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1 Lawyers place in society Lecture: o Public Perceptions -

Lawyer is a distorter of the truth Lawyer as a paper generator Lawyers as a sorcerer Lawyers as a hero The Ammoral Lawyer ( Wasserstorm) Lawyer as a friend (Fried) The Moral Lawyer (Shaffer)

Textbook chpt 1

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Attorney

The word attorney is a general word meaning” a person appointed by another to act to act in his place or represent him” The term is more commonly used in Australia to describe a person who holds specified legal powers on behalf of another. E.G a person requires their legal affairs to be handled by someone in their absence, such as being overseas, and can appoint and empower a nominated persons to act on their behalf for a specified amount of time and a specified purpose, for instance to sign documents relating to certain transactions known as “ the power of attorney” o

Power of Attorney -

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Enduring Power of Attorney -

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The power terminates upon expiration of specified period of time agreed upon or completion of the specified tasks. It may also terminate if the person giving the power, the donor, becomes incapable of making major decisions

It is possible to create a power of attorney in which will endure despite subsequent mental incapacity of the donor under the ( Powers of attorney act 1996) shown through the document known as the enduring power of attorney. It is common for spouses to give each other enduring power of attorney. It is important to note that the person who receives the power of attorney does not need to have special qualifications.

Differentiation between Australian Lawyer and Australian Legal Practitioner -

Australian Lawyer- A person who is admitted to practice by the Supreme Court of a State or territory Australian Practitioner – a person who is an Australian Lawyer and also holds a current practising certificate issued by an appropriate regulatory authority. The reason for this distinction is that some persons are admitted to practice but do not obtain or maintain current practicing certificate.

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Law holds a wide international scope, therefore in order to facilitate the internationalism of legal services, most jurisdictions in Australia make provision for the practice of foreign lawyers within Australia, Hence the need to differentiate the term Australian

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Taxonomies developed by Bloom -

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The Cognitive – two broad categories of objectives in this domain, namely knowledge and intellectual skills, such as those of research, reasoning, analysis and synthesis of ideas. The domain emphasises what we know and how we think The Psychomotor- this domain emphasises muscular or motor skills, mostly concerned with what we can do The affective- This domain is concerned with interests, attitudes and values. It includes the skills needed to build an empathetic and professional relationship with a client and those needed to respond appropriately to issue of professional responsibility and ethics.

Values Fundamental To The Legal Profession 1. The work done is skilled and usually requires a period of study or training 2. There is usually an association or collective organisation that regulates admission and seeks to uphold standards 3. There are often ethical responsibilities imposed by the association or collective organisation -

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Consequentialism -

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The second and third characteristics are often captured under the terms “ autonomy or self regulation” Another important characteristic is public service as the principal goal of the professional undertaking. The American Barr association provided another useful definition of a legal professional, as “ an expert in law pursuing a learned art in service to clients and in spirit of public service; and engaging these pursuits as part of a common calling to promote justice and public good” The MacCrate report identified the fundamental professional values in support of which lawyers should apply their knowledge and skills. The Values are; providing competent representation( the responsibility to clients), Striving to promote justice, fairness and morality( the public responsibility to the justice system), maintaining and striving to improve the profession ( the responsibility to the legal profession) and professional selfdevelopment ( the responsibility to oneself). Lawyers owe a duty of diligence and competence to clients. Unfortunately, the values themselves are often stated in the preambles, thus they are not legally binding statements of responsibility. This allows for a great deal of discretion.

Bases the correctness of an ethical choice on its outcome. It is most famously proposed by Bentham in his theory of utilitarianism in which dictates that a decision is ethical if it maximises pleasure and minimises pain for the most people ( e.g train situation- one life to save three)

Deontology -

Deontology states that there is an objective set of rules which govern ethical behaviour. In short, the ends do not justify the means. While these rules may be in line with the law, it is not necessary that they are.

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Virtue Ethics -

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Sources of professional responsibility ( The Law of Lawyering) -

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Virtue ethics is concerned with motivation. A decision is correct if it is motivated by virtue. If someone makes a decision because that is the decision demanded by love, patience or bravery, then they have made an ethical decision. If, on the other hand, they are motivated by hatred, rashness or cowardice then they have made an unethical decision.

