ETHICS
…WITH A LITTLE BIT OF
Neil Watt
Snr Ethics Lawyer, QLS
Centre for lawyers’ ethics
Ph 3842 5843
DONOGHUE V STEVENSON – 26 MAY 1932 (79)
Lord Atkin was a Queenslander!
….and a bit Welsh
HERE’S ONE FOR STARTERS..
You receive a call from the office manager of a long-standing commercial client. She
has a colleague in need of legal advice. Being a helpful sort, you say “Send him
over!”
That’s when the problems started…
I LOVE THIS PROFESSION…
I LOVE THIS PROFESSION…MOST DAYS
WHY IS ETHICS IMPORTANT?
ETHICS DEVELOPMENTS
Australian Solicitors’ Conduct Rules - Introduced sometime in 2011
Australian Lawyers’ Ethics website:
http://www.ethics.qls.com.au
Ethics DVD: COMING SOON
3842 5843
QLS Centre for Lawyers’ Ethics
ethics@qls.com.au
THE BASICS
Legal Profession (Solicitors Rule) 2007
Australian Solicitors’ Conduct Rules
All words….
Give me principles!
‘if ethics were reduced to rules, a
spiritless compliance would soon be
replaced by skillful evasion.’
Sir Gerard Brennan CJ
AND EVEN MORE BASIC
SO APPLY THAT TO THIS…
You’re called as a witness to contested issues in
your client’s matter.
What are the issues?
What would you do?
RULES
13.4
A solicitor must not unless exceptional circumstances warrant otherwise in
the solicitor’s considered opinion:13.4.1
appear for a client at any hearing, or
13.4.2
continue to act for a client,
in a case in which it is known, or becomes apparent, that the solicitor will be required
to give evidence material to the determination of contested issues before the
court.
THE ASCR SUGGESTS THIS…
27.1
In a case in which it is known, or becomes apparent, that a solicitor will be
required to give evidence material to the determination of contested issues
before the court, the solicitor may not appear as advocate for the client in the
hearing.
27.2
In a case in which it is known, or becomes apparent, that a solicitor will be
required to give evidence material to the determination of contested issues
before the court the solicitor, an associate of the solicitor or a law practice of
which the solicitor is a member may act or continue to act for the client unless
doing so would prejudice the administration of justice.
Which is why I prefer principle over rules…
THE TROUBLE WITH FORMER CLIENTS…
They keep turning up…
WHAT HAPPENS WHEN…
One of your former crim defence clients appears
as a witness for the Crown … and you are
involved in cross examination?
ACTING AGAINST A FORMER
CLIENT?
IF you hold
• Confidential information
• Relevant to the current matter
• That your former client could reasonably believe
would be used to his/her detriment
You cannot act (Bolkiah v KPMG & see Rule 4)
But is this acting against a former client?
ENTER FORDHAM…
Fordham v Legal Practitioners Complaints Committee (1997) WAR 467
No breach of confidentiality, but
Cross-examination involved facts common to her own representation of the former client
FORDHAM…
The court found that:
her actions amounted to a breach of loyalty to her
client irrespective of any breach of confidentiality;
her actions could have led a reasonable observer to
conclude that she had indeed used confidential
information to the detriment of her former client.
she had breached a duty not to adopt a position
hostile to a former client in the same or a related
matter.
SO…
• Public perception and
• Risk to public confidence in the legal
profession
played a significant part in the outcome
Those duties to the community are
important!
AND SO…
No absolute prohibition on acting BUT bear these things in mind:
Confidentiality: Clearly there is a prohibition on using confidential or privileged information gained
during the retainer against your former client.
“Getting-to-know-you” factors: Not all confidential information is found in your files. In criminal and
family matters in particular, the court considers the impressions you gained about the person –
their character, habits, strengths, weaknesses, attitudes – as also being “information” gained
during the retainer, and places restrictions on its use due to concerns over its prejudicial effect.
(Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357 at 368)
Relevance to the current matter: Clearly if you are representing a client in a matter arising from the
same set of facts for which you represented the former client, then cross-examining the former
client becomes problematic. The challenges of navigating a course through your duties to your
current client and your duties of confidentiality to your former client would likely place you in an
irretrievable conflict of duties. Learn from Fordham and steer clear.
Proximity to the current matter: Obviously this is related to the point above but focuses on the
period of time since you represented the former client. Someone you represented 10 years ago
in an unrelated matter is less likely to raise ethical barriers to cross-examination than someone
you represented a short time ago.
Strength of the relationship with the former client: If you were this person’s lawyer over an extended
period, your former client may well regard you as “their lawyer” far more than someone you
represented fleetingly as a duty lawyer. In such a situation you would also have built up a
sizeable bank of ‘impressions’ that may preclude you from cross-examining a former client even
if the matters are unrelated
DELINQUENT CLIENTS….
What do you do if your client misleads you – and you, in
turn, mislead the Court?
Perpetual Trustee v McLelland [2010] QSC 65
McClelland & Anor v Perpetual Trustee Co. Ltd [2010]
QCA 281
MISLEADING – IN STEREO!
