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Law Lawyers and Society

Question One
TABLE of CONTENTS
Law Lawyers and Society.....................................................................................................................................1
Question One........................................................................................................................................................1
Introduction...........................................................................................................................................................3
Admission and Legal Education...........................................................................................................................7
Cost Issues..........................................................................................................................................................11
Duty to accept Work...........................................................................................................................................15
Terminating a Retainer........................................................................................................................................17
Lawyers Duty to Client.....................................................................................................................................19
Lawyers Duty to the Law..................................................................................................................................20
Lawyers Duty to Court......................................................................................................................................21
Duties of Prosecution and Defence.....................................................................................................................27
Negligence..........................................................................................................................................................30
Conflicts of Interest............................................................................................................................................37
Confidentiality & LPP........................................................................................................................................41
The Disciplinary Process....................................................................................................................................47

Introduction
Issues to consider throughout:
Legislation
Common law
Administrative Decisions
Self Regulation (practice rules and barrister rules)
Mediation and Arbitration
Contracts
Social Structure
Social Ethics
Personal Integrity
Remedies available:
Monetary damages (punitive and compensatory)
Restitution
Adjustment of bills and costs
Discipline (reprimand, fines, suspension, striking off)
Apology
Publicity & shame
Injunction
Negotiation as a form of remedy
Voluntary agreement to reduce the bill, do extra work, keep clients better informed
Require the practitioner to attend educational courses, to implement a better practice or
management system
Public service (pro-bono work)
Restricted practicing certificate e.g. can only work under supervision or the practitioner cannot
manage trust account funds

ETHICAL IDEALS
1.

Advocacy ideal
An ideal of devoted service to clients in an adversarial system where citizens need advice and
representation in order to enforce the rule of law. Emphasises duty to the client, regardless of what the
lawyer personally thinks. The principle is that a lawyer is not morally responsible for the client's
cause, but must act aggressively in advancing it. The zealous advocacy ideal is reflected in and
justifies the 'cab rank' rule.
Advantages:
Access to justice to all paying clients.
Access to justice to all, even repugnant clients - where would they go if this ideal didnt exist?
Every citizen has a right to put their case just as if they were arguing it themselves
No room for discrimination etc.
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Disadvantages:
Richer clients will get better lawyers (this undermines the access to justice argument).
Richer clients also create a culture of excessive adverarialsim, which raises costs of litigation.
Lawyers are expected and even encouraged to exploit every loophole, take advantage of all
mistakes and stretch every legal or factual interpretation in favour of their clients.

2.

Social responsibility ideal


Balances and limits the advocacy ideal. It comes from the ethical tradition of duty to the court, the law,
and considerations of justice. An ideal of fidelity to law and justice - the rule of law is not to be
undermined by clients who will pay a lawyer to do anything. Emphasises the duty to uphold the
integrity of the legal system, even if it conflicts with the duty to the client.
Advantages:
The lawyers skill will not be used as a weapon to do injustice.
It will help in the efficiency of the legal system (e.g. by lawyers not using delaying tactics etc.)
It will help spread justice evenly and limit the disadvantages of the advocacy ideal.
Disadvantages:
It goes beyond saying that lawyers have an overriding duty to the law - it suggests that lawyers
have some sort of duty to justice, to the integrity of the law.
Emphasising the social responsibility ideal puts lawyers in danger of simply becoming
governments' "yes" men, and not adequately serving clients' goals and interests.

3.

Public interest / Justice ideal


An ideal of willingness to defend people and causes who may need special help to attain justice
regardless of self-interest. Issues involved when people and causes cannot afford a lawyer (pro bono
work, legal aid, KLC). The justice ideal encourages lawyers to have their own convictions about what
would be justice and to seek out ways to act out those convictions as lawyers.
Advantages:
Promotes access to justice to the disadvantaged, not just to paying clients like the advocacy ideal.
It goes beyond the social responsibility ideal by proactively finding causes in the public interest in
which to act.
Fills in the gaps left by the market and government profession.
Encourages lawyers to pursue more political agendas for social interests.
Disadvantages:
The tradition of justice-oriented public service has some resonance with the idea of ethical
discretion in lawyering advocated by Simon (1988), that lawyers should only ever act for those
causes they personally believe in. But such an approach neglects the wisdom of the liberal
advocacy ideal which ensures anyone who can afford it can get representation rather than first
having to persuade a lawyer that their case is worthwhile.
The ideal of ethical discretion can also run the risk of ignoring the social responsibility ideal by
encouraging lawyers to act without any regard to law and justice when they do find a client they
believe in.

4.

Collegiality value
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An ideal of courtesy, collegiality, professionalism and mutual self-regulation amongst members of the
profession. About lawyers between themselves. Aims to promote confidence, mutual respect and
cooperation within the profession.
Advantages:
Requires respect and courtesy to other members of the profession
Requires honesty to bar associations and disciplinary bodies.
Encourages reporting of misconduct in order to sustain a self-regulating profession
Disadvantages:
Restrictive trade practices (but no abolished)
Can be elitist and generally aligned with capital interests, as a study has shown the associations in
Canada, UK and USA to be.
Exploitation of young lawyers who make the partners rich, but have little chance of becoming
partners themselves.
But, it could be rehabilitated to serve a more useful purpose - it could ask lawyers to take some
responsibility for remedying problems of discrimination and exploitation. This is what Parker calls
"turning the collegiality inside out". She concludes that the ideal of collegiality remains an
important ideal for lawyers if they are to nurture the ethics of justice.

5. Human rights ideal


an ideal that lawyers should maintain and uphold human rights. (Human Rights and Equal Opportunity
Commission; HREOC)
Other values include:
Stakeholders expectations, needs and desires (i.e. clients, courts, colleagues, the public)
General social ethics: justice, equality, rule of law, adversarial system, self-regulation and how
these specifically apply to lawyers.
Personal integrity: your personal values and beliefs
Other values: efficiency, profit, personal satisfaction, customer service, equality, access, freedom, selfdetermination, accountability

Admission and Legal


Education
1.Issues in factual scenario that can give rise to legal
remedies and disciplinary action
ADMISSION TO THE PROFESSION
In order to gain admission to the legal profession, the applicant must meet the following
criteria:
i.
ii.
iii.

Legal education
Sufficient legal training
Good fame and character

[The admission procedure]


The Supreme Court has the power to admit practitioners to the profession on the advise of the Admission
board (s4 LPA). In practice, it is the admission board who determines who is admitted, and who is not,
because the Supreme Court does not generally act contrary to the advise of the admission board.
The admission board has the power to make rules for admission to the profession. The admission board is free
to make rules with respect to the educational requirements for admission (s6 LPA), but must also ensure that
the applicant is of good fame and character (s11 LPA).
[What are the legal education requirements?]
An applicant may satisfy the legal education requirement by having either:
i.
A law degree
ii.
Completed 3 years legal study in a recognised Australian Jurisdiction
As part of the above legal education, the applicant must have competence and knowledge in the Priestly 11
areas:
Criminal law and procedure
Torts
Property Law (Old System and Torrens)
Equity (and Trusts)
Administrative Law
Federal and State Constitutional Law
Civil procedure
Evidence
Company Law/ Corporations Law
Professional conduct Law Lawyers and Society (and basic trust accounting)
Business Administration
[What is sufficient training]
1. Legal training (1-2 years), or
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2. College of Law (Stage one is a full time 15 week training course, and stage two is a 24 week
practical experience session)
[What constitutes Good Fame and Character?]
There is a presumption that the applicant is of good fame and character. This presumption can be rebutted
through the operation of the rules below
Dishonesty:
The courts consider the applicants frankness about any previous convictions, the gravity of the convictions
and the time frame between the conviction and now.
Re Davis- Where an applicant fails to reveal past convictions, such dishonesty is so grave as to be
incompatible with the continuance of admission into the bar.
Ex Parte Lenehan- Where an applicant discloses earlier offences and has been ever since well behaved,
then the applicant may be of good fame and character
Wentworth v NSW Bar Association: Where an applicant has done acts of dishonesty in the past which are
fundamentally inconsistent with the professional standards of a barrister, such an applicant is deemed to
not be of good fame and character. In this case, the applicant having made baseless and unsupportable
allegations of collusion and misconduct during litigation in the past was held to be fundamentally
inconsistent with the standards of the barrister
Political Activity:
Generally, mere support of radical political or religious views is not enough for an applicant to be deemed
unfit to be admitted to the profession (Re Julius)
What is required is the views being so strong that they render the applicant an unfit or improper person
because their character, reputation or likely conduct fall short of the expected standards of a practising
barrister (Re B). For example, in Re B, it was held that the applicant breaking the law in zealous pursuit of
their political goals made the person not of good fame and character.

