directed
against public interest
R v Bell 1980 CLR 141
In-House Lawyers
!
Sydney Airports v Singapore Airlines [2005] NSWCA
47
!
Seven Network Limited v News Limited [2005] FCA
142 at [4]
!
Telstra Corporation Ltd v Minister for
Communications, Information Technology and the
Arts (No2) [2007] FCA 1445
Sole/ Dominant purpose
!
Grant v Downs (1976) 135 CLR
!
Esso Australia Resources Ltd v Federal Commissioner of Taxation
(1999) ALR 123
!
“The search is for a test which strikes an appropriate balance
between two competing considerations: the public policy
reflected in the privilege itself, and the public policy that, in the
administration of justice and investigative procedures, there
should be unfettered access to relevant information.
Additionally, whatever test is adopted must be capable of being
applied in practice with reasonable certainty and without
undue delay and expense in resolving disputed claims.”
Abrogation of privilege
Federal Commissioner of Taxation v Citibank Ltd (1989) 85
ALR 588
Z v New South Wales Crime Commission (2007) 231 CLR
75
Attorney General (NT) v Maurice (1986) 161 CLR 475
(waiver by client)
Privilege in aid of settlement
!
!
!
!
Where litigation is contemplated
Where the correspondence is made for the purpose of
achieving settlement
s131 Evidence Act 1995 (NSW)
Field v Commissioner for Railways for New South Wales
(1957) 99 CLR 285
Confidentiality
Confidentiality
!
!
!
!
!
Duty based on a combination of contract and equity
Implied in the retainer
A professional duty outlined in the rules of practice
Encourages full and frank disclosure
Public policy rationale to encourage faith in lawyers
and legal system
Uniform Solicitors Rule 9. Confidentiality
9.1 A solicitor must not disclose any information which is
confidential to a client and acquired by the solicitor
during the client’s engagement to any person who is not:
9.1.1 a solicitor who is a partner, principal, director, or
employee of the solicitor’s law practice; or
9.1.2 a barrister or an employee of, or person otherwise
engaged by, the solicitor’s law practice or by an associated
entity for the purposes of delivering or administering legal
services in relation to the client, EXCEPT as permitted in
Rule 9.2.
Uniform Solicitors Rule 9.2
9.2 A solicitor may disclose information which is confidential to a
client if:
9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2
the solicitor is permitted or is compelled by law to disclose;
9.2.3 the solicitor discloses the information in a confidential
setting, for the sole purpose of obtaining advice in connection
with the solicitor’s legal or ethical obligations;
9.2.4 the solicitor discloses the information for the sole purpose
of avoiding the probable commission of a serious criminal
offence;
9.2.5 the solicitor discloses the information for the purpose of
preventing imminent serious physical harm to the client or to
another person; or
9.2.6 the information is disclosed to the insurer of the solicitor,
law practice or associated entity.
Uniform Barristers Rules
A 114. A barrister must not disclose (except as compelled by
law) or use in any way confidential information obtained by the
barrister in the course of practice concerning any person to
whom the barrister owes some duty or obligation to keep the
information confidential unless or until:
(a) the information is later obtained by the barrister from
another person who is not bound by the confidentiality owed
by the barrister to the first person and who does not give the
information confidentially to the barrister; or (b) the person
has consented to the barrister disclosing or using the
information generally or on specific terms.
115. A barrister must not disclose (except as compelled by law)
or use confidential information under rule 114(b) in any way
other than as permitted by the specific terms of the person’s
consent.
Exceptions to confidentiality rule
!
!
!
!
!
!
Client consent
Public knowledge
Compelled by law
Client intends to disobey court order and it may
threaten someone’s safety
Duty to court or tribunal
Disclosure ostensibly to support lawyer’s own
interest
Abuse of process
Giannarelli v Wraith
!
“It is that a barristers duty to the court epitomizes the
fact that the course of litigation depends on the exercise
by counsel of an independent discretion or judgment in
the conduct and management of a case in which he has an
eye, not only to his client’s success, but also to the speedy
and efficient administration of justice. In selecting and
limiting the number of witnesses to be called, in deciding
what questions will be asked in cross-examination, what
topics will be covered in address and what points of law
will be raised, counsel exercises an independent judgment
so that the time of the court is not taken up
unnecessarily, notwithstanding that the client may wish to
chase every rabbit down its burrow”
Clyne v NSW Bar Association (1960) 104
CLR 186 at 201:
“It is obviously unfair and improper in the highest degree
for counsel, hoping that where proof is impossible,
prejudice may suffice, to make such statements unless he
definitely knows that he ahs and definitely intends to
adduce, evidence to support them.”
Patent and Trade Mark Attorneys [2012] FCA
282.
It is not overstating the matter to observe that this is the sort of
conduct that brings the legal profession into disrepute, that
significantly undermines the efficient disposal of civil litigation
and that has the potential to erode public confidence in the
administration of justice in this country.
Hopeless cases
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157
The proceedings must be "plainly unarguable", not barely
arguable, or "untenable and obviously so“
(this case considered Ridehalgh v Horsfield [1994] Ch 205
It is, however, one thing for a legal representative to
present, on instructions, a case which he regards as bound
to fail; it is quite another to lend his assistance to
proceedings which are an abuse of the process of the
court
!
Rule 6 Undertakings
6.1 A solicitor who has given an undertaking in the course
of legal practice must honour that undertaking and ensure
the timely and effective performance of the undertaking,
unless released by the recipient or by a court of
competent jurisdiction.
6.2 A solicitor must not seek from another solicitor, or that
solicitor’s employee, associate, or agent, undertakings in
respect of matter, that would require the co-operation of
a third party who is not party to the undertaking
Country Wide Banking Corporation Ltd v Kingston [1990] 1
NZLR 629 at 640
Dealing with witnesses
Integrity of evidence
!
!
!
!
!
Barristers rules 69 - 75
No conferring with witnesses together
No coaching of witnesses
No communication in cross examination
No property in a witness
Day v Perisher Blue Pty Limited [2005] NSWCA
Kennedy v Council of the Incorporated Law Institute of NSW
(1939)
Communication with Judge
FORMALITY BEFORE THE COURT
18.1
A solicitor must not, in the presence of any of the parties
or solicitors, deal with a court on terms of informal
personal familiarity which may reasonably give the
appearance that the solicitor has special favour with the
court
R v Turner [1970] 2 QB 321
Duty to the Court
Duty of candour
Paramount duty is to the Court
Uniform Solicitors Conduct Rules
! Rule 3 Paramount duty to the court and the
administration of justice
!
