LLB1197- Uniform law PDF

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Week 4 – Regulation & Discipline Topic

Statute Law

Common Law

Principles/Notes

Consumer Matters Including Cost Disputes

Mediation

s 269 Uniform Law

(1) "consumer matter" is so much of a complaint about a lawyer or a law practice as relates to the provision of legal services to the complainant by the lawyer or law practice and as the designated local regulatory authority determines should be resolved by the exercise of functions relating to consumer matters (2) "costs dispute" is a consumer matter involving a dispute about legal costs payable on a solicitorclient basis where the dispute is between a lawyer or law practice and a person who is charged with those legal costs or is liable to pay those legal costs Lawyer must attempt to resolve issues formally and may require parties to mediate

s 287, 288 Uniform Law

Discipline History/Legislature

s 270 Uniform Law

Time Limits on Making Complaints Including cost disputes

S 272 Uniform Law

Clyne v NSW Bar Association [1960]

A "disciplinary matter" is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct. Clyne: "the rules, which govern the conduct of members of a body of professional men, such as the Bar of NSW, may divided roughly into two classes. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. A complaint must be about conduct alleged to have occurred within the period of 3 years immediately before the complaint is made A complaint involves a costs dispute, the complaint must be made within the required period (60 days after legal costs become payable)

Kennedy v Council of Incorporated Law Institute

'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 affective the solicitor's professional character, and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his or her clients or the public… His fitness to continue on the roll must be judged by his conduct and conduct must be judged by the rules and standards of his profession' ‘Would be reasonably regarded as disgraceful or dishonourable by [the practitioner's] professional brethren of good repute and competency' (1) "Professional misconduct" includes: (a) Unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) Conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. "Unsatisfactory professional conduct" includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. A list of conduct that is capable of being unprofessional conduct or professional misconduct. Such as; Convicted offence, Breaking Uniform Rules, serious offence incl. dishonesty and tax offence. Failing to comply with the law.

Professional Misconduct Common Law Definition of PM

Allinson v General Council of Medical Education Statute Definition of PM

S 297 Uniform Law

Unsatisfactory Professional Conduct

S 296 Uniform Conduct

Conduct capable of Constituting Unsatisfactory Misconduct

s 298 Uniform Conduct

Penalties Common Law Example of Penalties

Unsatisfactory Professional Conduct – Summary conclusion of discipline matters by OLSC Determination of Penalties if Consumer Matters

Clyne v NSW Bar Ass [1960]

S 299 Uniform Conduct

S 290 Uniform Conduct

Brought the profession into repudiation  was struck off roll “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" If determined as UPC, consequences will depend on seriousness – local authority may impose following disciplinary orders; cautioning, reprimanding, apology, redo the work, counselling/training, pay a fine up to $25000, restrictions on practicing certificate. ‘If complaint is consumer made, may resolve by making a determination by what it feels is 'fair and reasonable in the circumstances'  such as apologies, cautioning, redoing of work, undertake more training, providing compensation

Consequences Determination by Tribunal – Consequences

S 302 Uniform Conduct

Cost of Tribunal

S 303 Uniform Conduct

Name struck of roll

RE Vernon; Ex Parte LS of NSW [1996]

If lawyer is guilty by Tribunal for UPC or PM this section outlines consequences that can be imposed on a lawyer by NCAT. Such as refrain from doing certain law, banned for specified period, struck off roll by Supreme Court, compensation NCAT must order lawyer against whom finding of UPC or PM is made to pay cost unless exceptional circumstances exist "When application is made to the Court to strike a solicitor off the roll for professional misconduct, the question for the 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…"

Striking of Roll Dishonesty

Legal Services Commissioner v O’Donnell [2015]

Misleading Court

The Council of Law Society NSW v Foreman [1994]

Recent example  misrepresentation of funds for a client with dementia charged $42000 over 3 years for non legal work and misappropriated funds Issues arisen to the Supreme Court in relation to both misleading the court and overcharging. Ultimately it was the misleading the court that lead to struck off the roll not the overcharging.

Overcharging Failure to disclose matters

S 86 Uniform Conduct S 90 Uniform Conduct

Annually a lawyer must renew their practicing certificate which includes disclosing information such as outlined in s 86 & 90. s 86 - Automatic show cause event  bankruptcy, conviction of serious offence/tax offence, event related to specified Uniform Rules s 90 - Designated show cause event  engaged in legal work outside of terms of condition, engaged in legal services not allowed, doesn’t have necessary insurance. There are mitigating factors for this such as; prior disciplinary record, remorse, illness/mental illness, substance abuse.

