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Warning: TT: undefined function: 32Autumn 2018200020 –ProfessionalResponsibility &Legal EthicsNotes & Case SummariesTOPIC 1 – PROFESSIONAL CONDUCT IN CONTEXT;LAWYERS, VALUES AND SOURCES####### WHO IS AFFECTED BY PROFESSIONAL CONDUCT OBLIGATIONS####### ▪ DEFINITIONS:o “LEGAL PRACTITIO...

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Autumn 2018

200020 – Professional Responsibility & Legal Ethics Notes & Case Summaries

TOPIC 1 – PROFESSIONAL CONDUCT IN CONTEXT; LAWYERS, VALUES AND SOURCES ▪

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WHO IS AFFECTED BY PROFESSIONAL CONDUCT OBLIGATIONS DEFINITIONS: o “LEGAL PRACTITIONER” → ‘A lawyer who holds a current Australian practising certificate” – s6 LPUL o “LAWYER” → “A person who is admitted to the Australian Legal Profession in this jurisdiction or any other jurisdiction” – s6 LPUL ELIGIBILITY FOR ADMISSION: o The person must be aged 18 years or over; they have attained specific academic qualifications ; they have completed the practical legal training requirements; and they are a fit and proper person – s16 & s17 LPUL o “FIT AND PROPER” – in deciding whether a person is “fit and proper” to be admitted, the admission board will take into assessment the applicants character in relation to disclosed suitability matters or other matters brought to the attention of the admitting authorities – s17 LPUL PENALTY → the penalty for engaging in legal conduct if you are not a legal practitioner is: o 250 penalty units

REGULATIONS OF THE LEGAL PROFESSION TODAY LEGISLATION (NSW) ▪ PRIMARY LEGISLATION: o Legal Profession Uniform Law 2015 (LPUL) o This legislation governs the primary (the main) professional conduct of legal practitioners o The objectives of this legislation include: ▪ “ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services”. ▪ “empowering clients of law practices to make informed choices about the services they access, and the costs involved” – LPUL s3 ▪ SUBORDINATE LEGISLATION: Under this primary legislation is subordinate legislation which provides greater detail about certain processes or restrictions. SECTION 3 LPUL The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by— (a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access, and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and (f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

JURISDICTION New South Wales

SUBORDINATE LEGISLATION ▪ Legal Profession Uniform Admission Rules 2015 ▪ Legal Profession Uniform Conduct (Barristers) Rules 2015 ▪ Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 ▪ Legal Profession Uniform Continuing Professional Development (Solicitor’s) Rules 2015 ▪ Legal Profession Uniform General Rules 2015 ▪ Legal Profession Uniform Law Application Regulation 2015 ▪ Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 ▪ Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 ▪ Legal Profession Uniform Regulations 2015

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RULES ▪ Professional bodies also have conduct rules which are more broadly ethical aspects of the legal practice as well as the practitioner’s specific duties that codify what is accepted within their practice. ▪ RULES PRIOR→ Clyne v Bar Association of NSW (1960): Rules governing the conduct of members of the NSW Bar can be divided into two classes: 1. CONVENTIONAL → these are designed to regulate the conduct of members with one another which is reduced to writing. (e.g. rules forbidding adverting or the rule of retainers). A breach of these rules does not warrant disbarment unless it was intentional and deliberate conduct. 2. FUNDMENTAL → these rules are not to be found in writing as it rests on nothing more than a general accepted standard of common decency and fairness. To the Bar. It is a matter of ‘does not” than “must not”. For example, a barrister DOES NOT, in cross examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys. ▪ RULES TODAY o These rules are reduced to writing o One rule for example is in regard to lying to a judge – RULE 24 Legal Profession Uniform Conduct (Barristers) Rules 2015 ▪ A barrister must not deceive or knowingly or recklessly mislead the Court” o The rules under the legislation cover a range of duties and obligations that practitioners must abide by. COMMON LAW (CASE LAW) ▪ Prior to legislative intervention, there was always supervision by the courts in the legal profession as every legal practitioner is known to be an officer of the court. o This meaning has been taken to be understood that legal practitioners take the form of protecting the public from dodgy individuals and protecting the standards of legal practitioners. ▪ Clyne v Bar Association of NSW (1960) o When such an order is made, it is 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. LAWERS, PRACTICE & ETHICS ETHICS IN GENERAL ▪ DEFINITION → “ethics is the process by we place value upon daily action, the manner by which we determine right and wrong”. PHILOSOPHICAL ETHICS ▪ Normative/philosophical ethics are held to provide guidance as to what a person should do and how that person can live a “good” life. ▪ The main three forms of philosophical ethics are: 1. Utilitarianism/consequentialism 2. Deontological ethics 3. Virtue ethics UTILITARIANISM/CONSEQUENTIALISM

