EXAM Notes - Summary Legal Practice and Ethics PDF

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Summary

Concise exam notes covering all topics. ...

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Only need to know Victorian law

Topic 1 – INTRODUCTION: ETHICS, MORALITY & THE LEGAL PROFESSION WHAT DO WE MEAN BY ETHICS 

Ethics in the legal profession is different to ethics generally. Ethics in the legal profession is a separate concept to morals – e.g. admission of guilt by client is privileged

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Values and rules of conduct governing a legal professional’s behaviour – minimum standards which a lawyer must maintain which are prescribed in a number of rules that detail responsibilities, and conduct you should avoid and also situations you should not get involved in

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Professional standards are enforced through academic and practical requirements that need to be met (i.e. academic requirements, fit and proper person). Lawyers need to continue professional development obligations in order to keep your legal practicing certificate (attending seminars every year)

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If you breach these obligations, you can have disciplinary proceedings brought against you or your client can take action against you

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Ethics are extremely important in the legal profession, as it had wider consequences than just the lawyer, it impacts on public confidence in the justice system

LAW AS A PROFESSION Three core attributes of a profession 1. Special skill and learning 2. Public service as principal goal 

Not the gaining of money, but public service

3. Autonomous and independent of outside control (conditional on attributes 1 and 2)

CHALLENGES FACING THE LEGAL PROFESSION 

Traditionally, law firms had public service as a primary goal. Noble and expert profession

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Now it is much more business-like, law firms never used to be able to advertise like they can now, and law firms incorporated practices such as non-legal services (accounting or tax)

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Shift from lawyers exist for the pursuit of justice to the focus on making money -

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6 minute billable units

Clients in the legal profession are not ‘normal’ consumers. They come to you for advice. Client loyalty is a big challenge at the moment because if a lawyer is advising on the most appropriate situation, a client will just go elsewhere. Lawyers are now just telling clients they will do what they say so they can retain them. This is breaking your duty to the court

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What was traditionally legal work can now be undertaken by non-lawyers e.g. conveyancers. This adds to the competitiveness that is already out there

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SOURCES OF ETHICAL OBLIGATIONS (‘THE LAW OF LAWYERING’)  Common law 

Governs most aspects of lawyer’s relationship with clients. Could be sued in contract law (retainer), tort law (negligence), fiduciary law (best interests of client) and equity (duty of confidentiality).

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It also governs relationship with the court as an officer of the court

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Also governs third parties (agency), contract tort and equity

 Statute law and Professional rules 

Legal Profession Uniform Law (Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic)) – commenced 1 July 2015 -

Governs all matters of regulation in relation to the legal profession e.g. admission to practice, trust accounting, discipline issues

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Lots of professional rules -

Solicitor’s conduct rules: o

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Minimum standards of conduct the legal profession is expected to uphold

General rules o

Things not covered by the solicitor’s conduct rules (i.e. legal practicing certificates)

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Solicitor’s rules

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Admission rules o

Going to refer to these a lot for part B of assignment

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What academic requirement you must have met before being admitted, how do you decide fit and proper etc.

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Uniform continuing professional development (solicitor’s) rules

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Uniform conduct rules for barristers

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Uniform professional continuing professional development rules for barrister’s

Key definitions – Schedule 1, s 6 Uniform Law Act 

Cannot engage in legal practice unless a qualified entity. A qualified entity is an Australian legal practitioner who is an Australian lawyer who holds a current Australian practicing certificate. An Australian lawyer is a person admitted to the Australian legal profession in Victoria or any other jurisdiction

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Law practice: sole practitioner, law firm, community legal service, incorporated legal practice and unincorporated legal practice

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Barrister v lawyer -

Once you are an Australian legal practitioner you can appear in court. You do not need to be a barrister.

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Lawyers are ‘generalists’, doesn’t mean they can’t specialise. But the majority of the work is not court work. Barrister’s are specialists in advocacy, so generally it will be barrister’s who appear in court. Barrister’s tend to work with sole practitioners, a client will go to a lawyer and the lawyer engages the barrister. The barrister’s client is actually the lawyer.

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Provision of legal services

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Participating jurisdictions (Vic and NSW) and non-participating jurisdictions (every other State and Territory)

AUSTRALIAN SOLICITORS’ CONDUCT RULES 

Codify a number of ethical obligations

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Provide a standard of conduct in disciplinary proceedings

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These rules are not binding on a court but they can assist in for example, determining what was expected of the lawyer in that circumstance

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Failure to follow these rules can lead to disciplinary action being brought against you and may also amount to unsatisfactory professional conduct or professional misconduct

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Think of these rules as guidelines – if it is not prohibited by the rules, it does not mean it is ethical conduct -

CJ Brennan “we cannot reduce ethics to rules”

