LAWS1230 LEJ Summaries PDF

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Summary

LAWS1230 Lawyers, Ethics and Justice Summary Document...

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Adversarial Advocate

Do general ethics apply to lawyers? No. Role defined by adversary framework.

Responsible Lawyer

No. Role defined by spirit of the law.

Moral Activist

Yes. Social theories of justice are important to lawyers.

Ethics of Care

Yes. Character, virtue and relational ethics are important for both lawyers and clients.

Objective Advocate client’s interests as zealously as possible with barest obligation to legality. Role as officer of court and guardian of legal system. Make law work as fairly and justly as possible. Advance justice through public interest lawyering and law reform activities. Both lawyer and client to preserve relationships and avoid harm.

Adversarial Advocate • Lawyers need to act as agent for client and zealously pursue their interest without regard to ethics and barest obligation to legality • Principles: o Partisanship: On the side of the client, not accountable for client’s goals o Non-accountability: Lawyer is not morally responsible for either the means or the ends of representation, provided both are lawful (not accountable for client’s goals) • Lawyers disregard spirit of the law o Thus, loopholes may be exploited • Moral judgments have no place o EG. CEO of Clayton Utz re Tobacco clients: If lawyers operate within the constraints of their legal duties, then they’re acting appropriately. Cannot make moral judgments • Cab rank rule: barrister has to act for whoever asks (Rule 86ff Bar Rules) • Advantage: Might be good in a criminal system where there is a strong State vs a poor disadvantaged Defendant • Criticism: In a commercial sense, recipe for sabotage of the legal system Responsible Lawyer • General ethics don’t apply to lawyers -> role defined by spirit of the law • Lawyer is an officer of the court and guardian of the legal system • Advocate client’s interest while helping client to comply with the law • Make law work as fair and just as possible • Will not breach ethical principles, or use loopholes. • Underlying sense of fairness re the court o Personal morals are irrelevant • Not only is it desirable for lawyers to be independent of the state, but also to show some autonomy from clients and powerful private interests (don’t just do what client says, think about the law and duties you owe) • Possible to put conditions on representation

Moral Activist • General ethics apply to lawyers -> social theories of justice are important • Advance justice through public interest lawyers and law reform activities

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Relationship to client: o Persuade/engage with client about the moral thing to do o Public interest lawyering (take on worth causes) and law reform activities Lawyers cannot escape moral accountability of their actions Lawyers have their own convictions about justice Can withdraw from the case if it becomes unethical or you feel so morally opposed

Ethics of Care • General ethics apply to lawyers -> character, value and relational ethics are important for lawyers and clients • Want to preserve relationships and minimise harm • Role as a human to act ethically • Holistic view of clients and their problems • Lawyer-client relationship built on trust, shared knowledge • Non-adversarial dispute resolution ARGUING THE APPROACHES For AA: Represent anyone and do so vigorously with barest reference to legal obligation. C.f. MA: Everyone is entitled to representation -> who would represent a murderer or paedophile if everyone were a MA? For RL: Administration of justice is paramount. C.f. AA: Risk of acting contrary to justice and the object of the law, instead abusing it to push client’s interest. C.f. MA: MA risks encouraging lawyers to act with regard to ethics instead of the law where they conflict, thus maybe even supporting illegal activity for a ‘greater good’. For MA: Ethics and morals are paramount. C.f. AA: Do not advocate a cause vigorously if you think it’s unjust -> harms the greater social good. C.f. RL: Laws can be breached if they are broken and failing social justice -> the overarching purpose is to achieve social good.

Overview of Lawyer’s Responsibilities Hierarchy of duties (in order)

1. 2. 3. 4.

Duty to obey the law Duty to the court Duty to the client Duty to others

1. DUTY TO OBEY THE LAW

THERE IS A PARAMOUNT DUTY FOR LAWYRS TO OBEY THE LAW (Rule 5 ASCR) Overview • Legal practitioners must: o Avoid involvement in unlawful conduct; o Advise clients against the same; o Not advise clients ways in which to achieve unlawful purposes • Responsible for the actions of their client o If client’s actions are unlawful, lawyer may be responsible Legislation • BR Rule 4 – Barristers must not engage in conduct that is dishonest, illegal or unprofessional, that may otherwise bring the profession into disrepute • ASCR 5, 24 – A solicitor must not: o Advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or o Coach a witness by advising what answers the witness should give to questions which might be asked Lawyers must avoid unlawful conduct •

