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LAW320: Professional Conduct Summary notes TOPIC ONE: ROLE OF THE LAW AND LAWYERING -

Transition subject- requires you to look back, but also forward Duty to the court and administration of justice, not simply a duty to the client

What is lawyering? -

Analysing the law, finding the law through legal research, communication, need to counsel clients- act like and agent for the client Can also include Alternative Dispute Resolution (ADR) such as negotiation and arbitration Dealing with clients with the overarching duty to the court Solving problems for the client ‘Lawyering’ is the work of a specially skilled, knowledgeable, or experienced person who, serving by mutual agreement as another person’s agent, invokes/manipulates, or advises about the dispute-resolving processes of the legal system for the purpose of solving a problem/preserving one’s status quo of principal

Organisational structure -

Traditionally sole practitioner or partnerships i.e. no corporations Rise of chambers: group of lawyers come together and share costs – new trend of solicitors Lawyers can now incorporate – with some being listed on the stock exchange e.g. Slater and Gordon Have been changes in s257 in the Legal Profession Uniform law Act – the designated local regulatory authority may give a management system direction to a law practice if the authority considers it reasonable to do so: thus companies are given instructions for change

Change of environment National Competition Policy – 1970’s -

Lawyers self-regulated before this scheme introduced service – business imperative Shift to an industry – labelled lawyers as a business subject to the Trade Practices Act

Information technology -

Affects way lawyers operate e.g. documents electronically Incorporated into legislation Technological tools for new lawyers Reduces costs of legal service

Educated clients -

Individuals are more aware of their rights – can be due to this increased technology – access to information in their own homes

Human resources -

Focus on employee fee earning ability, managing staff Senior lawyers may not be able to manage their staff and thus HR assists Marketing – focus on clients as customers Brand name recognition

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Lawyers in society Is law a business or profession? Role of lawyers: Structural – service to the public – contribution to society with people acknowledging the law (looks at legal profession collectively) Conflict theory: (looks at legal profession collectively) – market control, knowledge/power – controlling the provision of their expertise, retain own knowledge and expertise kept to themselves, doing it for own self-interest Interactionism: sociology of everyday life – How individuals determine meaning and define themselves - Individuals have ‘choice’ and the context of an individual’s work is influential How lawyers interact – have a lot of choice on how they go about things

Both business and profession: Justice Hayne -

Both have always been present Cannot delude ourselves into thinking that the commercial element of practising law has only emerged recently – yet the balance appears to have changed Are they protecting society interest? Or their own values?

What is a profession? -

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A disciplined group of individuals who adhere to ethical standards and who hold themselves/accepted by the public as professing special knowledge and skills in a widely recognised body of learning Council of Law states law is a profession and a statement of ethics Lawyer professionalism is not a fixed set of values, consists of multiple visions of what constitutes proper behaviour by lawyers

E- Professionalism -

Development of an online persona portraying the use of a self in a way that demonstrates professional integrity Physical sense i.e. dealing with clients and now E-Professionalism, including your attitudes, actions and adherence to relevant professional codes of conduct

Future of Lawyering -

Is there a right balance? Business practices required to support the legal profession Billable hours – loss of self-esteem – diminishing emphasis on pursuing the public goof Public role of lawyering: pro-bono – work without charge: prioritises duty to the court and the administration of justice

TOPIC 2: CONCEPTIONS OF LAWYERING -

Rules do not always tell us what to do in certain situations- discretion is required Framework that tells lawyers how to act has exceptions to how layers are obligated to act in certain situations

How do lawyers make decisions? Personality traits Myers- Briggs Type indictor -

Either extravert or introvert Determines where on the scale a person is i.e thinking v feeling – judge v perception If prefer thinking – logical, fact finding lawyer – decisions don’t reflect personal values

Kholberg’s theory of moral development 

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Development over a person’s right – ultristic States we progress through three levels of moral thinking that build on our cognitive development Pre-conventional morality – conventional morality – post conventional morality Thinkers [MBIT] Extrinsically motivated Kholberg’s stage 4 – focus on law and order Maslow’s lower-level needs Rules to make decisions Feelers [MBIT] Intrinsically motivated Kholberg’s stage 6 – moral principles Maslows Higher level needs

Extrinsic/Intrisic motivation Maslows hierarchy of needs

Professional conduct rules -

First step for lawyers Criticised for minimum standards, lacks clarity and does not provide definitive answers for all situations

Zacharias -

Does not tell lawyers how to reconcile conflicts between their personal sense of ethics and the rules Nor do the codes speak to the issue of how participating lawyers should act as moral individuals when they believe the system is flawed