READMISSION

TO THE LEGAL PROFESSION

In order to be readmitted to the legal profession, the applicant must:


i.
Establish that they are of good fame and character
ii.
Admit their prior mistakes, and show that they have rehabilitated
[Establishing good fame and character]
In attempting to be readmitted, the applicant must establish that they are of good fame and character, which is
a fairly weighty requirement. The following factors will weigh on the courts mind in deciding whether the
applicant is of good fame and character:
Conduct since removal: a practitioner demonstrating exemplary conduct (social utility in working in
another field and community service), impressive referrals and affidavits can sufficiently prove that an
individual can now be regarded as a fit and proper person to be restored to the Rolls; (Evatt v NSW Bar
Association)
Time since removal: If a practitioner is struck off and re-admitted too soon (i.e. 1-5 years), then it
amounts to going behind the decisions of courts (which struck them off). The quantity of time has to be
such that a career of honourable life for so long a time as to convince a court that there has been a
complete repentance and a likelihood of perseverance in honourable conduct.; (Evatt v NSW Bar
Association).
Gravity of the offence: Where the offences leading to the practitioner being struck off were committed
over extended period with deliberate intent resulting in severe losses, re-admission is unlikely. However,

where the offences are isolated, and without prolonged deliberate conduct, and where funds of clients has
been restored as much as possible it is likely that re-admission is allowed; (Kotowicz v LAWSOC NSW).
[Admission of guilt and rehabilitation]
Generally, an applicant must admit past guilt, and must demonstrate that he has rehabilitated
Lack of contrition: An applicant who is unwilling to accept the reasons for having been struck off the
rolls will not be readmitted (Kotowicz v LAWSOC NSW).
[Re-admission procedures]
Courts can impose conditions and limitations on licences when readmitting; (Kotowicz v LAWSOC NSW)

2.Values of legal profession under threat

Advocacy ideal under threat if the practitioners or barristers if admission criterion arent properly adhered
too. This problem is worse if there is a wrongful readmission of an unfit practitioner.
Social ethics that although over half the law school candidature are women, but women entering private
practice are finding it difficult to obtain same status or same pay as men

3.How the problems have developed in light of patterns in


the lawyer client relationship

Public interest how the lack of LLS teaching is a factor


Law schools traditionally failed to incorporate legal culture and the role lawyers play in society into their
courses
Further funding has become a problem since the law school by nature has more staff per student ratios
than other faculties, and small group teaching
Movement to limited full fee paying positions
Increased women in law schools (over 50%)
In a student driven market the course structure has changed significantly; i.e. with the advent of Business
Administration as a core subject

4.Broader reform policies to the profession, legal system


or firm (medium long term)

Practical legal training


Stronger application of equal employment opportunity and anti sex discrimination in the private arena
Law schools must acknowledge their importance to the community at large and not only their largely
skewed members. These values should be reflected in their admission policies and courses offered

Cost Issues
1. The law and possible sanctions for breach?
Costs are defined as:
1. fees (professional time, hourly charge),
2. charges (same as disbursements, doctors fees, anything not involving lawyers time),
3. disbursements,
4. expenses (same as disbursements) and
5. remuneration (money flowing in)
A practitioner must enter into a cost agreement
A practitioner must in writing (ss179 LPA) disclose to a client the amount of costs (s175) or the basis for
calculating costs plus an estimate of the costs of the work (ss175, 177). Such disclosure must be made before
the solicitor is retained, or if not reasonably practicable, as soon as practicable after being retained (s178).
Subject to certain exceptions
When the total costs (excluding disbursements) to be charged are reasonably estimated to be under $750
for an individual or a private company, or under $1500 for a public company, disclosure is not required
(Solicitors Rule 1.2)
Where there is already a cost agreement in place that is still in force (perhaps as a result of an earlier legal
issue), disclosure is not required. (Solicitors Rule 1.3.1)
Conditional Cost Agreements are valid
A practitioner may enter into a conditional cost agreement, where the amount of costs that are required to
be paid depends on the outcome of the case. Where the client is not successful, a conditional cost
agreement may require the client to pay no or less costs. However, where a client is successful, a cost
agreement may provide that a practitioner can receive up to 25% more than the costs as set out in the bill.
(ss186, 187 LPA)
A conditional cost agreement may exclude disbursement costs (s186 LPA)
Costs are not to be calculated based on the amount recovered in proceedings (s188 LPA- compare to
position in USA)
Consequences of failing to enter into a cost agreement
A solicitor who does not enter into a cost agreement cannot recover costs unless the bill has been assessed
by a cost assessor. (s182(1)(2) LPA)
Failure to enter into a cost agreement may constitute professional misconduct or unsatisfactory
professional conduct. (s182(4) LPA)
If the bill is below $2500, the client may seek mediation through the OLSC or the relevant council (s198B
LPA)
Even where costs on a bill have been wholly or partially paid, the client can still take the matter to the cost
assessor (s199 LPA)
The process of cost assessment
When considering a bill, a cost assessor considers: (s208A LPA)
i.
Whether or not it was reasonable to carry out the work performed
ii.
Whether or not the work was carried out in a reasonable manner
iii.
Fairness and reasonableness of the amount of costs to the work done

In assessing the fairness and reasonableness of the amount of costs, it is necessary to consider factors such as:
(s208B)
whether practitioners disclosed the basis of the actual or estimated costs
relevant advertisements made by practitioner
skill, labour and responsibility displayed on the part of the barrister or solicitor responsible for the
matters
instructions given and how they were adhered to
nature of the matter
quality of the work done
place where and circumstances in which the legal services were provided
time within which the work was required to be done
Where the cost assessor deems the bill of costs unfair or unreasonable, he is required to substitute an amount
that he deems to be fair and reasonable (s208(2) LPA). Where the assessor concludes that costs have been
incurred improperly or without cause, or have been waste by undue delay, the cost assessor may disallow
costs between the practitioner and the client (s208P)
How can an assessor help a client who has entered into an agreement?
A client can seek relief from an assessor when:
i.
The complaint does not relate to the rate charged or the amount charged (where it was specified in the
cost agreement)- s208C(1)
ii.
A particular term in the cost agreement is unjust - s208C(3).
In determining whether a particular term is unjust, section 208D prescribes that an assessor is to consider the
public interest and the circumstances of the case, as well as factors such as:
The relative bargaining power between the parties
Whether the provisions in the agreement were subject to negotiation
Personal attributes of the client (such as age, economic circumstances, educational requirements
Whether there is any unfair conduct alleged
What if the assessor finds that there is gross overcharging?
Where there is gross overcharging, the cost assessor may refer the matter to the Commissioner, who may take
up disciplinary action for professional misconduct or unsatisfactory professional conduct (s208Q(1) LPA)

2. Values under threat

Social responsibility values are undermined when a lawyer overcharges, there is a responsibility to clients
to charge fairly. The needs of the client and the work actually done are ethical considerations, which need
to be addressed.
Ethical dilemmas include charging the lawyers fees when the clerk did the work, charging
disproportionate amounts relative to work actually conduct.
Collegiality values undermined because the profession comes under scrutiny if lawyers over-charge giving
the profession a bad name.
Why should the lawyers be restricted from a huge mark-up when other professions are allowed. The
counter-argument links to the adversarial system.
Failure to enter into cost agreements can undermine values relating to clients expectations. If the client is
uninformed, their expectations may significantly differ from the lawyer.

3. How has the problem developed?


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Cost Agreements
Consumer awareness: Lack of consumer awareness as to law in relation to cost disclosure requirements
No absolute rule as to cost agreements- if no cost agreement, the law still allows practitioners to recover
as long as cost is assessed
Overcharging
Disciplinary model of self-regulation: Professional self-regulators failed to take action when consumer
complaints dealt with issues such as overcharging. The disciplinary model used was geared only towards
complaints dealing with fraud and dishonesty. See v2 p27
Educational restrictions: Educational restrictions to gain admission to the profession meant that supply of
legal services is fairly restricted, and so price can be kept relatively high.
Anti-competitive practices: Competition was hindered through professional practices in the legal services
market such as restrictions on advertising (lifted only in 1991) and monopoly on provision of certain
services (eg. Conveyancing monopoly lifted in 1992). Other rules such as two-thirds rule and scale fees
(both now abolished) also promoted anti-competitive behaviour.
Relationship issues: clients often develop a working relationship with a particular lawyer, and such
relationships mean that they are reluctant to switch
Commercial factors: Most large law firms have substantial corporate clientele base, who can afford high
costs and so firms can get away with such prices. Furthermore, practitioners in large law firms may have
pressure placed on them by management of those firms to generate income for the firm (see dicta in
Foreman case)
Adversarial system: The adversarial system promotes excessive work and charges Lawyers during the
discovery phase are required to leave no stone unturned, because if they miss vital evidence, they could be
found to be negligent. (v2, 235)

4. Possible reforms to remedy the situation


Cost agreement problem
Make cost agreements compulsory, i.e. effectuate the already existing rules
Increase consumer awareness of cost agreements, further education
Development of model cost agreements by OLSC to provide guidelines for practitioners
Overcharging
The legal profession have taken steps to remedy the overcharging problem:
Findings of professional misconduct in certain cases eg. Carol Foreman Case
Removal of many barriers to competition in the industry (see v2 p30)
Establishment of OLSC to deal with consumer complaints into overcharging
Disclosure requirements (eg cost agreements)
BUT more can be done to remedy the problem:
Increase consumer awareness of laws in relation to cost agreements (v2 p33)
Introduction of model cost agreements to help practitioners comply with the Act
Disbursements could be incorporated into the hourly charged or at more reasonable rates
Clear plain language in cost agreements
Itemization of the bill in terms of work done by clerks
Billing base level charges when work done was minimal. We recommend that small work done could
be added up rather than charging base levels each time.
Councils should pursue claims of overcharging more rigorously
Statutory capping of negligence actions against clients seeking to sue lawyers for failing to pursue
certain areas of their case.
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Duty to accept Work


PROBLEM: Representing repugnant clients
1. The law in relation to duty to accept work
1.1 Solicitors
Solicitors have no general duty to accept clients and only have a moral obligation
1.2 Barristers
The Cab-Rank rule
Barristers are under a general duty to accept a brief under BR 85 so long as:
i.
The brief is within the barristers capacity, skill and experience
ii.
The barrister is not already committed to a personal or professional engagement which would prevent
the barrister from giving the client his best services
iii.
The fee offered is acceptable
NB- a barrister cannot set an unrealistic fee to deter a potential client (BR 86)
BUT, a barrister MUST refuse a brief when
The barrister has confidential information about the other party to the brief (BR87
The barrister (on reasonable grounds) believes he will be called as a witness OR was a witness in a
previous trial (to which this brief relates) (BR87)
The barrister has a material financial or proprietary interest in the property (BR87)
Where the barrister, or a close relative has acted as a judge in earlier or current proceedings (BR87)
Where the barrister is already committed on that day (BR 90)
AND, a barrister MAY refuse a brief when
The brief is directly from a client without a solicitor intermediating (BR 91)
The time & effort required will seriously threaten the barristers practice (BR 91)
The barrister has reasonable doubts that the fee will not be paid (BR 91)
The barrister does not believe that the services of a SC are required (BR 91)
The solicitor offering the brief is on the current listing of solicitors produced by the Bar Association who
fail to pay barristers their fees (BR 92)

2. Values under threat?


Advocacy rule The exceptions to the cab rank principle and the generality of the Practice rules abrogates
much of the intended effect of the rules.

