Professional Legal Practices \'17 PDF

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LAWS2013-NOTES 2017 2Table of Contents1 Importance of Ethics in Legal Education and Practice ........................................................................................................ 3 2 Access to Justice; Ethical Issues in Legal Practice and Legal Services Delivery .....................

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Table of Contents 1 Importance of Ethics in Legal Education and Practice ........................................................................................................3! 2 Access to Justice; Ethical Issues in Legal Practice and Legal Services Delivery .............................................................10! 3 Regulation of the Legal Profession – An Overview ..........................................................................................................14! 4 Changes in the Legal Services Market, the New Landscape and the Future of the Legal Profession/Practice.................17! 5 Admission to Practice and Application for Readmission ..................................................................................................18! 6 Discipline ...........................................................................................................................................................................26! 7 Communication ..................................................................................................................................................................34! 8 Interviewing: Theory and Practice.....................................................................................................................................36! 9 Duties of Representation and the Lawyer-Client Relationship ..........................................................................................37! 10 Duties to the Court ...........................................................................................................................................................44! 11 Duties in the Criminal Context ........................................................................................................................................58! 12 Duties in Tort ...................................................................................................................................................................65! 13 Immunity for ‘In-Court’ Acts or Omissions ....................................................................................................................67! 14 Diversity in the Legal Profession and Legal Practice, Intersectionality and Women and the Legal Profession .............68! 15 Confidentiality .................................................................................................................................................................72! 16 Client Legal Privilege/Legal Professional Privilege ........................................................................................................78! 17 Conflicts of Loyalty and Interests: Lawyer-Client Conflict, Client-Client (Concurrent) Conflict..................................83! 18 Conflicts of Loyalty and Interest: Acting Against a Former Client (Successive) Conflict .............................................89! 19 The Future of the Legal Profession & Practice: What are the Ethical Challenges? ........................................................91!

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1 Importance of Ethics in Legal Education and Practice Ethics - Disjuncture between legal prescription and ‘public morality’, e.g. duty of confidentiality dictates nondisclosure of information where the public would deem morally obliged to do so - To speak of greater level of honesty and integrity as indicia of ‘higher’ standard of ethics devalue the absoluteness of the concepts (a person who is partially honest can equally be branded as dishonest or lacking integrity) - ‘legal ethics’ usually not associated with philosophical ethical systems – it will not lead to easy answers or eliminate the dilemmas a lawyer face Professionalism - Special Skill and Learning o monopoly on provision of legal services o restrictive practices prevent vigorous competition o opening up some simpler areas for non-lawyers? (e.g. Legal Services Act 1997 (UK) – accounts to undertake probate work; Ontario paralegals for small claims matters) - Public Service o clients are in position of trust as they cannot themselves evaluate quality of service o practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good o There is a call for a move from ‘one size fits all’ set of professional rules to a more contextual regarding the nature of relevant practice - Self-Regulation or Autonomy o people with expertise to be entrusted with a substantial measure of control over the services and the working conditions o autonomy without accountability? à external control o independent and outside profession o NSW: § Legal Services Commissioner § Legal Profession Uniform Law (Legal Services Council, Commissioner for the Uniform Legal Services Regulation, Admissions Committee) Changes in Societal Attitudes and Perceptions - Consumerism - Regulatory Trend – Competition Law v Mercantilism (‘self-fulfilling prophecy’) - Lawyer dissatisfaction - Impact on ethical behaviour? Sources of Lawyers’ Professional Responsibility - General law: contract, duty of care in tort, fiduciary law, confidentiality (contract or equity), legal professional privilege, duties to third parties, lawyer’s paramount duty to Court - Statute (Model Laws) o enable integrated delivery of legal services at national level to meet demand o streamline State and Territory regulation o enable national and international competition to increase investment o encourage competition leading to greater choice for consumers - Professional Rules o expresses the profession’s collective judgment as to standards expected of its members o provide lawyers with guidance to how to resolve dilemmas o as a PR document that highlights that lawyers view their responsibility seriously o NSW: did not follow recommendation of Law Reform Commission 1979 to create a code o Should it be positive or aspirational, brief, detailed? § Positive rules: lawyers find ways to circumvent § Aspirational: not objectively quantifiable terms o Rule-Commentary Approach? § commentary as aid not as rule (US); commentary contextualise the rules and form part of ethical standard (CA)

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§ concerns: inconsistencies, given less scrutiny, long, leads to litigation, encourage legalistic not ethical approach, quickly become out of date without funded body monitoring and updating § Australia Law Reform Commission: develop common service ideal, offer better guidance for lawyers, clarify rule in particular circumstances