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DEONTELOGICAL (KANT’S THEORY)

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The person typically will question whether “will the consequence of the decision result in more good being done than harm? If so, do it.” It places the focus of right and wrong solely on the outcomes (consequences) of choosing one action/policy over another. A utilitarian takes into account the interests of others and not just their own interests. The goal of utilitarian ethics is to promote the greatest happiness for the greatest number. Deontology (or Deontological Ethics) is an approach to ethics that focuses on the rightness or wrongness of actions themselves, as opposed to the rightness or wrongness of the consequences of those actions (Consequentialism) or to the character and habits of the actor (Virtue Ethics). The morality for deontological approach is about good rules. We should come up with a logical system of moral rules and always follow it no matter what.

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VIRTUE ETHICS

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The benefits of this approach are that it parallels the legal system in that the law is a system of rules and exceptions that arguably work together for the purposes of justice or for the greater good.

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The morality is about good people A person makes sound moral decisions if they were imbued with virtues. The focus is not on what the person did (the ends) or rules followed (deons), but the nature of the individual themselves. Those strive to become more courageous, honest, generous, and compassionate. Such a person will make good moral decisions on their own without the need for abstract moral rules. Allows the person to use their discretion to which they are not bound by rules or utilitarian calculations, but are able to apply their characteristics of prudence, justice and courage to resolve a dilemma

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ETHICS OF CARE

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This form of philosophical ethics focusses on moral importance to meeting the needs of others to whom we may take responsibility for.

OTHER APPROACHES

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Spiritual or religious beliefs.

LEGAL ETHICS ▪ “legal ethics” are the duties and obligations that apply to legal practitioners as recognised by law. ▪ Ethics are not what the lawyer knows he or she should do; it is what her or she does CORE VALUES OF THE LEGAL PROFESSION ▪ Honesty: o This reflects in the dealings a practitioner has with the courts, clients and other practitioners. ▪ Fidelity (loyalty): o This refers to the fiduciary obligation a practitioner has to their client (e.g. to protect their client’s confidences and interest and not to compete with the client0. ▪ Integrity: o This is evident in the independence of legal advice and the courage of advocacy, the maintenance of the legal system and the professionalism shown via competent, learned conduct NEESSITY TO UNDERSTAND PROFESSIONAL CONDUCT ▪ A legal practitioner is required to know and understand the law, particularly the professional conduct law. ▪ If a practitioner does not understand the law, they are subject to providing disservice to their clients, as well as their advice being detrimental to their client’s case. ▪ Failure to understand may result is losing your job, money or reputation. Law Society of New South Wales v Moulton FACTS: In this case, the legal practitioner, Moulton (M), obtained loans from clients that were inconsistent with professional practices as a lawyer at the time. M had failed to disclose the full details of the borrowing transactions to his clients. He borrowed money that was then bellow the commercial rate, and the clients were not advised to obtained independent legal advice. There was poor security obtained for the loans. M obtained money from an estate by breaching his obligations as a trustee. Evidence showed that M was completely unaware of his legal duties in relation to the trust accounts and borrowing transactions from his clients. HELD: Although the clients were repaid, the NSW Court of Appeal removed M from the rolls of solicitors. He had 18 years’ experience and it was not acceptable for him to not have the requisite knowledge of his minimum standard of practice conduct. REASONING: A solicitor is publicly held out to be a person to whom the citizen may entrust his private confidences, his business affairs and his liberty on the basis that the solicitor is grounded in the law and will not under work where his private interests will be in conflict with his client’s interests. The minimum standard includes basic legal knowledge. A solicitor fit to remain on the roll must make reasonable efforts to keep up with current developments in his field of practice. Ignorance and unwillingness to understand the requisite legal knowledge should not be tolerated.