THE ROLE OF THE LEGAL SERVICES BOARD AND COMMISSIONER, LAW INSTITUTE OF VIC AND VLAB 

Known as the local regulatory authorities under the Uniform Law

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Victorian Legal Services Board -

Overall regulating the legal profession

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Responsible for prosecuting breaches of the act, issuing, renewing and generally managing practicing certificates. Job is to ensure professional standards are maintained and to protect consumers

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Can delegate responsibilities

Victorian Legal Services Commissioner -

CEO of the VLSB

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Manages complaints against legal practitioners and has an educative role

Law Institute of Victoria -

Represents members’ interests

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Responsible for the accreditation scheme (e.g. accredited property law specialist)

Victorian Legal Admissions Board -

Manages admission to practice

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Assess applications and provide compliance certificates to the Supreme Court for the Supreme Court to admit you

NEW BODIES UNDER THE UNIFORM LAW 

Legal Services Council -

Monitors implementation of Uniform Law and makes sure it is being consistently applied across all participating jurisdictions

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Commissioner -

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Makes all the ‘rules’ that Vic and NSW follow

CEO of LSC

Admissions Committee -

Part of the LSC

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Develops admission rules for use by VLAB MLL335

Topic 2 – ADMISSION TO PRACTICE ADMISSION REQUIREMENTS 

Victoria have adopted the Legal Profession Uniform Admission Rules 2015 o

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Continue to admit Australian lawyers through their own admissions boards

s15 Uniform Laws: admission is regulated to protect administration of justice and clients as only eligible to be admitted if: o

Have appropriate university and (practical legal training) PLT qualifications; and

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Are a ‘fit and proper person’.

APPLICATION REQUIREMENTS 

Admission process is outlined in the Legal Profession Uniform Law Application Act 2014 (Vic) Div 2 and the Legal Profession Uniform Admission Rules 2015 (Vic) s 421 and s426 UL. o

Must apply for a compliance certificate: r 12 LPUAR

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Must complete: Schedule 5 

Compliance certificate for Admission as a Lawyer

Schedule 8 

Disclosure statement: r 17 LPUAR

Schedule 9

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Evidence of character: r 16 LPUAR

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People must have known her for 2 years

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Must have read her disclosure statement

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If haven’t read this will result in her not being granted admission: Morrissey v New South Wales Bar Association

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Form 3 o

Certificate Exhibit Identifying for any document she wishes to attach to Form 5 MLL335

Must provide:

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Academic transcripts from University and College of Law: r 15 LPUAR

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Police report : r 18 LPUAR

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Student conduct report : r 19 LPUAR

Where must submit? If live within 100km of Melbourne CBD must submit in person produce photographic ID

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ADMISSION FEES 

Certificate of compliance will be issued by the board and provided to the Supreme Court of Victoria

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Once issued will be required to pay admission fees

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Fees to be determine by the board

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One date of admission need someone to “move” her admission

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Can be anyone who appears on the Supreme Court roll

REQUIREMENTS FOR ADMISSION 17 UL Prerequisites for compliance certificates (1) (a)

attained the academic qualifications specified under the Admission Rules for the purposes of this section;

(EDUCATION REQUIREMENT) and (b) has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (PLT REQUIREMENT) (c) Is a fit and proper person to be admitted to the Australian legal profession (CHARACTER REQUIREMENT)

EDUCATIONAL REQUIREMENTS Educational requirements 

Completed the equivalent of a full-time Australian law degree: LPUAR r 5

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Priestley 11 subjects (set out in Schedule 1 of the Admission Rules)

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Supervised legal training in workplace OR enrol in a practical legal training course before applying for admission: LPUAR r6

Exemption from academic and practical legal training prerequisite: s 18 of the Legal Profession Uniform Law: “sufficient skill and relevant experience”, “overseas experience”

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If applicant had obtained academic qualification more than 5 years before applying may be required to undertake further academic subject and pass further examinations: rule 5(2) AR

Practical Legal Training rule 6 AR 

Legal Training through coursework – accredited providers (s29 UL and rule 7 AR), e.g. College of Law, Leo Cussens Centre for Law; and/or

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Supervised workplace training – 12+ months, approved training plan

Every applicant is required to satisfy the Board of the following summarised Skills, Compulsory and Optional Practice Areas and Values (set out in Part 2 and 4): 

Skills: Lawyer's Skills; Problem Solving; Work Management; and Business Skills; Trust and Office Accounting.

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Compulsory Practice Areas: Civil Litigation Practice; Commercial and Corporate Practice; and Property Law Practice.

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Optional Practice Areas: any two of the following- Administrative Law Practice; Banking and Finance; Criminal Law Practice; Consumer Law Practice; Employment and Industrial Relations Practice; Family Law Practice; Planning and Environmental Law Practice; and Wills and Estates Practice.

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Values: Ethics and Professional Responsibility Also see generally Part 4 of Schedule 2 of the Admission Rules: competency standards for different practice areas.