A solicitor’s duty to the court and the administration of justice is
paramount and prevails to the extent of inconsistency with any other
duty.
Barrister’s rules
! Rule 23. A barrister has an overriding duty to the Court to act
with independence in the interests of the administration of
justice.
See also Solicitors’ Rules 17.1-17.3 and Barristers’ rules 42 and 43
Rondel -v- Worsley [1969] 1 AC 191 at
227
“Every Counsel has a duty to his client fearlessly to raise every
issue, advance every argument and ask every question,
however distasteful, which he thinks will help his client’s case.
But, as an officer of the Court concerned in the administration
of justice, he has an overriding duty to the Court, to the
standards of his profession, and to the public, which may and
often does lead to a conflict with his client’s wishes or with
what the client thinks are his personal interests. Counsel must
not mislead the court, he must not lend himself to casting
aspersions on the other party or witnesses for which there is
no sufficient basis in the information in his possession, he must
not withhold authorities or documents which may tell against
his clients but which the law or the standards of his profession
require him to produce.”
Giannerelli v Wraith (1988) 165 CLR 543
!
“The purpose of court proceedings is to do justice
according to the law. That is a foundation of a civilised
society …. A client (and perhaps the public) may
sometimes think that the primary duty of counsel in
adversary proceedings is to secure judgment in favour of
a client. Not so …. By a paradox which is obvious to any
who have experience in our courts, the client is best
served by a counsel who is manifestly independent.”
Candour in presentation of the law
!
!
!
!
!
Counsel must not misrepresent the law to a court or tribunal
Counsel is expected to be experienced in his or her particular
legal fields and be aware of the requirements of the applicable
rules of Court
Counsel owes a duty to the Court to research relevant case
law thoroughly, properly instructing the judge so as to reduce
the possibility of judicial error that may result from improper
instructions
Counsel must not withhold authorities which may tell against
their client but which the law or the standards of the
profession require counsel to produce.
Copeland v Smith [2000] 1 WLR 1371
Association v Fitzgibbon [2012] NSWADT
56
That the Barrister be:
i. Publicly reprimanded with respect to the unsatisfactory professional
conduct found in relation to the first ground in the application.
ii. Should the practitioner be issued with a practising certificate it will be
subject to the following condition. The barrister shall not advise with
respect to, or appear in:
a. Any appeal from the Local Court, District Court, Supreme Court or Federal
Court;
b. Any matter in the Land & Environment Court;
c. Any matter in the Court of Appeal or Court of Criminal Appeal; and
d. Any matter in the High Court,
Without being led by senior counsel and this condition is to be disclosed to
any prospective client and instructing solicitor.
iii. The barrister is to pay all of the costs in the interlocutory application which
was dismissed, counsel of the Bar Association of New South Wales v
Fitzgibbon (2010) NSWADT 291 and to pay 75% of the Applicant's costs of
the balance of these proceedings as agreed or assessed.
Counsel must advise the court as to any
binding authority
!
!
!
!
Any binding authority
Any authority decided by the Full Court of the Federal
Court of Australia, a Court of Appeal of a Supreme Court
or a Full Court of a Supreme Court.
Any authority on the same or materially similar legislation
as that in question in the case, including any authority
decided at first instance in the Federal Court or a
Supreme Court which has not been disproved; or
Any applicable legislation; which the practitioner has
reasonable grounds to believe to be directly in point,
against the client’s case
Candour in presentation of the facts
Council of the New South Wales Bar Association v Hart [2011] NSWCA 64
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655
"The errors to which human tribunals are inevitably exposed, even when aided by all
the ability, all the candour, and all the loyalty of those who assist them, whether as
advocates, solicitors, or witnesses, are proverbially great. But, if added to the
imperfections inherent in our nature, there be deliberate misleading, or reckless
laxity of attention to necessary principles of honesty on the part of those the
Courts trust to prepare the essential materials for doing justice, those tribunals are
likely to become mere instruments of oppression, and the creator of greater evils
than those they are appointed to cure. There is therefore a serious responsibility on
the Court - a duty to itself, to the rest of the profession, to its suitors, and to the
whole of the community to be careful not to accredit any person as worthy of
public confidence who cannot satisfactorily establish his right to that credential."
Coe v New South Wales Bar Association [2000] NSWCA 13
Saif Ali v Sydney Mitchell & Co [1980] AC 198
Barristers rules – r79
A barrister who, as a result of information provided by the client or a witness called on behalf of
the client, learns during a hearing or after judgment or decision is reserved and while it
remains pending, that the client or a witness called on behalf of the client:
(a) has lied in a material particular to the court or has procured another person to ie to the
court; or
(b) has falsified or procured another person to falsify in any way a document
which has been tendered; or
(c) has suppressed or procured another person to suppress material evidence
upon a topic where there was a positive duty to make disclosure to the court;
must refuse to take any further part in the case unless the client authorises the
barrister to inform the court of the lie, falsification or suppression and must promptly
inform the court of the lie, falsification or suppression upon the client authorising the
barrister to do so but otherwise may not inform the court of the lie, falsification or suppression
Ethics in criminal law
Prosecutor’s duties
Defence counsel
Guilty clients
Prosecutor’s duties
!
!
!
!
!
!
!
!
!
Fairness
Impartiality
Attitude
Detachment
Not inflame bias against accused
Avoid unduly emotive language
Duty of disclosure
Calling of witnesses
Submissions on sentence
Whitehorn and The Queen (1983) 152 CLR
657
!
The accused, the Court and the community are entitled
to expect that, in performing his function of presenting
the case against an accused, he will act with fairness and
detachment and always with the objectives of establishing
the whole truth in accordance with the procedures and
standards which the law requires to be observed and of
helping to ensure that the accused’s trial is a fair one.
R v Kneebone (1999) 47 NSWLR 450
!
In reaching a view as to reliability, it is clear that it is not
an adequate basis to conclude that the witness is
unreliable, merely because the witness' account does not
accord with some case theory which is attractive to the
prosecutor. An approach, whereby the witness is not
called at all or is left to the defence to call because the
witness' evidence is seen as not fitting the prosecution's
view of the case is likely to lead to a miscarriage of
justice.