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Must NOT engage in conduct that: o Is dishonest or illegal (ASCR 5, LPUL BR 4) o Might bring the profession into disrepute ( ASCR 5, LPUL BR 4) o Corrupts the administration of justice ( ASCR 24) o Is likely to diminish confidence in the legal system (ASCR 5.1.1) ASCR are binding per s 419(6) ULA, and a contravention of a civil penalty provision is punishable through civil penalty o This may be PM, giving rise to disciplinary action by regulatory authority (ASCR 2.3)

Must advise client against unlawful conduct Client who wants to break the law • Do NOT advise them of ways to achieve the unlawful purpose • Advise them against breaking the law • Do not assist them, seek to induce the breach, or instruct them to break the law • If lawfulness is uncertain: lawyer can advise client providing the advice is: o Given in good faith; o Client is informed of the possible consequences; and o Client has freedom to choose how to act If client is breaking/has broken the law • Counsel against it • Avoid personal involvement

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Advise of responsibilities as lawyer

Consequences of involvement • •

Civil liability; criminal responsibility; disciplinary sanctions May be guilty of PM for advising client to break the law ( LPCC v Segler)

LPCC v Segler Facts: Lawyer advised client to engage in building without license. Gave dishonest response to LPCC also. Held: Guilty of professional misconduct and suspended for three months. Chaney P: ‘Not entitled to advise… to act in an illegal manner simply because he or she believes that the client will not be prosecuted’

2. DUTY TO THE COURT (CIVIL PROCEEDINGS)

Lawyers owe a general duty to the court that overrides their duties to clients ( Giannarelli). This is codified for barristers in BR 24.

Duty of court > client • Must exercise independent, objective judgement: Bar Rules • Lawyer is not a mere mouthpiece of a client – must exercise forensic judgment (ASCR 3, 17.1; LPUC BR 16) • Close personal relationship with client may sabotage objectivity and independence • Should not act where lawyer will be required to give evidence in the case (ASCR 17.3) • Shouldn’t not become surety for client’s bail (ASCR 17.4) Gianarelli v Wraith POL: Counsel duty to client is subject to overriding duty to the court. Facts: Clients tried to sue barrister. Clients said barrister was negligent and failed to object to tendering of inadmissible evidence and the evidence was essential to the crowns case -> without that evidence the crown would not have won the case Held: Counsel duty to client is subject to overriding duty to the court. Paramount duty to the court. Possible disadvantage of client and against client instructions. Appeal dismissed – advocates immunity. Civil Proceedings Purpose The overarching purpose of the CPA and the rules of the court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute (CPA s 7). Negotiation and ADR • All duties that apply in court, apply in ADR too (AS glossary (H) in CPA) o Higher obligations for candour in negotiation/mediation ( Mullins) than in court ▪ There is a positive duty to disclose in negotiation and ADR: Mullins • Lawyer must advise client of appropriate dispute resolution before court: r 7.2 ASCR, s.22 CPA ▪ Except where lawyer believes on reasonable grounds that client already knows about ADR to a sufficient degree to make decisions about his/her own best interests o Rules in ADR ▪ Try to resolve – s.22 ▪ Must not mislead ▪ Must not in action or communication, make a statement: r 34.1 ASCR (overlaps with s 17/21 CPA) Content of duty to the court 1. Duty of candour (disclosure to the court) 2. Duty not to abuse court processes 3. Duty to conduct cases efficiently and expeditiously 4. Duty not to corrupt the administration of justice

Duty of Candour/Honesty A person to whom the overarching obligations apply must act honestly at all times in relation to a civil proceeding (CPA s 17). 1. Presentation of LAW

