Legal Ethics Template for Exam PDF

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Legal Ethics Template for Exam...

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General Inconsistencies between rules -

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Rules from Law Society or Bar Association ineffective if inconsistent with legislation or regulation. They are ‘a reliable and important indicator of the accepted opinion of the members of the profession’ (Chamberlain v ACT Law Society). Rules will assist court (Re a Medical Practitioner per Dowsett J). Primary goal of professionals isn’t pecuniary gain but to serve public (Re Foster). 6(1) LPA An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. 5(1) LPA An Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law. Overarching Legislative Points:

Solicitors

Structure & regulation -

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Duty to the court -

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5.1 Solicitor must not engage in conduct, in course of practice/otherwise, which demonstrates solicitor is not fit and proper person to practise law, or likely to material degree to: -

5.1.1 be prejudicial/diminish public confidence in administration of justice; or 5.1.2 bring profession into disrepute.

Barristers 12. Barrister must not engage in conduct which is: -

a) dishonest or otherwise discreditable to a barrister; b) prejudicial to administration of justice; or c) likely to diminish public confidence in legal profession/administration of justice/otherwise bring legal profession into disrepute.

Legal Services Commission s591 LPA to provide users of legal services timely, effective, fair means of redress for complaints. Promote, monitor enforce standards of conduct in provision of legal services. Fundamental purpose: help promote public confidence in legal system, administration of justice and rule of law. Practitioner panel (barristers & solicitors) = one lay member, one practitioner with tribunal (judicial member) s607 LPA. Legal Practice Committee s621

Despite being in relationship of confidence with lay client, first duty of barrister is to court. Duty to instructing solicitor of client is secondary. When conflicting duty to court is paramount (D’OrtaEkenaike v Victoria Legal Aid). Lawyers duty to court paramount (Giannarelli v Wraith). S227 LPA Binding nature of legal profession rules o Binding on Australian Legal Practitioner, AU registered foreign lawyer and gov legal officers o Failure to comply may = unsatisfactory professional conduct (falls short of standard of competence & diligence that member of public is entitled to expect of reasonably competent ALP s418 LPA or professional misconduct (substantial or consistent failure to reach/keep reasonable standard of competence & diligence + justify finding that not fit & proper person to practice) s419 LPA.

Extending liability to associates -

Chinese Walls o Usually liability extended beyond lawyer to entire firm. In exceptional circumstances erection of ‘Chinese Walls’ may protect others from liability where matters unrelated

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and no risk of detriment to complainant (Australia Liquor Marketers v Tasman Liquor Traders Pty Ltd). Geographical distance o Geographical separation of lawyers acting in matter cannot itself void conflict (Unioil Int’l Pty Ltd v Deloitte Touche Tohmatsu (a firm).

Two types of practice rules (Clyne) -

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Contravention rules o Regulating conduct – e.g. written rules re advertising, correspondence, retainer. Fundamental rules o Implied generally accepted standards of common decency and fairness e.g. not lie to judicial officer, not misled inferior court.

Applying for license/renewing license yearly (s67 LPA) Legal Services Commissioner v Nguyen: Practitioner claimed his offences of engaging in legal practice without current practicing certificate originated from oversight in failing to renew on time. Continued to practice for six months. Found guilty of professional misconduct. Various penalties imposed - order restraining ability to hold practicing certificate and limiting terms on which could seek further certificate. In relation to: -

Bankruptcy, serious offences, tax offences must provide Law Society Council/Bar Council (s67(3) LPA): o Within 7 days of happening of event:  Written notice that event happened o Within 28 days after happening of event:  Written statement explaining why (despite show cause event), person considers themselves fit and proper to hold local practicing certificate. o If breached = Professional misconduct (meaning in s419 LPA, conduct capable of PM in s420 LPA).

Values of Australian Legal Practitioner: Emotions Candour Detachment Fit and proper

Rehabilitation

Morals Integrity Confidence in law Connectedness with lawyer’s functions (Cummins) Trust

Honesty Fidelity Public interest

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Contrition (Repent) o Competence

Admission into practice Requirements for admission as lawyer s30 LPA -

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18 years of age Academic requirement Supreme Court (Admission) Rules 2004 r 6 PLT requirement – SC(A) Rules 2004 r 7 o

Suitability for admission s31 LPA -

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If holding certificate in contravention of condition applicable to certificate or while certificate suspended 1E) Whether person practiced law in foreign country  When not permitted under law  If permitted, under contravention of condition of permission. 1F) whether person is currently subject to unresolved complaint, investigation charge/order under:  Relevant law  Corresponding law  Corresponding foreign law 1G) whether person:  Subject of disciplinary action in other profession/occupation in Au/foreign country; or  as above + involved a finding of guilt 1H) whether person’s name removed from:  Local roll but has not since been entered  Interstate roll  Foreign roll 1I) whether person’s right to engage in legal practice has been suspended/cancelled in AU or foreign country 1J) whether person contravened, in AU or foreign country, law about trust money/trust accounts 1K) manager/receiver etc. is or has been appointed in relation to any legal practice engaged in by person; of this section 1L) order under act disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice 1M) currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner 