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Terminating a Retainer
PROBLEM: When can you end a retainer relationship?
1. The law in relation to terminating retainers
1.1 Solicitors
A practitioner can only terminate a retainer where:
i.
The practitioner and client have agreed (Solicitors rule 5.1)
ii.
The practitioner terminates the retainer for just cause and reasonable notice is given to the client
(Solicitors rule 5.1)
iii.
Where the client is legally assisted, and the grant of legal aid is withdrawn and the client cannot make
alternative arrangements for payment, so long as the practitioner gives the client reasonable notice
(Solicitors rule 5.3)
Just cause is defined as situations where there is:
The work required to be performed is excessive
The client wants lawyer to commit perjury
The client wants the lawyer to breach the law
The client wants lawyer to breach solicitor rules etc.
The performance of the work endangers the health of the practitioner
For a criminal trial, a practitioner who has accepted instructions cannot withdraw from proceedings on the
grounds of a costs issue (ie unreasonable payment of bills) unless the practitioner gives the client 7 days
notice to make satisfactory payments and gives the client enough time to make alternate arrangements.
(Solicitors rule 5.2)
1.2 Barristers
A barrister must return a brief with enough time to give another barrister to time to prepare the case (Rule 97).
A barrister must not return a brief to accept another (Rule 95) or to attend a social function (Rule 96) unless
permitted by the client.
A barrister must return a brief when:
i.
The barrister has reasonable grounds to believe that he will become involved in the case (Rule 101)
ii.
A member of the barristers family is to hear the case (Rule 102)
A barrister may return a brief when:
i.
There is a lack of cooperation by the instructing solicitor (Rule 99(a))
ii.
The barristers advice has been ignored or rejected (Rule 99(b))
iii.
The fees have not been reasonably promptly paid (Rule 99(c)
For a criminal charge, a barrister cannot withdraw unless either:
i.
The circumstances are exceptional & compelling and there is enough time for another practitioner to
take over
ii.
The client has consented
Advise from Bar Council
In the case of R v White, the barrister was purportedly dismissed by his client and received advise from the
Bar Council that he withdraw. The court ruled that it could not question advise given by the Bar Council.
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Lawyers Duty to Client


A solicitor is generally bound to follow a clients instructions because:
i.
The contract of retainer between lawyer and client
ii.
The lawyers role as agent of the client
iii.
The fiduciary duty between lawyer and client

1. Settlement
Generally, a settlement agreement will be made where the two clients come to a compromise. However, in
certain situations, settlement by the lawyers on behalf of clients will bind their clients to the agreement. Such
situations are described as follows: (Dominion Metals case)
i.
Express authority: where the client gives the lawyer express authority to settle, a client is bound by the
agreement that a lawyer enters into
ii.
Implied authority: Where a solicitor is on the court record as representing the client and the subject
matter of the settlement is not collateral to those proceedings, then the solicitor has implied authority
to settle
iii.
Ostentious authority: Where a solicitor could be perceived as having authority to settle a case from the
other side, he is deemed to have ostentious authority.
In Dominion Metals Pty Ltd v Shemmessian, a father went away before proceedings had commenced, giving
instructions to his solicitor to contact his son (who would subsequently attempt to contact the father) if he
needed to contact him. The solicitor came to a settlement agreement, having discussed it with the son. The
court found that the father was not bound by the agreement, as the solicitor (or the son) did not have express
authority to settle, and because the action was not on the court record, the solicitor did not have either the
implied or ostentatious authority to settle

2. During Trial
[Duty to obey general instructions]
A lawyer is under a general duty in court to act in accordance with general instructions given by a client.
Where a lawyer finds himself unable to act in accordance with such wishes, he must inform his client that
unless instructions change, he will step down. R v McLoughlin & Issacs
[BUT Barristers are not mere mouthpieces of client]
a barrister must not act as a mere mouth piece of a client or of the instructing solicitor and must exercise the
forensic judgements called for during the case independently, after appropriate consideration of the clients
and the instructing solicitors desires where practicable - Barrister rule 18
[AND are fairly free to determine how proceedings will be conducted]
During the course of proceedings, counsel has a fairly wide discretion as to how proceedings are to be
conducted, regardless of whether they were conducted in accordance with the wishes of the client or not. Only
flagrant incompetence of counsel is sufficient for the court to order that a miscarriage of justice has
occurred- (R v Birks)
[BUT proceedings are subject to a lawyers duty to the court]
(see Lawyers Duty to the Court)

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Lawyers Duty to the Law


A lawyer cannot assist a client in disobeying or breaking the law. If a lawyer assists a client in such a manner,
he exposes himself to the risk of disciplinary action, criminal charges or an action in misleading the court.
i.
ii.

Professional misconduct is fairly broad a concept, and has been found where a solicitor does not make
a personal gain and not guilty of any dishonesty, but should have been aware of the dishonesty of his
client.
A lawyer is guilty of criminal conduct if he aids, abets or counsels a client in breaching the law

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Lawyers Duty to Court


1. THE COMPETING DUTIES ON A LAWYER IN COURT
1.1 Hopeless cases, Unreasonable Expense or Delay
[No express provision for refusing hopeless cases]
Under the Barristers Rules, there is no express provision that allows barristers to refuse hopeless cases that
result in unreasonable delay and expense. Barristers Rule 100(d) allows a barrister under a conditional cost
agreement to return a brief where the barrister reasonably believes that the client has little to no chance of
success, but this principle does not operate until after a brief has been accepted.
[BUT practitioners can be liable for pursuing hopeless cases]
Practitioners should be wary of pursuing hopeless cases, however, because the courts have inherent and
statutory powers to punish practitioners who have taken on such hopeless cases. Under the Supreme Court
Rules (NSW), a practitioner may not be permitted to recover costs from his client, or may have to pay the legal
costs of the other party to the case. When a lawyers actions are deemed by the court to be negligence of a
serious character leading to useless costs being incurred by the other party, the lawyer may also be found to be
guilty of professional misconduct.
[Adverse cost orders]
The courts have the power to impose a cost order where the costs are incurred improperly or without
reasonable cause, or are wasted by undue delay or by other misconduct or default. (SC Rules (NSW), Pt 52, R
66).
Where the client has a perfectly good cause of action, but the action is inspired by ill-will towards the
defendant, then the practitioner is not liable for the expense incurred. (Clyne v NSW Bar Association). Even
when the lawyer advises that the case is hopeless but the client insists on having the case heard, this does not
mean that the lawyer is liable to pay costs (Ridehalgh v Horsefield,Sir Thomas Bingham MR).

1.2 Unsupported or Irrelevant Allegations


A barrister under the doctrine of legal professional privilege is free to make statements in court unhindered by
the prospect of any liability. Such freedom is restricted, however, by the Barristers Rules, which lay down
requirements for the responsible use of the court process.
[Making allegations or suggestions against another person]
Barristers Rule 35 states that a barrister in making allegations or suggestions against another person can only
do so if:
i.Such allegations are reasonably justified by material available to the barrister
ii.Such allegations are not made to harass the person, or to gain some collateral advantage for the barristers
client
[Making allegations on matters of fact]
A barrister can only make an allegation on a matter of fact if the barrister believes on reasonable grounds that
the factual material available provides a proper basis for doing so. (BR 36).

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Where the allegation involves criminality, fraud or other serious misconduct, a barrister may only make such
an allegation if the barrister believes that the available material supports such an allegation and that the client
wishes the allegation to be made, having consideration for the affect of the allegation on the case (BR 38)
[Professional misconduct]
Breach of the above Barristers Rules can constitute professional misconduct. In the case of Clyne v NSW Bar
Association, the practitioner made claims during cross examination alleging evil conduct on the part of the
witness, even though there was no evidentiary basis for the making of such claims. Such actions were in
breach of the Barristers Rules, and the practitioner was struck off the rolls.

1.3 Duty of Candour to the Court


In other words, the highest duty of a lawyer is that of fairness and candour to the court. Because of this, a
lawyer must not mislead the court in relation to the law or the facts.
[Misleading statements to the court]
A barrister must not make a misleading statement to the court (BR21). If a statement made to the court, true at
the time, later becomes false, the barrister has a duty to correct the statement (Barristers Rule 22)
[Authorities contrary to clients case]
A barrister is under a duty to inform the court of any authority which has not come to the attention of the court
but is contrary to the clients case (Barristers Rule 25)
[Failure to proffer factual evidence]
The barristers rules require that a barrister inform the court of any authority of law that is contrary to his
clients case, but no such requirement is made on a factual issue. Saif Ali still is good law in this area, and
provides that a barrister may passively stand by and watch the court being mislead by reason of its failure to
ascertain facts that are within the barristers knowledge.
[Where client commits perjury]
If a barrister discovers that a client has committed perjury, then Barristers Rule 32 provides that the barrister
must either step down, or receive permission from the client to inform the court of the lie and continue to
represent the client.

1.4 Interference with Witnesses and Other Parties


[Solicitors & the other party]
Solicitors Rule 18 provides that during a court proceeding, a solicitor must not confer with or interview the
other party to proceedings unless the other party (having been independently advised of the consequences)
decides to agree to the interview, or the other partys solicitor has agreed
[Barristers & the other party]
A barrister must not deal with the opposing client unless either the clients legal representative has agreed, the
barrister is enquiring as to who is representing the opposing client, or if the circumstances are urgent. (BR 54)
A barrister may confer and deal with the other party when the other party does not have representation.
(BR555)
[Witnesses]

19

Where a lawyer approaches an opposing witness and attempts to convince them to not testify, this may
constitute professional misconduct. In the case of Kennedy v Law Institute, the lawyer went to a witnesss
house and attempted to convince her that she should not testify as her testimony would harm his clients
chances and that his client desparately needed the damages as she was poor. This was found to amount to a
great impropriety affecting his/her professional character, and indicative of a failure either to understand or to
practice the precepts of honesty or fair dealing in relation to the courts, their clients or the public. The court
subsequently struck the lawyer off the roll.