The relationship between a lawyer and his/her client is governed by the general law legislation and professional practice rules promulgated by the society or association to which the lawyer belongs. These are the main sources of lawyers professional responsibility and collectively this is known as the law of lawyering.

Contract / retainers -

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“ The lawyers duty to a client only arises when the lawyer-client relationship has been established” ( Lamb A and Littrich J , Lawyers in Australia Federation Press, Sydney, 2007) The relationship is based in contract. Agreed fee and terms of condition, is entering into a contract with the client This contract is called a retainer and the general principles of contract law apply. A retainer may be oral or written or implied by conduct, and although it does not have to be written it is a good practice on the part of lawyers to confirm instructions in writing. It is now possible for barristers and clients ( and barristers instructing solicitors ) to enter into a contract of service. The barrister’s rules set out. A number of requirements that must be fulfilled by barristers who propose to accept instructions directly from lay clients such as – inform clients of disadvantages “which the barrister believes on reasonable grounds may, as a real possibility , be suffered by the client if the client does not retain an instructing solicitor”

Once a retainer exists, lawyers are under contractual duty to; -

Perform the contract – that is, carry out the client instructions and Exercise “ reasonable care and skill” in doing so.

The duty to exercise reasonable care and skill in the performance of ones instructions may be an express term of the contract or, in the absence of an express term of the contrary, the courts will imply such a term into the contract. The exact scope of duty depends on the terms of the retainer- depends on what the lawyer has contracted to do. If a lawyer breaches his/her contractual duty, he or she may be sued by the client for damages for breach of conduct. o

Tort -

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A client may bring an action against a solicitor or barrister for the tort of negligence. Lawyers owe their clients a duty to exercise reasonable care. This duty arises independent of a contract. For a variety of reasons, barrister and solicitor advocates have traditionally been immune to actions for negligence arising out of their presentation in cases in court. A barrister owes the client a duty to exercise reasonable care and skill in providing an “out of court” professional services, not in court.

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Equity- Fiduciary Relationship -

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Art of Argument Three key ways to argue -

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Argument based on personality Will count for nothing in law school Essential part of your argument as a lawyer Lawyers expected to meet minimum standards of court dress Appearance makes an argument for you Friendly smile, good posture and calm demeanour help make a convincing argumentdemonstrates that you are trustworthy

Pathos -

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Logic, appeal to sense a reason Generally the least effect form of persuading someone Skills are needed to develop a logical argument First skill = ability to formulate an idea or opinion Second Skill = research, evaluating relevant material Third Skill = analyse research (process of engaging your ideas and research, reports what you think of that author) Clear communications is important Argument must continue through each set paragraph

Ethos -

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The Relationship between a lawyer and his or her client. It exists between his or her client even without a formal retainer between them. A fiduciary is obliged to give undivided loyalty to the client, to avoid a conflict of interest, to discolose any personal interest in a matter to the client, to account for any benefit or gain obtained by the fiduciary and to protect the confidentiality of information confided by the client

Argument based on emotion Most influential form of argument Not something law teachers are looking for

Presenting your argument -

Writing should be clear and capable of easy interpretation Occasionally must convey your argument orally Many books teach how to master the art of public speaking which causes the main reason for nerves Key to great speeches are not contained in any formula

Professionalism -

Requirements Ethical code of conduct Specialised training and education

The lawyer’s duty to the community Simon Longstaff -

Consider the ramifications of the course of action and whether it will affect other individuals. Thick conception – consider broader implications Thin conception- Does not consider any broader implications

Client focused interviews -

Equal decisions made together Lawyer empowers the client and informs the client Moves away from the paternalistic lawyer dominated view of interviews Must better to have a clearer space to attend your interview Getting to know the client Putting the client at ease Understanding the clients needs Get basic administrative details Client needs to understand the lawyers role

Building Rapport - Engaging in small talk - Attending to the clients physical needs - Ensuring privacy - Attending to the clients emotional needs - Non verbal body language- eye contact - Always take notes Active Listening LARS-

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Listening Skills Acknowledging ( nodding etc) Reflecting and Reframing – Reflecting ( paraphrasing)- a concise response to the speaker which states the essence of the other content in the listeners own words OR a statement or question which reflects back to the client his or her own words Reframing – the likstener takes the content/ feelings that the speaker has communicated and gives it back to the speaker in a new set of words.