CHARACTER REQUIREMENTS 

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The requisite character requirements are that an applicant be: o

Fit and proper (rule 10 AR)

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Of good fame and character

Focus on the reputation of the applicant and refers to the quality of the person by looking at their former acts and motives

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Honesty and fair dealings very important

Fit and Proper Person Must consider:

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Activities in which the person is or will be engaged and the ends to be served by those activities

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Whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur or whether the general community will have confidence it will not occur

Australian Broadcasting Tribunal v bond (Bond Media Case)

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Moral character o

Dishonesty, political activity, personal moral standards, behaviour in their past professional life and mental illness will all be taken into account

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Dishonest has been central

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Student conduct reports

10 Determining whether someone is a fit and proper person (1) For the purposes of section 17(2)(b) of the Uniform Law, the following matters are specified as matters to which the Board must have regard: (a) Any statutory declaration as to the person’s charcter, referred to in rule 16, (b) Any disclosure statement made by the person under rule 17, (c) Any police report provided under rule 18, (d) Any student conduct report provided under rule 19, (e) Any certificate f good standing provided under rule 20, (f)

Whether the person is currently of good fame and character,

(g) Whether the person is or has been a bankrupt or subject to an arrangement under Part 10 of the Bankruptcy Act or has been an officer of a corporation that has been wound up in

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Good Fame and Character Rule 10(1)(f): ‘Whether the person is currently of good fame and character’. Potentially relevant conduct: 

Dishonesty

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Criminal history

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Improper conduct in litigation

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Academic misconduct

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Extreme political views

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Behaviour in previous profession(s)/occupation(s)

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Mental illness

Dishonesty Generally Any past dishonesty of any kind will be significant hurdle to admission 

e.g. in criminal convictions, through academic misconduct, in previous dealings with the court, etc.

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Absolute honesty and trustworthiness is required in legal professionals: Thomas v Legal Practitioners Admission Board (2005

Important to make full and frank disclosure and demonstrate 

Acceptance of conduct

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Appreciation of its significance; and

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Rehabilitation

Applicants required to obtain from any tertiary academic institution and any practical legal tranining provider attended by them a student conduct report  

Outlines any disciplinary actions Academic misconduct = plagiarism, impermissible collusion, cheating and any other inappropriate conduct whereby the applicant has sought to obtain an academic advantage

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Re OG (A Lawyer) 

Colluded on an assignment

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Deliberately and recklessly misrepresented to the Board of Examiners the circumstances in which he came to be awarded a zero grade mark

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Full Supreme Court revoked the admission of a lawyer for lack of candour

Law Society of Tasmania v Richardson 

Richardson guilty of academic misconduct

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Father (lawyer) advised him he did not need to make disclosure)

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Law Society sought to deny admission

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Overturned by the court because Richardsokon’s action were not wrong but rather an error in judgment based largely on the advise of two experienced practitioners

Re Liveri 

Liveri severely plagiarized

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Did not acknowledge or accurately disclose

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Essentially what admissions board will look at is whether an applicant has revealed past misdeeds and has accurately and fully disclosed the nature of any such misdeed

Criminal Behaviour

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Past criminal behaviour not always a bar to admission

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Full disclosure, acceptance of responsibility of conduct, mitigating circumstances surrounding conviction (e.g. young age) and evidence of rehabilitation is CRUCIAL.

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Depends on: o

Nature of the crimes

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How long ago they occurred

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If applicant has been rehabilitated

Re Victorian Lawyers RPA Ltd v X

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Applicant made false reports of sexual abuse and was subsequently charged.

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Applicant was a person of good fame and character but not fit and proper to be admitted. Inability to deal with own issues meat could not be trusted to assist others in similar situations.

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Take-away point: if applicant fails to show understanding of impact of conduct, then will be hard to establish ‘fit and proper’

Re Davis

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Applicant convicted of breaking, entering and stealing, and failed to disclose this when applying for admission.

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Grave crime of dishonesty and lack of candour meant applicant’s disbarment was confirmed (even though some 12 years since conviction)

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Take-away point: it is extremely important to give full and frank disclosure as the failure to disclose can be just as bad as that which was not disclosed.

Ex parte Lenehan

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20 years earlier, applicant committed numerous dishonesty offences involving money which he fully disclosed; subsequently respectable work record ad war service involving handling of money.

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Applicant admitted – youthful indiscretions not always final proof of poor character; subsequent conduct can be redeeming.

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Take-away point: full disclosure key, as if proof that applicant has changed to now be ‘fit and proper’.

Frugtniet v Board of Examiners 

Failed to make disclosure of criminal history (25 years worth), continuing until just before admission application

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Not admitted – insufficient evidence of rehabilitation

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“The appellant carries with him a massive bad of dishonest conduct. It is a pattern of conduct committed over an extensive period” (Gillard J)

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Take away point: many years of blameless conduct is needed to overcome a len...