Fit & proper person o Suitability matters (must be appropriate) o Other matters court considers relevant o Supreme Court may admit despite suitability matter Suitability matters s9 LPA o 1A) person of good fame and character o 1B) is/has been insolvent or under administration o 1C) has been convicted of offence in AU/foreign country. Consider:  Nature of offence  How long ago offence committed  Person’s age when committed o 1D) whether person engage in legal practice in AU:  When note admitted to legal profession/not holding certificate  If admitted in contravention of condition of admission

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1N) matter declared under an Act to be a suitability matter. (2) A matter under subsection (1) is a suitability matter even though it happened before the commencement of this section. o

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Costs: -

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Pay application fees (Board's consideration of application $578.00 + Filing application in Supreme Court Registry $65.40) Legal Practitioners Admissions Board s657 LPA

Practicing when not entitled s24 LPA -

(1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty: 300 penalty units/2 years imprisonment Certification

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Each legal practitioner in practice in QLD must take out annual Practising Certificate: s45 LPA Have professional indemnity insurance: s353 LPA

S44(1) LPA Entitlement to practice in this jurisdiction. An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction. Also Government legal officers. Suitability to hold local practicing certificate (1) This section has effect for purposes of section 51 & any other provision of this Act where question of whether or not person is fit and proper person to hold/continue to hold, local practising certificate is relevant. (2) A regulatory authority of this jurisdiction, in considering whether person is, or no longer, a fit and proper person to hold local practising certificate, may take into account any suitability matter relating to person, and any of following, whether happening before or after the commencement of this section— ... (g) other matters the authority thinks are appropriate.

Inherent Power of Supreme Court -

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Supreme Court has inherent common law jurisdiction over all lawyers (barristers and solicitors). This is preserved by the LPA S13 LPA Inherent jurisdiction of Supreme Court(1) The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners is not affected by anything in this Act. (2) The inherent jurisdiction and power— (a) extends to an interstate legal practitioner as mentioned in section 78; and (b) may be exercised by making any order that a disciplinary body may make under this Act. Client Duties:

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Tyrell v Bank of London (1862) 11 ER 934: principal does not have a proprietary interest in a secret commission or bribe. Sims v Craig Bell and Bond [1991] 3 NZLR 535: Solicitor arranged advance through firm for client and used proceeds to credit account of another person to whom owed money. No informed consent given by client. Becoming personally interested in the dealing, lawyers put it out of their power to give disinterested advice. Hospital Products Ltd v US Surgical Corp. (1984) 156 CLR 41: Critical feature of relationships is that fiduciary undertakes/agrees to act for/on behalf of/in interests of another person in exercise of power/discretion which will affect interest of that person in legal or practical sense.

What a fiduciary must/must not do: Law Commission for England and Wales, Fiduciary Duties and Regulatory Rules (Report 236, 20 December 1995). -

must not risk conflict between own interests and those of beneficiary. must not profit from position at expense of beneficiary.

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owes undivided loyalty to beneficiary; must avoid position of conflicts between duties owed to two beneficiaries. must make available to customer all information that is relevant to customer’s affairs. must only use information obtained in confidence from beneficiary, for benefit of beneficiary and must not use it for his own advantage, or for benefit of any other person. Side note: considering impact of actions on justice, integrity of legal system + preservation of relationships + act morally.

Duty to the court

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Mitigating matters when professional misconduct -

ASCR 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Solicitor/Client relationship -

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ASCR 4.1 A solicitor must also: ASCR 4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client; ASCR 4.1.2 be honest and courteous in all dealings in the course of legal practice; ASCR 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible; ASCR 4.1.4 avoid any compromise to their integrity and professional independence; and ASCR 4.1.5 comply with these Rules and the law.

Honest & Courteous Legal Profession Complaints Committee v in de Braekt [2013] WASC 124: female solicitor was disciplined for intemperate allegations against another lawyer, despite having had honest belief that she had reasonable basis for making them. She was recently struck off. LSC v Michael Vincent Baker [2005] LPT 002: Competent, diligent and prompt

LSC v Veneris [2002] NSWADT 135: three complainants lodged complaints about practitioner's failure to transfer file, failure to commence personal injury litigation and misleading clients. During investigation became apparent that practitioner had misled Commissioner and failed to comply with notice to provide information and documents to Office. Commissioner initiated these as additional complaints. Tribunal found practitioner’s name should be removed from roll.

Law Society of New South Wales v Witherdin [2004] NSWADT 237 (Administrative Decisions Tribunal): Breach of s.61 of LPA for 18 months. Mislead client and fail to carry out instructions. Unsatisfactory Professional Conduct and failure to respond to correspondence. Delay in honouring undertaking. Law Society of New South Wales v McElvenny [2002] NSWADT 166: mitigating matters to be considered when charge of professional misconduct: o demeanour of the person; o honesty at the hearing; o openness and candidness of person; o character references and testimonials; o that conduct was isolated and not systematic course of conduct; o the openness with investigating body during investigation process. o NOTE: HERE ALSO INSTRUCTED TO TAKE AND PASS ETHICS PASS AT COLLEGE OF LAW.