Week 5 – Lawyer/Client Relationship Topic

Statute Law

Duty to Court

Rule 3 Solicitors Rules

Other Fundamental Ethical Duties Important can be used in most answers

Rule 4 Solicitors Rules

Dishonest & Disreputable Conduct

Rule 5 Solicitors Rules

Common Law

Principles/Notes 3.1 - A solicitor's duty to the court and the administration of justice is paramount and prevails to the extend of inconsistency with any other duty 4.1 - A solicitor must also: (4.1.1) Act in the best interests of a client in any matter in which the solicitor represents the client; (4.1.2) be honest and courteous in all dealing in the course of legal practice; (4.1.3) deliver legal services competently, diligently and as promptly as reasonably possible; (4.1.4) avoid and compromise to their integrity and professional independence; (4.1.5) comply with these Rules and the law. 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: (5.1.1) be prejudicial to, or diminish the public confidence in, the administration of justice; or (5.1.2) bring the profession into disrepute.

Retainer Proof of Retainer Solicitors can choose client

Cab Rank Principle (Barristers) Cost & Cost Disputes Legal Costs ‘Fair & Reasonable’

Avoidance of Increased Costs to Client Unreasonable Cost – Disciplinary Action Cost Disclosure Obligations to Client

Rule 4.1.3

Rule 17 Uniform Conduct (Barristers) Uniform Law Pt 4.3

Legal practice must charge costs that 'are no more than fair and reasonable' Fair and reasonable determined having regard to matters at including: Level of skill, experience, seniority of lawyer involved; Complexity, novelty, difficulty of issues involved; Labour and responsibility; Urgency, time spent on matter, importance of docs Legal practice must not to act in a way that unnecessarily increases cost, including delay

S 173 Uniform Law S 207 Uniform Law

Unreasonable costs can be UPC or PM

S 174(1) Uniform Law

Must disclose: a) basis for costs' as soon as practicable after instructions are initially given' and provide estimate of total costs AND b) Any significant change to basis/estimate Must give 'additional information' - right to negotiate costs agreement and billing method; right to receive a bill and request itemised bill; right to seek assistance from relevant authority if cost dispute; sufficient info to make informed choice Must be in writing

S 174(6) Uniform Law

Conditional Cost Agreements

There is no obligation to take on a client. A solicitor must decline to take on a matter if not competent to act or if conflict between solicitor and clients interest. If don’t take on client, must refer to another solicitor ‘Servants of all yet none’ – must take on clients that come to them

S 172(1) Uniform Law

S 174(3) Uniform Law

Cost Agreements

'A professional engagement may be implied if the relevant relationship is established'

Un v Schroter [2002]; Vulic v Bilinsky [1983]

s 172(2) Uniform Law

S 174(2) Uniform Law

Consequences of Failing to Disclose Cost Information

McGeoch v Hendriks & Ors [2007] NSWSC 311

S 180(2) & S 185 Uniform Law

Must take reasonable steps to ensure clients understands - Not required if costs are less than lower threshold (currently $750) but practice may provide standard disclosure form with basis cost information a) any costs agreement becomes void; b & c) cannot claim costs or take action to recover costs until costs assessor has assessed the costs; d) capable of being unsatisfactory professional misconduct or professional misconduct Cost agreements are not required (unless client asks) but are strongly advised. Client has the right to a cost agreement and have negotiated must be in writing & is void if breaches requires re CA's or disclosure requirements

S 207 Uniform Law

If CA is found to charge on basis not fair and reasonable, can be UPC or PM

s 181 Uniform Law

Conditional Cost Agreement (e.g. 'no win, no pay') are OK under s 181, subject to requirements

S 178(1)(a-d) Uniform Law

S 179 Uniform Law

including 'plain language', right to independent legal advice, clear what successful outcome means, 5 day cooling off period Uplift fees up to 25% on conditional costs agreement are OK, subject to additional disclosure requirements Contingent cost agreements (i.e. % of settlement or award) prohibited

S 182 Uniform Law s 183 Uniform Law Duty to Advise Dalleagles Pty Ltd v Australian Securities Commission [1991]

Communication of Advice

Client Instructions

Rule 7 (7.1 & 7.2)

Rule 8 Equuscorp Pty Ltd v Wilmoth Field Warne [2004] VSC Cousins v Cousins [1991] ANZ

Obligation to Advise

Failure to Advise = Negligence

Micros v Diamond [1970] 92 WN (NSW)

Use of Appropriate Communication in Advising Not a mere mouthpiece Control

County Personnel (Employment Agency) Ltd v Alan R Pulver & Co [1987] 1 WLR 916 Rule 17.1 Law Profession Uniform Law Application Act 2014 (NSW) s 2, cl 2(1) Law Profession Uniform Law Application Act 2014 (NSW) Sch. 2, cl 3 Law Profession Uniform Law Application Act 2014 (NSW) Sch. 2, cl 4(2) Law Profession Uniform Law Application Act 2014 (NSW) Sch. 2, cl 4(1) & cl 5

