Day 2
Ethical lawyering in theory and professionalism (summary)
Ethical decision-making
QLS has a 9-step model: (1) Issue? (2) Options? (3) Relevant interests? (4) Guidance from authority?
(5) Broader ethical considerations? (6) Consultation/guidance (7) Consequences of options (8)
Decision (9) Reasons for decision
Lawyers’ ethics
The work of lawyers is for the public good (L Newton, Profits and Professions), facilitating autonomous
citizenship (Stephen Pepper)
 “Lawyer-statesman” (Anthony Kronman) is a lawyer who, through the practice of law, becomes
a person of high ethical character who can institute positive influences on the world
Sources of professional ethics: Lawyers are bound by common law, equity and statute. There are also
professional norms in the form of attitudes and practices, for example the cab rank rule.
 No good reason for maintenance simply because ‘the tradition’ (Oliver Wendel)
Traditional Conception
Agency ethics (traditional conception)
Support, defend & advocate agency/adversarial ethics. Based on lawyer’s moral interests, adversary
system & autonomy of client.
 Individualist, liberal; lawyer controls; evidence-based; lawyer has higher status, objective is to
resolve disputes
 Client gaining short-term advantage
(i) Partnership: ‘To save the client by all expedient means, to protect that client at all hazard and costs,
to all others, and mong others to himself, is the highest and most unquestioned of his duties’ (The Queen’s
Trial, Lord Broughham LC)
 Lawyer owes loyalty & care to client; significant feature of LPA
(ii) Moral non-accountability: ‘moral’ to have no concern about result; doing job is morally justified in
‘just’ & functioning legal system
Charles Fried: ‘lawyer as friend’
It is morally right for the lawyer to promote the interests of the client, a lawyer who holds to agency
ethics is a good person and agency ethics are essential for a just legal system.
 Moral obligation to give preference to those closest to them as kin or friends  translates to
giving preference to client over and above others in the community, as a ‘limited purpose’
friendship. Friendship will form in a commercial setting, with value placed on loyalty.
 Choosing a client: lawyer is free to choose clients; moral questions only arise after client
relationship formed
 No misuse of system: lawyer may use morally questionable means of promoting client’s
interests under agency ethic. There is moral accountability where the effect of legal system is
to harm another; only where the lawyer uses system in an improper way.
Monroe Freedom: classical liberal model
Belief in moral strength of adversary system
Centrality of confidence: in order for the lawyer to ascertain all information about client, lawyer must
guarantee that this information will not be disclosed
Individual autonomy: fundamental moral concept that determines answers to difficult issues; lawyer
is morally accountable for choice of client and must exercise moral judgment; client’s judgment must
prevail; possibly inconsistent with Moynihan Reforms which require alternative dispute resolution
Bradley Wendel – fidelity to law
Ethical lawyering based on ‘rule of law’ as a core concept – the absence of consensus regarding
morality means that the rule of law has a normative and ethical significance. Lawyers representing
clients within a reasonably just political system are part of the rule of law.
 Not all lawyers are ‘good people’; merits in ‘craft of lawyering’ to distinguish ‘legal alchemy’
and ‘fidelity to law’
 Ned to examine lawyers engaging in abuses of power rather than theoretical challenges
 Rule of law emphasises constraint on arbitrary exercise of power
Criticisms of agency ethics
(i) Economic inequality: rich may have great access to lawyer, however lawyers have implemented
social reform; economic inequality need not be a source of different accessibility of the law
(ii) Reliance on litigious or criminal context: most lawyers do not work in litigation; Pepper’s theory is
not concerned with the adversary system but with giving access of the benefits of the law to all (e.g.
drafting contracts, wills, trusts, etc).
Responsible Lawyering
Responsible lawyering
Consideration not just letter but also spirit of law.
1. Parker and Evans: Inside Lawyers Ethics
Professionalism should be governed by facilitating public administration of justice ‘according to the
law in the public interest.’ This requires acting within system with active interest to run it in its best
form; using loopholes to frustrate ‘substance and spirit of the law’ is unacceptable. This is because to
do so may lead to outcomes ‘increasingly skewed in favour of resourceful parties, thus undermining the
legitimacy of legal institutions’ (Robert Nelson).
2. William Simon: Justice Contextualised
Lawyer has ‘ethical discretion’ in deciding whether to take on client’s work. Justice or legal merit is
‘the most plausible conceptions of procedural justice’ and the lawyer is an ‘officer of the court.’ This
includes many vaguely specified aspirational norms; this ‘substantive view’ contains elements of
natural law philosophy.
 Substantivist must first identify law, then obey it
Examples
Walker v Birmingham US (1967): Alabama state court issued an injunction prohibiting a march by
Martin Luther King; protesters breached the injunction and were guilty of contempt. It was held that
the protesters were lawfully imprisoned despite the injunction being unconstitutional. Court held that
proper course was to appeal, rather than march.
 Simon objects to positivist theory underlying judgment; the injunction was substantively
incorrect and therefore protesters had no moral obligation to obey it
Tax deduction example: In identifying what the tax law is, lawyer may consider moral structure,
purposes, themes, basic principles, prosecutions policy and practice, and likelihood of enforcement.
Zabella v Pakel (1957): wealthy defendant’s lawyer using statute of limitations to barr claim for debt.
Possible substantivist approach for the lawyer to give effect to the law:
1. Purpose of statute of limitations that after passage of time, debtor should not worry about
debts from remote past; or
2. Purpose of statute is to assist credibility of legal claims; evidence becomes unreliable with
passage of time.
Criminal context
Appropriate ethics for criminal defence may be a matter of contextual judgment. ‘The practice of
aggressive defence ought to be part of a larger strategy designed to focus resources and effort on cases
that present the greatest threats of injustice’
Moral Activism
Moral activism
Influencing client to do the right thing.
1. Richard Wassterstrom: Lawyer’s moral schizophrenia
Lawyers employ highly ‘role-differentiated behaviour’ and in pursuing interests of client (regardless
of moral worth they have), lawyer may ignore moral standards that would be important or decisive
outside of the role  accords with Lord Brougham’s comments.
 Legal profession is ‘strikingly amoral’
 Client cannot evaluate how well lawyer performs the task.
 Role differentiation probably justified in criminal defence work as it concerns special right of
accused and fact that accused’s liberty is at stake
Arguments in favour of role differentiation
Necessary feature of adversarial system so that each party can have its case presented as forcefully as
possible. Moreover, every citizen has a right to law as a democratic principle.
Arguments against role differentiation
 Approach is justifiable only if adversary justice is justifiable, which may not be the case
 ‘Competitive rather than cooperative; aggressive rather than accommodation; ruthless rather
than compassionate; and pragmatic rather than principled.’ These traits of professional role
may become personal triats
 Amorality serves client’s objectives, which may not be intrinsically good; if lawyer does not
believe the good of client’s case, it may not be an amoral role; rather, an immoral role
 Objectifies the client
Solution: deprofessionalisation: ‘to weaken, if not excise those features of legal professionalism that
tend to produce these kinds of personal relationships’
2. David Luban: Moral activism
Like William Simon, David Luban propounds moral imperative for a politically active lawyer; both
social democrats.
 Under approaches, lawyers of other political philosophies would have less reason to accept
agency ethic. Critique of adversary system is important in establishing the moral case for social
democrat to pursue social democratic activism through he practice of law and may also be a
moral setting from the social conservative, the religionist, the environmentalist to pursue their
own forms of activism through legal practice
Luban’s critique of adversary system: ‘The Adversary System Excuse’
Follows moral claims made on behalf of adversary system, concluding that adversary system is not
best system of justice, yet the alternatives are not significantly better.
 Role morals do not exist, however there may be common or universal morality; encompasses
broader common morality unconnected to social role of lawyer
Rejection of principle of moral non-accountability:
The ‘amoral’ lawyer is only capable of moral justification if adversary system is morally justifiable. As
claim for a moral justification of adversarial justice is not established, principle of moral nonaccountability does not hold.
 Outside criminal defence, moral non-accountability must be discarded: ‘Anything… that is
morally wrong for a nonlawyer to do on behalf of another person is morally wrong for a lawyer to
do as well. The lawyer’s role carries no special privileges and immunities.’
Ethic of partisanship:
In general, lawyer is morally bound by constrained partnership, except in criminal defence, where
zealous partnership is morally justified. ‘Criminal defence’ may include civil matters.
 Constrained partisan are ethically still require to adhere to standards of common morality;
Luban acknowledges possibility of attracting ‘a left-liberal trumpet call… heralding yet another
tilt at the corporate treadmill’
 Legally justified outcomes may be substantively unjust; a lawyer who confronts a law that
requires unjust behaviour is ethically obliged to violate the law: ‘if a nonlawyer could be
excused from respecting the law – because, for example, it is discriminatory or is being applied
discriminatorily – then the lawyer is also excused on those grounds’
 Where moral obligation conflicts w/personal, ‘lawyer must become a civil disobedient.’ If
lawyer’s primary duty is to ‘justice,’ then lawyer’s representation of clients will be limited to
work that does not violate standards of justice
 A lawyer may refuse work which is perceived as unjust; may also persuade client as to injustice
of the work: ‘Moral activism… involves law reform… and client counseling… And client
counseling, in turn, means discussing with the client the rightness… of her projects, and the
possible impact of those projects on ‘the people’… it may involve considerable negotiation about
what will and won’t be done in the course of a representation; it may eventuate in a lawyer
accepting a case only on condition that it takes a certain shape, or threatening to withdraw from
the case if the client insists on pursuing a project that the lawyer finds unworthy. Crucially, moral
activism envisions the possibility that it is the lawyer rather than the client who will eventually
modify her moral stance… But ultimately the encounter may result in a parting of ways or even a
betrayal by the lawyer of the client’s projects, if the lawyer persists in the conviction that they are
immoral or unjust. Unlike the standard conception fo the lawyer’s role, moral activism accepts
these possibilities without flinching.’
Ethic of partisanship is maintained. Zealous partnership (Freedman) was rejected, advocating for
‘constrained partnership.’ It has four restrictions which zealous partisanship does not:
1. On modes of practice that inflict morally unjustifiable damage on other people, especially
innocent
2. On deceit, even where legally permissible (e.g. obscure truth)
3. On manipulations of morally defensible law to achieve outcomes that negate its generality or
violate its spirit
4. On the pursue of substantively unjust results
Criminal defence work exception
Exception is criminal defence work, justified on basis of protective role of the lawyer: accused
confronts the power of the state.
 Role morals that would violate standards of common morality justified even if legally unjust
outcomes (e.g. acquittal of guilty) eventuate (‘man-in-trouble’
Progressive correction thesis
Criminal defence includes any litigation in which zealous advocacy on behalf of relatively weak clients
justified due to political reasons to aim at prophylactic overprotection of individual from powerful
institutions, even at expense of justice.
 Zealous partnership is allowed to lawyer representing people in civil proceedings who through
lack of equal resources are pitched against concentrations of organisational pwer
 ‘Lawyers representing individuals in confrontation with powerful organisations can fight dirtier
than their adversaries’ lawyers can fight back’
Ethics of care
Ethic of care
Decision-making to benefit community as whole.
Broadly, philosophical approach has three elements: (1) lawyers take a holistic view of clients and
problems (2) lawyers emphasise a dialogue (‘moral conversation’) with client (3) lawyers encouraged
to see themselves as part of relationships and to understand the feelings and experiences of others in
that network.
1. Menkel-Meadow: Feminist Lawyering
Values are ‘gendered’, aligning to observations made by Carol Gilligan about gendered behaviour.
Values are ‘also plausible and legitimate, both as a style of moral reasoning and as a style of lawyering.’
Girls/women: caring, responsiveness and relatedness.
 Exclusion of female voice whether in form or effect: e.g. women did not develop AngloAmerican adversary system
 Woman may develop alternative way of dealing with legal problems, focusing on direct
communication rather than third party arbiter (e.g. judge)
Mediation over litigation
Adversarial system lacks control for other party, suggesting an ethic of care. Dispute resolution is
therefore preference for mediation over litigation
 Ethic of inclusion may encourage more direct participation; focus on ‘conversation’ as a
cooperative model
Legal profession
Values such as collectivity & interpersonal connection  less hierarchical firms
 Women more likely to express, critique or value the impact that work has on personal lives
 ‘The ability to examine all of the client’s perspective becomes even more significant’
Boys/men: principles, rights and universality
 Values include advocacy, persuasion, hierarchy, competition and binary outcomes
Criticism
‘Will too much contextualism prevent the emergence of any general principles by which we can guide
ourselves?’
2. Shaffer: Communitarian Samaritans
Religious perspective as Catholic of Protestant background and political perspective as a
communitarian1. Drawn from parable of Good Samaritan.
 Care requires more than ‘justice’; care requires assistance where there is no right to it
 Rejects agency ethics and the ‘ethics of isolation’ inherent in these.
Communitarian ethics
Communitarian ethicists emphasise nature of morals as springing from its community: ‘An ethic that is
not found in a community is not an ethic; it is only somebody’s idea’
 Communities create obligations between members; there are ‘mutual obligations.’ Emphasis is
placed on one’s duties within community rather than rights against others and the government
Legal profession
Lawyers–clients should engage in ‘moral conversations’ which include (1) time, space and
environment for reflection (2) full information and (3) collaboration.
 Lawyers should seek moral growth by representing client; discounts roles of lawyers in
partisan or adversarial sense
A Becoming a lawyer
Legal definition of lawyer: reservation of practice
A person may only ‘engage in legal practice’ once they are admitted and hold a practising certificate as
a barrister or solicitor (24 LPA; In the matter of Dean Phillip Bax).
 Offence to represent/advertise that person is entitled to practice without being an ‘Australian
Legal Practitioner’ (25 LPA)
 Person who falsely represents that they are entitled to engage in legal practice (e.g. describe as
Communitarianism: philosophy that emphasises the connection between the individual person and the community.
Communitarian philosophy is derived from the assumption that a person’s individuality is the product of community
relationships, rather than a product derived only from personal traits.
