LEGAL PROFESSION

Legal profession is a profession, and legal professionals study,

develop and apply law. Usually, there is a requirement for someone
choosing a career in law to first obtain a law degree or some other
form of legal education.
It is difficult to generalize about the structure of the profession,
because

there are two major legal systems, and even within them, there
are different arrangements in jurisdictions, and

terminology varies greatly.

While in civil law countries there are usually distinct clearly defined
career paths in law, such as judge, in common law jurisdictions
there tends to be one legal profession, and it is not uncommon, for
instance, that a requirement for a judge is several years of
practicing law privately.
Judge
Historically, this has been the first legal specialization. In civil law
countries, this is often a lifelong career. In common law legal
system, on the other hand, judges are recruited from practicing
lawyers.

Lawyer, Advocate, Attorney

Practicing law means advising and representing clients as a private
practitioner or in a law firm. In most countries, law graduates need
to undergo some sort of apprenticeship, membership in a
professional organization and a license.
The name for this profession is lawyer or attorney in most of
English-speaking world, and advocate in many other countries.
In civil law countries, but also some common law jurisdictions there
is one Law society for all lawyers who want to provide services to
the public. But in the United Kingdom and some of its former
colonies, there are two quite separate kinds of lawyers providing
legal services to the public.

Solicitors
Solicitors advise clients, draft contracts for them and represent
them in lower courts of law.

Barristers
Barristers, also called counsels, are court specialists, who
traditionally do not come into contact with their lay clients, but are
instructed by solicitors. There is only about a 10% of barristers in
most common law jurisdictions.

Jurist
People, who study, organize, teach, and through that also create
law, often working at universities, are called jurists. In civil law
countries, their role is greater, because they draft codes, which are
major laws that govern whole areas of law. In common loan
countries, the creation and interpretation of law has traditionally
been the domain of judges.

This is where legal ethics comes in. A commitment to legal ethics

involves a commitment to the introduction of Codes of Ethics or
Standards of Professional Practice. An example is the standards
reflected in the International Bar Association General Principles of
Ethics. However not all jurisdictions have Professional Codes and
not all of those that do give sufficient attention to their enforcement.
In any case, the lawyer who acts in accordance with a professional
code of ethics may still be engaging in unethical practice.
So why is ethics important to the practice of law?
First because lawyers are integral to the working-out of the law and
the Rule of Law itself is founded on principles of justice, fairness
and equity. If lawyers do not adhere and promote these ethical
principles then the law will fall into disrepute and people will resort
to alternative means of resolving conflict. The Rule of Law will fail
with a rise of public discontent.
Second, lawyers are professionals. This concept conveys the
notion that issues of ethical responsibility and duty are an inherent

part of the legal profession. It has been said that a profession's

most valuable asset is its collective reputation and the confidence
which that inspires. The legal profession especially must have the
confidence of the community. Justice Kirby of the Australian High
Court once noted:
The challenge before the legal profession....is to resolve the basic
paradoxes which it faces....To reorganize itself in such a way as to
provide more effective, real and affordable access to legal advice
and representation by ordinary citizens. To preserve and where
necessary, to defend the best of the old rules requiring honesty,
fidelity loyalty, diligence, competence and dispassion in the service
of clients, above mere self-interest and specifically above
commercial self-advantage.
Third, because lawyers are admitted as officers of the court and
therefore have an obligation to serve the court and the
administration of justice.
And finally because lawyers are a privileged class for only lawyers
can, for reward, take on the causes of others and bring them before
the courts.
The application of ethical principles to the legal profession
There are a number of applications of ethical responsibilities so far
as the practice of law is concerned. It is common to divide these
ethical obligations into duties owed to the client and duties owed to
the court. It should be noted that a breach of these ethical
obligations may lead to civil proceedings by the client, for example
an action for breach of confidence or an action for negligence; while

at the same time may be grounds for disciplinary proceedings

under the relevant Legal Practitioners legislation.

Legal ethics encompasses an ethical code governing the conduct

of persons engaged in the practice of law and persons more
generally in the legal sector.

LEGAL PROFESSIONAL ETHICS

All members of the legal profession have a duty to contribute

positively towards the administration of justice, in accordance with
the law, with competence and integrity. Whilst this duty affects
professional conduct within the solicitor client relationship, it is a
broad duty, and each member of the legal profession is entrusted to
support the independent and impartial administration of justice. It is
also important for legal practitioners to provide competent
assistance to the courts and to promote public confidence in the
court system. In carrying out their duties, legal practitioners are
required and expected to deal with other members of the legal
profession with courtesy and integrity.
It is important that all legal practitioners are well versed in
the Australian Solicitors' Conduct Rules, a copy of which is
available from The Law Society of South Australia (or via the link on
their website - above ). The following paragraphs serve to highlight
only some of the rules of professional conduct, making it important
for the duty solicitor to become acquainted with the other rules.

