Example Answers to Lawyers Ethics and Society Take Home Exam Paper B 2020 PDF

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LAWYERS, ETHICS AND SOCIETY: TAKE HOME ASSESSMENT 2020 PAPER B. Question One (1, 500 words) – 60 marks As a barrister, when advising Alan as to his legal and ethical obligations, I would firstly outline that one of the fundamental duties of solicitors is to provide legal advice in the best interests of the clients’. But also, that there is a duty to obey the law, a duty to the court, a duty to the client and also to others. The duty of lawyers to obey the law is paramount under rule 5 of the Australian Solicitors Conduct Rules 2015 (SA) (‘ASCR’).1 Alan must avoid any involvement in unlawful conduct that is either dishonest or illegal that could possibly corrupt the administration of justice under ASCR 3 or which could be seen to put into doubt the legal system under ASCR 5.1.1. Thus, advising to restructure operations to avoid paying compensation in future litigation would be seen as dishonest and corrupting the administration of justice. He should advise Fraser not to break the law regarding restructuring the business to avoid litigation. Alan should not assist them in acting dishonest or instruct them to break the law as this could be deemed as professional misconduct and Alan should avoid involvement. If Alan believes his advice is going to be disregarded, he should consider termination. Alan could receive disciplinary sanctions and has the potential to exposes him to liability for negligent advice as seen in LPVC v Segler.2 Alan also has an overarching Duty to Court which overrides his duty to Fraser ASCR 3. In the case of Gianarelli v wraith3 the duty to the client is subject to overriding duty to the court and also that under ASCR 19.1 Alan must not knowingly/recklessly mislead the court about law or facts.4

So advising on the withdrawing from the

market but saying nothing about why it was withdrawn to delay litigation would be a breach of his duties. Whilst disclosure of information is not required by defence,

1 Australian Solicitors Conduct Rules 2015 (SA). 2 Legal Practitioners Complaints Committee v Segler [2009] WASAT 91 3 Giannarelli v Wraith [1988] HCA 52. (1988) 165 CLR 543. 4 Australian Solicitors Conduct Rules 2015 (SA).

they must not provide false or inaccurate information which can be seen to mislead the courts R v Stamos.5 In other words, Alan must not lie to the courts and if found to do so, he could also be found guilty for professional misconduct for a deliberate attempt to mislead the court as seen in Kyle v LPCC.6 Under ASCR 4, as a solicitor, Alan must deliver legal services competently, diligently and as promptly as reasonably possible.7

In saying that Alan must try not to

compromise his professional integrity. ASCR 7 states that we should provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices. 8 This would include advising Fraser that based on the facts given, that there would be no reasonable prospect of success with regards to vigorously defending all litigation or prolonging litigation so as to discourage future claims. This would arise in a breach of his duty to his client and to the courts. Providing reasonable alternatives to adjudication would be advisable. As such, ethically, we could not recommend any of the courses of action that they have chosen based on the facts given to us. However, Alan could advise Fraser to withdraw the product from the market as soon as possible to minimise any future potential exposure to litigation. I would also advise Alan that it would be in his best interests not to act for Fraser as Fraser is acting dishonest and trying to mislead the courts. With regards to Alan’s grandmother, Alan should not under any circumstances inform his grandmother about her use of Myprodil or the potential side effects that may arise as this was privileged information received from his client. Under ASCR 9, confidentiality can be interpreted as not disclosing any information obtained during the course of engagement with a client to any person other than within the firm itself or when seeking advice from a barrister. In this instance, Alan should or ought to know that this client’s information is confidential. 5 R v Stamos [2004] SASC 132 6 Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115. 7 Australian Solicitors Conduct Rules 2015 (SA). 8 Ibid 7.

As seen in the case LSC v Robin Carl Tampoe9 where the solicitor on the case allegedly breached their Duty of Care by disclosing and commenting on confidential information was held guilty of professional misconduct. He was struck off the roll and was also made by order to pay costs as the solicitor ought to have known the information was confidential.10 However, ASCR 9.2 provides some exceptions for disclosure. As the senior solicitor, I would advise Alan that if he had any legal or ethical concerns relating to the disclosure of the side effects of Myprodil, he could seek to use ACSR 9.2.3 to enable him to disclose in a confidential setting for the purpose of obtaining advice from the ethics committee on his concerns about his ethical responsibilities relating to ASCR 9.2.5. This regulation allows for disclosure to prevent imminent serious physical harm to a client or to another person.11 Under ASCR 12.4.1 and 12.4.2, Alan would legally be able to draft his grandmothers will provided she was fully informed of any entitlements available to Alan both as the solicitor, as the executor and beneficiary and that there was transparency between these roles. However, there is the potential in this case that ASCR 12.1 could cause a conflict of fiduciary duty to serve in his grandmother’s best interests and that of his own personal interest. Further, If Alan has complied with full disclosure and transparency and decides to go ahead with drafting the will, It would be strongly advised that he ensures that each of the beneficiaries be advised to seek their own legal advice to circumvent this potential conflict.12 Due to Alan’s prior knowledge of Myprodil and the potential side effects and the fact that his grandmother wishes to bequest money to his client Fraser and also to his daughter, I would also strongly advise Alan not to draft his grandmothers will but to provide her with a recommendation to another solicitor.