Law and consequences of values -

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What are the rules and what are the consequences? And to whom are they owed? i.e. consequences to the client Yet as Hazard states, there are ‘relevant others’ involved who need to be considered e.g. client’s family, business, public in general, the court system, other client, the alternative person who could have been serviced by the lawyer (e.g. if client takes up a lot of time) and political authority – person to whom the lawyer is accountable Thus consequences stem further then the client across from you Lawyers have a professional and ethical responsibility i.e. to act in their public role, promote justice and the values of fairness Former legal services commissioner Steve Mark – Ethical conduct more than applying the relevant practice rule and the impact of decisions on the preservation of relationships

Conceptions of lawyering Whilst following rules is relevant – if they are unclear as to how to apply them, further practices are involved Standard conception of lawyering -

Dominant approach Partisanship – Lawyer is to do everything they are permitted to do to achieve the goals of the client Zealous advocacy: all about the client and aim to achieve what they want – not looking at morals or that law is unjust, client is only priority Partisanship: lawyer is an agent to client – yet doesn’t breach rules of conduct Neutrality: no reflection of lawyers opinion of the justice of the cause – lawyer not liable morally for those acts Moral-tunnel vision

Alternative approaches to lawyering/Legal Ethics Achieves what the lawyer believes is a ‘good’ result, a moral product – one that upholds rights, but not at the expense of harmful consequences Responsible Lawyering -

Where professional codes are now set out – lawyers role in society Role in society as officers of the court

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Lawyers ethics governed by role of facilitating the public administration of justice according to law in the public interest Ensures integrity and compliance with the spirit of the law Lawyer is responsible to make law work as fairly and justly as possible May act as a gatekeeper of law and advocate of legal system against the client Requires lawyers to look after the soundness of the legal system – in litigating, providing legal advice and evaluating public policy issues

Adversarial Advocate -

All about the client – if they don’t take on a client, no one will Zealous Lawyer not responsible for consequences to society and other parties Tunnel-vision on client only Lawyer’s ethics governed by role as advocate in adversarial legal process and complex legal system – loyalty and non-accountability Duty is to advocate the client’s interests as vigorously as possible within the bounds of the law Extends beyond adversary rile to ensuring client autonomy in a complex legal system as required by the rule of law

Moral Activist -

‘feeling influenced’ Believe they are personally and morally accountable Created by David Luban who didn’t believe in serving the client Actively participate in law reform and moral counselling with clients Prioritises the ideal of justice above the client Moral philosophy and promotion of substantive justice define lawyers’ responsibilities Take advantage of their position to improve justice: public interest and law reform activities, and client counselling to seek to persuade client of the moral thing to do.

Ethics of care (relational lawyering) -

Feelings based – is this a step too far? Social role of lawyers is irrelevant Responsibilities to people, communities and relationships should guide lawyers as everybody else Preserving relationships and avoiding harm are more important than impersonal justice The goal of the lawyer-client relationship should be the moral worth and goodness of both lawyer and client Client and lawyers in dialogue about morals as collaborators, each explaining their views

Professionalism as an influence -

What lawyers do in accordance with their view of the role of the legal profession in society Can a person be who they please with professional influences i.e firm influences how you act and complete work Traditionally professionalism: discipline, knowledge, autonomy and use their skills to advance the good of the public – public service

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Commercialised professionalism – business oriented, performing expertly – has a focus on technical ability and entrepreneurial skills – economically profitable to clients – ensuring clients receives satisfactory service – moves away from public interest

TOPIC THREE: ADMISSION Business and profession? Comes down to community and individual values How lawyers are regulated is the focus of this topic Regulatory framework Uniform law Framework -

Legal services council – making uniform rules, can issue guidelines Lawyers robustly regulated to protect the public overarching body Uniform law – governs all lawyers Commissioner can issue guidelines For complaints – see Commissioner for Uniform Legal Services Regulation

NSW -

The Supreme Court is the main body responsible for lawyer regulation Lawyers as officers to the court Inherent power – Legal Profession Uniform Law S264 – jurisdiction of Supreme Courts

Legal Profession Admission Board -

Accredits law degree courses – rigorous process Australian lawyer – uniform law s6: "Australian lawyer" means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction;

Professional Bodies -

Law society of NSW NSW Bar Association Officer of Legal Services Commissioner: complaints and discipline NSW Civil and Administrative Tribunal [NCAT]: consumer matters, number of specific areas

Qualified to practice S9 Uniform Law – Purpose: (a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and (b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so. -

S9 holds the objectives to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so S10 prohibits unqualified entities S11 prohibits advertising of unqualified entities

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What is a qualified entry? An Australian legal practitioner with a practicing certificate : see chpt 3 part 3.3 of uniform laws S121 – employing disqualified or convicted persons – responsibility of the firm

Engaging in the legal practice -

What is the legal practice? S6 –includes practising law or providing legal service – not policy work Cornall v Nagle – doing something that the public might be adequately protected – only by those who have the necessary training and expertise in the law Council of NSW Bar Association v Davison : Barrister whose practising certificate had been cancelled and worked as a town planner – Held: provided advice that involved interpretation of law and legal rights or duties – the preserve of the legal profession