1

‘lawyer’ when witnessing docs) will be retrained (LSC v Beames)
Must be admitted and certified
Scope of reservation: Meaning of engage in legal practice’ drawn from CL. = ‘to carry on or exercise the
profession of law’ (Felman v Law Institute of Victoria, Kenny JA), = ‘carry on business of being a
lawyer’ (LSC v Bradshaw, Fryberg J)
 Thomas J in QLS v Sande approved Cornall v Naggle that a person is ‘practising as a solicitor’ if:
1. Work usually done, even if not required to be done, by a solicitor
2. Work proscribed by law unless by legal practitioner
3. Work which must be done by legal practitioner in order to adequately protect public
o Cornall v Naggle: e.g. for reward; however in Qld not necessary that person receives
payment (LSC v Walter)
 Distinction between ‘giving of abstract information as to legal rules’ vs tailored advice affecting
legal rights (Maric)  not legal practitioner simply because advice involves expression of opinion
about requirements of relevant legislation
Exceptions: not legal practice: person engaged under some other law, gvmt legal officer, receiver, Ausregistered foreign lawyer in practice of foreign law, person preparing will if prepared for trustee
company, contract preparation if real estate agent/conveyancing (Law Institute of Victoria v Maric),
work ‘performed under an Act of the Commonwealth
Admission and requirements
Admitting authority
Admitting authority is Supreme Court sitting as CoA – Banco Court (s35 LPA).
HC will refuse to grant special leave to appeal from decision made by CoA on admission (Queensland
Law Society v Taylor)
 Uniform Admission Rules chaired by Priestly JA: uniform academic requirements for admission
 Admitted in Qld  ‘local lawyer’ (5(2) LPA), who is officer of Supreme Court (s38(1))
 Person takes oath/affirmation (17-18 Supreme Court (Admission) Rules 2004)
Process of applying for admission
Applicants must give notice of intention to apply for admission (14 days but not more than 28 days
before the sittings intended to apply for admission); objections can be made within 10 days of public
notification; must advertise intention to apply in newspaper: 10-27Supreme Court (Admission)
Amendment Rule (No 1) 2008
Role of Legal Practitioners Admissions Board: ‘helping role’ (s39 LPA)
 Legal Practitioners Admission Board, QLD Law Society or Bar Association may request written
report from police on any convictions of applicant (s 86) if considered ‘appropriate’: s 82(2)
 Mental health assessment if considered unfit (s87): health assessor (s88) must provide report
including recommendations on appropriate conditions for admission (s89)
(a) Eligibility
>18 years; attained approved academic qualifications; satisfy practical legal training requirements
(30(1) LPA)
 Academic: Priestly Committee: completion of recognised academic course and understanding
and competence in at least 11 ‘areas of knowledge’ + approved tertiary course (6 Supreme
Court (Admission) Rules 2004)
 Practical: Admission Rules, Legal Profession Regulation 2007 and LPA: PLT course (s 7A
Admission Rules) OR a period of ‘supervised training’ to be completed within one year (s 21
Admission Rules)
(b) Suitability
= is fit and proper’ person to be lawyer: s31(1) LPA. Court must consider ‘suitability matters’ (s9),
may consider other matters, may consider fit & proper despite ‘suitability matter’
Suitability matters
CoA, with goal of protection of public, may probe into applicant’s personal ‘intrinsic character’
(Gregory v QLS)
 Issues of suitability (s9 LPA: whether person is of good fame/character, bankrupt, offence
conviction, practising law when not entitled, subject of unresolved complaint in another
profession, removed from roll, legal practice rights cancelled/suspended, broken trust account
laws, in practice placed under receivership, ordered not to work in legal practice, unable to carry
out inherent requirements of practice
 Capacity: inherent requirements of practice; no Qld case law (XY v Board of Examiners)
 Early consideration of suitability: application under s32,33 LPA
(i) Disclosure
Presumption of good character (LACC Disclosure guidelines), however the onus of proof rests on the
applicant to establish fitness to practice: Re OG (A Lawyer); s 34 LPA  full disclosure
 Capacity: ‘if an applicant makes a full disclosure of a condition relevant to capacity and
demonstrates that the condition is appropriately managed, it is highly unlikely that the
disclosure will lead to an adverse assessment of suitability’ (LACC Disclosure Guidelines)
General principle of disclosure
Applicant must disclosure what might fairly assist; ‘revealing more than might strictly be necessary
counts in favour of an applicant’ (Frugtniet v Board of Examiners VSC)
 At heart of duties are ‘commitment to honesty’ and ‘open candour and frankness, irrespective
of self interest or embarrassment’ (Frugtniet v Board of Examiners, Pagone J)
 Increasingly courts interested in many aspects of lawyer’s life: ‘Increasingly, there is an
expectation that even ancient peccadilloes should not be left out of [admission applications]’ (Re
OG; see also Frugtniet; Thomas
Key issues relating to disclosure
Criminal offences
Criminal offences: ‘suitability’ matter includes being ‘convicted of an offence’ (9(1)(c) LPA). Court
should inquire: nature of offence, how long ago committed, person’s aget
 ‘Conviction’ (11(1)): finding of guilt, acceptance of guilty plea & conviction before
commencement of Act (11(2))
 Continuing duty to disclose convictions and charges of serious offences (57(b); Del
Costello)
 Taking technical approach indicates lack of ethical awareness necessary to be legal practitioner
(Re H)
 Obedience to law: courts take broad approach to public protection and not all crimes render
person unfit (Ziems v Prothonotary of Supreme Court of NSW); crimes involving dishonesty may
be sufficient to refuse admission (Bradshaw v Bar Ass of Qld
Student misconduct: particularly if involving dishonesty  evidence against applicant’s character (Re
Liveri)
 E.g. plagiarism may result in non-admittance (Re AJG; Re Liveri)
 Re OG: ‘collaboration’ that was not reported on university records & student did not disclose at
admission
Honesty & candour with court, otherwise ‘application should be ordinarily be rendered doubtful’ (Re
Hampton); honesty ‘engenders in the Court and in clients unquestioning confidence’ (Re AJG, de Jersey
CJ)
Examples of what should be disclosed: housebreaking convictions (Re Davis), findings of guilt on
matters relating to honesty (Cohen v Legal Practitioners Admission Board),
 disciplinary action in other professions (Re Hampton), murder charge (Prothonotary v Del
Castillo), ongoing police investigations (A Solicitor v The Council of the Law Society of NSW)
 Tax offences (Bradshaw), corporate insolvency or penalties where applicant director (Cohen)
E.g. duty to disclose volunteer position terminated following offensive remarks & property
damage (XY v Board of Examiners, Habersberger J)
Political views: may be aggravating/another consideration (Re B, Moffit J)
Certification (practising certificates)
Solicitors: Qld Law Society; Barristers: Bar Association of Qld) – 45 iLPA
 Can only hold certification from one certifying body; in addition to admission (64), lasts for 1
yr (47)
Certification criteria: Applicant must satisfy fit & proper person when issuing yearly certificates:
s46(1) LPA; same suitability issues for admission
 46 LPA: any ‘suitability matter’, whether cert obtained using false/misleading statements,
contravention on conditions, contravention of law, failure to pay $, other matters relevant to
‘public interest in the integrity of the legal profession’ (46)
 Cannot refuse on ground considered by court if admitted despite ground (46(4))
 General power wrt certification if practitioner is no longer a fit & proper person to hold
certificate under s60
Conditions, suspension, cancellation
 QLS/QBA has power to impose ‘reasonable and relevant’ condition: s53(1); can refuse, cancel
or amend certificate after 28 days to respond to ‘show cause’ notice: s61 or immediately in
public interest: s63
Re-admission: v high evidentially burden; demonstrate now ‘fit & proper’ despite presumption that
‘probably permanently unfit’ (e.g. Richard Denis Meagher)
B Professional discipline
Purpose of professional discipline (protection, not punishment: NSW v Evatt)
 Public interest, which ‘calls for effective vigilance over members of the profession and its
standards of ethical behaviour’ (Mellifont v Qld Law Society; see eg, Wentworth v NSW Bar
Association)
 Disbarment order made ‘from the public point of view, for the protection of those who require
protection and from the professional point of view, in order that abuse of privilege may not
lead to loss of privilege’ (Clyne v NSW Bar Association)
 ‘The protection of the public includes imposing penalties which represent both general and
particular deterrence to solicitors and an assurance that serious lapses in the conduct of solicitors
will be met with severe but appropriate responses’ (Re Nelson)
 Principal may be disciplined for failure to supervise staff (Cheney v Qld Law Society) or taking
at face value assurances where reason to be put on suspicion (Bridges v Law Society of NSW)
 While ‘great deprivation’ to person disciplined, not punishment (NSW v Evatt); discipline
required to ‘maintain a proper standard’ (Ziems v The Prothonotary)
Legislative framework (s416): (1) provide for discipline (2) promote & enforce professional
standards, competence & honesty (3) means of redress for complaints by consumers of services
Regulatory bodies
Organisations regulating or representing lawyers
State professional associations
 Queensland Law Society: QLS serves, represents & supervises practising solicitors; exercises
powers under LPA; solicitors governed by ASCR
 QLS is statutory body w/ legal powers to issue practising certificates (legal monopoly)
 n.b. discipline dealt with by Legal Services Commission following LPA 2004
 Bar Association of Qld: 2011 Barristers Rule (enforceable subordinate legislation: LPA)
National organisations
Neither have direct power to regulate or discipline lawyers.
 Australian Bar Association (ABA): represents bar associations in the states
 Law Council of Australia (LCA): development of National Legal Profession Model Laws, basis of LPA
2004 (Qld) and trusts accounts & costs disclosure of LPA 2007
Regulation by bodies external to the profession
Courts: SC has inherent jurisdiction to discipline (s13 LPA 2007; R v Byrne; In re Swanwick); function
of its duty to administer law in interests of justice & authority to admit lawyers (Myers v Elman); SC
may hear appeals from QCAT and LPC
 It is within court’s plenary power to impose costs, indemnities etc (Caboolture Park)
 All court may exercise discipline however more limited than SC and cannot order disbarment,
striking off or suspension (Caboolture Parking Shopping Centre v White Industries)
 Sanctions and other powers of court against lawyers
1. Complaints and discipline: lawyer reported to Legal Services Commissioner
2. Wasted costs orders against lawyers (wide powers): e.g. baseless fraud allegations, ulterior
purposes rather than vindicate legal right (Flower & Hart (a firm) v White Industries),
unintentionally misleading court yet wilfully ignoring (Perpetual Trustee v Cowley QSC)
 In WA, lawyers held to higher standard of truthfulness w/ +ve duty (Kyle v Legal
Practitioners’ Complaints Committee, Ipp J); likely in Qld that no +ve duty (Perpetual
Trustee)
3. Contempt of court (criminal matter)
Legal services commission: complaints received by LSC; commissioner decides whether to investigate
or ask professional body (s435 LPA 2007); independent of legal profession
QCAT and Legal Practice Committee
Both: compensation orders: s456(4)(b), s458(2)(c); procedural requirements: Queensland Civil and
Administrative Tribunal Act 2009 (Qld).
Appeals: lawyer, Minister for Justice and LSC can appeal to SC: s468(2) LPA 2007 (Qld)
 QCAT (more serious matters): full range of powers e.g. remove from roll: s456(2)(a),
cancel/suspend practising certificate: s456(2)(b); max fine $100,000: s456(4)(a) LPA 2007
 Membership: a SC judge is chairperson of Tribunal: s598; lay persons role (s599) on
advisory panels to ‘help tribunal in hearing and deciding a discipline application’:
s607(3)
 Legal Practice Committee: non-lawyer employee misconduct: s 458(1)(b), less serious matters
involving unsatisfactory professional conduct: s458(1)(a); public or private reprimands: s458(2)(a)
or max $10,000 fines: s458(2)(b) LPA 2007
 Membership: 7 people appointed by Governor-in-Council: Chairperson, 2 solicitors, 2
barristers, 2 lay people w/ expertise (s622(1)); 4 members required to advise; 3
members required when hearing and deciding: Chairperson, solicitor/barrister, lay
member: s639(2)
Process of professional discipline
1. Process
Decision to prosecute at discretion of LSC (s447 LPA 2007) who may dismiss if in public interest:
s448(1)(b); QLS/Bar Assoc must include recommendation whether to prosecute: s439 LPA 2007.
Commission keeps discipline register (s462) + other appropriate publication (s473).
Who can complain: entity (429(1) LPA) = person and unincorporated body (AIA 1954)
Who can complaint be about: legal practitioners (6), Aus lawyers (27,5), gvmt lawyers (12), law
practice employees (425), unlawful operators (427,24,25) and any person convicted of contravening
the PIPA, ch 3, part 1 (advertising restrictions & touting)
When to complain: 3 year time limit unless Commissioner exercises discretion (430)
Where complaint can occur: inside QLS, entirely/partly outside Aus/another Aus jurisdiction if
consent received (423, The Matter of LSC v Tampoe)
2. Conduct liable to discipline
Integrity coupled with common sense to resolve issues (Scott McClean, LSC)
Dishonesty: youth and experience do not excuse conduct; ‘basic honesty is no a quality that is
ordinarily acquired through experience’ (QLS v BAx, McPherson JA).
