Professional responsibility and Ethics PDF

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Professional Responsibility and Legal Ethics 200020 WEEK 1 – Professional Conduct READINGS- Chapter 1: reference pages 25-26 & 28-30 Concept of Professional Responsibility &Ethics · Ethics – between law and morality; sense of honesty and integrity; action that engenders greatest amount of favourable consequences –max utility – should prevail; professionally binding on lawyers · Professional responsibility – honesty in members of legal profession; unselfishness · Ethical framework – duty matrix: 1) court 2) Client 3) Fellow practitioners 4) Third parties/public 5) Admin of justice Sources of ethical obligations and professional responsibility - Legal Profession Uniform Law 2015 (NSW) - Legal Profession Admission Rules 2005 (NSW) - Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 - Legal Profession Uniform Conduct (Barristers) Rules 2015 - Case Law, in particular decisions of the NSW Administrative Decisions Tribunal (ADT) (AustLII) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 The Rules are divided into five categories under the following headings: 1. Relations with clients 2. Advocacy and Litigation 3. Relations with other Persons 4. Law Practice Management 5. Glossary Each of categories 1 to 4 is preceded by a statement of general principle, which is not intended to constitute by itself a Rule, but is intended to describe the underlying principles and objectives of the Rules which follow, e.g. Duties to the court: Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or

appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings which they give to the Court or their opponents. General statement as to the fundamental duties of solicitors 3 Paramount duty to the court and the administration of justice 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. 4 Other fundamental ethical duties 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 dealings in the course of legal practice; deliver legal services competently, diligently and as promptly as reasonably possible; 4.1.4 avoid any compromise to their integrity and professional independence; and 4.1.5 comply with these Rules and the law. Legal Profession Uniform Conduct (Barristers) Rules 2015 Objects 4. The object of these Rules is to ensure that all 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 (d) provide services of the highest standard unaffected by personal interest. Principles 5. These Rules are made in the belief that: (a) barristers owe their paramount duty to the administration of justice; (b) barristers must maintain high standards of professional conduct; (c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully 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 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; (ii) must not refuse briefs to appear except on proper professional grounds; and (iii) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable. · Core values – Carol Andrews - Litigation fairness, Competence, Loyalty, Confidentiality, Reasonable fees, Public service · LS Statement of Ethics as individuals and as a profession:        

We primarily serve interests of justice. We act competently and diligently in service of our clients. We advance our client’s interests above our own. We act confidentially and in the protection of all client information. We act together for the mutual benefit of our profession. We avoid any conflict of interest and duties. We observe strictly our duty to the Court and ensure the proper and efficient administration of justice. We maintain the highest standards of integrity, honesty and fairness.

Professionalism · Special skill and learning - fulfilling academic/practical requirements; entry restrictions foster public confidence those who practice law are worthy of that confidence due to their mastery of subject beyond understanding of general public · Public service as principal goal - Pecuniary success is not the only goal – service is ideal and earning of remuneration must be subservient to this purpose – Street CJ in Re Foster (1950) · Autonomy/self regulation – autonomy of legal institution for better serving of community – gov reg could interfere with justice mechanisms and state control could undermine independence of adversarial system Impact on profession of changes in legal landscape · Increased comp for legal services will promote public benefit in form of lower costs · Impact of competition law 

App. of comp. conduct rules – price fixing and third line forcing (condition of service supply – prohibited)

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Direct access to counsel – min cost, delay and duplication of services

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More flexible bus structures – comp ad

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Competition in public sector – private sector lawyers can tender for gov work – stimulates provides to reduce costs and increase quality of their service

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Impact of changes in social attitudes and perceptions

Consumerism – decrease in client loyalty, advice of professionals is less sacrosanct, consumer dissent Affluenza – consumption binge (many want more and more and want it now) Regulatory trend – treating profession as any other provider – max public good Lawyer dissatisfaction – higher rates of depression, anxiety, drug abuse, divorce and suicide due to excessive workloads, commercialisation, pressure to attract clients and competitive marketplace Impact on ethical behaviour – threat to profession claim to ethical status (monopoly of legal work, forced comp, > gov reg, excess supply of law grads) – type of work and colleagues attitudes Sources of lawyers' professional responsibility · General law –governs incidents of lawyers' r'ships with clients, court and 3rd parties – Lawyer-client r'ship is one of contract attracting DOC in tort, fiduciary, confidentiality · Statute o Model laws trend – historically little uniformity between jurisdictions – 2006 Model Laws aimed to encourage comp, enable integrated delivery of legal services, seamless practice and for Aus law firms to compete nationally/int. o Post model laws - lack of uniformity led to gov drafting uniform laws reg legal profession by May 2010 · Professional rules o Standard of conduct in disciplinary proceedings – collective judgment, determine misconduct matters, requisite standard of care in tort, reasonable expectations of parties in case of conflict of interest o Guide for action in specific case – aid lawyers answer questions/resolve dilemmas, justify actions, security o Demo of profession's commitment to integrity and public service – community trust and confidence Personal and Professional Conduct · Personal conduct – behaviour as a citizen, unrelated to clients & legal work

· Professional conduct – acting in the capacity of lawyer (or other professional) Core values and duties · Focus on loyalty, integrity, public interest · Fiduciary duty, duty to client · Fiduciary duty is an obligation to look after the interests of another, if necessary to the extent of subordinating his/her own interests, including avoidance of conflict between self-interest and duty and making unauthorised profit based on the fiduciary position · Ethical issue of conflict of interest (not client/client conflict, but rather client/lawyer conflict) · Often quoted words of Street CJ in Law Society of New South Wales v Harvey [1976]: ‘A conflict of interest which is avoidable, and ought to be avoided, is that which arises from a deliberate proposal of the solicitor that his client deal with him…In the absence of very special circumstances, a solicitor who promotes himself as the dealer with the client misuses his position.’ · Dal Pont: ‘The proscription (against conflict between interest and duty) is directed at avoiding a position where a lawyer may be tempted to favour self-interest, thus avoiding the appearance of conflict.’ (p. 210) · “Tempt me I’m a lawyer”. Current Rule in NSW Solictors Rules (2015) 10. CONFLICTS CONCERNING FORMER CLIENTS 10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. 10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 10.2.2 an effective information barrier has been established. Barrister Rules (2015) CONFIDENTIALITY & CONFLICTS