1.5 Rudeness and Discourtesy


Rudeness and discourtesy in court may amount to contempt, (Lewis v Ogden).
Jumping the gun and filing for a motion knowing that the other side wanted to object may win a momentary
battle but in the end, those who engage in such tactics, at least without complete candour with the court run the
risk of needless costs and causing delay and inconvenience. (Garrard (t/a Arthur Andersen & Co) v Email
Furniture).
Model Rules: A practitioner must ensure that his/her communications are courteous and avoids offensive
or provocative language or conduct.

1.6 The Giving of Undertakings

This is held to be a solemn promise and represents trust between lawyers and the court. Solicitors and
barristers are officers of the court. The failure to honour an undertaking can amount to contempt and the
solicitor can be ordered to pay costs. (Specifier Publications v Long). Personal liability will only be
avoided if such liability is expressly disclaimed in the undertaking itself.
An example is that is an abuse of process if the prosecution take an undertaking that they will proceed the
case in a certain way on one offence and then go after something completely different in the proceedings.

[Model Rules]
Undertakings,
19 If a practitioner makes an undertaking where it might reasonably be expected that the other practitioner relies on it
then s/he must honour it within its terms and time limit.
19A A practitioner must not give an undertaking to another practitioner if it requires the cooperation of a third party who
is not a party to the undertaking and whos cooperation cannot be guaranteed.

With respect to negotiation, the Model Rules, (also r 34 of the professional Conduct and Practice Rules
(NSW)) states:
26.1 A practitioner must not represent anything that is untrue or believes to be untrue.
26.2 Any statement to mislead or intimidate the other party and which grossly exceeds the legitimate assertion of the
rights or the entitlement of the practitioners client.

The above rules are noble but in negotiation there is always encouragement to lie to get the best for ones
client.

1.7 INSULTS, INTIMIDATION AND OBFUSCATION


-

There are statutory powers giving the court power to stop abusive questioning of witnesses, (Evidence Act
1995 (NSW)).

1.8 TRICKS IN PRESENTING OR DISCREDITING MATERIAL


In the Barristers Rules (NSW) Rule 62 it states that the prosecutor should seek the truth and not to discredit a
witness they know to be telling the truth just to help their client win the case. We have already referred to the
Barristers Rules r 38, when dealing with cross-examination barristers cannot suggest criminality, fraud or
other serious misconduct unless the material already available to the barrister provides a proper basis for the
suggestion.

20

2. Values under threat?


The above problems have resulted from the focus by practitioners on the advocacy ideal, without giving
enough consideration for other values that need be considered.
Practitioners conducting the above practices are at odds with the social responsibility value, as the
underlying ideals of justice and fairness are prejudiced because the adversarial system promotes selfinterest and competition between the parties, thus advantaging the richer litigant
The adversarial problems discussed above also threaten the collegiality aspect, as lawyers engage in
tactics that bring the legal system into disrepute (eg delay a trial to outspend an opponent) simply to
ensure that their own client wins out.
The adversarial problems may also hinder the public interest aspect, as public interest lawyering is
hindered by the excessive cost and time burdens of the adversarial system.

3. How have these problems developed?


3.1 THE ADVERSARIAL SYSTEM
Role of Judges Elements of the Adversarial System and the Pursuit of the Truth

Adversarial system contains


1. Adjudication be a neutral tribunal, acting with considerable degree of passivity
2. Preparation and presentation of the case by parties
3. Structured procedural system governing the proceedings
Role of the judge is to hear and determine the issues raised by the parties not to conduct an investigation
or examination on behalf of society at large. Thus the power of the judge to find truth is limited by the
parties ability and desire to lay all the relevant facts before them. That may result in the judge
administering the law, as distinct from justice.
Rules can be manipulated to benefit the powerful and prejudice the weak, and an imbalance in legal
representation can work grave injustice. If this is tolerated by judges, who insist on absolute passivity, the
court will lose the confidence of society. The moral force of any judgement of a court derives from the
fulfilment of the judges task of deciding the dispute by attempting fairly and in public to determine the
truth.

Role of the Advocate Giannarelli v Wraith

An advocates duty to the court is paramount and must be performed even if the client instructs to the
contrary
Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold
documents and authorities which detract from his clients case.
If he notes an irregularity in the conduct of a criminal trial, he must take the point so it can be remedied
instead of refraining and using it as a ground for appeal.
Counsel must exercise an independent judgement, so that the time of the court is not taken up
unnecessarily.

3.2 LAWYERS AND THE ADVERSARIAL MIND SET


Under the adversarial system, the lawyers owe competing duties to the court and to the client.

Duty to the court entails not misleading the court, or assisting their clients to commit illegal acts, fairness,
not pursuing hopeless cases, or causing unreasonable expense or delay, not making unsupported
allegations.

Duty to the client includes duties of loyalty, confidentiality, competence, and duties to inform, advise and
obey.

21

3.3 PROBLEMS UNDER ADVERSARIAL SYSTEM


Although the duty to the administration of justice is greater, lawyers generally give greater weight to the
interests of the client. As a consequence, problems have emerged such as:
1. Deliberate suppression of relevant but unfavourable material
2. Selective presentation of part of the evidence
3. Promotion of biased expert evidence
4. Unwarranted failure to admit the truth of the facts asserted by opposition
5. Cross-examination to suggest falsehood of a matter known to be true
6. Tactical attacks on the credibility of witnesses to suggest that the witness can not be trusted under oath
even though their evidence is known to be true.
7. Taking on hopeless cases to delay proceedings
3.4 COUNTERPRODUCTIVE AND INEFFICIENT CONSEQUENCES OF ADVERSARY SYSTEM

The system is about winning and losing, and each party has a responsibility for advocating its own case
and attacking the other partys case. This puts an emphasis on confrontation, thus ignoring the benefits of
an agreed upon solution or alternate dispute mechanisms.

The system discourages the sharing of information between parties, thus causing increased costs, as
parties during the discovery process must trawl though documents

The adversarial system makes advocates out of the witnesses, and so each partys witnesses are treated as
advocates for that sides view and do not provide the impartial view required

The adversarial system advantages the richer litigant as richer litigants are able to afford the better lawyers
and are better able to pay the costs of the extensive trawl process.
The adversarial system allows the litigants to dictate the shape and pace of litigation.

4. Solutions and reforms


The Law Council of Australia should ensure that national model professional practice rules

Require practitioners and unrepresented parties to consider the purpose and content of pleadings and other
papers before presentation to the court or tribunal.

Require practitioners limit presentation of their case to genuine issues and complete work within the
deadlines set by the court
Modifications to Professional Rules, backed by professional and court sanctions such as cost penalties could
contribute substantially to improve litigation practices.
Advocates should certify that to the best of their knowledge, formed after reasonable inquiry,

The pleading is not being presented for any improper purpose, such as to harass or cause unnecessary
delay or increase in the cost of litigation

Any legal contentions are warranted by existing law

Any allegations and other factual contentions have evidentiary support

Any denials of factual contentions are warranted on the evidence


These requirements should be backed up by monetary sanctions able to be awarded against the advocates.

22

Duties of Prosecution and


Defence
Materials

pp.258-269

Book

pp.253-257 & pp.449-465

Duties on the Prosecutors in a Criminal Trial


[General duty]
Prosecutor must fairly assist the Court to arrive at the truth (BR 62, AR 62, MR 17.47)
Duty to aid in the attainment of justice, not in securing a conviction; (R v Callaghan). Thus prosecution
should not strive for a conviction at all costs; (R v Bathgate) (BR 63, AR 63, MR 17.48).
Prosecutor must not argue facts which prosecutor does not believe on reasonable grounds to be capable of
finding guilt (BR 65, AR65, MR 17.50)
Prosecution must disclose to the opponent all material which could constitute evidence relevant to the
proving of innocence or guilt, unless such disclosure would threaten the integrity of the administration of
justice; (BR 66, AR66, MR 17.51)
must consider whether the accused could suffer if not disclosed, whether the charge should be withdrawn
or whether the accused should face a lesser charge; (BR 66A, AR 66A, MR 17.52)
Duty to inform the defence if the prosecution intends on relying on evidence which they reasonably
believe may have been unlawfully obtained; (BR 67, AR 67, MR 17.54)
Prosecutor must not confer with the accused except in the presence of the accuseds representative; (BR
68, AR 68, MR 17.55)
Duty to present the case fairly to the court in a way that avoids unfair prejudice arising in the minds of the
jury; (R v Meier).
[Witnesses]
The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a
witness for the Crown; (R v Apostilides)
Prosecution must call witnesses whose testimony is admissible and necessary for the presentation of the
whole picture unless the prosecutor believes on reasonable grounds that the administration of justice will
be harmed; (BR 66B, AR 66B, MR 17.53)
Trial judge may but is not obliged to question the prosecutor and order for reasons to be given; (R v
Apostilides)
Trial judge may make comments as he/she thinks fit with regards to not calling a witness before charging
a jury; (R v Apostilides)
Save the most exceptional circumstances, the trial judge shall not himself call a person to give evidence;
(R v Apostilides)
Failure to call a witness will only constitute a ground for setting a conviction aside if, when viewed
against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice; (R v
Apostilides)
When the Crown calls a witness who didnt give evidence at the committal proceedings, the accused needs
to be given reasonable notice; (R v Greenslade)
If Crown doesnt call a person who gave evidence at the committal proceedings, the witness must be
available for giving evidence if required; (R v Cassidy)