'Where a ‘client instructs a lawyer to perform specialist legal services involving the exercise of professional skill, this attracts a duty, absent an express exclusion or restriction in the retainer itself, on the lawyer to give any advice reasonably necessary to protect the client’s interests whether or not expressly requested.’ 7.1 - A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement. 7.2 - ...must inform client...about the alternatives to fully contested adjudication... 8.1 A solicitor must follow a client’s lawful, proper and competent instructions. It is implied that a solicitor will follow client’s instructions  except in 'the exceptional position where the client's instruction contravenes a solicitor's supervening duty to the court or the solicitor ethical responsibilities…' “...a solicitor’s primary obligation is to give effect to the instructions of his or her client. It is not, unless specifically retained and agreeing to do so, to provide financial advice or psychological counselling. It would be undesirable for the law to impose burdens on solicitors which go far beyond the duties of their retainer and what might reasonably be expected within the scope of that retainer.” Conveyancing job, where the lawyer found a defect in title and did not advise client. Therefore, ended up in the Court of Negligence "Legal advice, like any other communication, should be in terms appropriate to the comprehension and experience of the particular recipient". Such as dealing with Age, Disability, Business inexperience, Lack of education or ignorance, NESB A lawyer must use their independent forensic judgements as they are 'not a mere mouth piece of the client' Not to provide legal services on a claim or defence unless there are reasonable prospects of success.

Need to do preliminary work to determine if case if worth pursuing

Practitioner to certify reasonable prospects of success on claim or defence

Lemoto v Able Technical Pty Ltd [2005] ??

Breach capable of UPC or PM and law practice can be subject to person costs order

Termination of Retainer Completion or Termination of Engagement

Rule 13.1 Solicitor Rules

A solicitor with responsibility for a client's matter must ensure completion of the legal services for that matter UNLESS; (13.1.1) The client has otherwise agreed; (13.1.2) the law practice is discharged from the engagement by the client; (13.1.3) the law practice terminates the engagement for just cause and on reasonable notice; (13.1.4) the engagement comes to an end by operation of law

Termination & Outstanding Costs

Rule 13.2 Solicitor Rules

Where a client is required to stand trial for a serious criminal offence, the clients failure to make satisfactory arrangements for the payment of costs will not normally justify termination of the engagement UNLESS the solicitor or law practice has: (13.2.1) served written notice on the client of

the solicitor's intention, a reasonable time before the date appointed for commencement of the trial or the commencement of the sittings of the court in which the trial is listed, providing the client at least 7 days to make satisfactory arrangements for payment of the solicitor's costs; and (13.2.2) given appropriate notice to the register of the court in which the trial is listed to commence. Clients Documents & Handover to another solicitor

Rule 14 Solicitor Rules

On termination of retainer and satisfaction of any solicitor's lien, clients documentation should be returned

Rule 15 Solicitor Rules

Must hand over essential documents if another solicitor undertakes to hold the documents subject to lien & gives reasonable security for costs.

Week 6 – Duty of Competence and Care (To The Client) Topic Statute Law

Common Law

Principles/Notes

Admission Admission Prerequisites

s 17(1) Uniform Law s 19 Legal Profession Uniform Admission Rules 2015

Academic & PLT prerequisites must be met for a s.19 compliance certificate. This includes: (1) Specified academic qualifications prerequisite - 3 year approved degree; (2) Specified practical legal training prerequisite - approved PLT or workplace training.

s 49 Uniform Law

Restricted practising certificates, such as if completed PLT student needs 2 years supervision

Rule 4 Solicitors Rules

4.1 - A solicitor must also: (4.1.1) Act in the best interests of a client in any matter in which the solicitor represents the client; (4.1.2) be honest and courteous in all dealing in the course of legal practice; (4.1.3) deliver legal services competently, diligently and as promptly as reasonably possible; (4.1.4) avoid and compromise to their integrity and professional independence; (4.1.5) comply with these Rules and the law. 'Conduct… that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australia legal practitioner' 'Substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence'

Duty to be Competent

s 296 Uniform Law s 297 Uniform Law Duty to Client – Client Focussed Action Client Action Choice

Astley v Austrust Ltd (1999) 197 CLR 1

As contract is based on retainer, if contract broken client has the option to choose action in contract or tort law. Consider:  Damages - Contract = expectation; Tort = reliance  Proof of elements, particularly loss - Contract = breach of term; Tort = causation  Limitation statutes - Contract = starts at breach; Tort = start at loss  3rd Parties - Contract = Privity; Negligence can be extended to 3rd Parties

Standard of Care – Common Law

Hawkins v Clayton (1988)

Duty of Care Goes Beyond Retainer

Hawkins v Clayton (1988)

HC confirmed that the nature of the lawyer/client relationship was such that breach could give rise to action in tort as well (ie damages for negligence) - duty of care to take such action or give such advice as necessary 'to avoid a real and foreseeable risk of economic loss being sustained by a client' 'The relationship of solicitor and client… is a relationship of proximity of a kind which may well give rise to a duty of care on the part of the solicitor which requires the taking of positive steps, beyond the specifically agreed profes...