114. A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep the information confidential unless or until: (a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or (b) the person has consented to the barrister disclosing or usi WEEK 2 – ETHICS AND LAWYERING WEEK 2 – Ethics and Lawyering READINGS Chapter 2 – 3 LEGISLATION Legal Profession Uniform Law 2015 (NSW) N/A Legal Profession Uniform law Australian Solicitor’s Conduct Rules 2015 Section 4 – Other Fundamental Ethical Duties 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 dealings in the course of legal practice; 4.1.3 Deliver legal services competently, diligently and as promptly as reasonably possible; 4.1.4 Avoid any compromise to their integrity and professional independence; and 4.1.5 Comply with these Rules and the law. Section 9 – Confidentiality 9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: 9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or 9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, EXCEPT as permitted in Rule 9.2. 9.2 A solicitor may disclose information which is confidential to a client if: 9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2 the solicitor is permitted or is compelled by law to disclose; 9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;

9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence; 9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or 9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity. Section 17 – Independence – Avoidance of Personal Bias 17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable. 17.2 A solicitor will not have breached the solicitor's duty to the client, and will not have failed to give appropriate consideration to the client's or the instructing solicitor's instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to: 17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues; 17.2.2 present the client's case as quickly and simply as may be consistent with its robust advancement; or 17.2.3 inform the court of any persuasive authority against the client's case. 17.3 A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor's personal opinion on the merits of that evidence or issue. 17.4 A solicitor must not become the surety for the client's bail. Legal Profession Uniform Conduct (Barristers) Rules 2015 Duty to the Client 35. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s 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. 36. A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation. 37. A barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations, sufficiently to permit the client to give proper instructions, including instructions in connection with any compromise of the case. 38. A barrister must (unless circumstances warrant otherwise in the barrister’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

Independence 42. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable. 43. A barrister does not breach the barrister’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s wishes, simply by choosing, contrary to those wishes, to exercise the forensic judgments called for during the case so as to: (a) confine any hearing to those issues which the barrister believes to be the real issues; (b) present the client’s case as quickly and simply as may be consistent with its robust advancement; or (c) inform the court of any persuasive authority against the client’s case. 44. A barrister must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the barrister’s personal opinion on the merits of that evidence or issue. 45. A barrister must not in the presence of any of the parties or solicitors deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the barrister has special favour with the court. 46. A barrister may not make a payment or gift to any person by reason of or in connection with the introduction of professional work by that person to the barrister. 47. A barrister must not in any dealings with a client exercise any undue influence intended to dispose the client to benefit the barrister in excess of the barrister’s fair remuneration for the legal services provided to the client. 48. A barrister must not receive any money or property by way of loan from any client, the relative of a client or a business entity of which a client is a director, partner or manager, during the course of a retainer with that client unless the ordinary business of the client, client’s relative or the business entity includes lending money. CASE LAW N/A NOTES Ethics and Lawyering – Theories Virtue ethics · Assumes there are certain ideals toward which we should strive and develop our highest potential · What kind of person should I be? What will promote development of character? Deontology · Consequences of actions are not significant when it comes to determining what is right and wrong. · Deontologist will always keep promises, moral standards and always follow law Utilitarian/ Consequentialism

· Individuals should do whatever brings about best results in situation · Individual can use point system to est. which decision is more beneficial to most individuals Ethics and Lawyering – Approaches Steps in approaching an issue · Be aware of ethical issues that arise AND your own values/predispositions à consider stakeholders, conflict of interest · Consider standards that are available to help resolve ethical issues – make choices between them · Implement that resolution in practice à consider likely consequences and skills needed Five approaches in the decision making process 1. Adversarial Advocate · A lawyer should advance their client’s partisan interests with the maximum zeal · Traditional conception e.g. private practitioner · Most common and provides reasonably clear answer as to what to do in most situations · Anyone who follows it runs with the herd · Lawyers ethics governed by role as advocate in adversarial legal process and complex legal system · Concepts of partisanship, loyalty and non-accountability · Lawyer's duty is to advocate client's interests as zealously as possible within bounds of law (barest obligation to legality) · Extends beyond adversary role to ensure client autonomy in a complex legal system as required by rule of law · Disregard ethical considerations to fulfil their role as client’s advocate Disadvantages o Not focused on justice or public interest and predicated on both advocates equal capability o Negates moral view of individual practitioner o prescribed only barest obligations to legal framework and is therefore a recipe to sabotage o lawyers are expected to exploit every loophole in rules and take ad of every opponents tactical mistakes or oversights 2. Responsible Lawyer · Officer of court and trustee of legal system e.g. government lawyer · Lawyers ethics governed by role of facilitating public administration of justice according to law in public interest · Duty of advocacy is to ensure integrity of a compliance with spirit of law and that issues are not decided on purely procedural or formal grounds but substantive merits. · Lawyer is responsible to make more work is fairly and justly as possible. May need to act as gatekeeper of law and advocate of legal system against client to maintain integrity of legal system

Disadvantages o put lawyers in danger of not adequately serving clients goals and interests o allows little possibility that testing the limits of the law 3. Contextual · Legal...