 Dishonesty on one occasion may be sufficiently serious to render unfit to practice (LSC v
Walters), e.g. dealing w/ trust money
 LSC v Busch, LSC v Lindley, LSC v Clair, LSC v Hockey, LSC v Wood, LSC v Richardson
 Chamberlain v Law Society of the ACT: tax offences by b’ter who took advantage of error by tax
office in relation to tax assessment which resulted in his paying $25,000 instead of $255,000 
practising certificate suspended
Misleading court: LSC v Lim, LSC v Hackett, LSC v Voll
Incompetence and creating false documents: no need to prove intent for inadvertent/negligent acts;
more severe discipline where general/irredeemable incompetence (Clough v QLS)
 LSC v Krebs, LSC v Anderson, N (A Solicitor)
Rudeness in court (and in practice): e.g. ‘scandalous and offensive submissions’ & intimidatory
approach (LSC v Turley); name-calling of others in court (LSC v Winning: DPP ‘stupid woman’);
insulting & offensive language to or in presence of clients and staff (LSC v Baker)
Failure to perform legal obligations in personal life: a ‘substantial contravention of the law, knowingly
and deliberately’ and for ‘financial advantage,’ makes lawyer’s ‘capacity and commitment’ to be cast in
doubt (LSC v Hewlett)
 Failing to make super contr. following health issues  unsatisfactory professional conduct
(LSC v Hope)
Personal life: must reflect on fitness to practice; e.g. dishonest lawyer when party to litigation
removed from Roll (Coe v New South Wales Bar Association); suspension if lawyer makes ‘powerful
subjective case’ that behaviour isolated & aberrant (A Solicitor v Council of the Law Society of New
South Wales)
 E.g. criminal convictions, deceit, personal litigation
Do not dig deeper: LSC v Bryant, LSC v Walters, LSC v Mackereth
3. Charges: 418-420 LPA
Two-stage test: (1) reasonable likelihood of finding by disciplinary body of unsatisfactory professional
conduct/professional misconduct (‘reasonable likelihood test’) or (2) public interest to dismiss
(448,452)
 Professional misconduct (more serious, severe discipline): ‘substantial or consistent failure to
reach or maintain a reasonable standard of competence and diligence’: s419(1)(a)
 Includes matters outside practice relating to suitability: s419(2), 420(c)-(g)
 E.g. charging excessive fees; guilt finding for serious offence, tax offense, offence involving
dishonesty; bankruptcy; conduct deemed so by LPA or profession rule: 420
 Unsatisfactory professional conduct: conduct which ‘falls short of the standard of competence and
diligence that a member of the public is entitled to expect of a reasonably competent Australian
legal practitioner’: s418 LPA 2007
4. Sanctions for professional breach (recorded on Discipline Register)
Removal (‘striking off/disbarment’): lawyer no longer fit to practise, i.e. disregard of obligations
Suspension: generally ~18 months; appropriate where breach which do not necessarily indicate
lawyer lacks integrity to practise law (Mellifont v The Queensland Law Society); e.g. momentary lapses
not involving dishonesty
Fines: max $100,000; generally not more than $25,000; punitive/deterrent function
Orders which protect public: e.g. education, supervised work, limitations on work: s456(4)(c)–(j)
Reprimand, Compensation
5. Factors considered in sanctioning practitioner
Personal factors: it is a rare case where ‘unhappy personal or financial circumstances’ excuses
conduct (LSC v Devery, Wilson J)
 Personal factors carry less weight than protection of public (AG & Minister for Justice v Gregory,
de Jersey J)
 ‘Character is tested not by what one does in good times but in bad’ (Law Society of New South
Wales v Foreman, Mahoney J)
Compliance with authorities: genuine remorse required (Council of the Qld Law Society Inc v Whitman)
Candour: suggests dishonesty, ethical blindness, immaturity, etc.
Health issues: in past, courts reluctant to consider person suffering from health issues as
disgraced/dishonoured (Re Harrison); LPA 2007: health assessment if ‘currently is unable to
satisfactorily carry out the inherent requirements of practice’: s87(1); assessor may suggest
conditions (s89)
6. Ongoing obligation to disclose matters
N.b. There is no mandatory reporting required of lawyers. However, there is a continuing duty to be
‘fit and proper’ to practice, the rationale being that this is needed to ‘protect the public’ (Ziems)
 Whether ‘fit and proper to practice’ determined at time Tribunal considers discipline
application, not at time practitioner engaged in impugned conduct (LSC v Winning)
Must notify Law Society/Bar Association of guilt (s11(1)) of indictable (Schedule 2) offence/tax
offence/insolvency within 7 days; within 28 days, explanation why suitable to hold certificate: s68(1);
docs  LSC: s68(2)
 Notice within 7 days: any offence which would have to be disclosed under admission rules:
s204; Admission Rules do not provide guidance currently; applicants required to display
‘utmost good faith and candour, comprehensively displaying any matter which may reasonably be
taken to bear on an assessment of fitness for practice’ (Re Hampton, de Jersey CJ)
Lawyer-Client Relationship
Reasons for regulation




High costs of retaining lawyer a constant source of public attention & scorn
High costs of legal services has impact on access to justice & system as whole
Vulnerability of clients
Temptation for lawyers
Advertising and attracting clients
False, offensive, misleading or deceptive practices prohibited for ‘marketing or promotion’: ASCR r36
 Prohibition on promotion activities which are ‘likely to oppress or harass a person who, by
reason of some recent trauma or injury, or other circumstances, is, or might reasonably be
expected to be, at a significant disadvantage in dealing with the solicitor at the time when the
instructions are sought’ (r34.2)
 Duty to act honesty and reputably (r5) and in interests of administration of justice (r3)
 ACL (Sch 2 Consumer and Competition Act 2010 (Cth)) s18,29,24
Personal injury: cannot charge on ‘no-win-no-fee’ basis (unprofessional conduct; public may believe
they have no liability for any fees: Legal Practitioners Complaints Committee and Browne)
 Name of firm, contact details & specialties can be advertised: s66(1) Personal Injuries
Proceedings Act 2002 ss67-68
Taking on a client
Solicitors
Paramount duty to court & admin of justice (ASCR r3); duty to act in best interests of client (r4.1.1),
be honesty and courteous in all dealings (r4.1.2), deliver legal services competently, diligently and
promptly (r4.1.3), avoid comprise to integrity & professional independence (r4.1.4)
 Solicitor must provide clear & timely advice to assist client to understand relevant legal issues
and make informed choices about action to be taken during course of matter (r7.1)
 Solicitor can decide who to take on as a client, however must not discriminate directly or
indirectly: s13 Racial Discrimination Act 1975 (Cth); s22 Sex Discrimination Act 1984 (Cth), s24
Disability Discrimination Act 1992 (Cth), ss7-11; 45-6 Anti-Discrimination Act 1991 (Qld); r42
ASCR
Barristers
‘Cab-rank rule’: must accept work from a solicitor if (i) acceptable fee (ii) within barrister’s capacity
(iii) barrister is available (r21 2011 Barristers’ Rule)
 B’ter must not set level of acceptable fee higher than would otherwise set if b’ter were willing
to accept brief, w/ intent that s’tor may be deterred from continuing to offer brief (22 BR)
 Origins as ancient professional rule w/ origins in Scotland (R v Thomas Paine, Erskine: ‘if the
advocate refuses to defend… he assumes the character of the judge’), not CL (Rondel v Worseley,
Lord Pearce); important it is upheld (Giannarelli v Wraith, Brennan J)
 Legal aid b’ters: ‘Having accepted a retainer, a true professional does not let the quality of the
work undertaken suffer because the available remuneration is inadequate’ (Re: N (a solicitor),
Fryberg J)
Barrister MUST refuse: (95 BR) if (a) barrister has confidential info which cannot be disclosed (b)
retainer w/ right of first refusal (c) reasonable grounds to believe barrister, as real possibility, may be
witness (d) barrister was witness in case at first instance (e) barrister has reasonable grounds to
believe personal or professional conduct may be attacked (f) barrister has material financial/property
interest in outcome (g) brief is on costs assessment relating to barrister (h) arbitration barrister has
previously advised/appeared for (i) brief before parent/sibling/spouse/child/household member as
judge (j) failure of client to retain instructing solicitor would prejudice barrister’s ability to advance &
protect client’s interests
Barrister MAY refuse (99 BR): if (a) brief not offered by solicitor (b) reasonable grounds that
time/effort seriously prejudices barrister’s practice/professional/personal engagements (c)
reasonable grounds to doubt fee paid reasonably promptly (d) brief may require barrister to crossexamine/criticise friend or relation (e) solicitor does agree to arrange appropriate attendances (f)
prospective client is prospective instructing solicitor/partner/employer/employee & refused
barrister’s request to be instructed by independent solicitor (g) SC barrister believes reasonable
grounds that SC not required
Where cab-rank rule does not apply: direct brief situations, pro bono clients, where any reasonable
prospect of conflict of interest, prejudice to b’ter’s personal engagements, outside ‘skill and capacity’,
not appropriate (doesn’t require QC)
Relationship between lawyer and client
Relationship between lawyer and client
Responsibilities defined by common law, equity, status and professional ethical rules
Identify of client: lawyer ought to establish client’s identity ‘not least because they owe professional
duties to clients, which effect the nature and extent of their legal liabilities’ (Ford v Financial Services,
Burnett J)
 Lawyer should be careful about who they are in lawyer-client relationship with, as strict duties
follow (Ford)
 ‘Unsophisticated’ client: disclose more comprehensive information (LSC v Madden)
Lawyers as agents
Solicitor–client: agent–principal; barrister cannot act as general agent in client’s dealings with others
(r17(a) 2011 BR) however agent when appearing as advocate
 Actual & express authority  scope of retainer
 Actual authority may be implied in retainer’s terms; without express authority s’tor cannot
initiate proceedings/lodge appeal; does not have implied nor actual authority to enter
contract/vary terms of contract
Non-engagement and ambiguity as to whether retainer formed
Non-engagement
Non-engagement must be made clear to person (e.g. families; mortgagor paying legal fees of bank
when seeking mortgage finance); non-engagement letter (Watkins v De Varda) to avoid ambiguity
Ambiguity as to whether retainer formed
 Courts tend to construe agreements contra proferens against lawyer; however courts will not
merely believe person’s word (Dew v Richardson: is it reasonable in circumstances for client
to believe they have engaged the lawyer?
 If there is a reasonable expectation the lawyer is acting for them, this might attract
duties of care, such as under an implied retainer (Pegrum v Fatherley)
Illustrative cases
 In Dale v Clayton (No 2), a s’tor sought advice from a friend who was barrister. Barrister clamed
it was informal, non-professional chat and did not remember content. Regardless, this
knowledge represented a conflict (keeping confidences)
 R v Williams: Legal Aid lawyer who met person on date & he told her about his personal issues;
lawyer provided him w/ form to apply for Legal Aid  communication was not between–
lawyer client and therefore not subject to LPP
(a) Solicitor
Retainer: contract for services between solicitor & client; nature + extent of legal relationship: scope
of authority and extent of liability; fiduciary relationship (Re a Firm of Solicitors)
 s305 LPA: client instructions in any communication form
May arise orally/implied (Baker Johnson v Jorgensen; Groom v Crocker); ordinary contract
except where legislative requirements (McNamara Business v Kasmeridis; 305 iLPA)
o Oral contract may finish when conversation finishes
 May be continuing retainer; duty to continue providing advice (Bax v Cavenham; Littler v Price)
Costs Disclosure
 Costs agreement ‘may be enforced in the same way as any other contract’ (326); formed same
as common law rules for offer & acceptance (305, 322)
 S’tor ,310: writing requirement for costs agreements
 ‘Plain English’ or another language; even if client is illiterate (314 LPA)
 Costs disclosure made ‘before, or as soon as practicable after, the law practice is retainer in
matter’ (310 LPA)
Fiduciary relationship: statute disallows certain clauses such as exemptions of costs assessment,
reflecting fiduciary duties owed by solicitor to client (Re a Firm of Solicitors)  undue influence
presumption
Terms of agreement to provide legal services
 Express terms: unclear whether exclusion clauses may be included in retainer in Qld; ambiguities
construed contra preferentum against lawyers (Owners – Strata Plan No 2505 v Andreones); may
not be case if sophisticated client (Equsscorp v Willmoth Field)
 Implied terms and liability in tort: implied provisions relating to skill & diligence are the same as
those imposed by tort; tort remedies adequate (Hawkins v Clayton)
 Contract has implied understanding of lawyer applying level of competency & care; and also
provide information (Littler v Price)
 Implied authority for lawyer to do things incidental to retainer & maintain confidentiality
 Unsophisticated client; lawyer must be aware of potential duties (Cavenham v Bax)
 Pegrum v Fatharly
 Special retainer and general retainers: solicitor must ensure act within scope of retainer, or could
be liable to 3rd persons as a principal (not agent)/liable for breach of warranty of authority (Dew v
Richardson)

(b) Barristers: briefing by solicitors
Historically, solicitors had monopoly on briefing barristers; professional arrangement not rule of
law/equity (Doe Bennett v Hale).