Standard of Conduct
The standard of conduct for legal practitioners is set out in
the Australian Solicitors Conduct Rules. A practitioner must not
engage in conduct which is dishonest or disreputable
[see Australian Solicitors Conduct Rules, Rule 5].
It is recognized that duty solicitor work is often performed under
pressure. That pressure can come from time constraints, the need
for multiple court appearances and the task of dealing with anxious
or distressed defendants. Nevertheless, the duty solicitor is held
accountable to the same standard of professional conduct as are all
legal practitioners [see Halliwell v Kraft [1990] SASC 2634; Milera
v Korber [1986] SASC 9474re judicial comment on duty solicitor
work]. Maintaining an appropriate standard of professional conduct
is particularly important when considering the advice to be given to
a defendant, or whether or not to act for a defendant [see Role of
Duty Solicitor Chapter and Guilty Pleas chapters]. It is also
important for the duty solicitor to keep comprehensive and accurate
notes of all dealings with defendants throughout each day. This
includes situations where the duty solicitor has decided he/she
cannot advise or represent a particular defendant [see Collie v
Police [2002] SASC 109; Hatcher v Police [2006] SASC 332re
judicial comment on duty solicitor work].
Defendants have successfully appealed convictions and penalties
due to a miscarriage of justice arising from duty solicitor assistance
[see Guilty Pleas chapter]. Unsatisfactory conduct or professional
misconduct can result in adverse judicial comment in subsequent
appeals and the duty solicitor may become subject to disciplinary
proceedings. A reputation for professional integrity and being

consistently reliable with the courts is fundamental to the duty

solicitors ability to perform as an effective advocate.
Duty to the client
Avoiding personal bias
Advancing the case
Allegations of serious misconduct made against other persons
The role of the legal practitioner when representing a defendant is
to look after his or her interests by assisting them to understand the
case against them, their legal rights and obligations, and the
consequences of the decisions they may make in relation to the
conduct of their matter.
Avoiding personal bias
In representing a client, a legal practitioner follow the clients lawful,
proper and competent instructions [see Australian Solicitors
Conduct Rules]. In addition, a legal practitioner must advance the
clients interest in accordance with the law, without conveying or
appearing to convey the practitioners personal opinion on the
merits of the case [see Rule 17 for specific obligations].
Advancing the case
A legal practitioner has a duty to provide clear and timely advice to
enable a client to understand relevant legal issues and to make
informed choices about actions to be taken during the course of a
matter. This involves informing the client about the alternatives to a
fully contested adjudication which may be reasonably available to
the client. Examples are, advising a defendant on the merits of his
or her case, particularly where there are no prospects of success,

and advice about a penalty discount on an early plea of guilty

[see Guilty Pleas and Sentencing chapters].
Allegations of serious misconduct made against other
persons
Where a practitioner receives instructions for submissions in
mitigation of a clients criminality, and those instructions
involve allegations against another person of serious misconduct,
the practitioner must not make such allegations against another
person unless the practitioner believes, on reasonable grounds,
that available material by which the allegation could be supported
provides a proper basis for it, and the client wishes the allegation to
be made, notwithstanding the seriousness of the allegation, and the
possible consequences for the case and the client if it is not made
out.
Conflict of interest
Former clients
Acting for more than one party
Practitioners own interest
When clients lie to the court or falsify documents
When clients disclose they will breach a court order
The following paragraphs outline situations where a duty solicitor
may be faced with a conflict of interest.
Former clients
Where a legal practitioner in the course of acting for a defendant
(former client) has acquired confidential information which is
material to a matter involving a new defendant, and it might be