23

If the Crown has a witness who can give material evidence, and does not want to call this witness,
prosecution must nevertheless make this witness available to the defence; (R v Bryant and Dixon)
If the Crown has a credible witness who may be able to show the prisoner is innocent, prosecution must
either call the witness or make them available to defence; (Dallison v Caffery)
Prosecution should call as witnesses people who are eye-witnesses to prove the element of the crime
charged; (R v Basha), however this isnt compulsory; (R v Epping)
An unfairly conducted trial with unsafe verdicts, drawing of inferences which are unlikely and
manipulation of the jury will lead to an acquittal; (Tim Anderson Case)

[Duties on the Defence lawyers in a Criminal Trial]


Duty to protect the court from perjury:
(BR 32, AR 32, MR 17.18) If a client (in a normal proceeding) tells a barrister/solicitor that they had lied
to a court or tendered false documents, the barrister/solicitor must disclose to the court (with the consent
of the client) the falsification, otherwise they must not take further part in the case.
(SR 21) A solicitor has the obligation to disclose to the court (with the consent of the client), any lie or
falsification of documents tendered to prevent a perjury. If the consent is denied, the solicitor must
withdraw from proceedings and terminate the retainer.
(BR 34, AR 34, MR 17.20) If a client informs the barrister/solicitor that the client is going to disobey a
court order, the barrister/solicitor must:
1) advise against that course and warn of dangers, and
2) not advise how to conceal that course, and
3) not inform the court unless with consent or the practitioner believes on reasonable grounds that
it will be a threat to any persons safety.
Duty where the client confesses guilt in criminal proceedings:
(BR 33, AR33, MR 17.19) If a client (in criminal proceedings) confesses guilt but maintains a plea of not
guilty, the barrister/solicitor may return the brief if there is enough time for another to take over, and the
client allows them to do so. If they continue to act the barrister/solicitor must not falsely accuse another, or
set up an affirmative case inconsistent with the confession but may argue that the evidence as a whole
doesnt prove the client is guilty of the offence charged.

If the client admits guilt, the practitioner can and should maintain a defence that the client is entitled to an
acquittal where the evidence as a whole doesnt prove the guilt of the client. The lawyer must not deprive
their client of the benefits of rational arguments which rise on the proof; (Tuckiar v R). This is particularly
true where murder could be avoided for manslaughter.

[Guilty Pleas]
(BR 17B) A barrister must advise a client charged with a criminal offence of the potential advantage
associated with pleading guilty, such as diminution of penalty.
Counsel must be completely free in performing their duty to give the best advice and even if this advice be
given on strong terms. Counsel must advise that the client should not plead guilty unless the client
committed the offence charged. Counsel must not place undue influence on the client, the client having
considered the advice must have exercised their decision with independence and freedom of choice; (R v
Turner).
Ways a guilty plea can be set aside if there was a miscarriage of justice:
1. Accused did not understand the nature of the charge
2. Accused did not intend to admit guilt
3. If upon the facts the accused in law could not have been guilty
4. Plea was induced by intimidation or undue influence
5. Improper inducement by fraud
24

Reasoned advice, and advice which seeks to persuade the client into pleading guilty is not a breach of duty
no matter how strongly it is put. However if the conduct has deprived the accused of free choice to plead
and is accompanied by an intention to do so, the adviser will be guilty of attempting to pervert the course
of justice; (Meissner v R).

How have these problems developed? Hazards article


Defence lawyers are often confronted with moral hazards.
Defence lawyers often do not want to know the whole truth as such knowledge might make it
impossible for them to defend their client.

The law is not concerned with the truth per se (in the sense that the guilty party knows who is guilty
and her lawyer may also know this) but rather with an official truth. Law is therefore a charade.

The defense lawyers avoidance of knowledge that incriminates his client provides an escape from the
contradiction between the cognitive and normative reality of personal knowledge and the cognitive and
normative tableaus that the law uses as the basis for adjudication. p287

This perhaps innocuous avoidance of the truth can be immoral:


(i)
when a lawyer suggests to his client what her story should not be (or perhaps suggesting it would
be helpful if the client forgets the story
(ii)
when a lawyer attempts to eliminate inconsistencies between the stories of a client and a witness,
by drawing upon ties between the client and witness eg. family or corporate
(iii)
when a lawyer points to the significance of potentially incriminating evidence (but not of course,
ever saying, destroy it)
Hazard concludes his article by suggesting that although these practices are common, that they are morally
obnoxious. It is a corruption of the duty of a lawyer as an officer of the Court.

25

Negligence
1. The law of negligence
1.1 Concurrent liability in tort and contract
Historically, the lawyers liability arose only from the retainer (i.e. in contract). The modern view is that the
solicitor can be concurrently liable in both contract and tort. This was started in Midland (English case) and in
NSW in 1984 (Brickhill v Cook). This means that a client has a choice of which remedy to pursue or both. The
main differences between contractual and tortuous remedies are discussed below:
Limitation of actions
Scope of duty of care

Assessment of damages

Contract

Times runs from time of


breach

Defined by private
arrangement by the parties
in the terms of the contract

Duty is owed to the other


party in contract (privity of
contract)

Expectation based

Tort

Time runs from date


damage occurred

Scope defined by
reasonable forseeability
and public policy
considerations

Duty is not confined by


privity of contract.

Reliance based

May be reduced by
contributory negligence.

1.2 Alternative low cost remedies to the client


Traditionally, the law has allowed clients to claim for negligence under contract or tort. In recent years,
alternate remedies have become available to practitioners. A client may have the matter mediated upon instead
of going to a full trial (under ss143-147 of the LPA). Alternatively, the client may ask the relevant Council to
initiate disciplinary proceedings against the practitioner, which if proven, can allow the client to obtain
compensation of no more that $10,000 (ss139, 171D). In many situations one these option might provide a
less expensive and more satisfactory remedy than an action in tort or contract.
1.3 Elements of liability in tort
In order to recover under negligence, a client must establish the following issues:
1. duty of care
2. breach of duty
3. causation
4. damage
1.4 Duty of care
A duty of care can be established between lawyer and client through either contract or tort. Under contract, a
term requiring the solicitor to carry out the retainer with due care and skill will generally be implied into the
retainer, unless it has been expressly excluded. Under tort, decisions such as that in Hedley Byrne v Heller
establish that a lawyer owes a client a duty of care even where the damage sustained is pure economic loss.
1.5 Scope of Duty
This is a question of whether the legal issue at hand comes within the general duty that a solicitor owes a
client. The scope of the duty of care is dictated by the retainer, but it is not limited to legal issues which come
within the retainer. Even if the legal issue sits within the scope of the retainer, the scope of the duty may not
extend to cover that particular issue.

26

[The principle in Midlands Bank Trust]


The general rule laid down in Midlands Bank Trust v Hett that the scope of the duty extends to what the
reasonably competent practitioner would do, having regard to the standards normally adopted in his
profession. If the reasonably competent practitioner given the retainer would consider a certain legal issue,
the duty of care that a practitioner owes to a client extends to that issue. In Vulic v Bulinsky, it was decided
that the scope of the duty of care owed does not change if the practitioner
[Application]
Consider the following cases:
In Griffiths v Evans, it was held that a lawyer retained on a Workers Compensation case was not under an
obligation to consider a pleading of negligence on the same set of facts. However, the dissent of Denning
has commonly been accepted as the more correct judgement. Denning held that the solicitor should have
considered the negligence issue as well
In Midlands Bank Trust, a solicitor was retained to advise on the tax consequences of a son exercising an
option over land granted by his father. The solicitor did not consider whether the option was registered or
not, and when the relevant land was subsequently on sold, the option holder attempted to sue to solicitor,
claiming that he should have checked that the option was registered. It was held that the retainer did not
require the solicitor to check on the registration of the option, as the solicitor knew the family well, and
there was no evidence of any discord that would result in the option being defeated.
Citicorp Australia v OBrien: solicitor retained to draw up mortgage documents did not have duty on him
to explain the financial aspect of the mortgage repayments ie. did the mortgagors properly understand the
financial requirements of the mortgage agreement?
1.6 Breach of Duty
[The reasonable practitioner]
The test in determining whether a practitioner breaches his duty to his client is what would the qualified,
competent and careful lawyer have done, having regards for the circumstances of the practitioners practice.
In deciding what the qualified competent lawyer would have done, evidence can be adduced from the
profession to demonstrate what the reasonably competent lawyer would have done (Edward Wong Finance v
Johnson Stokes & Master).
[The standard of care]
Generally, the standard of care applied is simply that of the reasonable practitioner. However, in certain
situations, the standard changes to take into account subjective characteristics of the practitioner.
Where a lawyer professes to have special skill or experience in an area, the standard of care changes from
the reasonable practitioner, to that of the specialist practitioner or firm (Duchess of Argyll v Beuselinck).
For example, a specialist in banking and finance should be judged in accordance with what the reasonably
competent banking lawyer would do.
Where the lawyer is inexperienced, the standard is not lowered to take into account the individuals lack of
experience (Duchess of Argyll)
1.7 Advocates immunity
Advocates immunity is a doctrine that allows a practitioner to escape liability for negligence for acts in
court, and possibly some acts before the trial begins.
[Acts in court]
The doctrine of advocates immunity allows a practitioner to not be held liable for negligence for any
statement made in court. (Swinfen v Lord Chemsford).
[Intimately connected- Giannarelli v Wraith]