 Pre-LPA: barristers had common law incapacity to form contract w/ briefing solicitor
 Position changed by LPA: barrister may now enter costs agreement contract (s322, 326
LPA)
B’ters can: appear & prepare to appear as advocate, negotiate for client w/ opponent, represent client
in ADR, give legal advice, prepare/advise on documents, carry out work incidental to this, such other
work commonly carried out by barristers: r15 2011 Barristers’ Rule
B’ters must not: act as general agent/attorney, conduct correspondence on behalf of client otherwise
than w/ opponent, place self at risk of becoming a witness other than conferring w/ parties,
examining documents etc, act as only representative in court dealings otherwise than when advocate,
be address for document, serve process of court, conduct property conveyance, administer trust
estate/fund, obtain probate/letters of administration, hold/invest/disburse fund from other person: s
17 2011 BR
o Barrister not in breach if without fee and as private person (s18) or if becomes an agent
(s19)
 Barrister must tell client they are acting on ‘direct’ brief (without solicitor) if work may go
beyond role: s20 2011 BR
 Barristers work alone: s16 2011 BR
Senior barristers: QCs appointed by Governor until 1994; 2013: SCs can elect to change title to QCs
(c) Direct access Clients
Direct access b’ter subject to costs disclosure duties (s308 LPA); must observe limited role (LSC v
Griffith)
 Does not constitute retainer w/ either s’tor or client
 Barrister may take brief directly from client but is obliged to do so (24A BR)
Any person can approach barrister directly (r24B BR 2011) upon advising client in writing and
receiving written acknowledgment of being informed (r24B(b)):
1. rr15 & 17 2011 BR: restrictions on role
2. Circumstances may require client to retain instructing solicitor at short notice (e.g. file docs in
court; trust $)
3. Disadvantage on reasonable grounds, as real possibility, be suffered if no instructing s’tor
4. Capacity of b’ter to perform work vs b’ter w/ instructing solicitor
5. Fair description of b’ter’s advocacy experience
Australian Consumer Law
Legislative intervention – Australian Consumer Law (ACL)
ACL provisions: apply to all stages of providing legal services: advertising, promotion & negotiations;
client agreement/contract; actual provision of services; billing
 Lawyer advertising services must clearly and unambiguously spell out total price single figure
‘all up’ GST inclusive cost, including compulsory fees & charges
 Supplier must not promote or state price that is only part of cost, unless prominently
advertising the single price (47-48; 165-166 ACL)
Prohibited conduct: ‘misleading and deceptive conduct’ (s18), ‘unconscionable conduct’ (Part 2.2)
 Consumer guarantee (ss60-62): legal services w/ due care & skill, fit for purpose, w/in
reasonable time
 S23-28: unfair terms protections in standard form contracts. Q: whether substance of contract
is unfair?
o Legal service regarded as consumer contract: personal injury, family law, criminal law,
family home conveyances, wills & administration of deceased estates
 May be that unfair contract laws could be used to challenge terms that allow lawyer to end
contract w/out good reason before work complete (Ireland v Trilby Misso Lawyers)
Unfair terms: if causes sig imbalance in rights & obligations between lawyer + client; not reasonably
necessary to protect lawyer’s proper interests; and would cause detriment (financial/otherwise) to
client if relied upon.
 E.g. challenge terms allowing lawyer to end contract w/out good reason before work complete,
(e.g. Ireland v Trilby Misso Lawyers where retainer termination because too risky to proceed on
no-win-no-fee basis)
Ending retainer
Ending the retainer (termination of the contract)
Retainer naturally terminates once work completed.
 Limitation of duties: not standard, however possible that short/oral advice could be all that
lawyer bound to provide (Fortune v Bevan) as part of retainer
(i) Termination by client: may terminate; liable for costs honestly due incurred to date (Baker v
QLS)
(ii) Termination by s’tor
May not terminate unless (r13.1 ASCR): client otherwise agreed, law practice discharged from
engagement by client, law practice terminates for just cause & reasonable notice, engagement comes
to end by operation of law.
 Where serious criminal offence, client’s failure to make satisfactory arrangements for costs
payment not normally justifies termination unless s’tor/practice (r13.2 ASCR): services written
notice a reasonable date before date for commencement of trial (min. 7 days to make

arrangements of s’tor costs), give appropriate notice to registrar of court. If legal aid case,
client must have reasonable opportunity to make other satisfactory arrangements for costs
payment would have incurred if engagement continues.
Trust Company v Romeo, Schmidt J: $100,000 legal costs; client paying $3000/week for another
matter; s’tor permitted to cease acting (s’tor attempted to renegotiate, gave prompt reminders)
Termination of the contract of retainer
 Entire contracts: most retainers presumed to be entire (Adamson v Williams); e.g. conveyance,
personal injuries, conduct of litigation (Baker v QLS); not entire if client requested specific tasks &
s’tor will not see matter to completion. Solicitor cannot pull out early UNLESS: (1) just cause (2)
reasonable notice
 ‘Just cause’ examples: client refuses/fails w/in reasonable time to pay costs/significant
violation of costs agreement (The Trust Company v Romeo); client materially represents facts;
conflict of interests to another client; continuing would be breach of duty owed to court
(Adamson v Williams); ‘wholesale breakdown in confidence’ between lawyer & client (French v
Carter Lemon)
 Frustration: Baker v QLS
 Termination in criminal matters: client’s failure to make satisfactory arrangements for costs
payment will not normally justify termination of engagement UNLESS served written notice of
s’tor’s intention a reasonable time before commencement of hearing (min 7 days to make
satisfactory arrangements for payment of s’tor’s costs and appropriate notice given to court (13.2
ASCR)
 Legal aid client: give reasonable notice in writing to client; client has reasonable opportunity to
make other satisfactory arrangments for payment of costs which would be incurred if
engagement continued (13.3 ASCR)
 Other matters (certain steps): s’tor can withdraw if (1) cause no sig. harm to client interests (2)
client informed of consequences
Cannot terminate merely because risky
 S’tor cannot end relationship merely because it is too risky (Ireland v Trilby Misso: ‘we may
terminate… if we become aware of any material that alters our opinions regarding the
prospects of success’; lawyers wanted payment & kept file claiming s’tor’s lien  unsuccessful)
If s’tor claiming lien for unpaid legal costs, required to deliver docs to client upon receiving
reasonable security (15 ASCR)
(iii) Termination by barristers
Barrister who wishes to return a brief which barrister is permitted to return (see 95-98,99) must do
so in enough time to give another legal practitioner proper opportunity to take over case (104 ASCR)
Serious criminal offence: must not return brief under 99 unless barrister believes on reasonable
grounds that circumstances are exceptional & compelling and there is enough time for another legal
practitioner to take over case properly before hearing OR client has consented after b’ster clearly
informed client of circumstance in which b’ter wishes to return brief & terms of this Rule (101 ASCR)
Lawyers’ Fees and Billing Ethically
Lawyers’ Fees
Only person w/ current practising certificate can lawfully charge for legal work (24 LPA).
 Methods of charging: lump sum fee, task-based fee, court scale of costs, time-costing,
speculative/contingent fee (% of proceeds recovered is legal)
 Bill must be fair and reasonable: e.g. otherwise can set aside agreement (328), costs
agreement itself (335, 341)  LSC v Harvey: practitioner must ‘turn his/her mind’ to the
matter and make honest assessment of what is reasonable in circumstances
Billing: barristers
Barrister  ‘Memorandum of Fees’  solicitor briefing barrister (s329-333 LPA: itemized bills &
methods of serving)
 B’ter’s fees must be ‘proper & reasonable in all the circumstances’ (s118 BR), even in
absence of agreement (r119)
 ‘Acceptable fee’ (r89 BR): market rates, time & skill, nature of work; limited by amount costs
assessor would consider reasonable (criteria: s341 LPA)
Unpaid fees: Historically, unpaid brief = debt of honour (Moore v Row)  no basis for b’ters to sue for
fees at CL as no contractual basis and no statutory right
 ‘Law practice’ (inc. b’ter) may make costs agreement w/ client/other law practice (s322 LPA);
enforced like any contract (s326 LPA)  b’ter may sue s’tor/client in contract
 Private list: s’tor who does not pay b’ter fees; cab rank does not apply (Competition Policy
Reform (Qld) Act 1996)
 LSC v Simon Gillespie-Jones
Getting paid as a barrister: s’tor may be disciplined for not paying counsel fees (Council of the Law
Society of NSW v JAX; Legal Practitioners Conduct Board v Wharff)
Disclosure of fees
S’tor must disclose how fees to be charged, inform client to obtain independent advice & ensure client
gives informed consent to agreement before agreement.
 Disclosure (308 ASCR); basis of fees calculated & charged, estimate of likely total fee, intervals
at which bills sent, range of costs that could be recoverable if action successful/paid if
unsuccessful, limitation period for actions, right to costs assessment when disputing bill
 Full + frank disclosure of charging arrangements (NSW Law Society v Foreman)
Exemptions to disclosure (311): if total legal costs < $750, if other costs disclosures in last 12 months
& client waives right, if client is sophisticated client (e.g. another lawyer, public company), if no costs
Billing and recovery
Agreement enforceable as contract. Fees recoverable if account rendered (329 LPA); costs assessor
may be appointed if client queries bill (341)
 Right to itemised bill; costs assessment (333) within 12 months (Challen v Golder Associates)
Time costing
S’tor has conflict between interest in earning fees vs duty to client (NSW Law Society v Foreman,
Mahoney J)
 s’tor must make full disclosure to client of all implications of such an agreement… because the
s’tor is fiduciary. ‘Hence the need for the s’tor to give the client advice that would enable a
proper understanding of the operation and effect of a time based costs agreemeent’ (Australian
Securities v Citigroup)
 When s’tor tries to change arrangements for charging fees, should be advice that client obtain
independent legal advice (i.e. from another lawyer/firm) about change (QLS v Roche, Williams
JA)
 If s’tor intends to charge for time spent on matter by non-professional staff, compelling
explanation should be given (Roche, de Jersey CJ)
 Baker Johnson v Jorgensen
 One unit of time cannot be charged more than once (Bechara v LSC); exercise ‘care and
consideration’
 Historical background: time billing is a relatively new management practice
Speculative or contingent fees
Fees tied to proceeds recovered are illegal (325(1) LPA; 120 BR)
 Speculative fee above normal charge out rate (no more than 50%) allowed for impecunious or
otherwise deserving clients (121 BR)
 ‘Uplift’ fee legal; capped at 25%
 ’50 50 rule’ applies to personal injury actions (347 LPA; LSC v Dempsey)

Baker v QLSC concerned issues regarding speculative/no-win-no-fee arrangements. These
seem like access to justice but can still hide abusive practices where client billed for more than
they receive in damages (Baker Johnson v Jorgensen)
Important cases
 NSW Law Society v Foreman: temptation to ‘over service’ bill  court pointed to
temptation/conflict not to give client most value t but to maximize profit
 QLS v Roche: be careful to only charge for legal services, not to slip in other costs that cannot
properly be charged for as legal services under retainer. Need to draw client’s attention to this
at least. If realising the lawyer has a bad deal, cannot lean on client to change agreement 
client must give informed consent (=understands & possibly consults another lawyer)
 Bechara v LSC: court requires lawyer to ‘apportion’ time spent between clients
Discipline for excessive charging
Tort + contract + professional discipline
 Breach of professional rules if fees tied to proceeds received, charging for fees the solicitor
knows he has no right to recover or fees grossly in excess of those which s’tor of good repute &
competency would charge (QLS v Roche; Baker v LSC)
 Reasons for overcharging: misunderstanding duties, clash of interests, pressures of corporate
environment, personal difficulties
 Over-billing (‘excessive legal costs’) is conduct capable of constituting disciplinary charge
(420(1)(b) LPA)
Cancellation fees – barristers
Peter Davis QC (Bar Association Pres):
1. LPA: entitlement to cancellation fee is contractual
2. If no provision in retainer agreement for cancellation fee, cannot be charged
3. Cancellation fee can only be charged if circumstances in retainer agreement for charging of
cancellation fee arise
4. Any cancellation fee negotiated (and included in retainer agreement) and ultimately charged,
must be fair and reasonable in all the circumstances. Needs to be considered in relation to
particular retainer rather than by adoption of standardized cancellation fee. What is
reasonable must clearly have regard to loss which b’ter might suffer as a result of case not
going ahead
Day 4
Competent Lawyers
Competence & care
Arises from CL (contract & tort), equity, statute (ACL) & advocate’s immunity.
Lawyers need instructions from clients to initiate proceedings (Hawkins Hill Gold Mining v Briscoe;
Pianta v National Finance)
 Lawyers must follow client instructions (8 ASCR) only in so far as it does not prejudice
the administration of justice or bring the profession into disrepute (5 ASCR)

Competence is not a ‘mere state of being or trait’ but must be determined ‘with reference to the
conduct it empowers or to specific situations and persons with whom the lawyer is involved’
(Leary Davis)
1. Common law
Concurrent liability
Concurrent liability in contract & tort (Hawkins v Clayton; Hill v Van Erp)
Contractual duties
Retainer has implied terms of best skill and endeavor (Groom v Crocker)
Solicitors: contract of retainer was historically sole basis of s’tor’s duty to exercise care & skill (Groom
v Crocker); suing for negligence  action in contract
 Contract no longer exclusive source of care & sill requirement (Aluminium Products v Hill)
Barristers: pre-LPA, no power to contract  client had no contractual right of care & skill (Moore v
Row)
 s322 LPA: costs agreement w/ briefing s’tor, directly w/ client; if b’ter no direct contract w/
client, client would need to sue in tort (not contract)
 B’ter can ‘accept instructions directly from a person who is not a s’tor’ (24B BR)
Standard of care: provide services at reasonable and competent standard of care & skill, judged in
light of available evidence & current customs & practice
 Liable if error ‘such that no reasonably well informed and competent member of the profession
could have made’ (Saif Ali v Sydney Mitchell, Lord Dicplock)
 ‘Exercise reasonable care & skill in the provision of professional advice’  yet note ‘there is no
implied understanding that the advice is correct’ (Heydon v NRMA, Malcolm JA)
Scope of retainer: doesn’t limit liability; may extend to positive steps where necessary to avoid real &
foreseeable risk of economic loss to client (Waimond v Byrne); unless specifically drafted to exclude
liability in relation to provision of advice outside retainer’s scope (Ibrahim v Pham)
 However, whether s’tor owes “penumbral” duty is ‘doubtful’  ‘impossibility & wisdom’ of
‘legal test’ (Dominic v Riz)
Circumstances that are relevant: 20/20 consult: s’tor not required to confirm verbal advice in writing
(Fortune v Bevan)
Concurrent liability: despite previous limitation (Groom v Crocker), now possible to have concurrent
liability in contract & tort (Hawkins v Clayton; Astley v Austrust)
Choice of action: (Vulic v Bilinsky)
 duty from relationship & not subject of special contract  tort (time runs from damage)
 duty is subject of special contract  contract (time runs from date of breach)
2. Tort
Tortious duties (duty of competence & care)
Duty owed to clients and some third parties (Hill v Van Erp). Duty is breached because appropriate
standard not adhered to. Breach must cause harm (‘any kind… including personal injury, damage to
property, economic loss) and harm must not be too remote. Damages sought.