Barbaro v The Queen Zirilli v The Queen [2014] HCA
2
47. To describe the discussions between the prosecution and lawyers for the applicants as leading
to plea agreements (or "settlement" of the matters) cannot obscure three fundamental
propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred
against an accused person[32]. Second, it is for the accused person, alone, to decide whether
to plead guilty to the charges preferred[33]. That decision cannot be made with any
foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender's
advisers can do anything more than proffer an opinion as to what might reasonably be
expected to happen. Third, and of most immediate importance in these applications, it is for
the sentencing judge, alone, to decide[34] what sentence will be imposed.
48.The applicants' allegations of unfairness depended upon giving the plea agreements and the
prosecution's expression of opinion about sentencing range relevance and importance that is
not consistent with these principles. The prosecution decided what charges would be
preferred against the applicants. The applicants decided whether to plead guilty to those
charges. They did so in light of whatever advice they had from their own advisers and
whatever weight they chose to give to the prosecution's opinions. But they necessarily did so
knowing that it was for the judge, alone, to decide what sentence would be passed upon them.
49. The applicants' arguments that the sentencing judge ignored a relevant consideration in
sentencing the applicants must also be rejected. Once it is understood that a submission by
the prosecution about the bounds of the available range of sentences is no more than a
statement of opinion, it follows that the sentencing judge need not, and should not, take it into
account in fixing the sentences to be imposed.
Kyle v Legal Practitioner’s Complaints
Committee [1999] WASCA 115
!
The duty of counsel not to mislead the court in any respect
must be observed without regard to the interests of the
counsel or of those whom the counsel represents. No
instructions of a client, no degree of concern for the client's
interests, can override the duty which counsel owes to the
court in this respect. At heart, the justification for this duty,
and the reason for its fundamental importance in the due
administration of justice, is that an unswerving and unwavering
observance of it by counsel is essential to maintain and justify
the confidence which every court rightly and necessarily puts
in all counsel who appear before it.
!
Legal Profession Complaints Committee v In de Braekt
[2012] WASAT 58
Guilty clients r80 Barristers Rules
80. A barrister briefed to appear in criminal proceedings whose client confesses guilt to the
barrister but maintains a plea of not guilty:
(a) should, subject to the client accepting the constraints set out in sub-rules (b)
to (h) but not otherwise, continue to act in the client’s defence;
(b) must not falsely suggest that some other person committed the offence
charged;
(c) must not set up an affirmative case inconsistent with the confession;
(d) must ensure that the prosecution is put to proof of its case;
(e) may argue that the evidence as a whole does not prove that the client is
guilty of the offence charged;
(f) may argue that for some reason of law the client is not guilty of the offence
charged;
(g) may argue that for any other reason not prohibited by (b) or (c) the client
should not be convicted of the offence charged; and
(h) must not continue to act if the client insists on giving evidence denying guilt
or requires the making of a statement asserting the client’s innocence.
Tuckiar v The King (1934) 52 CLR 335.
Whether he be in fact guilty or
not, a prisoner is, in point of law,
entitled to an acquittal from any
charge which the evidence fails
to establish that he committed,
and it is not incumbent on his
counsel by abandoning his
defence to deprive him of the
benefit of such rational
arguments as fairly arise on the
proofs submitted.
For more info on this case see
http://www.forbessociety.org.au/
documents/tuckiar.pdf
Dhakiyarr Wirrpanda
(left)
Meisner v R (1995) 184 CLR 132 at 141
A person charged with an offence is at liberty to plead guilty or not guilty
to the charge, whether or not that person is in truth guilty or not guilty. An
inducement to plead guilty does not necessarily have a tendency to pervert
the course of justice, for the inducement may be offered simply to assist
the person charged to make a free choice in that person's own interests. A
court will act on a plea of guilty when it is entered in open court by a
person who is of full age and apparently of sound mind and understanding,
provided the plea is entered in exercise of a free choice in the interests of
the person entering the plea. There is no miscarriage of justice if a court
does act on such a plea, even if the person entering it is not in truth guilty
of the offence.
Rule 7
7.2
A solicitor must inform the client or the instructing
solicitor about the alternatives to fully contested
adjudication of the case which are reasonably available to
the client, unless the solicitor believes on
reasonable grounds that the client already has such an
understanding of those alternatives as to permit the
client to make decisions about the client’s best interests in
relation to the litigation
Models of negotiation
Adversarial – rights based. Focussed on positions. Zero
sum – for every dollar I gain, you lose a dollar
1. Set target point
2. Set resistance point
3. Ritual of offer and demand
4. Compromise at mid point
!
Principled negotiation
1.
2.
3.
4.
Separate the people from the problem
Focus on interests rather than positions
Generate a variety of options before settling on
an agreement
Base agreement on objective criteria
Positions –v- Interests
Positions
!
Are assertions, demands and offers.
! A way to satisfy interests.
! A means rather than an end.
! “What” you decided!
Interests
Are needs, desires and fears.
They are the reasons behind positions.
! “Why” you decided!
!
!
Relationships
Lam v Ausintel Investments Australia Pty Ltd (1989)
97 FLR 458
“Where parties are dealing at arms’ length in a commercial
situation in which they have conflicting interests it will often
be the case that one party will be aware of information
which, if known to the other, would or might cause that
other party to take a different negotiating stance. This does
not in itself impose any obligation on the first party to bring
the information to the attention of the other party, and
failure to do so would not, without more, ordinarily be
regarded as dishonesty or even sharp practice.”
Misleading and Deceptive Conduct
The full text of the Australian Consumer Law (ACL) is set out
in Schedule 2 of the Competition and Consumer Act 2010
which is the new name of the Trade Practices Act 1974
(TPA).
s18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce,
engage in conduct that is misleading or deceptive or is likely
to mislead or deceive.
Demagogue Pty Ltd v Ramensky (1992) 39
FCR 31
!
“Silence is to be assessed as a circumstance like any other.
To say this is certainly not to impose any general duty of
disclosure; the question is simply whether, having regard
to all the relevant circumstances, there has been conduct
that is misleading or deceptive or that is likely to mislead
or deceive…………….