27

Where pre-trial matters are so intimately connected with the trial that it can be fairly said that a pre-trial
decision affects the way a trial is to be conducted, such decisions are also subject to advocates immunity. In
the case of Keefe v Marks, the barrister failed to include in the statement of claim interest on the damages.
Such a failure was held to fall within the advocates immunity doctrine, and so the barrister could be found
negligent.
[Narrow approach to Giannarelli- Boland v Yates]
In dissent, Kirby J in Boland v Yates argued that Giannarelli is to be construed narrowly to apply only to the
failure of a barrister to object in court to a statute which rendered evidence inadmissible. Kirby argues that the
approach taken to the decision in Giannarelli is impermissibly vague and so a narrower interpretation should
be accepted.
1.8 Duty to 3rd parties?
As opposed to a solicitors liability to a client, their liability to 3rd parties may only arise under the law of
negligence. This is because there is no contractual relationship between solicitors and 3rd parties (Hill v Van
Erp). Therefore, a 3rd party seeking to claim damages against a practitioner for negligent behaviour must
establish that the solicitor owes a duty to the 3rd party and the alleged negligent behaviour is within the scope
of the duty owed. The two most common examples of 3rd party duties are in the case of wills, and in
commercial situations
1.8.1 Wills
[When is a duty of care owed]
A lawyer preparing a will owes a duty to the clients beneficiaries. This is a duty in tort for a contractual duty
does not extend past the clients themselves. (Hill v Van Er.
The basis for such a duty are the following reasons given in Hill v Van Erp:
1. Financial loss to the beneficiary is reasonably foreseeable
2. Testators and the public generally rely on solicitors to effectuate testamentary intentions
3. The solicitors who agrees to draw up a will for a client assumes responsibility for effectuating the
testamentary intentions of the client
4. There is no question of an indeterminate liability to an indeterminate class for an indeterminate time only
one person is usually affected and the extent of the loss is known at the time when the will was executed
5. The only person who has a valid claim has suffered no loss, and the only person who has suffered a loss
has no valid claim (White)
6. There is no conflict between the duty owed to the client and the duty owed to the beneficiary
7. If the solicitors retains custody of the will, then upon the testators death the solicitor owes a duty to the
executor to disclose the existence of the will (Hawkins v Clayton)
8. By undertaking to draw up a will, the solicitors is in a position to control whether the beneficiary will have
the right to have the will administered, and
9. The imposition of liability on the solicitor does not invade any area of liability the subject of an apparent
exhaustive coverage by the legislature
[Scope of duty]
Solicitors are under a duty to take reasonable steps to find the executor and inform him of the existence,
content and custody of the will. If they breach that duty, then they are liable in damages for the loss flowing
from the delay in the executors taking possession of the estate. (Hawkins v Clayton)

28

1.8.2 Commercial situations


A solicitor for a company does not necessarily owe a duty of care to the companys shareholders, nor to
potential lenders to the company. However, if proximity may be established through physical proximity,
circumstantial proximity and causal proximity, a duty of care may be founded.
In Hilton v Noss, the plaintiff was more than a potential lender to Hanover, the company. The defendant
solicitor knew she was also a shareholder, and that misappropriation of funds would lead to her loss. There
was physical proximity in that the solicitor held the cheque, there was circumstantial proximity in that
although the plaintiff was not his client, she was a contributor to the companys purchase, and may have been
a contributor of the cheque, and there was causal proximity in that wrongful diversion of the funds would in
all probability, if not necessarily directly cause her loss. He should not have done what his client instructed (to
use the funds to discharge the clients mortgage) without ascertaining whether part of the funds had come
from the plaintiff.

2. Values under threat?

The advocacy ideal is threatened

3. How has negligence become such a problem?


Negligence has become such a problem in the legal industry because of a number of factors. These
include poor engagement management procedures, the lack of suitable remedies against legal
practitioners for negligence, and in the case of 3rd party liability, the strict adherence of lawyers to the
fiduciary duty concept.
3.1 Categories of negligence complaints
[A. Poor handling of client interface]
This is the biggest cause. These failures tend to be about
a) Scope of retainer, usually because the engagement, as distinct from the legal matter was not set
out and often not even discussed
b) Clients instructions, usually because they have not been followed or the solicitor acted/not
acted without instructions and
c) Solicitors advice, because it was incomplete or inappropriate or not given at all.
[B. Did not handle file diligently]
These failures tend to be about
a) Statutory time limits. The solicitor did not know or ascertain the deadline, or did not calendar it
properly or did not react to the calendared date.
b) The file itself. The solicitor did not enter notes into the file or misplaced or lost the file.
[C. Did not know or apply law properly]
These failures tend to be about
a) Drafting errors
b) Incorrect advice
c) Lack of legal knowledge

29

[D. Did not handle the detail thoroughly]


This is related to the failure to check documents or similar oversights in land and commercial
matters.
3.2 Poor engagement management as cause of these problems
The most significant cause of legal professional negligence claims is the fundamental attitudes held by the
legal profession about the process of providing legal services rather than the provision of the legal product
itself. The solicitors who become involved in claims often dont use one or more of the ingredients of
engagement management, because they dont understand the need for them or the benefit or practicality of
using them. The ingredients are

Setting up the engagement

Managing client expectations

Varying the terms of engagement

Writing to the client

Closing the engagement


These attitudes tend to be quite deep-seated and reflect long held views on how solicitors conduct business
with their clients.
(see engagement management notes)
3.3 Lack of suitable remedies
Traditionally, a client had remedies available in contract and tort, but both involved fairly costly court
procedures. This provided a discouragement for any client complaining of negligence, and subsequently
allowed some lawyers escape liability.
Recently, the law has provided some low cost remedies for clients to allieviate the situation. Sections 143-147
of the LPA allows a client to pursue mediation over a negligence dispute, thus allowing a client to avoid a full
trial. Furthermore, the Legal Services Tribunal has been given power to award compensation where
professional misconduct has been proven, allowing the client to get some compensation without an expensive
trial.
3.4 Fiduciary Duty
The traditional approach of treating viewing a solicitors services through the idea of fiduciary duties meant
that too much focus was placed on the interests of the client. Such a focus meant that practitioners did not
properly consider the impact of their advise of 3rd parties, thereby giving rise to negligence claims.
3.5 Failure to maintain adequate paper trail
A lawyers failure to maintain a usable paper trail for a particular engagement can result in negligence actions
against the practitioner, as the practitioner may struggle to establish that he performed certain tasks

4. Possible solutions to the problem


4.1 Better engagement management (in firm & industry)
In order to minimise negligence in the legal profession, it is recommended that engagement practices be
improved within the industry. Such improvement can occur at all stages throughout the engagement process
Setting up the engagement
Before accepting an engagement, the solicitor should be satisfied that:

The assignment is suitable, in terms of technical scope and certainty, competence required and inherent
risk to the firm/solicitor.
30

The clients objectives and motives are reasonable

The agreed timeframe is reasonable given the current workload

The client is committed to the task and terms of engagement.


The solicitor should on acceptance

Spend enough time with the client to ascertain all relevant issues and select best approach

Codify the engagement

Managing client expectations


Recognise and manage the expectation gap.
Varying the terms of engagement
The solicitor should notify the client where the scope of the retainer expands, narrows or changes altogether,
and its effect on fees and costs.
Writing to the client.
The solicitor should keep the client informed with letters of information or advice.
Closing the engagement
Solicitors should provide clear confirmation that the engagement is closed or suspended.

4.2 Better paper trails (in firm and in industry)


The lack of written material of any kind, especially file notes, is the underlying cause in many professional
negligence claims.

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Conflicts of Interest
1. The law and remedies for breach
Conflicts of interest can be categorised as being:
i.
Lawyer:Client conflicts
ii.
Opposing a former client
iii.
Concurrent clients
iv. The lawyer as a witness

1.1 Lawyer-Client conflicts


The law in relation to lawyer:client conflicts is governed by the Solicitors Rules, Barristers Rules as well as
the common law.
[Solicitors Rule 10]
Requires a lawyer to make a full and frank disclosure of personal interest in any matter and either cease to
act; or have client's informed consent and ensure client obtains independent legal advice. Breach of this rule
can result in the transaction being set aside or the lawyer and his firm being disqualified from acting.
[Barristers Rule 87]
A barrister must refuse a brief where he has a material financial or property interest in the outcome of the case
(other than that in a conditional cost agreement).
[Common law position]
The general duty laid out in Law Society v Harvey is that where there is a conflict between the interests of the
practitioner and the client, the practitioner must fully disclose his interest and advise the client to obtain
independent legal advise. In that case, the lawyer advising clients to invest in a company that he had an
interest in was found to constitute a conflict of interests
[When is there a conflict?]
The courts readily accept that a lawyer is in a position of conflict when a financial interest is involved (eg.
lawyer has stake in investment scheme). They are more reluctant to find a conflict of interests where the
conflict involves non-financial interests.
[When does it constitute professional misconduct?]
In Harvey, it was held that where the conduct involved many clients and, and was motivated by greed and self
interest in deliberate and flagrant disregard of his duty to his clients, the actions by the practitioner constitutes
professional misconduct.

1.2 Concurrent clients


The general rule is that lawyers must give full and effective representation and advice (Blackwell).
Lawyers owe a duty of undivided loyalty to clients which cannot be maintained if they owe that to two or
more clients whose interest are in conflict (eg they will owe a duty of confidentiality to one and duty to
disclose all relevant knowledge to another). Usually if a lawyer is disqualified from acting for a client, the
firm is also disqualified. The rules with respect to representing clients concurrently is whether the work is
contentious or not.
[What is contentious work?]
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Where the work in question is likely to raise any dispute between the two parties, the work in question is
regarded as contentious. Where the work will not raise an issue of contention between the parties, the work is
regarded as non-contentious.
[Litigious or Contentious work]

There is an absolute ban whether civil or criminal, and an injunction is available to prevent it.

Even where there is no apparent conflict at the beginning, (eg defending co-accused), if a conflict arises,
the lawyer will usually have to withdraw from both because of the possibility of abusing confidential
information.

Family Law Rules: A practitioner can not represent for two or more parties with adverse interests. S441A
allows joint representation for uncontested decrees of dissolution or nullity, but is undesirable where there
are children under 18 or matters in dispute.

Barristers Rule 108


A barrister briefed to appear for two or more parties in a case must determine as soon as possible whether there
is or may be conflict and if so return the brief.

Barristers Rule 109


A barrister must return the brief if they become aware during the hearing of a case that there is or may
be conflict.