Duty of care to clients: contract of retainer w/ client largely, though no exhaustively, determines
nature of services to be provided by s’tor and, therefore, scope & extent of DOC s’tor owes to others in
tort (Hawkins v Clayton, Deane J)
 May be steps that s’tor must take to discharge DOC beyond specifically agreed (Waimond v
Byrne)
 Duty owed to clients (Hill v Van Erp)
Duty of care to non-clients’
= person who is not party to retainer is in effect a ‘client’
 Pure economic loss: DOC if loss foreseeable and there is ‘something else’.
o ‘Something else’ in Clayton = proximity: (1) reliance/dependence on s’tor (2)
assumption of responsibility by s’tor (Hawkins v Clayton, Deane J).
o However, Hill v Van Erp: proximity has limited use; ‘something else’ was that duty arose
because public placed general reliance on s’tors to prepare & execute wills properly
(Dawson & Toohey JJ); no one else to sue if will not properly executed
 Fraudulent/negligent misstatement: if lawyer knows 3rd party relying on statement (Esanda v
Peat Marwick Hungerfords): e.g. certificate of independent legal advice demanded by lenders
before accepting 3rd party guarantee
Arguably, duty to 3rd parties should be wider than traditionally thought. In some situations, may be
‘anomalous’ if DOC not owed, e.g. if solicitor for intending vendor owes no DOC to purchaser before
contract although vendor owes DOC regarding enquiries: Bebonis v Angelos, Handley JA (Heydon &
Beazley JJA agreeing)
Standard of care
Lawyer must act in a way widely accepted by peer professional opinion by a significant number of
respected practitioners in the field as ‘competent professional practice’ (s22 Civil Liability Act 2003
(Qld)).
 Peer professional opinion cannot be relied on if court considers opinion irrational/contrary to
written law (22(2) CLA)
 Differing peer professional opinions does not prevent any 1 or more of opinions being relied
on (22(3) CLPA); peer professional opinion does not have to be universally accepted to be
considered widely accepted (22(4) CLPA)  evidence of other lawyers (Lucantonio v Kleimert)
 S’tor must exercise care & skill expected of qualified and ordinarily competent & careful
solicitor in exercise of profession (Hawkins v Clayton, Deane J)
Higher standard of care: expert & lawyer of long experience & great skill
 Higher standard of care owed in contract & tort when professing to be expert (Yates Property v
Boland). Affirmed in Heydon v NRMA: ‘In the case of practitioners professing to have a special
skill in a particular area of the law, the standard of care required is that of the ordinary skilled
person exercising and professing to have that special skill’
 Instructing s’tor cannot abrogate obligation to form view on case after seeking counsel’s
opinion; must turn mind to subjects and consider case law raised (Wakim v McNally; Kolavo v
Pitsikas)
Lower standard of care?
 Despite dubious approach in Jones v Jones, does not appear that lower standard of care for
patently inexpert (Vulic v Bilinsky). Miles J suggested that lawyer unfamiliar w/ law should
brief b’ter or inform client of inexperience & refuse work
 No lower standard for pro bono (Moss v Eagleston)
Poor advice? Tension between lawyer’s duty of loyalty vs duty to admin of justice
 Duty to discourage pursuit of hopeless cases (Kolavo v Pitsikas); forensic judgment
Positive steps or action: may be required w/out client instructions (Hawkins v Clayton)
Client w/ limited capacity (e.g. disability): lawyers must have reasonable belief that they have been
understood by client
 Capacity: person ‘capable of – understanding the nature and effect of decisions about the
matter; and freely and voluntarily making decisions about the matter; and communicating the
decisions in some way’ (Sch 4 Guardianship and Administration Act 2000); judged contextually,
as ‘capacity to understand the nature of the transaction hen it is explained’ (Gibbons v Wright)
Alleged negligence in claim settlement: no objective measure of correct settlement (Studer v
Boettcher)
 Appropriate settlement is ‘exercise of individual judgment’ concerning ‘interconnecting,’
‘sometimes conflicting’ and ‘imponderable factors.’ ‘Mere error of judgment’ unlikely to
constitute negligence, however negligent if lawyer advises to settle in ignorance of facts that
could have been ascertained by making proper enquiries (Algar v Gall Stanfield). Chesterman
J’s 3 factors personal injury:
i. Info lawyer had about injuries?
ii. What inquiries reasonable competent solicitor undertake?
iii. What additional information elicited by further investigation, what consequence?
Causation, damages, concurrent liability
Causation: breach should cause damage for which recovery claimed (“but for” test);
 Foreseeability Q: prove client would have acted differently if proper advice given; must not be
that the client would have still undertaken action anyway (Hanflex v NS Hope & Associates:
nominal damages)
 In determining what client would have done, but for negligent advice: fact dependent &
subjective test in light of relevant circumstances (but not what client says after the fact) (11(3)
CLA; JJES v Sayan)
Damages: sum necessary to restore client to position had breach not occurred
 Difficult to assess value of chance of successful litigation when negligent (Sweeney v Attwood
Marshall), may include compensation for costs paid client to s’tor (Heywood v Wellers)
Concurrent liability: client can elect; may not be possible to pursue claim in both
3. Equity
Fiduciary relationship
Lawyer-client relationship one of established equitable fiduciary relationship (Hospital Products);
ascendancy/influence vs dependence/trust (Breen v Williams, Brennan CJ); proscriptive duty to act in
best interests
 May be liable for account of profits; ‘no equitable bypass of need to establish causation’
(Youyang v Minter Ellison); if cannot be established that client would have acted differently 
no liability (JJES v Sayan cf Provident Capital v Papa)
4. Statute law
Professional Ethical Regulation for Competent & Diligent Service
Lawyers must be competent & diligent
 Duty to act in client’s ‘best interests’ (4.1.1 ASCR)
 R1 Solicitor’s Rule: ‘a solicitor must act honestly and fairly, and with competence and diligence,
in the service of the client’; r2: solicitor can only act when reasonably expects to serve honestly
& fairly, w/ competence & diligence
 R5(c) 2011 BR: ‘barristers as specialist advocates in the administration of justice, must act
honestly, fairly, skillfully and with competence and diligence’
 Possible negligence tend to be prosecuted by courts; LSC rarely prosecutes matters of
negligence; often negligence cases also involve other conduct breaches
 Pro bono/legal aid lawyers should not allow remunerating ‘blur the sound exercise of
professional judgment’ (Re: N (a solicitor), Fryberg J)
Communication with client
Effective communication w/ client required (LSC v Voll); must not have long & inexplicable delays in
acting for client (LSC v Mackie)
 Good communication required (7 ASCR)
 Duty to tell client about alternatives to litigation (7.2 ASCR)
Fair Trading (ACL) – Schedule 2 of Competition and Consumer Act 2011 (Cth)
Applies to legal professionals – ‘any business or professional activity’; all stages of providing legal
services (advertising, promotion & negotiations; client agreement/contract, actual provision of
services, billing)
Consumer guarantees: to ensure services provided w/ due care & skill, fit for purpose, within
reasonable time.
 Applies to individuals acquiring services for personal, domestic, household consumption or
businesses acquiring services up to $40,000 (ss60-62 ACL)
Component pricing: requires lawyer who advertises services to clearly & unambiguously spell out
total price (single figure ‘all up’ GST inclusive, including compulsory fees/charges)
 Supplier must not promote/state price that is only part of cost, unless prominently advertising
the single price (47-48, 165-166 ACL)
Misleading & deceptive conduct (s18 ACL): term ‘misleading/deceptive’ given ordinary meaning: if it
leads, or is capable of leading, a person into error  intention is irrelevant
 Not limited to misrepresentations; silence/other conduct may amount to mis/dec conduct
(ACCC v Sampson)
 Wide application, including advertising e.g. ‘no win-no fee’ (Baker Johnson v Narelle Jorgensen)
Unfair terms: applies to contract between lawyer & client, including costs agreement: consumer
contract and standard for contract.
 Term unfair if: causes sig imbalance in rights & obligations between lawyer & client; not
reasonably necessary to protect proper interests of lawyer, would cause detriment
(financial/otherwise) if relied upon (n.b. not unfair if in line with “industry practice”)
Advocates’ Immunity
Advocates’ Immunity
Advocates’ immunity: advocates immunes from being sued in negligence in respect of conduct of case,
or for work outside courtroom which is intimately connected w/ conduct of case in court (e.g.
preparing pleadings)  originally justified in recognition of overriding duty to court
 Immunity unique to Aus (NZ: applies to court work only); was reaffirmed in D’Orta Keenaide v
Victoria Legal Aid (public interest in finality of judicial determinations)
 Immunity extended in Goddard Elliot v Fritsch to include work in relation to legal proceedings
settled out of court
 Immunity defence is not relevant when contemplating litigation and advice (Kolavo v Pitsikas)
Arguments for retention of advocates’ immunity: re-trials prolong litigation & create risk of
inconsistent decisions
 Collateral attack on sanctity of court process
 Advocates have higher duty to admin of justice & need to be protected even if against interests
of client
Arguments against retention of advocates’ immunity: out of step w/ contemporary social policy &
move toward personal responsibility; out of step w/ other CL jurisdictions (UK, NZ, Canada)
 Case management and retreat from oral tradition minimize mistakes & surprise in court
 Empirical evidence from other jurisdictions shows no increase in negligence actions
Minimising Liability
Sources to minimize liability
1. Terms of retainer 2. Advocate’s immunity as defence (Moss v Eagleston) 3. Insurance schemes 4.
Structural limitation – ILPs 5. Ethical infrastructures 6. Continuing legal education
1 Terms of retainer
Written retainer should spell out exactly what lawyer has agreed to do; make clear who client is;
terms of retainer inc limits should be set out w/ clarity
 Limitation of liability clauses not prohibited under LPA
‘Fair and reasonable’ agreement (328 LPA); otherwise clause rendered ineffective by Court/Tribunal;
look at substantive terms of contract & conditions in which it was reached
Indemnity Insurance: s353-4 lawyer; s121 ILPs (LPA);
Lexon (wholly owned subsidiary of QLS) provides professional indemnity insurance in accordance
with QLS Indemnity Rule 2005, basic cover up to $2m
Contributory negligence
Wide test; negligent lawyers may share liability w/ other tortfeasor (Hunt & Hunt Lawyers)
Limitation of liability scheme
Not insurance scheme; protect practitioners against negligence claims. Statutory scheme enforced by
courts that caps amount of damages may be awarded against practice.
QLS & Bar: member liability caps of up to $10 or $1.5m for practices ≤ 20 principals & annual fee
income $10m; does not apply for civil action for damages for ‘negligence or other fault of a lawyer in
acting for a client in a personal injury claim’ (s6 Professional Standards Act 2004 (Qld))
Corporate Structure (Incorporation)
‘Legal Practitioner Director’ retains personal & disciplinary liability
 Allowed in Qld since 2007; additional rules regarding disclosure and reporting conditions
Day 5
Confidentiality
Duty of confidentiality
Sources of duty of confidentiality:
 Contract (often implied) (O’Reilly v Commissioners of State Bank of Victoria)
 Equity: fiduciary r’ship demands level of conduct exceeding tortious DOC  loyalty
 Professional ethics (9 ASCR; 108 BR)
Duty of confidentiality survives retainer
Ongoing obligation to maintain confidences of former clients (Fordham: breach of loyalty where
reasonable observer would conclude lawyer used confidential info to detriment of former client)
 Lawyers should take extremely cautious approach to confidential information since published
(Fordham v Legal Practitioners Committee)
Conflict of duties
Test whether position of conflict is ‘whether a reasonable observer, aware of the relevant facts, would
consider that the confidential information given to the solicitor by the former client was being used by
the solicitor to advance the interests of the new client to the detriment of the former client’ (Fordham,
Malcolm CJ) unprofessional conduct: reprimand, censure (Re a Practitioner, SDT/52)
Lawyer–client relationship as one of confidentiality
Lawyer-client relationship is one of confidentiality (Target Holdings v Redferns). Per r108 BR 2011/r9
ASCR: lawyer must not disclose (except as compelled by law) or use confidential information obtained
in course of practice concerning any person to whom lawyer owes duty or obligation to keep such
information confidential unless or until:
a. Information later obtained by lawyer from another person not bound by confidentiality who
does not give information confidentially to lawyer
b. Person consented to lawyer disclosing/using information generally/specifically
Tuckiar v The King
Client confidences must be maintained in all contexts; issues raised by new technology (Victorian Bar
Ethics Committee Bulletin)
 Disparaging remarks may breach confidentiality (LPT v Tampoe: Corby)
Exceptions to duty of confidentiality
Breach of court order (80 BR; 9.4.2 ASCR)
Lawyer whose client informs lawyer that client intends to disobey court’s order must:
a. Advise client against course & warm of dangers
b. Not advise client how to carry out/conceal course; but
c. Not inform court or opponent of client’s intention unless –
1. Client authorised lawyer to do so beforehand
2. Lawyer believes on reasonable grounds that conduct constitutes threat to any person’s
safety
Breach of confidence to prevent harm
Disclosure may be justified provided that lawyer’s concern for welfare of client reasonable and
resulted in no more disclosure of confidential information than absolutely necessary (R v P, Hodgson
JA). r80 BR 2011/r9.2.4, 9.2.5 ASCR:.
 Solicitor (9.2 ASCR): sole purpose of avoiding probable commission of serious criminal offence
(9.2.4), s’ter discloses info for purposes of preventing imminent serious physical harm (9.2.5)
 Barrister: where client threatens safety of another, may ‘advise police/appropriate authorities
(81); not invitation to full public disclosure (Legal Practitioner Complaints Committee v
Trowell)
Exceptions to duty of confidentiality
Lawful disclosure:
 Client’s knowledge and consent: Marriage of Griffis; r109(c),110,116 iBR; r9.2.1 ASCR
 Disclosure compelled by law/to avoid probably commission of serious offence: r9.22, 9.2.4
ASCR
 Barrister disclosure – client intends to disobey court order: reasonable grounds to believe will
threaten another person’s safety: s80 BR; r 9.2.5 ASCR
 Compelled under legislation: i.e. warrant, trust reporting (cf Baker v Campbell: privileged info)
Disclosure in course of practice:
 S’tor may disclose to partner, principal, director, employee of practice (9.1.1 ASCR) or
barrister/employee/associated entity for purpose of delivering/administering legal services
(9.1.2 ASCR)
 9.1 ASCR; lawyer may limit disclosure to avoid conflict: Chinese Walls/’information barriers’
 Obtaining advice: sole purpose of obtaining advice in connection w/ legal ethical obligations:
r9.2.3 ASCR
Professional discipline: lawyer defending themselves in disciplinary/civil matter (R v Paddon).
