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Ethics exam notes: Week 1: intro  Relationship between values, morality and ethics- values determine how you think and act, morality is how a person should be like and act like. Ethics is concerned with the Why of morality.  Shalom Schwartz has defined a set of ten universal human values that can ...

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Ethics exam notes: Week 1: intro  Relationship between values, morality and ethics- values determine how you think and act, morality is how a person should be like and act like. Ethics is concerned with the Why of morality.  Shalom Schwartz has defined a set of ten universal human values that can also be seen as basic needs, underlying and driving much of what we do.  Imperative Principle: Do what is right. Act according to absolute moral rules (eg lying is wrong). Ethics is a function of moral rules and principles and does not involve a situation-specific calculation of consequences.  Utilitarian Principle: Do what produces the greatest good.  General Argument: This is a combination of the Imperative Principle and the Utilitarian Principle. Make the decision by considering the consequences if everyone made the same choice under similar circumstances. That is, what would happen if everyone acted in this way?  “As a responsible employer, Russell McVeagh has always taken employees’ concerns extremely seriously. Our firm is committed to ensuring our workplace is a supportive and safe environment for all of our staff and their safety and wellbeing is our utmost priority. We have zero tolerance for bad behaviour and will have no hesitation to act if we are alerted to behaviour that contravenes our values, with robust processes in place to investigate and resolve any issues. We continue to take all possible steps to create a ‘speak out’ culture and as part of this, have made it clear to our staff that there will be no repercussions for speaking out in any circumstance. . .” Russell McVeagh statement February 2018  law is a codification of societies ethics.  Green v The Law Society of Manitoba [2017] SCC 20 at [1] per McLachlin CJ and Moldaver, Karakatsanis, Wagner and Gascon JJ: “A lawyer’s professional education is a lifelong process. Legislation is amended, the common law evolves, and practice standards change as a result of technological advances and other developments. Lawyers must be vigilant in order to update their knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and professional standards in their practices.”  “At its heart, a concern about ethics is a concern about finding the best possible answer to the question, ‘what ought one to do’?” Week 2: lawyer/ client relationship  LCA s4: fundamental obligations of lawyers- Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations: (a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand: (b) the obligation to be independent in providing regulated services to his or her clients: (c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients: (d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

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Canterbury Westland Standards Committee v Horsley: members of the public must be able to trust a lawyer ‘to the ends of the earth’. Lawyers must be able to be fully relied on for their integrity and independence and in putting clients interest ahead of their own. Obligations to client vs duties to the court. balancing act but duty to court takes priority. Rule 13: overriding duty is to the court. but subject to this they must act in the best interest of their client. R 13.1 absolute duty of honesty- must not mislead or deceive the court. Rondel v Worsley: lord Reid: every counsel has duty to his client to raise every issue to advance every argument and ask every question. However as officer of the court overriding duty is to the court, to the standards of the profession, there is often a conflict between both duties. Counsel must not mislead court, they must not withhold authorities or docs which will be against his client but the law requires them to be produced. “The ends of justice prevail over the clients aims in the event of conflict.” LCA 2006 deals with: Misconduct - see, in particular, ss 6 & 7 Unsatisfactory conduct - see, in particular, ss 6 & 12 Complaints and disciplinary procedures - Part 7 of Act R 1.4: conduct for which lawyer may be disciplined. S7: misconduct: (1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,— (a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct— (i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or (ii) that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or (iii) that consists of a wilful or reckless failure on the part of the lawyer . . . to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject; or (iv) that consists of the charging of grossly excessive costs for legal work carried out by the lawyer or incorporated law firm; . . . S12: unsatisfactory conduct: In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means— (a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or (b) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including— (i) conduct unbecoming a lawyer or an incorporated law firm; or (ii) unprofessional conduct; or (c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated

