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Lecture notes for Ethics...

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13/1/20 week1 S1 Felicity Fox

Video The Scandalous case of lawyer X, Nicloe Gobbo

Asses 1 – week2 Mon 5pm - 20% Purpose to Summarize and deliver your answer, similarly in court, half of time speak in two minutes than rather beautiful presentation, Asses2- Week3 Mon 5pm 26th – Total 30% Individual part due on Fri 5pm Asses 3 – Final Exam 50mrks open book 2.5hr + 30 mins reading time 4 Qs 3 X 10mrks Qs 1 X 20mrks essay Qs

14/01/20 W1 S2

Pr e l i mBun gl e ’ sd e f e nc ea n dp ur s u i t o fc l a i ms Do practice exam create template around rules with blanks to fill facts later on Client – Trubble (Defendant) Lawyer – Bungle Other (role) – Kendou (Plaintiff) Create Chronology (To start analysing a case) Issues Legislation Summary Paragraph number of facts ISSUES

LEGISLATION

RULE

PARA NUMBER

Legislation CPA (Civil procedure act) 1. Here, T (Client) is the def in the civil litigation therefore CPA is relevant here 2. CPA provides overarching obligation s10, everyone (all parties must comply with CPA) or s10 applies to all parties, s12, s13, As a legal practitioner its duty of the lawyer to make sure it prevails above all overarching obligation Breaches of case 1. Costs disclosure (add facts in two lines) 2. “Not Interested IN Settling” proper basis (S18) Resolver (s22) Narrow(s23) Delays(s25) Reasonable and Prop(s24)

3. Forms signing 4A – s41 4B – s42 4. No prop basis s17 – basis s21 – misleading

5. General s16 – paramount

section

Keywords

16/01/2020

Bunglees conduct towards the court Talk about criminal act since it’s a criminal matter Main issue misleading the court 19.1 related to misleading 3 aspects mainly – First duty as lawyers is to the court, bungles paramount duty is to be honest to the court.

Plea bargaining is normal part of the proceedings 20.3 advises Rule 19.3 says its not required to correct others Feducry duties laws of feducuries Retainer could be oral or written, similar to any type of contract Retainer is the contract for services and the scope of work. SOW is contained in the retainer agreement. Its not cost agreement Cost agreement is separate and the idea of it is need to provide in advance in legal services. Cost agreement must be in writing and need to incur things will make a valid agreement 1st part describe what costs are second part what will be done and Retainer is what u gonna do Cost agreement is how much its gonna cost what u said in retainers Retainer has certain powers, acting as clients agent, U can proceed on the assumption there is retainer for question while answering READ PEGRUM CASE STUDY FROM UNIT NOTES Case study Mc Ge oc hvHe nd r i c k s[ 2 0 0 7 ]NSWSC3 1 1 Case study about contract between the two establishing a client lawyer relationship Retainer can be inferred from circumstances as what the advice is even if there is no written contract. Cost agreements must be in writing. You cant be a witness in your own case, except self representation Barristers are in court mainly presenting the case Solicitors are mainly doing paper work and preparing the case Barrister is the advocate and have to be engaged by solicitor Solicitor conduct rule only apply to solicitors similarly with barristers However general rule applies to both Solicitors send a brief to barristers

20/1/2020 Week 2 Session 1

Respondent Legal Firm – Legal Bungle Principle Lawyer - Lara Bungle Practice Area – Civil Litigation Client/Respondent – Manin Trubble

Plaintiff – Noh Kendou Plaintiff Legal Firm – Kendous Solicitors Kendou claiming $300K from Trubble

Bungle requests Trubble to deposit $5k, Trubble wants to fight Kendou ‘NO Matter What” Bungle advises Trubble should settle the case, Trubble not interested in settling and wants to counter claim against Kendou for double the amt to teach him lesson Bungle advises anything is possible for a price Bungle files in court and serves a copy to Kendous solicitors Bungle gets Trubble to sign form 4A of the CCR herself sign form 4B of CCR Bungle serves copies to Kendous solicitors

Answers: Examine Bungles conduct with reference to the relevant professional conduct rules for solicitors 1 Intro B is soli, T is client, relevant rules = SCR 2 Rules Breached a. Follow instructions unquestionably R – 4.1.3/8.1/4.1.4/7.1/7.2/5.1 (Explain each one independently and give reason why it’s a breach of this rule) USE BECAUSE TO ANSWER and THERFORE b. Signed 4B

R – it appears signed form 4B as trouble just seems to teach a lesson, breach 4.1.2 duty to act honestly, mislead court that there is proper basis whereas there is no proper basis, breached rule 3.1/4.1.5 c. Signed 4A R – Without explaining the overarching obligations are, not provided any info what his overarching obligs are 7.1, failed to tell him what his overarching obs are, failed to deliver legal services competently, 4.1.3 d. Failed to advise on merits R- Failed to advise clear and timely advise on merits and legal issues, she did not advise on duty, 7.1/7.2/4.1.3/4.1.1/4.1.5 Give a good conclusion breached her paramount duty, 3.1/5.1

Overarching Obligations Group it by what she has done then see all breaches it is related to. Use headings, Explain the breaches even if it’s a couple