reasonably concluded that such information, if disclosed, would be

detrimental to the interests of the former client, then there is a
conflict of interest and the legal practitioner cannot act for the new
defendant unless the former client has given informed written
consent, or an effective information barrier has been established
Acting for more than one party
A conflict of interest may also arise where a legal practitioner is
asked to represent more than one party involved in a particular
matter [see Australian Solicitors Conduct Rules, Rule 11.5].
Practitioners own interest
A practitioner must not act for a client where the practitioner is
aware that the clients interest in the matter is, or would be, in
conflict with the practitioners own interest or the interest of an
associate. [see Australian Solicitors Conduct Rules r 12.1]. For
example, a conflict of interest would arise where the victim of an
offence is a relative, a friend or an acquaintance of the legal
practitioner.
When clients lie to the court or falsify documents
A conflict of interest can arise in the course of duty solicitor work
based on the instructions of the defendant. Where a defendant
informs a legal practitioner that they have lied to the court, or have
arranged for another person to lie to the court, or have falsified or
arranged for another person to falsify a document which has been
tendered to the court, before judgment or a decision is handed
down, the practitioner must:

 advise the client that the court should be informed of the lie or
falsification, and request authorization to inform the court
[see Australian Solicitors Conduct Rules r 20.1.4]; and
refuse to take any further part in the case unless authorized by
the client to inform the court of the lie or falsification
Where the defendant instructs the practitioner to disclose the
information to the court, the practitioner must promptly inform the
court of the lie or falsification. Where the defendant refuses to
provide such instructions, the legal practitioner must refuse to take
any further part in the case, but cannot inform the Court of the lie or
falsification.
When clients disclose they will breach a court order
On occasions, the duty solicitor will come across a defendant who
instructs that they will disobey a particular court order. In this
situation, the duty of a legal practitioner is to advise the client
against such action and warn of the consequences. A legal
practitioner must not provide advice as to how such a breach
should be carried out or concealed, nor should a legal practitioner
inform the court or prosecution of the clients intentions without
authorization from the client [see Australian Solicitors Conduct
Rules r 20.3; r 20.3.3 for exceptions].
Officer of the court
As officers of the court, all legal practitioners are expected to act
with competence, diligence and candour when dealing with the
court. Conduct towards the court must be exemplary, and there is
an expectation of honesty and frankness in all court proceedings.
Towards this end, a legal practitioner must not knowingly or

recklessly mislead the Court [see Australian Solicitors Conduct

Rules r 19.1]. Whilst defense counsel is not required to disclose
information, he/she must not mislead the Court by providing false or
inaccurate information, nor fail to disclose material information
[see R v Stamos [2004] SASC 132 and Role of the Duty
Solicitor chapter].
A legal practitioner must correct any misleading statement
made by the practitioner to a court as soon as possible after
they become aware that the statement was misleading
[see Australian Solicitors Conduct Rules r 19.2]. However, a
practitioner is not taken to have made a misleading statement
to a court simply by not correcting an error in a statement
made to the court by an opponent or any other person
[see Australian Solicitors Conduct Rules r 19.3]. Whilst, as a
general rule, legal practitioners act in accordance with the
defendants instructions, there must remain a degree of
forensic judgment in following those instructions in order to
prevent submissions to the court which the duty solicitor
knows will deceive the court. Confidentiality and Legal
Professional Privilege
The solicitor client relationship is based on confidentiality and legal
professional privilege. These principles are based in the public
interest for trust and candour in the giving or receiving of legal
advice. A legal practitioner must not disclose to any person, any
information which is confidential to a client and acquired by the
practitioner during the clients engagement of the legal practitioner,
without the clients authorization [see Australian Solicitors Conduct
Rules r 9.1; and r 9.2 for exceptions]. Legal professional privilege
protects written material or documents (such as those in a clients

file, or the pink duty solicitor forms) from disclosure to any other
person, without the defendants consent. This also protects such
information from being subpoenaed or consequently used as
evidence.
Prosecution Policy Guidelines
In the courts of summary jurisdiction, for summary and minor
indictable offences, the prosecutor is a police officer, and not
usually a lawyer. The Director of Public Prosecutions (DPP)
prosecutes all major indictable matters in the superior courts, and is
represented by qualified lawyers. As legal practitioners, those
prosecutors representing the DPP are subject to the Australian
Solicitors Conduct Rules. In addition, they are guided in their
conduct of criminal matters by Prosecution Policy and
Guidelines which hold all prosecutors to the highest ethical and
professional standards and strives to achieve the most effective
and appropriate criminal prosecutions
The guidelines set out the role and obligations of the prosecutor.
The prosecutor holds a duty of fairness to the court, the community,
the accused; victims, witnesses and defense counsel [see
Prosecution Policy and Guidelines p 2]. The prosecutor has
discretion whether or not to proceed with a prosecution. There must
be a reasonable prospect of a conviction and admissible,
substantial and reliable evidence that a criminal offence known to
the law has been committed by the accused