!
“the significance of silence always falls to be considered in
the context in which it occurs. That context may or may
not include facts giving rise to a reasonable expectation, in
the circumstances of the case, that if particular matters
exist they will be disclosed.”
Legal Services Commissioner v Mullins [2006] LPT 012
Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352
r49 (22.1)and r50 (22.2)
!
A lawyer must not knowingly make a false statement to
an opponent in relation to the case (including its
compromise).
!
A lawyer must take all necessary steps to correct any
false statement in relation to the case made by the
barrister to an opponent as soon as possible after the
barrister becomes aware that the statement was false.
“court”
means:
(a) any body described as such;
(b) any tribunal exercising judicial, or quasi-judicial, functions;
(c) a professional disciplinary tribunal;
(d) an industrial tribunal;
(e)an administrative tribunal;
(f) an investigation or inquiry established or conducted under statute
or by a Parliament;
(g) a Royal Commission;
(h) an arbitration or mediation or any other form of dispute
resolution.
Access to Justice
Access to justice
!
Equality of access to legal services — ensuring that all persons, regardless of
means, have access to high quality legal services or effective dispute resolution
mechanisms necessary to protect their rights and interests.
!
National equity — ensuring that all persons enjoy, as nearly as possible, equal
access to legal services and to legal service markets that operate consistently within
the dictates of competition policy.
!
Equality before the law — ensuring that all persons, regardless of race, ethnic
origins, gender or disability, are entitled to equal opportunities in such fields as
education, employment, use of community facilities and access to services
(Schetzer, Mullins, and Buonamano, 2002)
ICCPR Article 14
3. In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his own choosing.
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of his right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by
him in any such case if he does not have sufficient means to pay for it.
Dietrich v R (1992) 177 CLR 292
“It should be accepted that Australian law does not
recognize that an indigent accused on trial for a serious
criminal offence has a right to the provision of counsel at
public expense. Instead, Australian law acknowledges that an
accused has the right to a fair trial and that, depending on
all the circumstances of the particular case, lack of
representation may mean that an accused is unable to
receive, or did not receive, a fair trial.”
Limited to certain proceedings
High Court in Canellis
“There is no suggestion in the majority judgements that a
court could exercise a similar jurisdiction in civil
proceedings or in committal proceedings; nor do they
suggest that such a jurisdiction could be exercised in
favour of an indigent person charged with a criminal
offence which is other than serious.”
Post Dietrich
Arguments made about flow on effect of Deitrich
! Directs funding to criminal law away from other areas eg
family and civil
! Changes the merit and means test
! Disincentive to pleading guilty?
! Cost of administration of justice (lengthy trials etc)?
!
MK v Victorian Legal Aid [2013] VSC 49 (18 February 2013)
Ethics of pro bono
!
Do lawyers owe a duty to the community and if so, does
that extend to the provision of pro bono legal services?
!
If pro bono services are an ethical duty – then what kind
of legal services should count as pro bono work?
!
How do you provide pro bono services in an ethical way?
Defining Pro Bono
1.
2.
3.
4.
Legal services to the poor and near-poor.
Legal services, more broadly defined, to the poor and
near-poor, non-profit associations or groups who serve
that population, as well as legal services to other
nonprofit groups, including governmental and
educational institutions and assistance in civil rights, civil
liberties, and public interest matters
All categories of pro bono service in (2) above, as well
as activities to improve and enhance the administration
of justice and the legal system
All categories of pro bono service in (2) and (3) above,
as well as non-legal community service
Pro Bono Principles
!
!
!
!
!
!
is not a substitute for legal aid
not a gap-filler, has own merit
design and provision of PB services should be
driven by client needs
clients should expect, and receive, the same high
quality of service
is a voluntary activity
continuing role for Government in supporting, but
not controlling
Resources
National Pro Bono Resource Centre
http://www.nationalprobono.org.au/home.asp
Justice Connect
http://www.justiceconnect.org.au/
Community Legal Centres
http://www.clcnsw.org.au/
Costs and liens
Media Scrutiny of costs
!
!
!
Nikolaidis blames
excessive costs on his
secretary 2007
Keddies Lawyers accused
of systemic overcharging
July 2008
Maria Bechara accused of
triple billing family – March
2009
Section 169 Objectives
The objectives of this Part are! (a) to ensure that clients of law practices are able to
make informed choices about their legal options and
the costs associated with pursuing those options; and
! (b) to provide that law practices must not charge
more than fair and reasonable amounts for legal
costs; and
! (c) to provide a framework for assessment of legal costs.
LEGAL PROFESSION UNIFORM LAW
(NSW) - SECT 172
(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and
that in particular are(a) proportionately and reasonably incurred; and
(b) proportionate and reasonable in amount.
(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect(a) the level of skill, experience, specialisation and seniority of the lawyers concerned; and
(b) the level of complexity, novelty or difficulty of the issues involved, and the extent to which the matter involved a matter of
public interest; and
(c) the labour and responsibility involved; and
(d) the circumstances in acting on the matter, including (for example) any or all of the following- (i) the urgency of the matter;
(ii) the time spent on the matter; (iii) the time when business was transacted in the matter; (iv) the place where business was
transacted in the matter; (v) the number and importance of any documents involved; and
(e) the quality of the work done; and
(f) the retainer and the instructions (express or implied) given in the matter.
(3) In considering whether legal costs are fair and reasonable, regard must also be had to whether the legal costs conform to any
applicable requirements of this Part, the Uniform Rules and any fixed costs legislative provisions.
(4) A costs agreement is prima facie evidence that legal costs disclosed in the agreement are fair and reasonable if(a) the provisions of Division 3 relating to costs disclosure have been complied with; and
(b) the costs agreement does not contravene, and was not entered into in contravention of, any provision of Division 4.
173 Avoidance of increased legal costs
!