Asimow et al (2005) - Background: o legal realists have overstated the influence of popular culture on perception of law and lawyers o concerned with how first year law students as conscious being reflecting on law and lawyers o correlation between student background and perception of law and lawyers, and to examine the role of popular culture within the process o ‘cultivation effect’: influence of media exposure on a consumer’s conception of social reality (store of information, beliefs and attitudes o ‘active audience’ paradigm – ‘uses and gratification’ approach: audiences are active producers of meaning from within their own cultural contexts - Public opinion of lawyers o public opinion of lawyers below other professions § Many people distrust lawyers because their assigned task is to represent and advise one party in a potentially adversarial situation o drop in prestige, little confidence in people running law firm; dissatisfaction with lawyers’ work; perceived as well-paid o cf. Germany: lawyers are officially ‘organ of jurisdiction’ (‘Organ der Rechtspflege’) – more favourable than other professions; not as private entrepreneurs - Findings: news and popular culture media more helpful than having lawyers as family and friend § cognitive dissonance: Argentine students believe lawyers have low prestige and are dishonourable; yet large number have lawyers in family and friends – ‘presumably’ most of them believe in honour of friends and family? Thus they discount the influence of their lawyer friends and family in forming their general opinion of lawyers § Re low impact of popular culture in Argentina: Argentina has little indigenous popular culture about Argentine legal system – perceive American TVas radically different § Argentine as developing country (economic collapse) – American judicial system perceived as more resourceful à feel that news media about corruption etc in Argentine justice presents a more accurate picture o lawyers enjoy high prestige, but not regarded as very trustworthy or ethical; income level regarded as reasonably merited o students draw to the largest extent on news sources for their views on law and lawyers Observations o Relatively few significant correlations o the amount of legal popular culture consumed was positively correlated with law students’ opinion of the character of lawyers o

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Kirby (1996) ‘Legal Professional Ethics in Times of Change’ - promote re-examination of what it means to be a member of profession and a legal practitioner - enhancing level of service to a community with larger expectations but diminishing estimation of likelihood of fulfilment - tension between traditional features of the practice of law as a learned profession, AND dictates of modern business practices which imposes on lawyers obligations to address cost factors and socalled ‘bottom line’ considerations - Kronman, The Lost Lawyer: Failing Ideal of the Legal Profession o lawyers practices law in a different way than their forebears. Best graduates gravitate to huge and impersonal law firms, are put in a corner and time charging is the rule

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original ideals of wise and dispassionate advice to client are increasingly enfeebled by a mercantile attitude which effectively lets the client dictate the course of disputes o growing ascendancy of the economic view of law and a decline of law’s self-image as a helping profession o advocates: complete honesty turned into ruthless efforts to win o law schools pander market view of legal practice, negating teaching of legal ethics o appellate judges in the US become mere editors of opinion drafts presented to them by their clerks Dawson ‘The Legal Services Market’ o changes that give rise to Kronman’s concerns are detected in Australian legal scene o ‘national market for legal services’ – increasingly perceived as ‘commercial activity’ o members of Australian legal practitioners show high levels of dissatisfaction with professional life o increasingly narrowing effect of specialisation o loss of objectivity exacerbated by employment of marketing managers to attract profitable clientele o ‘strictly commercial and entrepreneurial approach to the practice of the law’ Chief Justice William Rehnquist o lawyering today is of higher quality today, and more efficient o product of new technology and approaches to office management o make more money but more dissatisfied o large firms cannot economically justify taking small clients o loss of royalty not only within firms but as between clients and legal firms – personal relationship and trust diminishing System of billable hours reward slow-witted lawyer; penalise the experienced, wise and efficient o