9 Legal Services Commission v Robin Carl Tampoe [2009] QLPT 14 10 Ibid. 11 Australian Solicitors Conduct Rules 2015 (SA). 12 Will and Estate of Foster (dec’d) [2012] VSC 315, at [29]

Question Two (1,000 words) – 40 marks

The Supreme Court of South Australia which was established under the Supreme Court Act 1935 (SA) s6 has the inherent jurisdiction to control and discipline legal practitioners on the application of the Attorney-General, the Commissioner or the Society13 under s88A of the Legal Practitioners Act 1981 (SA) (‘LPA’). The Supreme Court are also the only regulatory body with the power to remove a practitioner’s name from the Roll.14 If a solicitor neglects their ethical or legal responsibilities or if their professional conduct is deemed unsatisfactory professional conduct or professional misconduct sections 68 and 69 of the LPA defines these terms. The lesser of the two types is unsatisfactory professional conduct but distinguishing between the two is often hard and will depend on individual circumstances. However, section 70 of the LPA does list a number of examples that can be qualified as either of the two. In addition, the Legal Profession Conduct Commission (LPCC) also provide a list of examples of behaviour that they can investigate that amount to unsatisfactory professional conduct or professional misconduct. In this case study, the factors that the court would consider when deciding if they should strike you as the lawyer off the roll are outlined below. In the first instance, the lawyer has under the Australian Solicitors Conduct Rules 2015 (SA) (‘ASCR’) a duty to the court and the administration of justice which is paramount to any other duty.15 Further, ASCR 21 outlines that the solicitor must use the courts in a responsible manner and to ensure that the court process is reasonably justified, is appropriate, and not made principally in order to harass or embarrass a person.16 The fact that the solicitor in this case initiated proceedings in court knowing that the reasons for court action against Contract Floors Pty Ltd (CF) was ‘to get in first’ and bring them to the negotiation table to try and offset the debt that was owed is an 13 Legal Practitioners Act 1981 (SA) 14 Jane Knowler, "Regulation - Part Two" (Presentation, University of South Australia, 2020). 15 Australian Solicitors Conduct Rules 2015 (SA). 16 Ibid 29.

abuse of process which can be seen in similar case LPC v Kerin.17 In this case, the Supreme Court reviewed three different complaints relating to filing of documents where the court held that there was an abuse of process as the documents that were filed where merely used to “scare off” the plaintiff with no proper cause of action placed.18 This was further held in the case of White Industries v Fowler & Heart19 where an abuse of process was identified as there were no proper factual or legal basis for commencement of proceedings.20 In addition the acting solicitor under ASCR 19 has a duty to assist the court and must not deceive or knowingly or recklessly mislead the court. 21 In this instance, the solicitor knowingly filed an application and supporting affidavit to the courts to ask for an adjournment of the strike out application with false reasons for the adjournment. Further, ASCR 4.1.2 regulates that a solicitor must be honest and courteous in all dealings in the course of legal practice. 22 This would include not making false affidavits which will also seem to be dishonest and displays disreputable conduct under ASCR 5.23 In the case Kyle v LPCC,24 the solicitor knowingly submitted documents to the court and did not disclose when the fact was known. It was held that Intention was irrelevant and it was still deception as the solicitor should have disclosed facts of the false affidavit as soon as it was known as per ASCR 19.2. Further, ASCR 8 outlines that as a lawyer we must follow a client’s lawful, proper and competent instructions,25 but ASCR 17.1 is intended to prompt lawyers to take into consideration their professional obligations to act independently and not to be the mere mouthpiece of the client.26 This would include using independent forensic judgement and not to follow clients’ instructions as to how the matter should be led

17 Legal Practitioners Conduct Board v Kerin [2006] SASC 393 18 Ibid. 19 White Industries (QLD) Pty Ltd v Fowler and Heart (1989) 156 ALR 169 20 Ibid. 21 Australian Solicitors Conduct Rules 2015 (SA). 22 Ibid 5. 23 Ibid. 24 Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115 25 Australian Solicitors Conduct Rules 2015 (SA). 26 Ibid 27.

or managed and if so done, they would leave themselves open to personal liability of costs as seen in Wentworth v Rogers.27 As to mitigating or extenuating circumstance that may be relevant in this case, we could look at marital difficulties caused by the breakdown of a long-term partner and the fact that there was a diagnosed severe auto-immune disease that both lead to a prescribed course of anti-depressants. In the case of Legal Practitioners Conduct Board v Kerin28 marital difficulties could be attributed to the misconduct but not much weight was give as it was said that lawyers are expected to maintain a high standard of conduct even in times of personal distress. This was also backed up in LPA v Jones29 where they drew attention to stress due to a breakdown where it was held that the conduct was still gross departure from professional standards and is of such a nature that it would erode the public’s confidence in the legal profession.30 In the case of LSC v Sampson,31 a case was of breach of professional misconduct considered mitigating factors such as health problems and dispute with partner and in the Federal Court findings, the lawyer received a reprimand and ordered to undertake ethics trainings for 2 years + costs. Other factors that could be considered in this case could be the frequency and prior misconduct and if found to be isolated, a lesser disciplinary result may occur. Also the timely guilty plea combined with the lawyer’s attitude and remorse may occur may also provide some relevance to mitigating circumstance and lead to a lesser disciplinary outcome as seen in Attorney-General v Bax.32

27 Wentworth v Rogers [1999] NSWCA 403 [46]-[47]. 28 Legal Practitioners Conduct Board v Kerin [2006] SASC 393. 29 Legal Practitioners Conduct Board v Jones [2009] SASC 347. 30 Ibid at49. 31 Legal Services Commissioner v Sampson (Legal Practice) - [2013] VCAT 1177 32 Attorney-General v Bax [1992] 2 Qd R 9....