Day 2

Ethical lawyering in theory and professionalism (summary)

Ethical decision-makingQLS 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’ ethicsThe 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 modelBelief in moral strength of adversary systemCentrality of confidence: in order for the lawyer to ascertain all information about client, lawyer must guarantee that this information will not be disclosedIndividual 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 lawEthical 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 lawyeringConsideration not just letter but also spirit of law.

1. Parker and Evans: Inside Lawyers EthicsProfessionalism 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 ContextualisedLawyer 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

ExamplesWalker 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 contextAppropriate 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 activismInfluencing client to do the right thing.

1. Richard Wassterstrom: Lawyer’s moral schizophreniaLawyers 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 stakeArguments in favour of role differentiationNecessary 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 clientSolution: deprofessionalisation: ‘to weaken, if not excise those features of legal professionalism that tend to produce these kinds of personal relationships’

2. David Luban: Moral activismLike 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 non-accountability 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 spirit4. On the pursue of substantively unjust results

Criminal defence work exceptionException 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 thesisCriminal 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 careDecision-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 LawyeringValues 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 Anglo-American 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 litigationAdversarial 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 professionValues 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 SamaritansReligious 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 ethicsCommunitarian 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 professionLawyers–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

1 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.

Legal definition of lawyer: reservation of practiceA 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 ‘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 solicitor2. Work proscribed by law unless by legal practitioner3. 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, Aus-registered 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 requirementsAdmitting authorityAdmitting 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 admissionApplicants 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 mattersCoA, 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) DisclosurePresumption 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 disclosureApplicant 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 disclosureCriminal offencesCriminal 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

admissionHonesty & 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 s60Conditions, 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 bodiesOrganisations 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 organisationsNeither 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 professionCourts: 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 lawyers1. Complaints and discipline: lawyer reported to Legal Services Commissioner2. 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 CommitteeBoth: 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 discipline1. 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 disciplineIntegrity 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 VollIncompetence 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 litigationDo not dig deeper: LSC v Bryant, LSC v Walters, LSC v Mackereth

3. Charges: 418-420 LPATwo-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 obligationsSuspension: 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 dishonestyFines: max $100,000; generally not more than $25,000; punitive/deterrent functionOrders which protect public: e.g. education, supervised work, limitations on work: s456(4)(c)–(j)Reprimand, Compensation

5. Factors considered in sanctioning practitionerPersonal 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 mattersN.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 clientsFalse, 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

SolicitorsParamount 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 cross-examine/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 clientResponsibilities defined by common law, equity, status and professional ethical rulesIdentify 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 agentsSolicitor–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 formedNon-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 ambiguityAmbiguity 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) SolicitorRetainer: 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 presumptionTerms 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 solicitorsHistorically, 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’ RuleB’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 BRSenior barristers: QCs appointed by Governor until 1994; 2013: SCs can elect to change title to QCs

(c) Direct access ClientsDirect 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 role2. 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’tor4. Capacity of b’ter to perform work vs b’ter w/ instructing solicitor5. 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’torMay 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 barristersBarrister 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’ FeesOnly 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: barristersBarrister ‘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-JonesGetting 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 feesS’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 recoveryAgreement 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 costingS’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 feesFees 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 chargingTort + 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 contractual2. If no provision in retainer agreement for cancellation fee, cannot be charged3. Cancellation fee can only be charged if circumstances in retainer agreement for charging of

cancellation fee arise4. 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 & careArises 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 lawConcurrent liability

Concurrent liability in contract & tort (Hawkins v Clayton; Hill v Van Erp)

Contractual dutiesRetainer 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. TortTortious 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 careLawyer 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 judgmentPositive 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 liabilityCausation: 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. EquityFiduciary 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 lawProfessional 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 clientEffective 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’ ImmunityAdvocates’ 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 clientArguments 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 liability1. 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 retainerWritten 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 schemeNot 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 confidentialitySources 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 retainerOngoing 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 dutiesTest 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 confidentialityLawyer-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 KingClient 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 confidentialityBreach 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 dangersb. Not advise client how to carry out/conceal course; butc. Not inform court or opponent of client’s intention unless –

1. Client authorised lawyer to do so beforehand2. Lawyer believes on reasonable grounds that conduct constitutes threat to any person’s

safety

Breach of confidence to prevent harmDisclosure 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 confidentialityLawful 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 ASCRProfessional 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 LPPMust 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; ando 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 WaiverObjective 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 confidentialityASCR 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; and0 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 ruleResponse: 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 conflictsLoyalty: 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 clientif 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 interestThis 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 projectsKey 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 remediesClient remedies

Civil: account of profits (Phipps v Boardman); delivery-up & cancellation of documents; injunctionDisciplinary: complaint to LSC for discipline by QCAC/LPC (may include compensation order)

InjunctionsWhile 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 injunctionTypically 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 clientsEthical 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 imposedPreserve 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 - barristersBarrister 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; andii. Person entitled to confidentiality has not consented to barrister using information as

barrister thinks fit in the caseb) 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 clientB’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 courtS’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 lawLawyer 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 optionsB’ters & s’tors obliged to advise clients of available & appropriate non-adversarial options (38 BR, 7.2 ASCR)

Excessive Adversarialism

Taking advantage of a mistakeASCR 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 ignoranceS’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 casesThere 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 disciplineo 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; orb) Falsified/procured another person to falsify in any way doc which has been tendered; orc) Suppressed/procured another person to suppress material evidence upon where positive duty

to courtMust 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 conductA 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 pressPersonal opinion: no submissions/expressions which convey lawyer’s personal opinion (17.3 ASCR, 43 BR)

Arguably, lawyer signing personal affidavit = breachS’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 witnessesLawyer 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 applicationsLawyer 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 rulesDuty 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 first-class 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 agenAnalysis – ‘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 gainso (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 interests2. Principle of neutrality: lawyers cannot calibrate efforts according to their view of client’s cause3. 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

UndertakingsLawyer 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 GregoryPromises to pay 3 rd 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 circumstancesS’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 litigationNo 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 barristerBlaming barrister for not complying w/ court order usually unacceptable, particularly if untrue (LSC v

Janes)

No communicating w/ another s’tor’s clientS’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/ courtS’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

LegislationASCR is statement of general principle rather than a rule – reflects spirit of conduct not formulaic code (Brennan J)

Court’s powers where breach of dutiesDisappointing 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 DutyParamount 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 courtLawyer ‘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 privilegePerson 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 privilegeLawyer 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 AssociationConsequences 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 clientsLawyer 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 relationshipCore 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 & settlementUndue 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 clientS’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 partiesDuties 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 publicProsecutors ‘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

‘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 conductConduct 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] LPTFacts: s’tor failed to correct document which s’tor knew was incorrect when negotiating settlementHeld: professional misconduct charge for deliberately misleading insurer publicly reprimanded, $20,000 penalty, pay applicant’s costsJudgment: (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 confidenceS’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 RudenessS’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)