Limited to that respecting conduct of lawyer impugned (Schulman v Abbot Tout Lawyers)
Legal Professional Privilege
Definition and rationale
LPP (‘client legal privilege’) protects communications between lawyers & clients from disclosure
under compulsion of court or statute)
 Serve public interest in admin of justice by encouraging full & frank disclosure by clients to
lawyers (Esso Australia Resources; Grant v Downs)
Elements of LPP
Must be lawyer–client relationship for communication to be protected by LPP (R v Williams)
1. Dominant purpose of communication must be giving of legal advice/litigation (Esso
Australia v Federal Commissioner of Taxation)
o EXCEPTION if: fraudulent (‘fraud on justice’), not legal purpose, only sent to lawyer to
attract privilege (AWB v Cole)
o Not LPP if illegal purpose (AG v Kearney; Cole v ABW)
o BAT case (tobacco)
2. Communication must be confidential; and
o Most types of communication covered (e.g. bill of costs); EXCEPT for: retainer engaging
lawyer to draft contract, attachments to privileged documents, client’s identity &
contact details, trust account records
3. Communication must between client and their lawyer acting as such in a professional
capacity (Dye v Commonwealth Securities; Rich v Harrington)
Acceptable breach of privilege
 Client waiver
 Compelled by law (Baker v Campbell: explicit/necessary implication ouster)
 No longer confidential information
 Client fraud may waive LPP; however may not lose confidential character (cannot disclose
client secrets: Kyle v LPCC)
 Warning: Fordham v LPCC
Inadvertent Waiver
Objective test w/ onus on person seeking to claim privilege persists  Q: would a reasonable person
in shoes of recipient have realized the disclosure was a mistake?
 Lawyer receiving communication may become conflicted/disqualified from acting in case (GT v
Amare); Expense Reduction Analysts
Ethical obligations relating to confidentiality
ASCR r 31: 31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known
or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person
and who is aware that the disclosure was inadvertent must not use the material and must:
0 31.1.1 return, destroy or delete the material (as appropriate) immediately upon
becoming aware that disclosure was inadvertent; and
0 31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken
to prevent inappropriate misuse of the material.
0 31.2 A solicitor who reads part or all of the confidential material before becoming aware of its
confidential status must:
0 31.2.1 notify the opposing solicitor or the other person immediately; and
0 31.2.2 not read any more of the material.
31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor
must refuse to do so.
Informing client: no express rule against telling client about document; yet against spirit of rule
Response: Arguably, ‘such a rule should not be necessary. [As to ignore the document] is an example
of professional, ethical obligations of legal practitioners supporting the objectives of the proper
administration of justice’ (Expense Reduction Analysts)
Day 6
Conflicting Loyalties
Fiduciary relationship
“Lawyers are fiduciaries (Boardman v Phipps) and must not prefer their own interests to that of their
clients”
Lawyer–client = fiduciary (Hospital Products v US Surgical Corporation, Mason CJ: fiduciary has ‘special
opportunity to exercise the power or discretion to the detriment of the other person who is
accordingly vulnerable to abuse by the fiduciary’;
 Proscriptive in nature (Breen v Williams, Gaudron & McHugh JJ)
 Duty of loyalty ‘unequalled elsewhere in the law’ (Moffatt v Westein)
 Extent of fiduciary duties owed depends on circumstnaces of case (Maguire v Makaronis,
Eiszele v Hurburgh)
Duration of loyalty (see below) Kallinicos v Hunt, Brereton J
 During retainer: ‘foundation of court’s jurisdiction is fiduciary obligation… and the inescapable
conflict of duty which is inherent in the situation of acting for clients with competing interest’
 Once retainer ends: duty of confidence; however always inherent jurisdiction to control
process in aid of admin of justice
Overarching duty to court: Duty to court is the ‘core’ of all litigation; establishing law of land for
parties & community (Warren CJ, 2011)
Content of duty:
 As trustee of client’s property
 Avoid position conflict of duty and interest
 Avoid making profit from position as client’s fiduciary
 Avoid conflict of duty and duty
 Arguably, duty of confidence
Ethical duty of loyalty and no conflicts
Loyalty: s’tor must act in best interests of client in any matter in which s’tor represents client (4.1.1
ASCR);
 Duty to tell the client about pertinent information obtained by the lawyer even in a
personal capacity (Eiszele v Hurburgh; Littler v Price)
No conflicts: s’tor must not act for client where conflict between duty to serve best interests of
client & interests of s’tor (12.1)
 Includes others in firm and lawyer’s ‘associate’ (e.g. family member)
 Conflicts can arise from different transactions or matters – does not have to arise in one
transaction (Marks and Spencer v Freshfields)
Fees: Lawyer must not exercise undue influence in relation to fees (r12.2 ASC)
 Appreciation of duty by applying ordinary concepts of fair dealing between honourable men
(Law Society of NSW v Harvey)
Undue influence presumption (12.2 ASCR)
Informed consent + other considerations
= ‘full candour and appropriately complete disclosure to the client’ (O’Reilly v Law Society of NSW,
Kirby P); possibly independent legal advice
 Further considerations: ADMINISTRATION OF JUSTICE  court has inherent jurisdiction to
restrain s’tors from acting in particular case (Kallinicos; R v Szabo)
 Disclosure must be made of relevant information (Littler v Price)
Acting for more than 1 client
if law s’tor/law practice acts for >1 client in matter and actual conflict arises, may only act if duty of
confidentiality is not at risk and parties have given informed consent (11.5 ASCR)
 Eiszele v Hurburgh: informed consent is fact sensitive
(a) Duty to avoid potential conflict of duty to client & lawyer’s personal interest
This duty must not only be discharged, but ‘manifestly & undoubtedly’ (Spector v Ageda)
Examples
 Duty not to make personal profit (other than fees): r12.1 ASCR; benefit under will w/ informed






consent (r12.4.1, 12.4.2 ASCR)
o Temptation of greater fees: e.g. initiating/prolonging litigation (7.2 ASCR), pressure to
settle, over representation, concurrent business interests
Duty not to earn secret bribe (s442A Criminal Code (Qld)); commission may be earned if
revealed + informed consent (r12.4.3, 12.4.4 ASCR)
Duty not to borrow/lend from/to past or present client w/out disclosure & full, free &
informed consent (r12.43 ASCR); Law Society of NSW v Harvey; Maguire v Makaronis
Duty not to sell/purchase to/from client w/out disclosure and full, free & informed consent
(Tyrrel v Bank of London)
Duty not to prefer other personal interests (e.g. sexual relationship): undue influence
presumption (LSC v La Spina). If opposing counsel/opposite sides, one or both lawyers may be
prohibited from acting if perceived threat to admin of justice (R v Szabo)
Duty not to prefer personal interest in covering up a mistake (despite strong temptation to
cover it up: LSC v Lim)
Duty not to seek special favour w/ court: s’tor must not deal w/ court ‘on terms of informal
personal familiarity which may reasonably give appearance that s’tor has special favour’ (18.1
ASCR; 44 BR)
(b) Duty to avoid conflict of duty to client & duty to another (rr 10, 11 ASCR)
Concurrent clients – litigation: lawyer may not act on both sides of a contested matter; if so ‘it is his
own fault, and he cannot use his own discomfiture as a reason why his duty to either client should be
taken to have been modified’ (Hilton v Barker Booth)
Ethical rules: must avoid conflicts between 2 or more current clients (11.1 ASCR); if seeks to act for
both must not act except if ‘best interests’ of client AND informed consent’ (11.3 ASCR)
Examples where actual conflicts arise: lender + borrower; vendor + purchaser; joint representation of
partners in partnership; lessor + lessee; opposite sides of contentious matter; company v
directors/shareholders; insurers v insured; competing tenderers for major projects
Key points for current clients: fiduciary relationship with both conflicts. Duty of loyalty means lawyer
should avoid conflict situation: informed consent from both parties may suffice. However, where there
is an actual conflict, sometimes incurable and lawyer must refuse to act
 Cannot pick one client over the other. Need to advise clients they should seek independent
legal advice and lawyer bears responsibility (i.e. liability)
Duty of loyalty during lawyer-client relationship: Duty to maintain client confidences survives lawyer
client relationship, and even death of former client (Littler v Price). However, duty of loyalty persists
only during lawyer–client relationship (Gillies v Dibbets; Flanagan v Pioneer Permanent Building
Society; cf Victoria: Spincode; Dale v Clayton))
 Retaining confidences gives rise to conflicts because may be at risk of breaching confidence &
duty to inform current client of relevant knowledge (Littler v Price)
Keep confidences within firm: s’tor may disclose confidential info to partner, principal,
director/employee of s’tor’s law practice (9.1 ASCR) or barrister, employee of or person engaged by
s’tor’s law practice for purpose of delivering legal service sin relation to client (9.1.2)
 Administrative measures to protect client confidentiality, e.g. ‘Chinese Walls’
Client remedies
Client remedies
Civil: account of profits (Phipps v Boardman); delivery-up & cancellation of documents; injunction
Disciplinary: complaint to LSC for discipline by QCAC/LPC (may include compensation order)
Injunctions
While Spincode arguably beyond Qld law, possible that court’s inherent jurisdiction to control lawyers
is separate but related to jurisdiction to protect confidential info (Kallinicos v Hunt)
 Test: ‘whether a fair-minded, reasonably informed member of the public would conclude that the
proper administration of justice requires that a legal practitioner should be prevented from acting,
in the interests of the protection of the integrity of the judicial process and the due administration
of justice, including the appearance of justice’ (Kallinicos v Hunt)
 Exceptional jurisdiction, exercise w/ caution; due weight to public interest of litigant not being
deprived of lawyer w/out due cause
 Relationship w/ judge ‘such as to make appearances undesirable’ is only ground can refuse
brief (99(l) BR)
Elements required to seek injunction
Typically sought on basis that lawyer owes duty of confidentiality that will be breached when taking
on new client. Note:
(a) Degree of risk of disclosure must be ‘real’ possibility (not merely fanciful):
“In Fruehoff, the test of ‘probability’ was applied (followed in Hampson) where it must be shown that a
breach of confidentiality was probable. This is to be contrasted with the test from Prince Jefri Bolkiah v
KMPG and Mallesons v KPMG Peat Marwick which only required a real and sensible possibility of the
breach of the duty. This appears to be the test currently applied in Queensland: Pott v Jones Mitchell.”
However, as the court emphasized in Mallesons and Bolkiah, the duty to avoid conflicts is
absolute and inflexible and Position in Qld is that a real possibility required (Pott v Jones
Mitchell, McMurdo J)  real & not merely fanciful risk of disclosure if lawyer acted for new
client
 Factors: if similar liability issues presented, similar nature of evidence, interviewed witness in
both cases, knowledge of former client’s trial strategies, knowledge of financial/organisation
information/trade secrets, nature of former retainer & relationship
 Degree of risk of disclosure that may be tolerated (possibility: Mallesons/Prince Jefri vs
probability: Rakusen/Fruehauf/Hampson).
(b) Can be granted before breach: prevent even inadvertent/subconscious use of confidential
information (Rakusen v Ellis; Australian Commercial Research v Hampson); even where s’tor has no
present recollection of potentially confidential info (Gillies v Dibbets, Helman J); ‘unconscious’
knowledge enough (PDP Group v Bennett)
(c) Confidential information must be relevant

Former & current clients
Ethical duties relating to former & current clients
Lawyer can act against former client: no principle that s’tor may not act against former client;
however may be restrained to avoid sig risk of disclosure/misuse of confidential info (Prince Jefri
Bolkiah v KPMG, Lord Millett).