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law firm, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or (d) conduct consisting of a failure on the part of the lawyer . . . to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject (not being a contravention that amounts to misconduct under section 7) Russell McVeagh McKenzie Bartleet & Co v Tower Corporation- “The court is not of course acting as an arbiter of ethics or morals. Ethical questions are for the law society. Nevertheless, they may inform the judgment of the court Layers duties: R4: ‘cab-rank’ rule: lawyer must be avail to public and must not refuse to accept instructions from any client of possible client within reserved areas of work. This removes ability of lawyers to pick and choose clients. There is a duty to accept clients. Reserved areas of work: LCA s6: reserved areas of work means the work carried out by a person— (a) in giving legal advice to any other person in relation to the direction or management of— (i) any proceedings that the other person is considering bringing, or has decided to bring, before any New Zealand court or New Zealand tribunal; or (ii) any proceedings before any New Zealand court or New Zealand tribunal to which the other person is a party or is likely to become a party; or (b) in appearing as an advocate for any other person before any New Zealand court or New Zealand tribunal; or (c) in representing any other person involved in any proceedings before any New Zealand court or New Zealand tribunal; or (d) in giving legal advice or in carrying out any other action that, by section 21F of the Property (Relationships) Act 1976 or by any provision of any other enactment, is required to be carried out by a lawyer R 4.1: lists good cause for refusing instructions. R 4.1.1: lists not good causes for refusal. Common law duties: contractual, tort and equitable duties: fiduciary. Mouat v Boyce Clark: The retainer: terms of engagement. Terms may be (r1.2). In the absence of an express retainer, the court will examine closely all of the surrounding circumstances, including the conduct of the parties, when determining whether a retainer is to be implied, and if so the terms and scope of it Inder Lynch Devoy & Co v Subritzky: stated that a retainer is a contract. Obligations may be expressly agreed upon when retainer is constituted. Or can be implied by law from circumstances in absence of express agreement. “a requirement for practitioners and incorporated firms to provide clients in advance with information on the principal aspects of client service, including— (i) the basis on which fees will be charged; and (ii) indemnity insurance arrangements or other arrangements in respect of professional indemnity; and (iii) the coverage provided by any fidelity fund; and (iv) complaints mechanisms:” r 7.1: lawyer must take reasonable steps to ensure C understands nature of retainer. Its lawyers job to make sure they understand. There needs to be

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ongoing consultation, lawyer cant just adopt course of action without discussing and ensuring client is aware of facts and implications of their instructions. Identify client: “I have sometimes thought – given the depressing incidence of cases of this kind – that there should be a tortious duty of care on solicitors to positively identify and convey to parties known to be involved at the outset of the transaction just who they are acting for.” per Hammond J in Eksteen v White HC, Auckland Money: “A practitioner who, in the course of his or her practice, receives money for, or on behalf of, any person. . . must hold the money or ensure that the money is held, exclusively for that person, to be paid to that person or as that person directs.” (LCA s 110) Be clear of role and obligations: Lawyers are often asked to assist family or friends: There is a risk that the lawyer will provide advice or assistance in a less formal way than if the client were a stranger BUT there is no corresponding reduction in the obligations of the lawyer to act with competence and diligence The lawyer may find it more difficult to “exercise independent professional judgment on a client’s behalf” and “give objective advice to the client based on the lawyer’s understanding of the law” (r 5.3) Particular difficulties arise where the lawyer is involved in the matter under consideration – eg as a beneficiary under a will (see r 5.10) Capacity: Hansen v Young: theres a distinction between giving advice and making decisions. The distinction between adviser and decision maker is important for another reason. Acting in his capacity as a solicitor, Mr Young was acting in the ordinary course of the business of his firm, thus rendering his partners potentially liable for any negligent conduct in his capacity as a solicitor . . .” Groom v Crocker: relationship normally started by retainter. It puts in operation the normal terms of contractual relationship. “. . . the person who asserts a contract of retainer bears the onus of establishing both the existence and terms of the contract..’ scope of retainer: “Solicitors’ duties are governed by the scope of their retainer, but it would be unreasonable and artificial to define the scope by reference only to the client’s express instructions. Matters which fairly and reasonably arise in the course of carrying out those instructions must be regarded as coming within the scope of the retainer.” Gilbert v Shanahan “In the absence of clear indications that the contrary was intended, it is presumed that the parties intend a general retainer under which the lawyer is expected to advise on all legal aspects of the client’s affairs with which he or she is dealing. The extent of the duty to advise generally will be determined in part by the client’s knowledge and sophistication- Duncan Webb Ethics, Professional Responsibility and the Lawyer Midland Bank Trust Co Limited v Hett, Stubbs and Kemp (a firm) [1979]: “The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do. Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go

