EXAMINER’S COMMENTS
LEGAL ETHICS - MARCH 2015
The exam was divided into four (4) questions of equal value. An earlier submitted
assignment accounted for 20% of the overall exam mark.
Question 1 required a student to prepare a short summary of a presentation on two topics.
Question 1(a) dealt with show cause events – students were expected to deal with the basic
requirements under the Legal Profession Act, 2004, such as the duty to report offences and
bankruptcy, timing for notification, explanation and consideration. Importantly, they were
expected to deal with the principles in cases such as, at least, Murphy and Cummins so as
to explain how such events would be considered by the relevant authority in determining
whether a practitioner’s right to retain their Practising Certificate should be affected.
Question 1(b) dealt with the responsibility of principals. Students were expected to deal with
cases such as Re Mayes and Bridges’ as warnings of their prospective responsibilities as
principals. They had been referred to Sections 250 and 251 of the Legal Profession Act,
2004 which deal with trust account requirements and would have addressed them.
Some students referred to Section 719 of the Act - “719 Liability of principals”. They were
given credit for their additional research/study.
Other responsibilities, for example, compliance with undertakings given by employees, could
also have been dealt with.
The point to make was that a principal was, prima facie, responsible for the conduct of
others in his practice although he/she may not have been responsible for the actual
(mis)conduct – something which remained personal.
Question 2 gave the students the opportunity of touching on a number of matters which had
been dealt with during the course - the introduction of a new disciplinary scheme after the
1987 amendments especially (1) the introduction of statutory definitions of professional
misconduct and, very importantly, unsatisfactory professional conduct and the new ‘age of
consumerism’ [ ability to award compensation ]; (2) the types of orders which the Tribunal
can and now does make in respect of conduct issues – compared to the limited ones made
by the earlier Statutory Committee/Courts –reference would have been made to Section 562
of the Act and such cases as Walsh and those cases referred to in Beazley JA’s judgment
therein. The further point to be made was that the Tribunal has been pro-active in making
orders which fit the individual circumstances of a case [ eg medical intervention etc ]; (3)the
political/social reasons for the introduction of show cause events; and (4) the emerging
caselaw, - especially dealing with personal conduct and breaches of fiscal obligations.
This was not a question about legal history.
Question 3 dealt with the so-called tension between an advocate’s paramount duty to the
Court and the to the client.
Students were expected to give examples of the ‘inversion’ of this obligation - for example,
Clyne’s case; why it is impermissible to do so – for example, the cases of Pangallo, Kennedy
and Costello; and the practical difficulties which are sometimes faced by advocates – for
example Rondell v Worsley, Gianarelli v Wraith and the Bar Rules.
Question 4 recounted a series of events which raised a number of issues as to the fitness of the
practitioner in question to remain on the Roll.
The question required students to deal with cases such as In re Davis; Prothonotary v Del
Castillo and Thomas as well as the relevant provisions of the Legal Profession Act, 2004 –
especially Section 497(1)(b). Students were also expected to discuss ‘the road’ from an adverse
finding as to conduct to removal from the Roll – what is professional misconduct? What is
unfitness? What principles does/must a Court/Tribunal have in mind when determining its Order?
Generally, students scored better in questions 3 and 4.
Although some students did equally well with their answers to questions 1 and 2, a number
scored poorly. It appeared to the examiner that, in general, students had difficulty in
answering questions which did not have, as it were, a straight-forward answer.
Legal ethics is not a subject where one can always conveniently pigeon-hole issues.
Oftentimes dealing with ethical issues requires practitioners to combine their knowledge of
numerous areas of law. The questions attempted, to different degrees, to force students to
think through the question at hand.
Overall, the pass mark was very pleasing with in excess of 90% of students being
successful.
10 April 2015