A law practice must not act in a way that unnecessarily
results in increased legal costs payable by a client, and in
particular must act reasonably to avoid unnecessary delay
resulting in increased legal costs
LEGAL PROFESSION Uniform law
Division 3 - Costs disclosure
174. Disclosure obligations of law practice regarding clients
175. Disclosure obligations if another law practice is to be retained
176. Disclosure obligations of law practice regarding associated third party payers
177. Disclosure obligations regarding settlement of litigious matters
178. Non-compliance with disclosure obligations
Law Society of New South Wales v Foreman
(1994) 34 NSWLR 408 at 422
“Litigants look to this Court, ultimately, to protect them
from overcharging by legal practitioners where this is so
high as to constitute professional wrongdoing. The courts of
other Australian jurisdictions have begun to deal
determinedly with gross over-charging by legal practitioners
where this is proved to amount to professional misconduct
… No amount of costs agreements, pamphlets and
discussion with vulnerable clients can excuse unnecessary
over-servicing, excessive time charges and over-charging
where it goes beyond the bounds of professional propriety.”
per Kirby P
Fair and reasonable costs
“The court must recognise that the organisation of the legal profession has
changed, the nature and extent of the legal services now provided extend over
a wide spectrum, and fees may be fair and reasonable notwithstanding that
they are at the opposite ends of a correspondingly wide spectrum”.
Mahoney JA
Veghelyi v The Law Society of NSW (unreported NSWCA 6 October 1995)
Fees for a lawyer charging $450 ph
My hourly rate is $450 (GST inclusive). This is divided prorata into 6 minute units at $45 each.
For a letter that takes 10 minutes to prepare and finalize =
$90
For a telephone enquiry to be dealt with inside 6 minutes =
$45
For the preparation of document that takes approximately
1 hour = $450
A successful party has a “reasonable expectation” of being awarded costs
Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] and [134]
Where a plaintiff discontinues without the consent of the defendant, or where the
plaintiff’s claim is dismissed, the defendant is entitled to costs unless the court
otherwise orders: see Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd
[2007] NSWSC 971; Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365;
Norris v Hamberger [2008] NSWSC 785.
The power for an order for costs against a solicitor is derived from the court’s
supervisory jurisdiction over officers of the court: Lemoto v Able Technical Pty Ltd
(2005) 63 NSWLR 300 at [85]–[86].
s99 Civil Procedure Act 2005 (NSW)
1) This section applies if it appears to the court that costs have been incurred:
(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more
of the following:
(a) it may, by order, disallow the whole or any part of the costs in the proceedings: (i) in the case of a barrister,
as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case
requires, or
(ii) in the case of a solicitor, as between the solicitor and the client,
(b) it may, by order, direct the legal practitioner:
(i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any
costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or
not the solicitor or client has paid those costs, or (
ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been
ordered to pay to any other person, whether or not the client has paid those costs,
(c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs
payable by that party.
Liens
!
!
A retaining lien entitles solicitors to retain their clients
papers or other items of property that came into their
possession in the course of the retainer until their costs
are paid
A particular lien is also designed to safeguard solicitors
costs but arises over any personal property recovered or
preserved or any judgement obtained for the client by
virtue of the solicitors efforts in the case.
Solicitors' Rules - 15 - Lien over essential
documents
15.1 Notwithstanding Rule 14, when a solicitor claims to exercise a
lien for unpaid legal costs over client documents which are essential to
the client's defence or prosecution of current proceedings:
15.1.1 if another solicitor is acting for the client, the first solicitor must
surrender the documents to the second solicitor:
(i) if the second solicitor undertakes to hold the documents subject to
the lien and with reasonable security for the unpaid costs; or
(ii) if the first solicitor agrees to the second solicitor agreeing to pay,
or entering into an agreement with the client to procure payment of,
the first solicitor's costs upon completion of the relevant proceedings.
15.1.2 alternatively, the solicitor, upon receiving reasonable security for
the unpaid costs, must deliver the documents to the client.
Duty to Account
The law on dealing with trust funds
NSW Barristers’ Rules
Rule13. A barrister must not, subject to rules 14 and 15:
(a) act as a person’s general agent or attorney in that
person’s business or dealings with others;
(l) hold, invest or disburse any funds for any other person.
What is trust money?
!
"controlled money" means money received or held by
a law practice in respect of which the law practice has a
written direction to deposit the money in an account
(other than a general trust account) over which the law
practice has or will have exclusive control;
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"transit money" means money received by a law
practice subject to instructions to pay or deliver it to a
third party, other than an associate of the law practice
135 Dealing with trust money
(1) A law practice must deal with trust money in
accordance with this Law and the Uniform Rules and
not otherwise.
Civil penalty: 50 penalty units.
(2) Trust money held by a law practice may be dealt with
only by the law practice or an associate of the law
practice
136 General trust account for each jurisdiction
(1) A law practice that receives trust money to which this
Part applies (other than controlled money or transit
money received in a form other than cash) must
maintain a general trust account in this jurisdiction.
Civil penalty: 50 penalty units.
(2) A law practice may maintain one or more general
trust accounts in this jurisdiction.
s137 Certain trust money to be deposited in
general trust account
A law practice must deposit trust money (other than cash) into
the law practice’s general trust account as soon as practicable
after receiving it unless(a) the law practice has a written direction by a person legally
entitled to provide it to deal with the money otherwise than
by depositing it in the account; or (b) the money is controlled
money or transit money; or (c) the money is the subject of a
power given to the practice or an associate of the practice to
deal with the money for or on behalf of another person.
Civil penalty: 100 penalty units.
Note: Section 143 deals with trust money received in the form
of cash.
s148 Deficiency in trust account
A law practice, an Australian legal practitioner or any other
person must not, without reasonable excuse, cause(a) a deficiency in any trust account or trust ledger account; or
(b) a failure to pay or deliver any trust money.
Penalty: 500 penalty units or imprisonment for 5 years, or both
"cause" includes be responsible for.
"deficiency" in a trust account or trust ledger account
includes the non-inclusion or exclusion of the whole or any
part of an amount that is required to be included in the
account.
CJ
“trust account should be sacred, so that moneys paid into
the account should only be paid out to the persons to
whom the money belonged, or as directed.”
R v Smith (2000) 114 A Crim R 8 at [15]
“not only does the client or person of fraud suffer, but the
integrity of the profession is necessarily called into
question and the courts must impose sentences which
are calculated t ensure that no solicitor will be left in
doubt as to the serious consequences that will follow
from such conduct.”