[Non-Contentious work]
No absolute ban provided:
a) parties give fully informed consent (Clark Boyce) AND
b) no actual conflict arises (Blackwell v Barroile)
Practice Rule 9
If there is no apparent conflict at the beginning, a practitioner may act for more than one party to a transaction if
all parties give fully informed consent and the lawyer withdraws from representing all parties as soon as a
conflict arises.

Conveyancing: s 2.1.4 Residential Conveyancing Code of Practice


Each party should be informed in writing that the solicitor/firm has been instructed to act for the other party and
of the potential for future dispute and additional costs. If a party objects, then the solicitor/firm should decline to act for
one or both.

1.3 Opposing a previous client


The relevant question used to determine whether a conflict exists or not is to ask:
Whether a reasonable observer, aware of the relevant facts, would think that there was a real as
opposed to a theoretical possibility that confidential information given to the solicitor by the former
client might be used by the solicitor to advance the interests of a new client to the detriment of the old
client. (Carindale Country Club Estate v Astill)
Practice Rule 3:
A solicitor must not act against a previous client where the solicitor has received confidential information and
the former client may reasonably conclude that there is a real possibility that the information could be used to
the persons detriment.

1.4 Lawyer as a witness


Generally, a lawyer must not act in a case where they have a reasonable belief that they will be called as a
witness. If during the course of proceedings it becomes apparent that they will become a witness, they must
withdraw and seek advise their client to seek independent legal advise.

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[Practice Rule 19]


A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying
the practitioners continuing retainer by the practitioners client, the practitioner must not act, or
continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be
required to give evidence material to the determination of contested issues before the court.
[Barristers Rule 87]
A barrister must refuse a brief or instructions to appear before a court if the barrister has reasonable
grounds to believe that the barrister may, as a real possibility, be a witness in the case.
[Common law]
In Jeffrey v Associated National Insurance Co Ltd, Thomas J noted that a lawyer becoming a witness will
compromise his or her objectivity and independence. Basically, the lawyers duty to the court as a witness
would conflict with his/her duty to the client.

1.5 Chinese Walls


The term Chinese Walls refers to the creation of invisible barriers in the workplace restricting the flow of
confidential information throughout a firm. In order to prevent misuse of confidential information, lawyers
generally cannot engage in representation that is adverse to a former client.
Approach to Chinese walls Prince Jefri Bolkiah v KPMG (House of Lords)
Before a solicitor will be restrained from acting for a new client at the behest of the old client,
a) The former client must prove confidential information has been imparted to the firm that is or may
be relevant to a matter in which the firm is action for a new client with an adverse interest.
b) The onus is on the firm to prove that there is no risk of disclosure.
c) A Chinese wall will probably only be effective if effective segregation is an established part of the
firms organisational structure. Chinese walls that are set up on an ad hoc basis among members of
single working group in relation to particular cases will rarely be effective.
The courts impose a fairly high standard of proof on those attempting to establish Chinese Walls. In
Mallesons, it was held that the essence of a partnership is that the firm will benefit from the collective
strengths of the group so that it may be difficult to suggest that the partners are separate and independent
entities.
In Frueholf , the firm was able to discharge their onus in establishing a Chinese Wall as the firm was well
segregated into discrete sections.
In the law of fiduciary obligations the knowledge of one partner in a firm is imputed to the other partners.
Therefore, if one lawyer is disqualified from acting, the whole firm is disqualified.

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Confidentiality & LPP

1. The law of confidentiality and possible remedies

A lawyer must keep certain information imparted to them by a client confidential because of the effect of the
Solicitors & Barristers Rules. In addition to the obligations imposed by these rules, a lawyer is also bound
by an implied term in his retainer to keep information disclosed confidential. Breach of the solicitors or
barristers rules can found an action in professional misconduct, whereas breach of the implied term in the
retainer can found an action in damages.

1.1 What is confidential information?


The law states that confidential information is information that must be specific and can be related to with
precision and not merely in global terms (Carindale Country Club Estate Pty Ltd v Astill). In order to assist in
ascertaining the difference between confidential and non-confidential information, it is important to look at
the express wishes of the client AND the consequences of the use of the material by the lawyer (D&J
Consutrction Pty Ltd v Head).

1.2 Solicitors and confidentiality


Practice Rule 2 provides that a practitioner must not disclose to another person information which is
confidential to the client unless:
i.
the client authorises disclosure
ii.
the practitioner is permitted or compelled by law to disclose
iii.
the information must be disclosed (even in spite of LPP) for the sole purpose of avoiding the
probable commission or concealment of a felony
This duty extends for the course of the retainer AND after the retainer has been terminated. The practitioner is
allowed to disclose confidential information within the firm, but must not disclose to outside parties. (PR2.1)
Also see PR 3 (confidentiality and former client conflict of interests) & PR 8.2 (requirement to store clients
documents safely for 6 years)

1.3 Barristers and confidentiality


Barristers Rule 103 states that a barrister must not disclose or use confidential information obtained about
any person unless:
i.
the information has been published
ii.
the information is later obtained by the barrister from another person not subject to the duty of
confidentiality owed by that barrister to the person
iii.
the person has consented to disclosure
The only exception to the general rule is where the barrister is compelled by law to disclose the information.

1.4 Confidentiality in the retainer


In the retainer agreement, an implied term requiring the lawyer to respect a duty of confidentiality between
lawyer and client is often implied because of the fiduciary nature of the relationship.

1.5 Exceptions to confidentiality


Exceptions to confidentiality exist where there is a greater public interest in disclosure as opposed to
withholding the information
1. Where disclosure is in the interests of the proper administration of justice, confidential information
cannot be withheld. This means that disclosure must be made when it would assist authorities in
prosecuting a crime as well as preventing the commission of a crime (Carter v Managing Partner)
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2. Where the practitioner is required by the law to disclose, confidentiality cannot protect disclosure.
OReilly v Commissioners of State Bank of Victoria.
3. Where the client is complaining of criminal charges or misconduct against the practitioner,
confidentiality can be waived. s171S LPA (NSW)
4. Disclosure by a practitioner for the purpose of seeking advice on an ethical matter or for the assistance
of another practitioner would not amount to a breach of confidence. McKaskell v Benseman

2. Legal Professional Privillege


2.1 What is legal professional privilege?
Legal professional privilege is a fundamental common law principle, which protects confidential
communications between a lawyer and a client for the purposes of obtaining legal advice in litigation or
prospective litigation from mandatory disclosure.
Legal professional privilege is distinguished from confidentiality, in that its scope is narrower (i.e. not all
client communications), and it protects from all kinds of mandatory disclosure.

2.2 What is the legal basis for legal professional privilege?

Legal professional privilege during trial in the Federal Court levels is governed by the s118/119 of
the Evidence Act 1995 (Cth).
If during trial in a NSW court, then governed by the parallel legislation of s118/119 of the
Evidence Act 1995 (NSW).
The privilege during pre-trial processes such as discovery and inspection are governed by common
law legal professional privilege; (Baker v Campbell).

2.3 What does legal professional privilege cover?


The privilege covers communications between the client and the lawyer and even third parties, but only if it is
reference to litigation that is taking place or prospective litigation.
It can apply to pre-trial situations where there are:
Non-judicial proceedings
Demands of disclosure in the administrative realm
Police officers and even during warrant searches
Tax offices and other government body inspectors
Professional communications between government agencies and their salaried legal officers
Communications within the office of the DPP
- (Baker v Campbell), (Waterford v Commonwealth),
Privillege does not extend to the disclosure of the clients name (Commissioner of Taxation v Coombes).
LPP is a two way process and at common law, the accused has no right to demand the disclosure of privileged
communications even if it impacts the fairness of the trial; (Carter v the Managing partner, Northmore Hale).

2.4 What is required to plead legal professional privilege?


1. The interaction of which LPP is claimed must be deemed a communication. A communication can be
written, oral or mechanically/electronically recorded. Doesnt include documents that evidence a
transaction (e.g. contracts/conveyances and declarations of trust), such instructions to do work are not

36

privileged. Communications include general data gathered for litigation but it does not include collateral
facts such as names and identity.
2. The communication must be confidential; information does not cease to be confidential just because it is
shared between a firm.
3. The communication must be made within the lawyer-client context. It must be made where there is a
retainer or for prospective clients, and the communication must be made while the lawyer is acting in
his/her professional capacity. A lawyer-client relationship can be in-house; (Waterford v Commonwealth).
4. A communication must satisfy the dominant purpose test (both at common law, Esso v Commissioner of
Taxation and according to the Evidence Act s118(c)). A communication is privileged if the dominant
purpose of the communication was to obtain legal advice with regards to assist anticipated or current
litigation. Hence the dominant purpose test is common for common law and statute, and also for pre-trial
and during the trial.
It is open for the courts to inspect documents where privilege is claimed, to determine whether they fall within
the class that attracts the privilege, because not all communications between the lawyer and the client are
privileged; (Trade Practices Commission v Sterling)

2.5 What are the exceptions to legal professional privilege?


1. Communications for fraudulent or unlawful purposes:

Communications by the client for the purpose of being guided or helped in the commission of a crime or
fraud are not privileged from discovery; (Varawa v Howard Smith).
Communications for unlawful or illegal purposes are not privileged from discovery. Unlawful or illegal
purposes are wider than crime and fraud; (Attorney General v Kearney) This case widened the scope of
the rule above.
The exception to LPP is more likely than not allowed where the privilege from disclosure might conceal
an abuse of delegated powers to enact legislation, and thus obstruct a proper challenge to the validity of
part of the law itself; (Attorney General v Kearney)
Majority in Australian Federal Police v Propend Finance decided that hearsay evidence was inadmissible
to show the validity of warrants.

2. Abrogation by statute:

Statute can override LPP but to do so, it must be by express words or necessary intendment; per Deane J
(Baker v Campbell).
A statute that merely demands disclosure of information or co-operation with investigations will not
override LPP; (Federal Commissioner of Taxation v Citibank).