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beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interests, take it upon himself to pursue a line of inquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and . . . the duty is directly related to the confines of the retainer.“ Benton v Miller: court questioned whether the lawyer had a duty to advise about implications of relo breaking down and they held yes lawyer did they applied the reasonableness test and said what the reasonable practictioner would do in the situation. Provost Developments v Collingwood: the advice given by solicitors to clients will depend on circumstances. Hurlingham Estates: agreements must be in writing, all matter must be recorded. But this is not universally applicable rule of law as stated in Minkin v Landsberg. Griffiths v Evans: if there is a dispute of facts courts are likely to take the clients word over the lawyers. For commercial clients: , the courts should not be ready to impose obligations on solicitors which even the most careful solicitor may not be able to meet.” Midland Bank plc v Cox McQueen Minkin v Landsberg: relevant principles: i) A solicitor's contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake. ii)It is implicit in the solicitor's retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out. iii)In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client. iv)In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client. v) The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor's retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.” Duty to exercise due skill, care and diligence: “The law does not usually imply a warranty that he will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case.” Greaves & Co (Contractors) Ltd v Baynham, Meikle and Partners R 7.2: prompty answer requests for into and other client inquiries. As fiduciary, can only use info obtained for benefit of client. As agent of client, lawyer must disclose to client all relevant information about client’s affairs – detrimental (such as conflicts of interest) and beneficial. Part of

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this continuing duty is to put lawyer’s legal and general knowledge at disposal of client. Chap 7 sets requirements for duty of disclosure. R 7: ‘A lawyer must promptly disclose to a client all information that the lawyer has or acquires that is relevant to the matter in respect of which the lawyer is engaged by the client.’ Includes formal material received from the other side or the court or from any other source – including the lawyer’s own personal or professional contacts, other lawyers within the office or other clients (consider possible conflicts of interest) Includes information about the process or steps taken to implement the client’s instructions “Lawyers . . ., as part of their practice, have to convey not infrequently to clients, unwelcome, bad, and even at times devastating information. The greatest care should always be taken on the occasion of such communication, but nevertheless, it must be done.” McKaskell v Benseman As a fiduciary, a lawyer cannot agree to receive information about a client on the basis that it will not be disclosed unless the client has given informed consent to this (r 7.4) An undertaking to a 3rd party does not relieve the lawyer of a duty to disclose unless the client has given informed consent to the undertaking (r 7.5) R 7.3: not required to disclose info to the client if. R 13.9.4: if confidential about other party received in error, lawyer shouldn’t disclose to C. Presumption that L will continue to act for C until the completion of task she was retained for. R 4.2: lists reason why retainer may not be completed by lawyer. R 4.2.1: good cause listed for which lawyer can terminate retainer. R v S 1998:“A counsel does not have the right to disregard instructions from his or her client. . . . If appropriate advice has been given to the client, counsel's proper course is either to act on his or her instructions or to withdraw from the case. . . . It must be clear that the instructions were not simply an expression of the client's views on a particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client's disadvantage.” R 7.6: when matter is completed- provide brief summary of work undertaken. Payment of fees: “whole retainer” principle means lawyers right to bull for work arises once entire task compelted. R 9: charge fair and reasonable (r9.1) lawyer must provide upon request estimate of fees. Non-payment: r 4.2.3: lawyer cant terminate retainer or withdraw from proceedings for non-payment unless… Tort: duty of care. “The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and … the duty is directly related to the confines of the retainer.” Midland Bank v Hett, Stubbs & Kemp [1979] 1 Ch 384 at 402-403, per Oliver J.

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Hansen v Young: A solicitor holding himself out as an expert or specialist in the field of practice may be subjected to a stricter standard of care in respect of work carried out in that field – to the standard of performance of those holding themselves out as specialists in that area.” Pickersgill: the scope of the duty of car is variable, will depend on content of instructions given by client. And may vary depending on characteristics of client. Clark Boyce v Mouat: in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on solicitors.” Misconduct and negligence: “. . . a distinction needs to be drawn between a charge of professional misconduct . . . and a charge of negligence or incompetence . . . Both may reflect on fitness to practise, the need to mainta...