Admission to practice
Understand the requirements for admission to practice
1. Education
2. Good fame and character
3. Fit and proper person
Discuss the rationale for these requirements
Analyze the case law as it relates to admission issues
Legal Profession Uniform Law
Section 17
(1) The prerequisites for the issue of a compliance certificate in respect of a person
are that he or she(a) has attained the academic qualifications specified under the Admission Rules for
the purposes of this section (the "specified academic qualifications
prerequisite" ); and
(b) has satisfactorily completed the practical legal training requirements specified in
the Admission Rules for the purposes of this section (the
"specified practical legal training prerequisite" ); and
(c) is a fit and proper person to be admitted to the Australian legal
profession.
(2) In considering whether a person is a fit and proper person to be admitted to the
Australian legal profession- (a) the designated local regulatory authority may have
regard to any matter relevant to the person’s eligibility or suitability for admission,
however the matter comes to its attention; and (b) the designated local regulatory
authority must have regard to the matters specified in the Admission Rules for the
purposes of this section.
Legal Profession Uniform Admission Rules
2015
Reg 15 Evidence of qualifications
Reg 17 Disclosure statement
(1) An application for a compliance certificate must include a statutory declaration by
the applicant disclosing any matter to which a reasonable applicant would
consider that the Board might regard as not being favourable to the applicant
when considering whether the applicant is currently of good fame and character
and a fit and proper person to be admitted to the Australian legal profession.
(2) It is the duty of every applicant to make a full and complete disclosure of every
matter referred to in subrule (1).
Reg 18 Police Report - on applicant’s criminal history
Reg 19 Student Conduct Reports
Reg 23 Health Assessment
Schedule 1 Uniform Admission Rules
13 Ethics and Professional Responsibility
Either the following topic:
Professional and personal conduct in respect of a practitioner’s
duty: (a) to the law, (b) to the Courts, (c) to clients, including a
basic knowledge of the principles relating to the holding of
money on trust, and (d) to fellow practitioners,
or topics of such breadth and depth as to satisfy the following
guidelines: The topics should include knowledge of the various
pertinent rules concerning a practitioner’s duty to the law, the
Courts, clients and fellow practitioners, and a basic knowledge
of the principles relating to the holding of money on trust.
Elements of Ethics and Professional Responsibility
Schedule 2 Uniform Admission Rules
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Acting Ethically
Discharging the legal duties and obligations of legal
practitioners
Complying with professional conduct rules
Complying with fiduciary duties
Avoiding conflicts of interest
Acting Courteously
Complying with rules relating to the charging of fees
Being aware of the importance of pro bono
contributions
Legal Practice Board v Ridah [2004] WASC
263
!
!
12 Practice of law requires knowledge and skill. Persons
seeking to be admitted as practitioners must undertake a
tertiary degree in law, followed by a period of training and
supervision under articles. Even when they are admitted they
must practise for a further year in a supervised capacity.
13 All of this training, which continues throughout a lawyer's
professional life, is designed to ensure that, so far as possible,
persons who follow the high calling of a legal practitioner are
competent and skilled to advise their clients and to attend to
their affairs.
LEGAL PROFESSION UNIFORM ADMISSION RULES 2015 - REG 10
Determining whether someone is a fit and proper person
(1) For the purposes of section 17 (2) (b) of the Uniform Law, the following matters are specified as matters to
which the Board must have regard: (a) any statutory declaration as to the person’s character, referred to in
rule 16, (b) any disclosure statement made by the person under rule 17, (c) any police report provided
under rule 18, (d) any student conduct report provided under rule 19, (e) any certificate of good standing
provided under rule 20, (f) whether the person is currently of good fame and character, (g) whether the
person is or has been a bankrupt or subject to an arrangement under Part 10 of the Bankruptcy Act or has
been an officer of a corporation that has been wound up in insolvency or under external administration, (h)
whether the person has been found guilty of an offence including a spent offence in Australia or in a foreign
country, and if so: (i) the nature of the offence, and (ii) how long ago the offence was committed, and (iii) the
person’s age when the offence was committed, (i) whether the person has been the subject of any
disciplinary action, howsoever expressed, in any profession or occupation in Australia or in a foreign
country, (j) whether the person has been the subject of disciplinary action, howsoever expressed, in any
profession or occupation that involved a finding adverse to the person, (k) whether the person is currently
unable satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, (l)
whether the person has a sufficient knowledge of written and spoken English to engage in legal practice in
this jurisdiction. (2) The Board may require a person to: (a) take an examination, and (b) obtain a result in
that examination, specified by the Board for the purposes of subrule (1) (l).
Suitability
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Fit and proper
Good fame and character
1.
2.
3.
4.
5.
Dishonesty
Political Activity
Criminal Activity
Personal Character
Health
Character reference
Give your opinion of the applicant’s character,
reputation and suitability for admission as a lawyer.
Include a reference to their honesty and integrity.
Declarations - suitability
6.1. I have not previously been admitted or refused admission as a
lawyer in any jurisdiction in Australia or in a foreign country.
6.2 I am and always have been of good fame and character and I have not
done or suffered anything likely to reflect adversely on my good fame and
character, and I am not aware of any matter or circumstance that might
affect my suitability to be admitted as a lawyer.
6.3 I am not and never have been an insolvent under administration.
6.4 I have never been convicted of an offence in Australia or in a foreign
country.
6.5 I have never practised law in Australia or a foreign country when not
permitted by or under a law of that country to do so or in contravention of
any condition of permission to practise.
6.6 I am not and never have been the subject of an unresolved
investigation, a charge, an order or a complaint under the Legal
Profession Act, a corresponding previous Act, a corresponding Australian
law or a corresponding foreign law.
Cont.
6.7 I am not the subject of current disciplinary action, however expressed,
in another profession or occupation in Australia or a foreign country
and I have not been the subject of disciplinary action, however expressed,
relating to another profession or occupation that involved an adverse
finding.
6.8 I am not and have never been the subject of disciplinary action in a
tertiary education institution in Australia or in a foreign country that
involved an adverse finding.
6.9 I have never contravened a law about trust money or trust accounts in
Australia or in a foreign country.
6.10 I am not and never have been subject to an order under the Legal
Profession Act, a law of the Commonwealth or a corresponding law
disqualifying me from being employed by an Australian legal practitioner or
from managing an incorporated legal practice.
6.11 I do not suffer from any infirmity, injury, mental or physical illness,
impairment or disability which makes me unable to carry out the inherent
requirements of practice as an Australian legal practitioner.