Left Speaker: The client misled the
Court
Right Speaker: The solicitor provided an affadivit
In swearing an affidavit in support of his client's
application, her Honour held that
"he expressed a personal opinion which
appeared to provide independent
confirmation" of the client's assertions (para
57 1st inst)
SO WHAT YOU GONNA DO?
Client lies to the Court?
Lawyer misleads the Court, be it inadvertently or not?
Rules 14 and 15
Legal Profession
(Solicitors’) Rules 2007
NEW TECHNOLOGIES
ETHICS & TECHNOLOGY
Email
Twitter/Facebook/Social media
Cloud
Webpages/Advertising
See Scott Coulthart Legal IT Lawyers - http://legalit.com.au
EMAIL
Communications and Courtesy:
•
The biggest ethical issue is presented by the speed & ease with which you can
send it!
•
How often have you sent an emotional response? A careless response?
Confidentiality / Privilege
•
Forwarding/sending by accident
•
Forwarding the entire email sequence
•
Ease of copying/sending by others
•
If you want something kept secret – don’t email it.
WHAT ABOUT THIS?
You act for a group of company shareholders and directors (Group A)
in an action against another group of shareholders and directors
(Group B).
One of the Group A directors triumphantly enters your office
brandishing a printed email. The email contains correspondence
between a Group B director and their lawyers. It contains
information in relation to strategic issues associated with the
conduct of their case.
The Group A director advises that as a director she has lawful
access to all company emails and this was sent using a company
computer.
Can you use the document?
Is it inadvertent disclosure?
OK, IT’S NOT AN EMAIL, BUT TODAY IT WOULD BE…
TWITTER/FACEBOOK, SOCIAL MEDIA ETC ETC
Communications and Courtesy
•
Again – beware the ease of communication
•
Beware the off-duty blowback
Confidentiality / Privilege
•
Social media is all about sharing snippets of your day. Much of a lawyers day isn’t
a topic for open conversation.
•
What you may think is de identified may be identifiable to someone
•
Note that each post is permanently stored on a server somewhere.
•
As I recently tweeted – “Don’t drink and Tweet!”
SOCIAL MEDIA IN COURT
UK’s most senior judge, Lord Judge (no, not kidding about his name), has handed
down practice directions supporting the use of Twitter in court by reporters wanting to
report on the relevant case, as long as they are using it to report the case fairly. His
Honour said that it was an important element of open justice to allow these forms of
social media to be used in court.
Australian courts are also happily referring to social media now, and taking their
operation into account, in various court decisions.
Danger lies in publication involving fewer checks and balances.
Bear in mind duties to the Court – and pause before you hit send!
SO…
You’re involved in a family law dispute . Your client advises that there
is personal information on their ex’s Facebook page that would
be helpful to his case.
Her Facebook page is set to “Friends Only”.
Can you obtain the information by “Friending” the ex?
Would it make any difference if the Facebook info was open?
IS IT DISCOVERABLE?
(not ethics, but legally interesting & worth cautioning your clients)
McMillen v. Hummingbird Speedway (US)
The court ordered disclosure of the Facebook password of one of the parties so that
access could be gained by the other side to the relevant Facebook account.
Rule of Thumb: If you don’t want it seen by the
whole world – don’t put it on social media!
CLOUD COMPUTING
What is it?
•
Refers to the use of 3rd Party servers to store your data/files/software
•
If you use email you already use “the Cloud”
•
Provides benefits to solicitors struggling with storage of archived files
•
Sometimes the provider is onshore and often offshore
Confidentiality / Privilege.
•
Is offshore hosting an issue?
Duty to Clients
•
If you are outsourcing file storage is informed consent required? (regardless of how it
is stored?)
Providers
•
What guarantees do you want from providers?
•
Are they any different from other outsourcing guarantees you seek?
WHEN ENOUGH’S ENOUGH…
FIRING A CLIENT
When is it ok?
What are the issues to consider?
JUST CAUSE?
Your client is a committed conservationist who wishes to
challenge a government decision to allow construction
of domestic dwellings in an environmentally sensitive
area.
On examining the grounds for appeal you realise this is a
hopeless case and instruct your client accordingly.
Your client insists on proceeding.
Is this just cause for terminating the retainer?
What are the issues you need to consider?
RULE 6 TERMINATION OF RETAINER
 6.1 A practitioner must complete the legal services
required by the practitioner's engagement, unless  6.1.1 the practitioner and the practitioner's client have otherwise
agreed;
 6.1.2 the practitioner is discharged from the engagement by the
client;
 6.1.3 the practitioner terminates the engagement for just cause,
and on reasonable notice to the client; or
 6.1.4 in the case of a practitioner not being a firm, the
practitioner’s engagement is terminated by the practitioner’s
firm.
THE CURIOUS CASE OF
BUXTON V MILLS-OWEN
[2008] EWHC 1831 (QB) – Justice Mackay
[2010] EWCA Civ 122; [2010] WLR (D) 49 – Court of Appeal
Entire contract?
Can you claim your fees?
Duties to the Court v Duties to Client?
THE “LOSS OF CONFIDENCE“
ESCAPE CLAUSE
Should this be included in a retainer?
When should it be used?
IN THE END IT ALL COMES DOWN TO 10 WORDS
THANKS FOR HAVING ME AT YOUR PLACE!