Lawyers Final 2 PDF

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- merged files: Lawyers Final Notes 1.docx - Lawyers Final 2.docx...

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Law as a Profession Lawyers are expected to have expertise, status and power as a member of the profession of legal practitioners. This requires professionalism, which, for a number of reasons is seen to be declining over recent years. What is professionalism?  Ethics of excellence and integrity  Respect of lawyers, the system and the law  A commitment to be accountable and to be responsible Why is there a decline in professionalism?  Competition  Less regulation  Big firms  Billable hours  Contingency fees  Advertising Related Laws The guides for lawyerly professionalism is set out in the law, and in particular:  Legal Profession Uniform Law (NSW)  Legal Profession Uniform General Rules 2015 (NSW)  Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015  Case Law

Regulation of Lawyers The Law Society and Bar Association:  Grant Practicing Certificates  Represent and educate their members  Regulate the profession (professional rules) Self-regulation:  Led to/continued lots of restrictions  Created a monopoly over legal work Co-regulation:  Councils (NSW Law Soc. & NSW Bar Soc.), Independent bodies (OLSC, NCAT & the Supreme Court) and Uniform Law Regime (Legal Services Council & Commissioner for Legal Services Regulation)  Handles complaints and regulates the system from the inside out  The disciplinary process for Lawyers in generally dealt with through this form of regulation Disciplinary Process:  Consumer Matters (s 269 of the Uniform Law) eg. Cost disputes – this usually involves mediation (s 287-288 Uniform Law)  Discipline Matters (s 270 Uniform Law) eg. Professional misconduct  Time limit of 30 days after request for itemised bill or 60 days after costs become playable, and 3 years after the conduct of any other compliant Complaints:  Top 3 complaints are over negligence, communication and overcharging Penalties:  Caution  Apology  Redo work at reduced or no cost  Training/counselling  Compensation order However there are mitigating factors upon penalties such as prior record, reputation, cooperation, remorse, illness and substance abuse Legislation:  Legal Profession Uniform Law (NSW) (the ‘Uniform Law’) o Legal Profession Uniform Law Application Act 2014 (NSW)  Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (the ‘Uniform Conduct Rules (Solicitors)’)  Legal Profession Uniform Conduct (Barristers) Rules 2015 (the ‘Uniform Conduct Rules (Barristers)’)  Legal Profession Uniform General Rules 2015 (the ‘Uniform General Rules’) Clyne v NSW Bar Assn (1960) This case saw a barrister struck off the role due to several instances of him making allegations against other solicitors in the case to effectively remove them from the case. “penalty… is in no sense punitive in character. 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”

Professional Conduct Rules   

Standard of Conduct used in hearings They are the standards expected of lawyers They determine if disciplinary hearings should be held

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Regulate interactions with clients

Professional Misconduct Cases: Kennedy v Council of Incorporated Law Institute of NSW (1939) Allinson v General Council of Medical Ed and Regn [1984]

“A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law; it is enough that it amounted to grave impropriety affecting the solicitor’s professional character” “would be reasonably regarded as disgraceful or dishonourable by [the practitioner’s] professional brethren of good repute and competency”

Legislation  s 296-298 Uniform Law  Penalties for this (s 299 Uniform Law) – depends on seriousness of conduct: o Caution o Reprimand o Apology o Redo work at reduced or no cost o Fine of up to $25,000 o Restrictions on practicing certificate  OLSC determines what penalty it feels is “fair and reasonable in the circumstances” (s 290) If deemed serious enough NCAT may also inflict the following (s302):  Struck of roll (Can be for Dishonesty, misappropriation of funds, Misleading the court, overcharging, failure to disclose matters)  Suspension of practicing cert.  Conditions upon practicing cert.  Reprimand  Fine  Further Legal education  Supervision  Counselling The Lawyer is also made to pay costs (s303) Re Vernon; Ex parte LS of NSW “When application is made to the Court to strike a solicitor off the roll for professional misconduct, the question for the (1966) Court is whether… it is any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor…” Legal Services Commissioner v “Will and power of attorney for client with dementia and misappropriated $18,000 from trust” ended up with O’Donnell [2015] O’Donnell being struck of for “disgraceful conduct” The Council of the Law Society of Overcharged a client and then mislead the court. The second of these led to him being struck off the roll NSW v Foreman (1994) Serious criminal offences by lawyers can lead to them being Zeims v Prothonotary of the struck off, but conviction is not necessarily inconsistent with Supreme Court of NSW (1957) fitness to practice Fraudulently obtaining funds in any form is grounds to be Somerville v Law Society NT struck of the roll (1995) R v Einfeld [2009] “In the cases of offences against public justice such as the present offences, although there is no injury, emotional harm, loss or damage to any ascertained individual, there is substantial damage to the system of justice.”