Client instructions/obligations -

ASCR 8 Client Instructions: 8.1 – A solicitor must follow a client’s lawful, proper and competent instructions. Client’s obligations: pay as agreed & instruct properly ASCR 7 Communication of advice: 7.1 – Solicitor must provide clear + timely advice to help client understand and to make informed choices. 7.2 – solicitor must inform client of alternatives to fully contested adjudication.

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Must put all skills and knowledge at client’s disposal o Spector v Ageda [1973] Ch 30: Solicitor must put at client's disposal not only skill but also knowledge so far as is relevant, if he is unwilling to reveal knowledge to client, would not act for him. What cannot do is act for the client and at same time withhold from him any relevant knowledge that he has.

Costs disclosure S308 LPA 1. Law practice must disclose to client: -

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1a) basis on which legal costs will be calculated 1b) client’s right o i) negotiate costs agreement with practice o ii) receive a bill o iii) request an itemised bill o iv) be notified (s315) of substantial change 1C) an estimate of the total legal costs if reasonably practicable 1d) intervals, if any, at which the client will be billed 1e) rate of interest (if any) on overdue costs etc. 1f) litigious matter, then estimate of o i) range of costs that may be recovered if client successful in litigation o ii) range of costs that may be ordered if client unsuccessful 1g) client’s right to progress reports 1h) details of person whom the client may contract to discuss the legal costs; and o i) avenues open to client in the event of dispute in relation o ii) costs assessment under division 7 o iii) setting aside of costs agreement under s328 LPA 1j) time limits to taking action under paragraph ‘i” 1k) law of this jurisdiction applies to legal costs 1l) info about client’s right: o i) to accept under corresponding law written offer to enter into agreement with law

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practice that corresponding provisions of the corresponding law apply to the matter ii) notify under corresponding law, and within time allowed by corresponding law, the law practice in writing that client requires corresponding provisions of corresponding law to apply to the matter.

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How/when cost disclosure must be made s310 LPA How and when must disclosure be made to a client -

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1) Disclosure under s308 to be made in writing before, or as soon as practicable after, the law practice is retained in the matter 3) Disclosure made to person before law practice is retained in matter is taken to be disclosure to client...

Exceptions to requirements for disclosure s311 LPA Exceptions to requirement for disclosure -

1) Disclosure under s308/309(1) not required to be made in any of following circumstances: o a) if total legal costs in matter, excluding disbursements, not likely to exceed $1500* exclusive of GST or, if higher amount is prescribed under regulation, the prescribed amount... o b) if—  i) client received 1 or more disclosures under s308 or 309(1) from law practice in previous 12 months; and  ii) client agreed in writing to waive right to disclosure; and  iii) principal of law practice decides on reasonable grounds that, having regard to nature of previous disclosures and relevant circumstances, further disclosure is not warranted... o c) if the client is—

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i) law practice or Australian legal practitioner ii) public company, subsidiary of public company, large proprietary company, foreign company, subsidiary of foreign company or registered Australian body, each within meaning of Corporations Act; iii) a financial services licensee

Failure to disclose S316 LPA Effect of failure to disclose -

1) If law practice not disclose to client/associated third party payer anything required, client/associated third party payer need not pay the legal costs...

Recovering costs s319 LPA On what basis are legal costs recoverable -

1) Subject to division 2, legal costs are recoverable o a) under costs agreement made under division 5 or corresponding provisions of corresponding law; or o b) if paragraph (a) does not apply—under applicable scale of costs; or o c) if neither paragraph (a) nor (b) applies— according to fair and reasonable value of legal services provided.

Costs agreements s322 LPA Making costs agreements -

1) A costs agreement may be made between o a) client and law practice retained by client; or o b) client and law practice retained on behalf of client by another law practice; or o c) law practice & another law practice that retained law practice on behalf of client; or o d) law practice and an associated third party payer.

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2) The costs agreement must be written/evidenced in writing.

323 LPA Conditional costs agreements -

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1) Costs agreement may provide that payment of some/all of legal costs is conditional on successful outcome of matter to which costs relate. 2) Conditional costs agreement may relate to any matter, except matter that involves criminal proceedings or proceedings under Family Law Act 1975 (Cwlth). 3) Conditional costs agreement— o a) must set out circumstances that constitute successful outcome of matter to which it relates; and o b) may provide for disbursements to paid irrespective of outcome of matter; and o c) must be—  i) in writing; and  ii) in clear plain language; and  iii) signed by the client; and o d) must contain statement that client has been informed of client’s right to seek independent legal advice before entering into agreement; and o e) must contain cooling-off period of not less than 5 clear business days during which client, by written notice, may terminate agreement. Uplift fee is additional amount under a costs agreement payable on successful outcome of matter that agreement relates to. Must not exceed 25% of fees otherwise payable.

Champerty s325 LPA Contingency fees are prohibited -

1) Law practice must not enter into costs agreement under which amount payable to law practice, or any part of amount, is calculated by reference to amount of any award/settlement or value of any property that

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may be recovered in proceedings to which...