A client is the person to whom the legal services are provided Solicitor rules If you have been engaged or retainer to provide legal services, limit the matters to each particular thing going on, class action border meetings minutes with matter, matter might define scope of matter that retainer is for A solicitor are not obliged any case or matter to take any case that comes to them. Only once u accept then they need to oblige. With Barristers you are obliged to accept the matter which is in ur duty cab-rank principle. Must accept a brief from the solicitor Legal professional privilege Privilege means cant be disclosed in discovery Client legal privilege right in legislation S118 and s119 protects evidence that privileged prepared for dominant purpose of providing legal advice or purposes, it is the clients privilege to own In Exam policy type questions look at fact and think how they apply

21/1/2020 Week 2 Session 2 Uniform law Assessment 2 Part 1 Content, case if possible, use headings, facts required with breach and explanation with rule, footnote with reference Part 2 Read the case lawyer x, look at what topics duties comes up, think about main probs happened there and discussed in class, describe what cory has done, what rules ethical obligations might arise, what ethical dilemmas have risen, how it related to cory situation, duty of confidentiality , paramount duty to court, put bibliography in A good engagement of lawyer x and what she did and why it causes ethical problems, Exam question how law discussed in one case is applicable to other case using case law Classified as privilege does not need to be disclosed to other side, in order for it to be privileged it needs to be confidential Even though something is privileged there are some waivers, because privilege belong toclient its only client that can wave that prividge in expressed or implied, expressed waiver give document to other side or court, disclosure is intentionally, when waiver is implied when some one acted inconsistently with claiming or maintaining the privilege, have we told our share holders, is it published somewhere, whether the person who had privildge done something inconsistent, Read the cases

Mann v Carnell Osland v Secretary to the Department of Justice

Information barrier also called Chinese walls, its like Injunction is a stop order You have to act in the best interest of ur client and ur duty is to maintain confidentiality in client legal privilege situation.

Pe t e rNi c ho l a sYu n gha nnsvEl fi cL t dSCVNo5 9 7 0 o f1 9 9 7( 3J ul y1 9 9 8 )( u nr e p or t e d) Case for the assignment 23/01/20 Week 2 session 3 Principle lawyer – Bungle Organisation/Client/Plaintiff – G04Holidays Defendant – Skamerz Risk Management – Risko 1. Confidential Comm? - Lawyer/Client r/ships -confidential 2. Dominant purpose? 3. Is there a client lawyer relationship One hand she is a lawyer and advising litigation advise On the other hand she is wearing multiple hats and advising commercial advise Assuming there is a lawyer and client relationship dominant communication was made for a legal advice. Was her advise made for dominant purpose of litigation or cost benefit analysis The other side was to advise board to improve oversight over funds that the company invests in joint venture in future. Here needs to be determined bungles opinion and risko report justify Bungle opinion (heading) Before you can waive privilege, it needs to be privileged. Bungle is providing legal advise and commercial advise. She is acting as a lawyer and manager. It should be more independent. 7 network and news limited case study similar to this Bungle is acting like a client lawyer relationship Two competing purposes try to show both sides and both sides concerns then focusing on which is stronger. Its unclear on the facts but if report had been commissioned without purpose of litigation then the report would not have been prepared. And therefore, it would have not been a subject to legal privilege

Discuss both sides and one sentence in end to mention what side u pick Privilege has been waived (client has to first wave the privilege) First informed consent What we r looking at is that weather jist of the advise is given away, Costs – obligations before u start work, then how u get money u agreed upon, uniform law sched 1 in the act What needs to be disclosed to client , do research, analysis, readings,

Se c t i o n1 7 4 ( 1 ) ( a ) , s 1 7 4 ( 2 ) ( a ) , c o s t sa g r e e me n t Conditional cost agreement in criminal matters and family matters Have they done the disclosure If not what the consequences are, what they did not disclose and what they should have done, eg uplift fee should have been 25% of legal cost whereas they kept 50% which is a breach Contingency fee arrangements are prohibited not allowed s 183 attract liable for civil penalty Own legal fee percentage max to 25% allowed increment or bonus but not allowed on winnings of the clients claims No contingency fee, why is it

28/01/2020

Bung l ea c c e p t sa n ot h e rc a s e Lawyers – Bungle Client 1 – Trubble Client 2/Appellant – Tino Fuzzie Defendant – Derek Bo What are the mandatory costs disclosures, what is it Bungle had to do and what has she done. We need to provide 174.(1) (a) cost agreement, compliance with this clause is imp 174 (2a) info reg clients right, need to inform clients of their rights, not done in this case No steps taken to make sure the client understands proposed costs 174(6) disclosures must be in writing