Duty not to mislead the court • Lawyer/barrister must not knowingly/recklessly mislead the court (ASCR 19.1; BR 24) o However, may be excused if it was unknowing, and correction was made as soon as possible (ASCR 19.2; BR 20) o Not misleading if simply failing to correct an error ( ASCR 19.3; BR 21) ▪ R v S(F): Defence counsel misquoted a case and did not correct the error. Found to not be misleading • Must correct any own accidental misleading statements: 19.2 ASCR; 25 BR • Barrister must alert the opponent and if necessary inform the court if any express concession made by the opponent regarding evidence, case law or legislation was made by mistake: 26 BR • Barristers - Must not knowingly make a false statement to the opponent concerning the law (BR 50) Duty to assist the court • Lawyers must (ASCR 19.11; BR 34): o Prepare their case properly o Know the relevant law/legal processes (i.e. check primary sources and keep knowledge up to date) o Assist the court and clarify any misapprehensions as soon as solicitor becomes aware of misapprehension Duty to disclose relevant law • Inform court of authorities that go against your client • Lawyers and barristers must inform the court of: o Binding authority (ASCR 19.6.1; BR 29); o Any authority decided by an Australian appellate court ( ASCR 19.6.2; BR 29); and o Any applicable legislation (ASCR 19.6.3; BR 29) • Must Disclose: o Cases: Binding authorities, and if no binding ones, then any authority decided by an Australian appellate court (ASCR 19.6; BR 31) ▪ Failed to advise judge on recent authority: Copeland o Legislation: anything applicable (ASCR 19.6; BR 29) o Applies until final judgment is given (ASCR 19.6; BR 29) ▪ Disclose even if you find out something after you finish running the case. o Exceptions: case is withdrawn or settling (ASCR 19.7; BR 25) or court rules evidence inadmissible without calling in defence and evidence would render it admissible (ASCR 19.9; BR 27)

2. Presentation of FACTS Lawyer/barrister must not knowingly/recklessly mislead the court (about law or facts): ASCR 19.1; BR 24  can’t lie! Duty not to mislead the court about facts

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Positive duty to take all necessary steps to correct any misleading statement made by the solicitor to the court as soon as possible after the solicitor becomes aware that the statement was misleading: 19.2 ASCR; 25 BR Simply failing to correct an error in a statement made to the Court by the opponent or any other person does NOT = a misleading statement: 19.3 ASCR

Kyle v LPCC Facts: Submitted deed the court which was supposedly signed by Kyle’s clients. Also submitted to the court that the deed had been signed by his client’s -> but it hadn’t been -> one signature was forged. Kyle found out about the forgery 7 days before the matter went to trial -> Kyle did not disclose this information to the court. Held: Tribunal found Kyle guilty for professional misconduct in attempting to mislead the court. Kyle’s conduct was found to be a deliberate attempt to mislead the court Must avoid statements which are half-truths or errors Duty not to take unfair advantage of obvious errors by either party (ASCR 30). Meek v Fleming Facts: The prosecutor deliberately wrongly referred to his witness as chief superintendent to increase his credibility when he had been demoted to sergeant. Credit of witness was issue in the case. Held: While there is no general rule to disclose things that will discredit your client, disguising the real situation is misleading. Judgment set aside. Chamberlain Facts: Lawyer’s a x assessment said $25k instead of $255k. Lawyer asked for consent order to pay quickly rather than correcting it. Held: This was proactive, meant he lied to court. Must not mislead the court by withholding material facts or documents Must disclose existence of documents critical to dispute ( s 26 CPA). Piva Facts: The lawyer failed to provide discovery of an important email to an insurer Held: PM Guss Facts: The practitioner knowingly did not disclose a relevant doc to counsel and sat silently in court while counsel said the document did not exist. Must not knowingly submit a false document A lawyer cannot produce false witness statements, and should check the truth of their contents if they are put on inquiry (Kyle). Inadvertent Disclosure (ASCR 31) • If material is confidential and disclosed by another solicitor inadvertently, solicitor cannot use it, must return/destroy the material, and notify the other solicitor • If they read some, notify the other solicitor and don’t read anymore. • If client instructs solicitor to read it, must not do so. Ex-parte applications (where other party is not present) – positive duties of disclosure • Lawyers must display the utmost fairness and good faith in ex-parte applications • Positive duty to disclose contrary facts in ex parte applications: ASCR 19.4 o Reason: Other party is not present in court – must in effect take the role of the absent party • Lawyers must inform the court on matters which:

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Are within the lawyer’s knowledge (ASCR 19.4.1, BR 22(a)); Are not protected by legal professional privilege; (ASCR 19.4.2, BR 22 (b)) ▪ If protected by privilege, lawyer must seek instructions for waiver of the LPP to permit disclosure (ASCR 19.5.1, BR 23(a)) and The lawyer has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client. (ASCR 19.4.3, BR 22(c))

CONCLUSION 1. Has the lawyer breached their duty of candour? 2. Was the breach ethically justified (4 ethical approaches)?...