Week 3

Responding to Bias It is a lawyers task to minimise the negative impact of these biases in order to improve communication and client decision making. The following steps may assist the practitioner to minimise the negative impact of biases; -

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take these biases into account when dealing with clients and allow for common Patterns of bias. be patient with clients. it is best not to challenge a client until a solid working relationship between the lawyer and the client has been established. Lead clients to a discussion of benchmarks they might use to elevate their situation. There is evidence that teaching about bias is less effective than trying to assess the value of cases as objectively as possible. Do not give initial assessments based on incomplete information. Stress that early opinions are contingent an uncertain. Be careful of making offhand comments. give continuous assessments.

According to the English dictionary, problem solving means to find the answer to a question or difficulty in need of a solution . In the context of interviewing, problem solving has a special meaning. It is a process in which the client and the lawyer work jointly and cooperatively for the purpose of assisting the client to make an influence choice About the course of action that will best meet his or her interests. It is a process which requires both the experts of the lawyer in the contribution of the client. A problem solving process for clients Identifying the clients objectives and priorities; -

clients are predisposed to define their problems in terms of specific solutions that is they take up fixed positions. The first step in the problem solving process involves identification of the objects or interests underlying the positions adopted by clients. an interviewer can decode a client's positional statement by;

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Using reflective responses , Asking the client why particular position is so important , this will usually prompt a client to reveal the interest behind the position

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acknowledging the client's stated position as one possible option and then seeking out the interest behind it for example by asking the client how he or she thinks the position addresses a problem

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forcing the client to consider whether or not the stated position is a realistic and achievable one

These are the same Techniques used in a negotiation to respond to positional negotiators. During later stages of the interview it may be necessary for the interviewer to prevent a client for falling back into positions and to refocus require upon underlying objectives. Develop Possible solutions in a cooperative endeavour with the client;

Once the clients objectives have been identified and priorities clarified the interviewer must develop a range of possible solutions that both make the objectives of the client and represent the best of the alternatives available. Interviewers can assist their client to generate creative opinions by; -

reassuring clients that the environment is safe and criticism free i.e practitioners are not there to judge or must refrain from criticism reassuring clients are communications are confidential ( with some stated exceptions ) advising clients that, at this particular stage in the interview process , there is no need to commit to a particular option Being receptive to clients ideas and treating those ideas as valuable

4.1.3 and owe a duty to their client to deliver legal services competently diligently and promptly as reasonably possible Law 35- Barristers have to act buy all proper and lawful means the clients best interest to the best of the barristers skill and diligence and do so without regard to his or her own interest or to any consequences to the barrister or to any other person Law Of Negligence -

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Need to establish that a duty of care is owed – is their a reasonably foreseeability of harm. in established category lawyers don't have an unlimited duty with respect to the client on all matters The scope of the duty- retainer sets out the outer boundaries of duty of care. A clearly drafted retainer is very important. Specify the exact terms on the retainer, specify what is not included , revisit the scope of the retainer when appropriate, confirm in writing if the retainer needs changing. Whether the duty of care was breached - determine the standard of care of what a lawyer should have done. If a solicitor is above the standard of care then there is no breach.

Determining standard of care -

Common Law ( law that has been derived by judicial judgement- made by courts not statute) – Rogers v Whitaker (1992) 175 CLR 479 at 483 re the standard of care of a professional;

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“The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill”

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Therefore in regards to a solicitor; Exercise the care skill or diligence which would be expected of a reasonably competent legal practitioner working under similar circumstances

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Statute Legislation- Civil Liability Act 2002 NSW Sect 50

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1) A person practising a profession (‘A professional ‘)does not incur a liability in negligence arising from the provision of a professional service if it is established that the

professional acting in a manner that at the time the service was provided was widely accepted in Australia by peer professional opinion as a competent professional practise. -

2) Peer professional opinion cannot be relied upon for the purposes of this section if the. Court considers that the opinion is irrational

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3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more( or all) of those opinions being relied on for the purposes of this section

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4) Peer professional opinion does not have to be universally accepted to be considered widely accepted

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