 ‘No solicitor should, without the consent of his former client, accept instructions unless, viewed
objectively, his doing so will not increase the risk that information which is confidential to the
former client may come into the possession of a party with an adverse interest’ (Prince Jefri, Lord
Millett)
 Lawyer must ensure no conflicts arise and appropriately manage them (Hilton v Parker Booth)
Ethical duties: former clients & current clients: S’tor must avoid conflicts between duties owed to
current & former clients (10.1; 11.4 ASCR)
 If compelled to disclosure info from former client (duty to inform relevant info: Littler v Price),
conflict as it appears lawyer would have to break duty of confidentiality (Target Holdings) 
new client may require information/actions which involve breaching duty of confidence to old
client
 S’tor and law practice in possession in confidential info of former client/current client, where
info might reasonably be concluded to be material to matter of another client & detrimental to
interests of former client/current client if disclosed, must not act for current client in matter
unless informed written consent/effective information barriers established (10.2; 11.4 ASCR)
Information barriers (‘Chinese Walls’): courts have tended to be skeptical; ‘appears to clad with
respectable antiquity and impenetrability something that is relatively novel and potentially porous’
(Malleson Stephen Jacques v KPMG, Ipp J)
 = administration approaches: conflict check before taking on client, physical separation of
lawyers, client consents, undertakings by lawyers, computer security + hardcopy protection,
education, compliance officers, part of firm’s organizational structure, must be sufficient to
demonstrate no real risk of disclosure of confidential information
 Fruehauf: ‘public interest’ taken into account as balancing test between undertakings of
lawyers, effectiveness of Chinese Wall procedures and duties of confidence
 9.1 ASCR: allows & expects lawyers to share information; must be established that law firm has
properly divided lawyers to protect confidences where possible conflicts arise
 Informed consent of clients: 10.2
Duty of confidentiality strictly imposed
Preserve confidentiality; not merely to take reasonable steps; barristers often affected by this
(Australian Commercial Research v Hamspon; Dale v Clayton)
 Plaintiff briefed 14 QCs case (ANZ)
Ethical duties - barristers
Barrister must refuse to accept/retain brief/instructions to appear before court if:
a) b’ter has info which is confidential to any other person in the case other than the prospective
client and:
i. Information may, as a real possibility, be material to prospective client’s case; and
ii. Person entitled to confidentiality has not consented to barrister using information as
barrister thinks fit in the case
b) And barrister has already advised/drawn pleadings for another party to the matter or if
barrister has already discussed in any detail (even informal basis) w/ another party w/
adverse interest in matter the facts out of which the matter arises (Dale v Clayton)
In Colston v McMullen, injunction rejected because Kallinicos test not fulfilled:
 No evidence that b’ter had more than fleeting + cursory connection w/ complaints
 Does not appear b’ter saw docs/privy to evidential materials
 Not established b’ter in possession of any info derived in confidence which may be used,
inadvertently or otherwise, to applicant’s detriment
Day 7
Advocates’ Duties and Limits of Adversarialism
Guiding ‘principles’ (5,12 BR)
Administration of justice; maintaining high standards of professional conduct; acting honestly, fairly,
skillfully and with competence and diligence; exercising forensic judgment and giving advice
independently and for the proper administration of justice, notwithstanding any contract wishes of
client
 Must not diminish public confidence in profession/admin of justice nor prejudice admin of
justice
Barristers’ duties to client
B’ter must ‘promote and protect fearlessly and by all proper and lawful means’ client interests (37 BR)
 Do work in ‘sufficient time to enable compliance with orders,’ providing appropriate &
accurate info to client including:
o ‘Issues in the case and the client’s possible rights & obligations, sufficiently to permit
the client to give proper instructions’ (including to compromise case) (39 BR)
o Advise client charged with ‘criminal offence about any law, procedure or practice which
in substance holds out the prospect of some advantage (including diminution of
penalty), if the client pleads guilty or authorizes step towards reducing the issues, time,
costs of distress involved in the proceedings’ (40 BR)
Solicitor duties to client and court
S’tor must ‘act in the best interests of a client’ (4.1.1 ASCR); must act competently diligently &
promptly (4.1.3)
 Must not engage in conduct in course of practice/otherwise, which demonstrates that s’tor not
fit & proper person to practice law (5.1) or likely to material degree to be prejudicial
to/diminish public confidence in admin of justice (5.1.1) OR bring profession into disrepute
(5.1.2)
Submissions on law
Lawyer must, at appropriate time in hearing of case if court has not yet been informed of matter,
inform court of any binding authority; whether there is no binding authority any authority decided by
Aus appellate court and applicable legislation known to lawyer and which lawyer has reasonable
grounds to believe to be directly in point, against client’s case (31 BR; 19.6 ASCR)
 Must mistake about law (28 BR)
Non-adversarial options
B’ters & s’tors obliged to advise clients of available & appropriate non-adversarial options (38 BR, 7.2
ASCR)
Excessive Adversarialism
Taking advantage of a mistake
ASCR r 31
 31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or
reasonably suspected to be confidential is disclosed by another solicitor, or by some other
person and who is aware that the disclosure was inadvertent must not use the material and
must:
 31.1.1 return, destroy or delete the material (as appropriate) immediately upon
becoming aware that disclosure was inadvertent; and
 31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken
to prevent inappropriate misuse of the material.
 31.2 A solicitor who reads part or all of the confidential material before becoming aware of its
confidential status must:
 31.2.1 notify the opposing solicitor or the other person immediately; and
 31.2.2 not read any more of the material.
 31.3 If a solicitor is instructed by a client to read confidential material received in error, the
solicitor must refuse to do so.
Taking advantage of ignorance
S’tor condemned from taking advantage of another’s ignorance
 In the matter of Fratelli’s Fresh Pasta: ‘ambush approach to litigation is discredited. It should be
rejected by any s’tor or b’ter. It is inconsistent w/ duties of parties and their legal
representatives… to ensure the just, quick and cheap resolution of real issues in proceedings’
o ‘Litigation is not a game in which parties or their advisors should keep their cards close
to their chest to achieve a tactical advantage’
No ‘mere mouthpiece’ (Giannarelli)
Lawyer must not ‘act as the mere mouthpiece of the client or the instructing s’tor and must exercise
forensic judgment called for during the case independently’ (41 BR, 17.1 ASCR)




Lawyer must ensure work is done to: confine case as to identified issues genuinely in dispute,
case ready to be heard as soon as practicable, present identified issues clearly & succinctly,
limit evidence to reasonably necessary to advance & protect interests, occupy short as time as
reasonably necessary to advance & protect interests at stake in case (57 BR, 17.2 ASCR)
May not follow instructions if necessary (27.2) and must inform client of ‘any persuasive
authority against the client’s case’ (19.6)
Lawyer must not mislead court and ought to withdraw of client insists on doing so (Myers v
Elman)
‘Independent discretion or judgment in his 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’ (Giannarelli v Wraith, Mason CJ)
Weak and hopeless cases
There is some difference of opinion about where to draw line about bringing weak cases (Steindl
Nominees and Flower & Hart)
 No legislative standard for ‘arguable case’
 Steindl Nominees v Laghaifar: could lead to wasted costs order, contempt of court finding,
professional discipline
o Davies J: ‘if it is counsel’s duty to exercise his or her independent judgment upon which
points will be argued it must also be his or her duty, in the exercise of that judgment, to
decide whether there is any point which can be argued’
o Greater care must be taken in judging arguability of questions of fact than of legal
questions. Ultimately, Q is the same whether it depends on facts or law: ‘if the case is
plainly unarguable it is improper to argue it”
o Appropriate to present case which was ‘barely arguable but most likely to fail’; but ‘it is
improper for counsel to present, even on instructions, a case which he or she regards as
bound to fail because, if he or she so regards it, he or she must also regard it as
unarguable’
o Williams JA: obiter dicta in Medcalf v Mardell: not enough that hopeless case; litigant
entitled to be heard; position is different if ‘improper time-wasting or advocate
knowingly lent himself to abuse of process’
 Medcalf v Mardell: ‘It is the duty of the advocate to present his client’s case even though he may
think that it is hopeless and even though he may have advised his client against it’
 Lawyer should not enable client to bring case w/out merit and for ulterior purpose, and must
tell client to discontinue proceedings
 If initially not weak/hopeless, but now is, must discourage, especially if now not correct (LSC v
Mullins)
 19.1 ASCR: lawyer must not deceive/mislead court
 If no basis but abuse of process/ulterior purpose  indemnity costs order on lawyer
 If client has legitimate legal argument, even if marginal, might be professionally ethical to follow
instructions to initiate action
‘Delinquent clients’ (78 BR; 20.1 ASCR)
S’tor has responsibility for disclosure by client of relevant and true documents (McCabe v BAT)
Lawyer who, as a result of info provided by client/witness, learns during hearing/after
judgment/decision reserved and while pending, learns that client/witness:
a) Lied in a material particular to court/procured another person to lie to court; or
b) Falsified/procured another person to falsify in any way doc which has been tendered; or
c) Suppressed/procured another person to suppress material evidence upon where positive duty
to court
Must refuse to take further part in case unless client authorizes b’ter to inform court of
lie/falsification/suppress and must promptly inform court upon client authorizing to do so but
otherwise may not inform court
 Steps lawyer must take: lawyer needs to show professional judgment & properly inspect
documents and conduct case; must not be reckless about whether client is truthful/incompetent
(Clough v QLS; Perpetual Trustee Company v Cowley: lawyer unknowingly signed false affidavit as
reckless to true picture)
 If document knowingly false, may be breach of 30 ASCR; Myers v Elman
 ‘Not a mere mouthpiece’ & forensic judgment (13.1 ASCR) may be relevant
Confessions of guilt (BR r 79; ASCR 20.2)
A barrister [or solicitor] 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.
Assistance in illegal conduct
A practitioner who provides such assistance may be considered to have ‘aided, abetted, counselled or
procured the commission of an offence’.
 The professional retainer is no defence to a charge of being a party: Criminal Code 1899 (Qld), s
7.
 BR r 80 and ASCR r 20.3 specify that a barrister/solicitor must not assist a client to disobey a
court order
Dealing with press & witnesses
Personal opinion & talking to press
Personal opinion: no submissions/expressions which convey lawyer’s personal opinion (17.3 ASCR,
43 BR)
 Arguably, lawyer signing personal affidavit = breach
S’tors talking to press: must not publish/take steps towards publication of any material concerning
current proceedings which may prejudice fair trial/admin of justice (28.1 ASCR)
B’ters talking to press: must not publish/take any step toward publication of material which: (a)
known to be inaccurate (b) confidential info (c) appears/does express opinion of b’ter on merits of
current/potential proceeding, other than in course of genuine educational/academic discussion on
matters of law (75 BR)
 B’ter may (76 BR):
(a) supply answers to unsolicited Qs on current proceeding provide A limited to info as to identiy
of partners/witness already called, nature of issues, nature of orders/judgment including
reasons given by court, client’s intention as to further steps
(b) Where not contrary to legislation/court practice & at request of client/instructing s’tor, may
supply for publication in response to unsolicited Qs: (i) copies of pleadings (ii) copies of
affidavits/witness statements (iii) copies of affidavits/witness statements (iv) copies of
exhibits admitted w/out access restriction
 B’ter (77 BR) (a) may if requested advise client about dealings w/ media, but not in manner
calculated to interfere w/ proper admin of justice (b) will not have breached 75/76 be advising
that client may take appropriate steps to present client’s own position for publication (upon
published report; Keim SC’s defence of Dr Haneef
Dealing with witnesses
Lawyer must not advise/suggest to witness that false/misleading evidence should be given nor
condone another person for doing so; or coach witness by advising what answers witness should give
to Qs (24.1 ASCR; 68 BR).
 EXCEPTION: no breach: ‘expressing general admonition to tell truth, or by questioning and
testing in conference the version of evidence to be given by a prospective witness, including
drawing the witness’s attention to inconsistencies/other difficulties w/ evidence, but must not
encourage witness to give evidence different from believe to be true’ (69 BR, 24.2 ASCR)
Conferring with witnesses
 AG v Gregory; Greg Gregory v QLS
 26.1 ASCR; 72 BR
Ex parte applications
Lawyer seeking interlocutory relief in ex parte application must disclose all factual/legal matters:
within knowledge, not protected by legal professional privilege and have reasonable grounds to
believe would support argument against granting relief/limiting terms adversely to client (29 BR, 22.5
ASCR)
 B’ter must seek instructions for waiver of legal professional privilege so as to permit b’ter to
disclose matters. If client does not waive privilege, barrister must inform client of
responsibility to authorize disclosure & consequence of not doing so and refuse to appear on
application
Prosecutor’s duties in ethical rules
Duty to ‘fairly assist the court to arrive at the truth, must seek impartially to have the whole of the
relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate
submissions of law to enable the law properly to be applied to the facts’ (BR r 82; ASCR r 29.1)
 ‘A prosecutor must not press the prosecution’s case for a conviction beyond the full and firm
presentation of that case’ (BR r 83; ASCR r 29.2)
Prosecutor’s duties: must conduct prosecution with fairness & ‘single view to determining and
establishing the truth’ as ‘ministers of justice’; not struggling for conviction (R v Subramanian)
 Comments carry imprimatur (authority) of gvmt; prosecutor must be careful to avoid
misconduct (Bennett Gershman)
Hired guns – civil context
 White Industries v Flower
Stephen Pepper: first-class citizenship
Law must not overly prescribe moral standards; rather, a ‘societal commitment’ to individual
autonomy. Lawyer must be amoral (i.e. moral direction given entirely by client), as the means to firstclass citizenship and meaningful autonomy for the client (‘Hired Gun’ approach)
 Lawyer possess the tools and skills to assist the individual; lawyer is a morally indifferent agen
Analysis – ‘hired gun’
While this theory emphasises liberal views, it may encourage lawyers to use any measure to assist
client. Ted Scheneyer in ‘Some Sympathy for the Hired Gun’ argues that the main issue is a lack of
zealousness for the client. Low remuneration may engender a lower standard of care and competence.
Reforms proposed by Scheneyer to agency ethics: legal processes should not be used to harass
opponents; excesses of the adversary system should be curbed; acting in the “best interests” may
entail more than the client; client’s interests should be viewed in more than material sense.
Applegarth J – The Queen v Christopher James Earel transcript
 Defence lawyers ‘part of an honourable profession bound by high standards and duties to the

court and to justice’
Lawyers ‘put their duty to the court and their duty to justice higher than the interests of their
clients and winning a case’
o (1) Hired gun ignores presumption of innocence
o (2) Lawyers do not reap in ill-gotten gains
o (3) Professional distance and relationship between lawyer and client
Personal Difficulties of Advocacy
 Greg King committing suicide:
Tim Dare’s defence of adversarial ethics:
1. Principle of partisanship: lawyers give priority to client’s interests
2. Principle of neutrality: lawyers cannot calibrate efforts according to their view of client’s cause
3. Non-accountability principle: lawyers not held account for clients or cause
 Conception imposes ethical & psychological barriers on lawyers
 Adversarial system is best. Modern communities marked by diversity of views – “The law
allows us [to settle] what we are legally entitled to do while leaving the underlying moral
issues untouched. Inevitably the law will fail to satisfy all the reasonable moral views to be
found in pluralist communities”  standard conception
Day 8
Duties to other practitioners
Undertakings
Lawyer who provides an undertaking is acting autonomously; must ‘honour the undertaking’ and
ensure its timely & effective performance (r6.1 ASCR).