Issues for consideration
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Criminal convictions and arrests
Making a false statement
Misconduct in employment
Dishonesty
Abuse of the legal process
Neglect of financial responsibilities
Neglect of professional responsibilities
Violation of a court order
Mental health
Drug and alcohol dependency
Student conduct
In the matter of the Legal Practitioners Act 1970 and in
the matter of an application by Hinds [2003] ACTSC 11
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8. Contrary to popular folklore, the commission of a criminal offence or
offences does not automatically result in a person's permanent
disqualification from admission as a legal practitioner. However, any
applicant for admission bears the onus of establishing that he or she is
presently of good reputation and character and evidence of previous
misconduct will obviously be taken into account in determining whether
that onus has been discharged. It is essential that a legal practitioner be a
person of such character that he or she can be trusted to perform his or
her duty even in circumstances in which that performance is unlikely to be
exposed to scrutiny. Reputation may also be a relevant factor because
public confidence in the administration of justice is at least partially
dependent upon confidence that those who administer the law, including
legal practitioners, are people of integrity who can be trusted to observe
and uphold it.
Re Davis (1947) 75 CLR 409
“The fulfilment of that obligation of candour with its attendant
risks proved too painful for the appellant …. In those
circumstances, the conclusion that he is not a fit and proper
person to be made a member of the Bar is confirmed.”
“The Bar is no ordinary profession or occupation. The duties
and privileges of advocacy are such that, for their proper
exercise and effective performance, counsel must command
the personal confidence, not only of lay and professional
clients, but of other members of the Bar and of judges. It
would also seem to go without saying that conviction of a
crime of dishonesty of so grave a kind as housebreaking and
stealing is incompatible with the admission to the Bar”
Per Dixon J
Wentworth v NSW Bar Association (Court of Appeal,
unreported, 14 February 1994)
Likely to abuse court privileges
As already indicated, there were three principal findings on the basis of which
Campbell J concluded that the appellant had not been shown to be a person
suitable for admission as a barrister. The first of these was that it was likely that, if
the appellant were to be admitted as a barrister, she would abuse the privilege
conferred upon a barrister as to the making of defamatory allegations and would
not properly discharge the responsibilities that privilege carries with it. This finding
was based on three anterior findings, namely:
(a) that in the course of litigation in which the appellant was a party acting for herself,
she has made a great many allegations of the gravest kind against a wide range of
persons with no foundation for those allegations other than her own “belief” (to
which we will refer as the unfounded allegations finding);
(b) that it is not likely that her propensity for making unfounded allegations of the
gravest kind has altered or will alter; and
(c) that as a barrister she would conduct her clients' litigation in much the same way
as she has conducted her own.
!
Re B [1981] 2 NSWLR 372
!
Moffitt P “The power to admit is a power exercisable generally as appears from the
words of the Charter according to such general rules and qualifications as the court
shall for the purpose make and establish. If a person meets the requisite learning
standards and is of good fame and character so he meets the requirement that he
be a fit and proper person to be admitted to practise as a barrister, it hardly need
be said that there is no other discretionary bar to admission, whether on the basis
of race, color, religion, sex, political outlook or otherwise. The judicial system and
the right to participate in it is an essential part of our democratic institutions.
Courts are open to be invoked by all and open to all to become legal practitioners,
except so far as the former is confined by jurisdictional limitations of general
application or in the case of the latter by requirement already referred to.
!
It follows from the foregoing and, having regard to the background of this case, that
it can and should be stated that in itself being a radical in a political sense or being
what might be regarded by some as an extremist in views on sex, religion or
philosophy provides no bar to admission as a barrister, unless of course, the attitude
of the prospective or practising barrister can be seen to render him not a fit and
proper person because his character, reputation or likely conduct fall short of the
standards expected of a practising barrister…..”
Conduct in another profession
Re Hampton [2002] QCA 129
Mental Health
XY v Board of Examiners [2005] VSC 250
“Excessive disclosure”
“An attitude that begrudges information which may
raise eyebrows, whether logically it ought to raise
them, is not consistent with such an attitude. It is
common throughout Australia for applicants for
admission to legal practice to disclose quite minor
charges. Those standards are to be encouraged.
Applicants need not fear that the court will seek to
substitute a demand for perfection for the
requirement that fitness to practise be demonstrated
by showing good fame and character.” Re Del Castillo (1998)
136 ACTR1
Mitigating Factors
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Age
Health
External stressors
Background
Full disclosure
Behaviour subsequent
Ex Parte Lenehan (1948) 77 CLR 403
Discipline
s296 Unsatisfactory professional
conduct
For the purposes of this Law,
"unsatisfactory professional conduct" includes
conduct of a lawyer occurring in connection with the
practice of law that falls short of the standard of
competence and diligence that a member of the public is
entitled to expect of a reasonably competent lawyer.
Council of the Bar Association of NSW v Fitzgibbon
[2010] NSWADT 291
s297 Professional misconduct
For the purposes of this Law,
"professional misconduct" includes(2) (a) unsatisfactory professional conduct of a lawyer, where the conduct
involves a substantial or consistent failure to reach or maintain a
reasonable standard of competence and diligence; and
(3) (b) conduct of a lawyer whether occurring in connection with the
practice of law or occurring otherwise than in connection with the
practice of law that would, if established, justify a finding that the lawyer is
not a fit and proper person to engage in legal practice.
(2) For the purpose of deciding whether a lawyer is or is not a fit and proper
person to engage in legal practice as referred to in subsection (1)(b),
regard may be had to the matters that would be considered if the lawyer
were an applicant for admission to the Australian legal profession or for
the grant or renewal of an Australian practising certificate and any other
relevant matters.
(1)
s298 Conduct capable of being
unsatisfactory professional conduct or
professional misconduct
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Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or
professional misconduct(a) conduct consisting of a contravention of this Law, whether or not(i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has
been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been
made against the person under Part 9.7 in relation to the contravention;
(b) conduct consisting of a contravention of the Uniform Rules;
(c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than
this Law), whether or not the person has been convicted of an offence in relation to the contravention;
(d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law;
(e) conduct in respect of which there is a conviction for- (i) a serious offence; or (ii) a tax offence; or (iii) an
offence involving dishonesty;
(f) conduct as or in becoming an insolvent under administration;
(g) conduct in becoming disqualified from managing or being involved in the management of any corporation
under the Corporations Act;
(h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the
Uniform Rules;
(i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of
a corresponding authority made under a corresponding law (including but not limited to a failure to pay
wholly or partly a fine imposed under this Law or a corresponding law);
(j) conduct in failing to comply with a compensation order made under this Chapter.