Admission -

Purpose to ensure that a person is fit and proper: S15 uniform law S16 – must be 18 and eligible (meet requirements of s17(1)(a) Public needs confidence in the process Person admitted becomes an officer of the Supreme Court National police check

Application -

Numerous conditions Academic misconduct – i.e. plagiarism and PLT course Uniform Law s9-11 sets out certain restrictions on legal practice – arguments for and against these restrictions on performing legal work i.e. uniformity as everyone on the same level, yet can judge a person of their past and discriminate against them

TOPIC FOUR: DISCIPLINE Monitoring lawyer behaviour -

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i.e. lawyer going on to be a practitioner S44 of the Uniform Law Rules relates to granting or renewing of Aus practicing certificates in respect of a financial yearly financial Robust – ensures still fit and proper – must disclose a statement – rule 10 of Legal Profession Uniform Admission Rules 2015 – Continuing legal education: Solicitors Rules (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015) 6.1 states: A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction. Barristers also have an annual requirement seen in rule 8 of Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015: Unless exempted in whole or

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in part by the designated local regulatory authority under rule 13, or unless a pro rata calculation applies under this rule, a barrister must in each CPD year engage in CPD activities sufficient to earn at least ten CPD points. Professional Discipline

Expectations Chpt 5 Uniform Laws ‘Dispute Resolution and Professional Discipline’ -

Complaints to legal services commissioner Aus lawyers are officers of the court Expected to continue to show themselves as fit and proper Expected to exhibit characteristics of integrity and trustworthiness Dispute resolution and protection of the public S260 – creates a scheme to protect clients of law, practices and the public generally

S260 states: The objectives of this Chapter are(a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. -

S265: a complaint may relate to any dispute or issue about any conduct to which this chapter applies S266: (a) any person or body may make a complaint

S267: (1) A complaint is made to or by the designated local regulatory authority. (2) A complaint must be made or recorded in writing and must(a) identify the complainant; and (b) identify the lawyer or law practice about whom the complaint is made (or, if it is not possible to identify the lawyer, identify the law practice concerned); and (c) describe the alleged conduct that is the subject of the complaint. S11 of the LEGAL PROFESSION UNIFORM LAW APPLICATION ACT 2014 states that a tribunal can be referred to S272: LEGAL PROFESSION UNIFORM LAW (NSW) – (discretion of Legal Services Commissioner – LSC) Time limits and making complaints (1) a complaint must be about conduct alleged to have occurred within the period of 3 years immediately before the complaint is made, but the designated local regulatory authority may waive the time requirement if satisfied that-

(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or (b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint. (2) To the extent that a complaint involves a costs dispute, the complaint must be made within the required period referred to in subsection (3), but the designated local regulatory authority may waive the time requirement if satisfied that(a) the complaint is made within 4 months after the required period; and (b) it is just and fair to deal with the complaint having regard to the delay and reasons for the delay; and (c) the lawyer or law practice has not commenced legal proceedings in respect of the legal costs. (3) For the purposes of subsection (2), the "required period" is the period of(a) 60 days after the legal costs become payable, except as provided by paragraph (b); or (b) if an itemised bill was requested in respect of those costs in accordance with section 187(2)-30 days after the request was complied with Dealing with complaints -

S276 – Preliminary assessment of complaint by LSC – looks at triviality S277: LSC can close the whole or part of a matter S278 – can suspend a lawyer Lawyers rights are seen in s279 (lawyer notification of complaint) and s280 (right of submission) S282 LSC or can appoint another qualified person S284: can refer matter to cost assessor

Type of complaints -

S268 – consumer in nature, disciplinary in nature S271- If both consumer and disciplinary – LSC should prioritise the consumer matter and may deal with it separately S296 – consumer definition (includes cost disputes) where lawyer deals with a client

Consumer complaints -

S286 – LSC cannot act until one party has attempted to resolve the matter and failed or unreasonable for the complainant to do so S287 – informal strategies S288 – mediation S290 – awards i.e. caution, apology, redo work, waive or reduce the fees, supervise cases S290(3) if fails to comply – becomes disciplinary matter

Consumer – cost disputes

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S291(1) : if costs < $100,000 or the amount in dispute is < $10,000, the LSC can deal with the matter If not, see S293 and 291(2) Should apply for costs assessment –LSC needs to deal with it first Cost disputes – if client is meant to pay and if client has already paid and made a complaint

Disciplinary matters S296- unsatisfactory professional conduct – within the practice of law – less serious than professional misconduct Rule 10 of admission rules – determining whether someone is fit and proper includes if they have ever had a disciplinary matter against them S297 – Professional misconduct S297(2) – standard determined according to admission criteria (rule 10 also) S298 – possible conduct capable of being both UPC and PM S299 awards: Awards for UPC (harsher than s290) -

Fine, condition or practice...