3. By waiver: a client or a lawyer (acting on the clients instructions) can authorise a waiver; (Goldberg v
Ng)
4. Evidence Act; note that the Evidence Act is only applicable for during the trial:

s121: Loss of the privilege generally. The section does not prevent adducing of evidence when the
party has passed away, where it may hinder rights of an individual or where it could be reasonably
expected that a court could be prevented from enforcing an order of an Australian court.

s122: Loss of the privilege by consent resulting in the adducing of evidence

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s123: Loss of the privilege in criminal proceedings. The accused can demand disclosure as long as
the communication was not made between the co-defendant and the co-defendants lawyer

s124: In civil proceedings, clients who share the same lawyers can adduce evidence.

s125: Loss of privilege due to misconduct: Privilege is lost if there is fraud, civil offences that
result in penalties, or if communication was for the deliberate abuse of power.

s126: Loss of privilege in terms of related communications and documents: if any above
exceptions apply, then this section allows adducing of other documents which is reasonably
necessary to enable proper understanding of the first.

2.6 Remedies for the client?


It is the lawyers duty to ensure that the valid claims of privilege are not lost, and the client can sue if the
lawyer discloses privileged information.

3. Values of legal profession under threat


3.1 Confidentiality
Confidentiality and legal professional privilege raise ethical issues for a solicitor privy to such information. A
lawyer owes a strong fiduciary duty to his client, a duty perhaps increased by the financial benefits flowing
from client to lawyer. However, the lawyer must balance this duty out with his overriding duty to place the
public interest ahead of the interests of his client when the situation dictates.
In situations like that in Spaulding v Zimmerman (CB 11) (where the lawyer received medical evidence
stating that the other party was suffering from an aorta aneurism, but refused to tell him as it would
compromise his clients interests), the clients interest in not disclosing the information should have been
usurped by the lawyers duty to inform the opposing party of the grave health findings.

3.2 Legal professional privilege


A legal professional privilege contains many public policy considerations which are of concern to legal
practitioners. We will now discuss the pros and cons of LPP:
Pro-privilege:
Bar Association strongly supports privilege and considers it a fundamental aspect of a lawyer
client relationship
Improvement in legal advice because clients willing to disclose more to the lawyer
Can give the lawyer the opportunity to deter the client against potential illegalities
The lawyer may be able to advise the client to do something in a legal manner, where originally
the client may only have known of an illegal way
Without disclosure, the client may fail to disclose information relevant to a valid claim, otherwise
there may be injustice in failing to assert a legitimate claim
Full unreserved communication between citizens and their lawyers is a precondition of informed
and competent representation
Promotes justice in the long run if clients are continuously deterred from committing crimes
Anti-privilege:
Potential injustices in clients and lawyers hiding illegalities

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Moral and ethical issues in hiding information from courts


Other professionals do not have this privilege from mandatory disclosure
Bigger companies with internal legal system can exploit this common law principle

Other values under threat


Personal integrity could be under threat if the lawyer is tempted to or is conducting illegal privilege and
hides information from the court.
Society could be detrimentally affected if the privilege was allowed to enact a legislation for improper
purposes; ((Attorney General v Kearney). The public suffers if this were to continue
Clients undermine fundamental principles of social responsibility when lawyers are asked to or participate
to break the law or prohibit the free operation of the justice system for payment.
If LPP were curbed in any way, one could argue that the advocacy ideal is under threat if clients couldnt
have full unreserved communication which is a precondition of informed and competent representation

4. How the problems have developed in light of patterns in the lawyer


client relationship

The widening of the scope of common law legal professional privilege when the HC held that the
dominant purpose test is now the proper test (Esso). The dominant purpose test has a wider application
than the sole purpose test (Grant v Downs) and as such it may exacerbate some of the above problems.
Tobacco companies and large corporations with well-developed legal departments abuse LPP by ensuring
that everything is sent via their internal solicitors and as such they are able to claim LPP. These tobacco
companies were misleading the public about health results and tests conducted.
Taxmen originally couldnt obtain identities of a lawyers clients because it was claimed that the identity
together with what the tax office already knew about aggressive tax planning initiatives would together
breach LPP; (Coombes v Commissioner of Taxation). The Full Federal Court later overturned this
decision.

5. Broader reform policies to the profession, legal system or firm

Legal education regarding obligations to society


Explicit statutory provisions against LPP where parliament feels that LPP is being abused
Close monitoring by OLSC of complaints against companies and especially where the company claims
LPP by internally rotating their documents via internal lawyers.
Adopt the model rules recommendation: public interest and injustice concerns warrant the lawyer to
disclose information without the clients consent where the client is about to commit a criminal act that is
likely to result in imminent death or severe bodily harm.
Adopt the modified contextual rule with a very general test: the lawyer should hold client information in
confidence except where disclosure is necessary to avoid substantial injustice.

39

The Disciplinary Process


(See Diagram page 42 Volume II for the flow of the process)

1.COMPLAIN TO OLSC
A client with a grievance against a practitioner may lodge a complaint with the Legal Services Commissioner
(OLSC). If a complainant approaches any other body (eg relevant Council), they are to be referred on to the
OLSC. (s134 LPA)

2.POWERS OF THE OLSC


After a complaint is lodged pursuant to s134 LPA, the OLSC can do the following:
Dismiss the claim if it is vexatious, misconceived, frivolous or lacking in substance s141(b) LPA

Can order mediation s144(1)

Investigate the claim itself s147A(1)

Refer to either the Council of the Law Society (solicitors) or to the Bar Association (Barristers) for further
investigation s148(1). (It is the duty of the OLSC to continue to monitor the investigation process s149(1);
it can give directions s150(1) and choose to recover the investigations if these directions arent followed);
s147A(1).

Arrange for independent investigation s151(1)

Apply for a costs assessment under Part 11 of LPA s153(1)

Send to Council of the Law Society or to the Bar Association for mediation s142(2).
In practice the OLSC informally mediates most complaints and then refers to more formal mediation through
Council of the Law Society or to the Bar Association.

3.The mediation process


Mediation is allowed under s144 however this procedure must be voluntary. Anything that is said in mediation
is confidential, it is not allowed to be brought into court proceedings.

4.Investigation of the complaint


The OLSC may either send the complaint to the relevant Council for investigation, or may pursue the
investigation itself. If the OLSC sends it to Council for investigate, it must do so; s148(1).
After the investigation by either the Council or the Commissioner, there are a few potential outcomes:
Where the investigator concludes that there is a reasonable likelihood of a finding of professional
misconduct by the Tribunal, the matter must be brought to the Tribunal s155(2)
Where the investigator decides that there is a reasonable likelihood that the practitioner would be
found guilty of unsatisfactory professional conduct, the Council/OLSC may bring proceedings in the
Tribunal (s155(2)), reprimand the practitioner (if he consents) (s155(3)(a)), or dismiss the complaint if
the practitioner is competent and there are no other complaints about the practitioner (s155(3)(b)).
40

If it is not reasonably likely that the practitioner will be found guilty by the Tribunal, then the
Council/Commissioner must dismiss the complaint; s155(4).

5.If the complainant seeks review of a decision by Council


A complainant can seek review of the Councils decisions if within 2 months of the decision under s158. After
an application by the complainant, it is compulsory that the Commissioner reviews. s160(1) outlines the
potential outcomes from such a review and they ability to initiate proceedings in a Tribunal; direct council to
refer to mediation; confirm dismissal or reprimand; reinvestigate or direct council to do so on certain parts or
omitted parts.

6.The Tribunal
[Generally]
The Tribunal means the Legal Services Division of the Administrative Decisions Tribunal. A matter can end
up in a Tribunal if the relevant Council or the Commissioner brings it about.
s167 Proceedings may be instigated in a Tribunal with respect to a complaint against a legal
practitioner.
s168(1) Tribunal to observe rules of law with respect to admission of evidence when dealing with
allegations of professional misconduct contrary to Administrative Decisions Tribunal Act
i.
s170(1) Cases to do with unsatisfactory professional conduct to be held in private unless there is
intention to publicly reprimand the practitioner
[Determinations of the Tribunal]
If the Tribunal is satisfied the practitioner is guilty of professional misconduct or unsatisfactory professional
conduct, it can under s171C:
Order the practitioners name removed from the roll if professional misconduct
Order the practitioners certificate be cancelled
Order the practitioners certificate be postponed for a specified duration
If professional misconduct, can order a fine not exceeding $50,000
If unsatisfactory professional conduct, can order a fine not exceeding $5000
Publicly reprimand the practitioner
Order further legal education
Compensation orders (see s171D)
Order that the practice be subject to periodic inspection
Order to seek advice in relation to management of the practice
Order that practice seek to employ someone
Order that practice employ a person specified in a class
Order a condition on a practitioners certificate (which would otherwise be unrestricted)

s171D(1) (Compensation Orders) If tribunal satisfied that there was professional misconduct or
unsatisfactory professional conduct, it can order waive or repayment of the legal fees charged, order
legal services free of charge, waive of lien over documents, or monetary compensation for the loss.
Sub-section (2) states that the compensation order cannot be greater than $10,000.
s171E(1) Tribunal may order that the practitioner pay costs (Commissioner, Council and Tribunal
costs)
s171F Appeals from the Tribunal follow normal ADJR or ADT Acts

7. Professional Misconduct
41

Section 127(1) of the Act provides the definition for Professional Misconduct (PM):
(a) Substantial and consistent Unsatisfactory Professional Conduct
(b) Conduct, not in connection with legal practice, which if established would justify a finding that the
person was not of good fame and character or is not fit and proper to remain on the Rolls.
(c) Any conduct deemed PM by other provisions in the Act.

8. Unsatisfactory Professional Conduct


Section 127(2) defines Unsatisfactory Professional Conduct (UPC) as conduct (act or omission) connected
with legal practice that falls short of the standard of competence and diligence that a member of the public is
entitled to expect of a reasonably competent legal practitioner

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43