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PERSONAL AND PROFESSIONAL VALUES PERSONAL VALUES CONFLICTING WITH PROFESSIONAL VALUES ▪ A practitioner may be acting for a client in circumstances where the practitioner has personal, ethical concerns about the impact of the practitioner’s legal services on the greater good. ▪ Some occasions might be where a client wishes to run an argument or has certain characteristics or views which are inconsistent with the practitioner’s personal values. ▪ Lake Pleasant Murders Case Lake Pleasant Murders Case FACTS: Robert Garrow accused of murder of a young man by two NYC lawyers, Frank Belge and Frank Armani. In a confidential interview with his attorneys, G told them that he has killed the young man and two young women who were known to be missing. G described the location of the women’s bodies. B and A went into the woods, discovered the bodies, and took photographs of them. B moved part of one of the bodies. Women were presumed dead but because their bodies had not been found, they were only officially considered missing. One of the women’s father new S personally as their daughters went to the same school and attempted to ask A if he knew anything about the women’s disappearance. A felt he could not keep the confidence of the client if he spoke to the father so he avoided making contact with him. At one-point A fled from his own office to avoid a meeting the other father approached A and again refused to disclose what he knew. A and B kept the confidence of G for several months. G testified at his trial for murder and revealed the fact of the other murders. A and B had a press conference the following day indicating they had prior knowledge about the where the bodies were located. All other confidences were maintained until G was sentenced then escaped from custody. As G had made comments about having seen Armani’s daughter “again”, despite never having met her, A knew his family had been under observation and at risk. The police tracked down G using information given by A, in which ended in G being killed by the police in an attempt to apprehend him. A and B were criticised for keeping G’s information confidential. This was due to the harm the victims’ families suffered. The community of Lake Pleasant suffered as people avoided a place where they believed a serial killer was on the loose. HELD: B was charged with tampering with evidence. Both B and A’s practices suffered in which B eventually left his legal practice. They both had to deal with ethical complaints and suffered physiologically. A and B took the view that despite the clear, personal and emotional interest in disclosing the information to the police and the families, they were under professional obligation to keep their secret.

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ETHICAL DILEMMAS DEFINITION → An ethical dilemma is where a person finds themselves sin a situation where they are faced with having to make a decision or choice between two or more options where both may have negative ramifications or a perception of a negative ramification. A lawyer will find themselves in an ethical dilemma in situations where there appears to be a conflict of interest, clash of professional rules, or reality of a broadly unethical result for a client or third party no matter what the practitioner does. Legal ethical dilemmas can arise in the most innocuous of circumstances and do not require any wrongdoing on the part of the practitioner for their creation. The critical point is that where a dilemma arises, the practitioner responds in an ethical manner. Dilemmas are to be of 6 categories o Conflicts of interest o Dealings with clients o Problems in litigation o Relationships with other practitioners o Problems with the firm; and o Conflict with lawyers own morals

RESOLVING AN ETHICAL DILEMMA (DECISION MAKING PROCESS) ▪ When faced with an ethical dilemma, how is a legal practitioner to resolve it and make a decision o For some, the answer lies simply in finding the relevant law of professional conduct and apply that to the scenario being faced. ▪ When faced with a dilemma the practitioner is required to evaluate and re-evaluate all rules, principles and perspectives, be they ethical, legal or otherwise, in order to make a decision that is consistent or equal with others. ▪ This method consists of: o Going back and forth on our judgments, instances/cases o Principles rules o Revising these elements to achieve an outcome or decision that is acceptable. ▪ Three step process: 1) Be aware of the ethical issues that arise in practice, and of our own values and predispositions. 2) Take into account a range of standards and values that are available to help resolve those ethical issues and make a choice between them; and 3) Implement that resolution in practice. Page 4 of 118