 S’tors may make undertakings to other parties to do something; usually deemed to be personal
to lawyer (not as agent for client)
 May not be binding contractually but bind lawyer ‘as a matter of professional conduct & comity’
 enforced by courts (Re Vincent Cofini)
Unfulfilled undertaking: if undertaking not fulfilled, may be liable in professional discipline & civilly
(Lade & Co v Black). May be unwise practice/mistake as to personal vs professional interests (LSC v
Gregory; LSC v Farnham; LSC v Zaghini)
 Lawyers investigated by LSC must cooperate; may constitute separate disciplinary charge &
criminal offence (443 LPA)
 Case studies: LPT v Zaghini; LSC v Farnam; LSC v Gregory
Promises to pay 3rd party: If s’tor instructs a 3rd party on behalf of a client, and the s’tor not intending
to accept personal liability for payment of the 3rd party’s fees, s’tor must advise the third party in
advance (35 ASCR)
Unethical to seek undertaking in certain circumstances
S’tor must not seek from another s’tor, s’tor’s employee, associate or agent, undertakings that would
require co-operation of 3rd party not party to undertaking (r 6.2 ASCR)
Communications with opponents in litigation
No dealing directly w/ other side (51-53 BR, 22.4 ASCR)
 Inform opposition of anything between them and court (54 BR, 22.6 ASCR)
 No knowingly false statements in relation to case (48 BR; 22.1 ASCR)
 Correct false statement to opponent when aware (49 BR, 22.2 ASCR)
HOWEVER:
 Not ethical breach if don’t ‘correct an error on any matter stated to [lawyer] by opponent’ (50
BR, 22.3 ASCR)
Unethical to blame barrister
Blaming barrister for not complying w/ court order usually unacceptable, particularly if untrue (LSC v
Janes)
No communicating w/ another s’tor’s client
S’tor must not deal directly w/ client/clients of another practitioner (33.1 ASCR)
 May be permitted if: other practitioner consented/failed to reply in reasonable time for
reasonable reason; solicitor believes on reasonable grounds that urgent so as to be required or
would be unfair not to; just to enquire who represents them
Informality w/ court
S’tor must not, in presence of any of parties/solicitors, deal w/ court on terms of informal personal
familiarity which may reasonably give appearance that solicitor has special favour w/ court (18.1
ASCR; 44 BR)
An overview of lawyers’ duties
Legislation
ASCR is statement of general principle rather than a rule – reflects spirit of conduct not formulaic code
(Brennan J)
Court’s powers where breach of duties
Disappointing statement in judgment, finding of contempt of court
 Uniform Civil Procedure Rules 1999: r681(1) power for wasted costs orders against lawyer;
r690: lawyer may repay to client all/prat of costs due to delay, misconduct or negligence
o Objective: inherent power to enforce duties owed by lawyers to court (compensatory
jurisdiction: Perpetual trustee v Cowley)
Duties to court
Paramount Duty
Paramount duty to court: Paramount duty is owed as officers of the court (r 3.1 ASCR, r5(a) BR),
entailing duties to be frank, honesty and candid in dealings and not knowingly mislead court,
exercising forensic judgment (NSW Bar Association v Livesey; NSW Bar Association v Thomas;
Giannarelli v Wraith CLR)
 Breach  professional misconduct: disbarment/striking off: Greg Gregory v Qld Law Society
 Historically, barrister statements treated as evidence: NSW Bar Association v Thomas, Kirby P
 Duty takes priority over duty to client: barrister ‘has an eye, not only to his client’s success, but
also to the speedy and efficient administration of justice’ (Giannarelli v Wraith, Mason CJ)
 Primary duties to court: prescriptive (frank, honest & candid), proscriptive (not knowingly to
mislead court), prescriptive (independent), procedural (assist admin of justice)
Other duties
 Submissions on law and facts, correct half or untruths, protect integrity of evidence, increased
assistance for ex parte applications, no assistance in illegal conduct
 Affidavit2 of documents w/ proper disclosure & discovery explained to client: r226(1) Uniform
Civil Procedure Rules 1999 (Qld); Myers v Elman: if client insists on swearing on imperfect
affidavit, s’tor has duty to withdraw from case
 Duty to defend weak/hopeless criminal cases; duty to discourage for civil matters  failure:
breach of duty to court and negligence claim (Kolavo v Pitsikas NSWCA)
 Over-zealous litigation  lawyer discipline (Yarra Australia v Oswal; Expense Reduction v
Armstrong: discovery)
2
Affidavit: a written statement confirmed by oath or affirmation, for use as evidence in court
Honesty and frankness in court
Lawyer ‘must not deceive or knowingly or recklessly mislead the court’ (26 BR; 19.1 ASCR)
 Take all necessary steps to correct misleading statement made AS SOON AS POSSIBLE
after aware that statement was misleading (27 BR; 19.2 ASCR; Myers v Ellman)
o Cowley: personal nature of affidavit signed by lawyer means that lawyer is misleading
court; needs to withdraw affidavit/substantially amend it/no longer rely on it
 Penalty: costs order against solicitor
 Must alert opponent and if necessary inform court if express concession made in court of trial
in civil proceedings about evidence/case-law/legislation is known to be contrary to true
position and believe to have been made by mistake (28 BR, 19.12 ASCR)
Limits of honesty: will not have made misleading statement simply by failing to correct error in
statement made to court by opponent/any other person (19.3 ASCR; 50 BR)
Previous convictions: lawyer who knows/suspects prosecution is unaware of previous convictions,
must not ask prosecution witness whether previous convictions in hope of negative answer (35 BR;
19.10 ASCR)
Misleading state of affairs: Meek v Fleming, Holroyd LJ (police constable): ‘duty to the court was
unwarrantably subordinated to the duty to the client’
Professional discipline
 Note the seriousness of professional discipline for presenting false evidence (e.g. QLS v
Gregory)
Duty to responsibly use court privilege
Rationale responsibly use court privilege
Person who has his or her reputation damaged from a lawyer alleging criminality or fraud cannot take
civil action.
 Lawyer must not abuse court privilege by introducing ‘damaging irrelevant matter,’ making
statements with ‘ruinous consequences to the person attacked’; lawyer must definitely know
they have evidence to support statements, otherwise ‘grave and irreparable damage might be
unjustifiably occassioned’ (Clyne v NSW Bar Association CLR)
Responsible use of court privilege
Lawyer must take care to ensure advice to invoke coercive powers of court: is reasonable justified by
material then available; appropriate for robust advancement of client’s case on its merits; not made
principally in order to harass/embarrass; not made principally to gain collateral advantage (59
BR; 21.1 ASCR)
 Must not abuse court privilege (60 BR; 21.2 ASCR)
o Must not make corruption allegation without evidence (21.2, 21.3, 21.4 ASCR); need to
advise client about implications of making claims (Hart; Clyne)
 Law firm cannot shelter behind counsel’s opinion on basis issues, e.g. fraud allegation (Flower
& Hart v White Industries)
 Check evidence & make independent forensic judgment (24); must not mislead court (Meek v
Fleming)
Allegations on reasonable grounds: must not allege matter of fact in: court doc settled by lawyer;
submission during hearing; course of opening/closing address; unless lawyer believes on reasonable
grounds that factual material already available provides proper basis to do so (63 BR; 21.3 ASCR)
 No intimidating/humiliating witnesses in sexual assault allegations (61,62 BR; 21.8 ASCR)
 No suggestion on cross-examination as to credit of witness unless material to evidence (67 BR;
21.5 ASCR)
No allegations of criminality w/out basis: lawyer must not allege matter of fact amounting to
criminality/fraud/other serious misconduct unless believing on reasonable grounds that available
material by which allegation could be supported provides proper basis and client wishes allegation to
be made, after having been advised of seriousness of allegation & possible consequences for client +
case if not made out (64 BR; 21.4 ASCR)
 Clyne v NSW Bar Association
Consequences
 Serious allegation without belief/basis, for ulterior, purpose, considered professional
misconduct (419 LPA) as it is abuse of court (Clyne); serious disciplinary consequences may
likely follow (456 LPA)
 E.g. costs order (Caboolture Park)
Unfounded allegations (32.1 ASCR)
Making unfounded allegations against another lawyer is unethical UNLESS allegation made bona fide
and s’tor believes on reasonable grounds that allegation could be supported to provide proper basis
(r32 ASCR).
 e.g. cannot make false claims to intimidate/harass (Clyne)
Duties to clients
Duties to clients
Lawyer must faithfully exercise independent judgment in conduct & management of case (Giannarelli
v Wraith, Mason CJ); duty to act in the best interests of client (4.1.1 ASCR)
 duty to provide one’s best skill and efforts, and to tell clients everything that might assist their
case (Littler v Price; Spector v Ageda; 7.1 ASCR appropriate advice)
 Best interests of client (4.1.1 ASCR): includes long-term interests of client & to avoid
litigation
Solicitors: Contract of retainer was traditional basis of solicitor’s duty to exercise care and skill on
client’s behalf (Groom v Crocker 1939 KB).
 S’tor must act in best interests; honest & courteous; competently, diligently & promptly, avoid
compromise to integrity & independence (r4.1 ASCR)
 Follow client instructions (8.1 ASCR)
Barristers: barristers when ‘briefed’ = contractual relationship
Core duties to clients: Duties deriving from common law (equity, contract, tort) and Acts (LPA 2007,
ACL) are loyalty, competence & care, confidentiality, honest & integrity, avoid conflicts, account,
civility & courteousness, advise about ADI avenues & settlement
Undue influence: rebuttable presumption where lawyer in dominant position (Powell v Powell);
lawyer ‘trusted and confided in’  ‘grows influence’
Inform client of ‘other’ options (r7.2 ASCR; r38 BR): alternatives to fully contested adjudication which
reasonably available, unless lawyer believes on reasonable grounds that client already has
understanding so as to permit client to make decisions about their best interests
Balancing duties to court and client
S’tor must (ASCR)
 follow client’s lawful, proper & competent instructions (r8.1)
 not disclose client’s confidential info acquired during engagement except if authorised (r9.1)
 take all necessary steps to correct any misleading statement made by s’tor to court ASAP after
aware (r19.2)
Duties to other legal practitioners
Duties to other legal practitioners and third parties
Duties to 3rd parties may arise in certain situations in tort (Hawkins v Clayton)
 Lawyers owe ‘fundamental ethical duties’ to ‘be honest and courteous in all dealings’ and
‘avoid any compromise to their integrity and professional independence’ (r 4.1 ASCR)
Duties to public
Prosecutors ‘are to regard themselves as ministers of justice, and not to struggle for a conviction’: R v
Subramanian ALJR
 Prosecutorial duties, gvmtn as ‘model litigant,’ promotion of access to justice, pro bono legal
work, duty to obey and uphold law
 Prosecutors’ duties, corporate lawyers advising companies on being good ‘corporate citizens’,
accessible & affordable justice system, ‘cause’ lawyering, pro bono
 Arguably, duty not to escalate litigation: efficiency & common sense & appreciation of costs and
resources wasted by perpetuating litigation
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‘Model litigant’: time limitations
Gvmt as ‘model litigant’: important that, just like prosecutors, lawyer ‘fairly assists court to
arrive at the truth’ (29 ASCR)
Yet: time limitation defences crucial in proving legal liability clarity & procedural fairness
Cth v Verwayen
Ethical Professional Conduct
Generally ethical professional conduct
‘Fundamental ethical duties’ of s’tor include: honesty + courteousness in all dealings in course of legal
practice (4.1.2) & avoid compromise to integrity + professional independence (4.1.4 ASCR)
Prohibition on dishonest & disreputable conduct
Conduct demonstrating not ‘fit & proper’ or be prejudicial in/diminish public confidence in admin of
justice (5.1.1), bring profession into disrepute (5.1.2)
Honest in all dealings: LSC v Mullins [2006] LPT
Facts: s’tor failed to correct document which s’tor knew was incorrect when negotiating settlement
Held: professional misconduct charge for deliberately misleading insurer  publicly reprimanded,
$20,000 penalty, pay applicant’s costs
Judgment: (Byrne J)
 Duty of honesty & requirement to correct; CL enforces expectation through tort of deceit
 Negotiation: anticipates measure of honesty; ‘honesty promotes confidence in the system’
Duty of honesty & integrity (e.g. receipt of confidential info)
If material known or reasonably suspected to be confidential inadvertently disclosed, s’tor must
return/destroy/delete material and notify other person of disclosure & steps taken to prevent
inappropriate misuse (r31.1). If s’tor reads part/all, must notify other person and not read any more
(r31.2); if instructed by client to read confidential material received in error, s’tor must refuse (r31.3
ASCR)
‘Civility’, courtesy and public confidence
S’tor must be honest & courteous in all dealings (4.1.2 ASCR; Turley; winning); must not engage in
conduct ‘likely to be prejudicial to, or diminish the public confidence in the administration of justice or
bring the profession into disrepute’ (5.1)
 LSC v Winning: ‘administration of justice’ encompasses exercise of jurisdiction by courts &
tribunals (e.g. police investigation does not form part of justice)
 Must be actual/potential relationship between alleged conduct & some pending, probable or
possible curial proceedings whose court lawyer intended to pervert (The Queen v Rogerson,
Deane J)
Sharp Tactics and Tricky Lawyering
 Tricky lawyering at expense of opposition not tolerated: Expense Reduction Analysts Group v
Armstrong Strategic Management [2013] HCA

30.1 ASCR: S’tor must not take unfair advantage of another s’tor/other person, if to do so
would obtain for client a benefit which has no supportable foundation in law/fact
Aggressive Tactics and Rudeness
S’tors must not (r34):
 Make statement which grossly exceeds legitimate assertion of right/entitlements of s’tor’s
client, & which misleads/intimidates other person
 Threaten institution of criminal/disciplinary proceedings against another person w/out
justification
 Use tactics that go beyond legitimate advocacy, primarily designed to embarrass/frustrate
another
o Rudeness is ‘beyond legitimate advocacy’ (LSC v Turley  professional misconduct;
Council of NSW Bar Association v Slowgrove)
o LSC v Baker: professional discipline sanction could be imposed for swearing and
rudeness (e.g. unsatisfactory professional conduct: 418 LPA)