Prothonotary of the Supreme That if convicted of a serious crime you are likely to be struck of the role. In this case Pangallo tried to Court of NSW v Pangallo (1993) Public Disciplinary Register  S 152 Legal Profession Uniform Law Application Act 2014 (NSW)  Available for the public to view Mitigating Factors  Prior Disciplinary Record  Community and professional reputation  Cooperation with discipline process  Remorse  Illness/Mental Illness  Substance Abuse

Costs Costs Disclosure If under lower threshold ($750) cost disclosure not required but can still be supplied, if under higher threshold ($3000) a standard form will comply. (s 174) If you fail to disclose costs or changes to costs then costs agrements become void (s 178(1)(a)), you cannot claim or recover costs (s178(1)(b-c)). This can be UPC or PM (s 178(1)(d)). Legislation:  S 172(1) Uniform Law o “no more than is fair and reasonable”  S 172(2) Uniform Law o Determines what fair and reasonable entails depending on situation  S 173 Uniform Law o Not to act in a way that unnecessarily increases costs  S 174(1) Uniform Law o Must disclose bass for costs (soon and practically), estimate of costs and any significant changes  S 174(2) Uniform Law o Must give additional information sufficient enough to make an informed choice  S 174(3) Uniform Law o Must take reasonable steps to ensure the client understands  S 174(6) Uniform Law o Must be in writing  S 207 Uniform Law o Unreasonable costs can be UPC or PM Costs Agreement Not required (unless requested) but advised and must be fair and reasonable (s 172(4). Good practice has one signed before work begins. Legislation:  Client can require an agreement and negotiate it (s 179)  Must be in writing (s 180(2))  Void if it breaches requirements about CA’s or disclosure (s 185)  If CA is not fair and reasonable it can be UPC or PM (s 207)  Conditional cost agreements (eg no win no pay) have special restrictions (s 181)  Conditional agreements can be increased by 25% (s 182)  Contingent agreements (eg % of settlement) are prohibited (s 183)

Perjury The intentional act of swearing a false oath or falsifying an affirmation to tell the trust concerning matter material to judicial proceedings. Punishment: Crimes Act 1900 (NSW) Material to proceedings: s 327 = 10 yrs prison Other false statement: s 330 = 5 yrs prison Pleas of Guilt/Innocence If the plea is incorrect, is this misleading the court? Decision = clients (Tuckiar v R) It’s not misleading the court to allow a plea of guilty from an innocent client ( Meissner v The Queen) Guilty plea: Duty to achieve best result for client (r 4 + 7) – benefits & consequences need to be explained If you plea guilty then any arguments for mitigation must be in line with this plea NB. Good idea to communicate everything in writing

Access to Justice 1. Legal Aid 2. Community Legal Centres Rule 7.2: Must provide alternatives to court Eg: ADR

Considerations:  Costs  Speed  Formality / informality  Participation  Control  Procedural safeguards/Protections  Private  Public  Scope (claims & remedies)  “Success” rates Collaborative Law:  Formal  Opposing Lawyers working cooperatively  Both lawyers & clients sign a contract (will not threaten or go to court, if process breaks down then both lawyers resign)  Creative Solutions  Quick, with more control/power to parties

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Interests over rights Less combative Persuades clients to be reasonable Increases moolah ($$ Bills)

Therapeutic Jurisprudence  ‘Holistic’ approach  Lawyers as ‘change agents’ – aim to change underlying issues and to break the cycle  Used in drug courts or neighbourhood justice centres  Helps with additional factors  Justice is less futile and has a greater involvement with the client  Requires commitment from the lawyer...