TOPIC 2 – ETHICS AND LAWYERING ▪ ▪

LAWYERS AS MORAL AGENTS OF CHANGE Lawyers must be able to recognise and respond appropriately to ethical dilemmas o This involves lawyers being able to recognise when they are confronted with one. Ethical dilemma definition → an ethical dilemma arises when there is a conflict of values (or range of conflicting values) at stake which suggests “a variety of alternative and contradictory courses of action”. o When a lawyer recognises an ethical dilemma, he or she must respond to it and take account of the appropriate standard of conduct and underlying values and arrive at an ethically justifiable decision. o Lawyers must know the standards of conduct with which they are obliged to comply (i.e. they must know their professional responsibilities and duties such as administration of justice, duty to the courts, clients and third parties.

Definitions and concepts ▪ “Ethics” – ethics may be defined as “moral principles” and “rules of conduct”. o “Ethics are broadly applied social standards for what is right or wrong in a particular situation, or a process for setting those standards. o Ethics is also about professional judgment. o It is about consciously considering and weighing up the sometimes-conflicting values and norms of the legal profession, together with the more general values which derive from social and applied theories of ethics, to make justifiable decisions in everyday practice of the law. ▪ “Moral” – Moral is concerned with the distinction between right and wrong. o Ethics differ from morals, which are individual and personal beliefs about what is right and wrong”. ▪ “legal ethics” – legal ethics refer to a system of rules based on moral principles that directs the conduct of the legal profession. ▪ “professional responsibility” – some prefer this then the term ‘legal ethics’ (which may create the impression that some ethics are legally binding while others are discretionary). o “Professional responsibility” serves to convey the notion that professionalism carries with it responsibility and duty. ▪ “etiquette” – these are conventional rules of social behaviour of members of the legal profession towards each other and the court. o Example – bowing to a judge when we enter a court room, or when a judge enters or leaves the court room.

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THE LIMITS OF THE LAW OF LAWYERING – RECONSIDERING VALUES There are two sources to which we can look to consider in making decisions about what to do when confronted with ethical dilemmas: 1) First – theories of social ethics (or general moral theories) 2) Second – the field of applied ethics (this is a more practical application of the first source)

Theories of social ethics Deontological or rulebased theories

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Teleological or consequentialist theories

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Main example is Kantian ethics; meaning “the ends justify the means” Means are at least as important as outcomes, and consideration is given to whether (or not) the action (or omission) is right in itself. Best known theory is utilitarianism. It focusses not on means, but on outcomes. The end justifies the means. An action is judged right (or not) by evaluating the consequences of the action (or omission). With utilitarianism, the action that maximises the public good or the greatest amount of favourable consequences should prevail. The difficulty with utilitarianism for lawyers is that “it justifies actions that may be objectively unethical by the favourable consequences of that action” A simple way to put it is that the lawyer or client who wants to win, regardless of the means (dirty tricks, extreme measures and costs involved) favours utilitarianism.

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Theories of applied ethics ▪ The process of ethical reasoning involves three steps: 1) Be aware of the ethical issues that arise in practice, and of our own values and predispositions; 2) Take in account a range of standards and values that are available to help resolve those ethical issues and make a choice between them; and 3) Implement that resolution in practice First step ▪ ▪

This step is essentially an audit of the ethical issues that have arisen or are likely to arise. It involves: o Identification of stakeholders who are affected by or have an interest in the outcome of a particular situation. A client’s decision will always have impact on other people and will always have some effect on the lawyer involved. o Identification of the conflicting and complementary values and interests at stake; and consideration o...