174(4), 174(5) Hasn’t complied with mandatory disclosure, Effects of non-compliance cost agreement is void , Fuzzy doesn’t need to pay Bungles costs until it gets assessed by Commissioner if there is a dispute. Bungle cant commence proceedings unless its assessed. Conditional costs agreement with uplift up to 25% on legal fee only. Under 183 No win no cost basis is called conditional cost agreement it has to be in writing and plain language it needs ot be defined Must include cooling off period Start by defining it looks like its conditional costs agreement they are allowed however it needs to be laid out properly with clarity, it needs a statement and cooling off period. 181 (8) provides contravention of these requirements may amount to Bungle wants to accept 10%, its unclear at this stage if its conditional costs agreement with uplift on the professional costs which is permitted, not allowed is contingency on taking 10% on the entire winnings. Talk about conditional contingency fee is , talk about which is allowed which is not allowed, s183, attracts serious penalties 100 penalty unit s183(1), bungle will be liable for civil penalty, If it were uplift fee, certain requirements need to be met, is its not complied with it will be void, Trust Money S172 uniform law provides costs must be proportionate and reasonable S173 practitioner must avoid increasing costs unnecessarily Trust account money Two diff accounts law practice has – office account / Trust account Office account belongs to office running expenses Trust account belong to clients - Money in this account can only be used for intended, once billing procedure complied then trust account money can be released. Definition of trust money – s129, s128, money intrusted to law practice for or in connection to legal services. , deposits towards costs, etc Law practice to maintain trust account s137 (IMP), Controlled money – Billing is very important, keep time sheet to log how much for how long, narrative fee, conferring with client issues raised in defence , next steps, preparing presntation to

boards, etc, whole idea is to be descriptive to know where the money is going and what is the client paying for. Rendering bills, discussion on costs etc above sections make a bil valid Set basis on which the bill will be raised, could be weekely monthly etc

Ol i v e ’ sd i l e mma s Privilege successive clients, concurrent clients, Q1- successive conflicts, former client in favour new employer Succsive conflict rule 10 of solicitor conduct rule cant act for current client if solicitor has confidential info from former client Q1 a- Mallesons case, knowledge of one is knowledge of all, small practice unlike to have information barriers, its likely its all shared, however olive worked in conveyancing matters exclusively so there is a chance she would not have come across any matters related to Giles. b- injunction to prevent if there is risk on conflict and rule in 10.1 is breached, Gile would want o seek injunction from middlings from acting that olive would know confidential information , courts will look at information barrier, Cant act for concurrent clients, under 11.5 u can act for one of them I mp e d i me n t–Ob s t r uc t i o n/ Hi nd e r a nc e Injunction – Authoritative warning or order Example Qs for Exam Discuss the costs agreement and where it implies Use of trust money ? wether it implies to rules Look at the conduct from 16-13 discuss any issue arising

Use headings, sub headings, approach the question , lawyers X division , use sub heading, talk about Focus on breach of duty conflicts,

30/1/2020

EXAM UPDATE

Bring copy of facts in exam. 4 Qs in exam out of 50,

3 problem Q’s – refer to bungles conduct as per solicotr, bungle wants to take trust money can he, etc, problem factually based questions, 10marks each. USE HIRAC, Use many words in facts on how the rule is applied.

1 Essay style Qs – 20 mks, discussion of privilege and waiver of privilege, All about Privilege, Acting inconsistently with privilege, That TOPIC, out of lecture slide. Sllides – waiver of privilege , what issues might have risen, what we talked about in class about privilege, issues where conflicting authority with those cases, waiver of privilege, When u can implicitly waive privilege, Publishing things, where we say I received legal advise, acting inconsistent with maintained of privilege, read cases in lecture slide, understand what they stand for where r the diff with court taken have in each cases. USE ESAAY STYLE, what are the cases what they say how they r same how they r different. Why u think they r diff why its imp is there any distinguishing feature in them which establish a principle, Policy Q’s answer it in a way in a sentence first put ur position, and I will argue for this, Into, paragraph, conclusion Evaluate similar basis, Answer the question in ur into, 3 reasons to support , and conclusion. 2.5hr + 30 min reading 30 min each on 10 marks Qs and 1hr on 20 marks Qs. Write a conclusion , practice argumentative style, as the court noted , as highlighted in the Woolworths case example. U can use abbreviation, Just talk about question relevant to that particular question. TAKE LECTURE NOTES Write the elements, and satisfy each element with facts how each have been breached, T r ub bl es e t t l e sa n dBu ng l ewa nt sc os t s Trubble – Lara Bungle – Legal Bungle Noh Kendou Assume she has implied power to settle as part of the retainer. No cost agreement discussed but assuming it has under assumption there is one. s177 – require practioner to further disclosure of costs before settlement on the matter. A reasonable estimate of cists have to pay to her and other party if required, reasonable estimate of other costs receivable by other party.

3. Monies including the deposit she received – Deposit, Money put in general trust account, Settlement Deposit – 5000 cash, is trust money, in advance. need to give a receipt. First the entire amount needs to be put in Trust account, render a bill and then wait for the prescribed period. s143 She puts 2000 into trust account, its not money for her its Trubbles money which came out of settlement. Need to wait for the check to clear therefore she has created a deficiency in trust account. Next day she transfers whole money from trust account to wait 7 business days S148 applied for penalty Recovery of her costs – Needs to be accompanied by a letter by principle of law firm under s 188 Under s 192 applicable time limits and documents to be accompanied Make chronology order in which money goes in money goes out and bills in an order to answer questions....