Kennedy v the Council of the Incorporated Law Institute of
New South Wales (1939) 13 ALJ 563 at 564.
“His fitness to continue on the roll must be judged by his
conduct and his conduct must be judged by the rules and
standards of his profession; his unfitness appeared when
he did what solicitors of good repute and competency
would consider disgraceful or dishonourable.”
Per Dixon J
Conduct outside the practice of law
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Ziems vProthonotary (1957) 97 CLR 279 at 283
!
Prothonatory of the Supreme Court of NSW v P [2003]
NSWCA 320
Factors to be considered following criminal
convictions
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Onus is on the complainant to show that the opponent is
not a fit and proper person
Striking off when probability that the solicitor is
permanently unfit to practice
The fact of conviction for a serious offence is not
necessarily a sufficient reason for striking off
Fact of conviction and imprisonment is far from irrelevant
Guilty plea may act in their favour
Factors cont.
!
Conduct not occurring in the course of professional practice may
demonstrate unfitness if it amounts to incompatibility with the
personal qualities essential for the conduct of practice.
NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289;
NSW Bar Association v Somosi (2001) 48 ATR 562.
New South Wales Bar Association v Hamman [1999] NSWCA 404 at [85]
!
The question is present fitness, not fitness as at the time of the
crime: Prothonotary v Del Castillo [2001]
Incorporated Law Institute of New
South Wales v Meagher
!
There is therefore a serious responsibility on the
Court - a duty to itself, to the rest of the
profession, to its suitors, and to the whole of the
community to be careful not to accredit any
person as worthy of public confidence who cannot
satisfactorily establish his right to that credential.
It is not a question of what he has suffered in the
past, it is a question of his worthiness and
reliability in the future.
Complaints in NSW
co-regulation
NCAT
Occupational Division
OLSC
NSW Law Society
NSW Bar Association
Consumer disputes
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Poor communication
Costs
Mistakes
Delays
Handling of documents and
Poor service
Disciplinary action
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Striking off
Suspension
Fine
Reprimand
Payment of compensation
In House Counsel
Number of In House Counsel
nationally there has been a +22% increase in solicitors
working in the corporate sector between 2011 and 2014
Total percentage of corporate lawyers as at 2014 was 15.8%
Law Society of New South Wales, Urbis Report: 2014 Profile of the Solicitors of NSW
The client as God
“We don’t run this place as a holiday camp ... We expect
our people to treat the client as if they were God and to
put themselves out for clients.You don’t say ‘Sorry I can’t
do it. I’m playing cricket on the weekend’ ...You don’t have
a right to any free time.”
Managing partner of Allens Arthur Robinson 2005
Problems of ethics
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Wilful blindness
Creative compliance
Reactive corporate lawyering: Narrow Legalism That
Ignores Ethical Issues
Proactive Corporate Lawyering: Commercial Savvy That
Consciously Uses Law to Achieve Unethical Goals
Abusing Lawyer-Client Confidentiality Protections to
Cover up Misconduct and Obstruct Justice
Privilege
A communication or document will be privileged if it is
made or brought into existence for the dominant
purpose of obtaining or providing legal advice or to
conduct or aid in the conduct of litigation that is
reasonably anticipated.
Advice privilege
Litigation privilege
Settlement privilege
Privilege and in-house counsel
Legal professional privilege extends to legal advice by inhouse counsel, provided that they are giving advice in
their capacity as legal advisers.
The status of the lawyer is relevant to determining whether
a document was brought into existence for a privileged
purpose
'legal advice' goes beyond formal advice as to the law but it
does not extend to purely commercial advice
Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Rueters, 5th ed,
2013) ch13.
Common law discussion
Osland v Secretary to the Department of Justice (2008) 234
CLR 275.
Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC
131
Archer Capital 4A as Trustee for the Archer Capital Trust 4A v
Sage Group plc (No 2) [2013] FCA 1098
Aquila Coast Pty Ltd v Bowen Central Coal Pty Ltd2 (‘Aquila
Coal’) [2013] QSC 82
Advice for in-house counsel
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Maintain a separation between legal and non-legal work
including lines of reporting
Clearly label legal advice “privileged and confidential”
Maintain a current practising certificate and insurances
Maintain separation of privileged documents physically
and electronically
Professional Courtesy
Solicitors' Rules - 4 - Other
fundamental ethical duties
4.1 A solicitor must also:
4.1.2 be honest and courteous in all dealings in the
course of legal practice;
Solicitors' Rules - 30 - Another solicitor or
other person's error
30.1 A solicitor must not take unfair advantage of the
obvious error of another solicitor or other person, if to
do so would obtain for a client a benefit which has no
supportable foundation in law or fact.
Solicitors' Rules - 32 - Unfounded
allegations
32.1 A solicitor must not make an allegation against another
Australian legal practitioner of unsatisfactory professional
conduct or professional misconduct unless the allegation
is made bona fide and the solicitor believes on reasonable
grounds that available material by which the allegation
could be supported provides a proper basis for it.
Solicitors' Rules - 33 - Communication with
another solicitor's client
33.1 A solicitor must not deal directly with the client or clients
of another practitioner unless:
33.1.1 the other practitioner has previously consented;
33.1.2 the solicitor believes on reasonable grounds that:
(i) the circumstances are so urgent as to require the solicitor to
do so; and
(ii) the dealing would not be unfair to the opponent's client;
33.1.3 the substance of the dealing is solely to enquire whether
the other party or parties to a matter are represented and, if
so, by whom; or
33.1.4 there is notice of the solicitor's intention to communicate
with the other party or parties, but the other practitioner has
failed, after a reasonable time, to reply and there is a
reasonable basis for proceeding with contact.
Case law
In the matter of Constantine Karageorge No.12 of 1986
New South Wales Bar Association v Jobson [2002] NSWADT 171
New South Wales Bar Association v di Suvero [2000] NSWADT 194
& 195
Legal Profession Complaints Committee and in de Braekt [2012]
WASAT 58