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Kirby’s Responses

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(1) Avoid nostalgia – technology, better educated community, expanded legal profession, les monochrome society with changing values à everything now under critical scrutiny à problems had always been there, just become more visible (2) Avoid exaggeration – don’t stereotype response from firms and practitioners to growth in size and change of practice (some as responses to globalisation and development of national economy) [Street v Queensland Bar Association]; problems are recurring in history (3) Change is inevitable – [Dietrich v R] (4) Change is for the better – Lord Justice Staughton in England recently remarked that some of the profession’s ethical rules appeared to have been simply protectionist and not at all concerned with the public interest or the proper administration of justice [Jarndyce v Jarndyce] (5) Legal Idealism Endures – Glendon’s (1994) response to Kronman: there are heros (6) Issues Ripe for Attention – large firms now encourage pro bono work and engagement with professional bodies o do require a cultivation of culture of loyalty and self-respect o reciprocal fidelity, honesty and dispassion (7) Teaching Legal Ethics – infuse law teaching with consideration of ethical quandaries (8) Need for Curial Vigilance o need to devise remedies suitable to rectify the wrongs found (9) Gather Data – on ethical defaults; for reforms (10) Spiritual Values – o ‘The malaise referred to is the void which is left in many lives by the absence of any spiritual construct and by the increasingly general rejection of any spiritual dimension whatever to life. By a life in the law that has no reflection on the amazing fact of existence and its brevity.’ o ‘For our God, King and country.’ o ‘Agnosticism… fast growing… The King… denigrated… And even country is rejected by many… All form of loyalty, within and outside the profession seem dismissed as hopelessly outdated and even mildly ridiculous. In a time when so many fundamentals are questioned, doubted, even rejected, it is hardly surprising that the ethics of the legal profession should also be doubted by some of its members and attacked by its critics.’ o easy to adopt purely economic/mercantile view of the law if you have no concept of the ‘nobility of the search for individual justice, of the essential dignity of each human being and the vital necessity of providing the law’s protection, particularly to minorities, those who are hated, even demonised, and reviled’

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W H Simon (2001) ‘Moral Pluck’ - Favourable portrayal of lawyers in popular culture – distinct from ‘conformist moralism’ exemplified by official ethics of the American Bar. It is a combination of resourcefulness and transgression in the service of basic but informal values - To Kill a Mockingbird – modern day ‘obstruction of justice’ for vindication of justice - ‘Conformist moralism’/elite moralism – categorical, authoritarian qualities of professional responsibilities (at 423) o rule of law; insensitivities to contingencies of particular situations o lawyers respect only norms that qualifies as formal law, and even when it results in injustice o civil disobedience (principled noncompliance with unjust positive law) is not tolerated o independent judgment penalised – ‘imposing own values’, ‘undermining established processes’ - Problems with elite moralism? o ‘Any minor violation of law undermines public confidence in legal profession’ à implies that elite conduct has a disproportionate influence on popular belief and that ordinary people perceive that conduct through categorical moral grids (e.g. impeachment proceedings) o when people disagree with it, proponents speculate public becoming dangerous indifferent to moral issues; or arising from a moral ‘relativism’ - Popular culture o public is less susceptible to elite influence; willing to see formally enacted norms as qualified by informal norms o ethics is not just a matter of duties to society, but of character and personal integrity o moral pluck transgression is individual matter; does not contribute to new, or more satisfactory institutions

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Objects

The object of these Rules is to ensure that barristers: (a) act in accordance with the general principles of professional conduct; (b) act independently; (c) recognise and discharge their obligations in relation to the administration of justice; and personal interest is about the position with your obligation to the Court and to the client; and whether it undermines the administration of justice

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(d) provide services of the highest standard unaffected by personal interest.

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Principles These Rules are made in the belief that: paramountcy. duty to the Court (a) barristers owe their paramount duty to the administration of justice; trumps the duty to the client (b) barristers must maintain high standards of professional conduct; competence: tort, contracts (c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, (equity) skilfully, bravely and with competence and diligence; (d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues; (e) barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients; and (f) the provision of advocates for those who need legal representation is better secured if there is a Bar whose members: (i) must accept briefs to appear regardless of their personal beliefs; e.g. client with unpopular (ii) must not refuse briefs to appear except on proper professional grounds; and forensic judgment is informed by expertise. cf. personal judgement/opinion

political view can’t find legal rep

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dealing with evidence forensically

(iii) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable.

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bureaucracy; reciprocity between jurisdictions

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Application of Rules

7 Other standards These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law (including the law relating to contempt of court).

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8 General A barrister must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister; (b) prejudicial to the administration of justice; or [conflict of obligations] (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. [e.g. overcharge, independence of lawyer from government interference; every lawyer is providing a commercial service but have to be mindful of their professional responsibilities]

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9 Other Vocation A barrister must not engage in another vocation which: (a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation; (b) is likely to impair or conflict with the barrister’s duties to clients; or (c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

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10 Use of Professional Qualification A barrister must not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, unless that use is usual or reasonable in the circumstances.

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Part 2

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1 Application and Interpretation 1.1 These Rules apply as the Legal Profession Conduct Rules under the Legal Profession Uniform Law to solicitors and Australian-registered foreign lawyers acting in the manner of a solicitor. 1.2 The definitions that apply in these Rules are set out in the glossary.

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2 Purpose and Effect of the Rules 2.1 The purpose of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules. 2.2 In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the Rules apply in addition to the common law. 2.3 A b...