Professional Documents
Culture Documents
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.
3
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.
3.
4.
Collegiality value
4
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.
Legal education
Sufficient legal training
Good fame and character
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
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)
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
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)
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.
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)
12
13
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.
14
15
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)
16
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
17
18
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.
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.
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.
There are statutory powers giving the court power to stop abusive questioning of witnesses, (Evidence Act
1995 (NSW)).
20
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.
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
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.
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
22
pp.258-269
Book
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)
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).
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
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
Defined by private
arrangement by the parties
in the terms of the contract
Expectation based
Tort
Scope defined by
reasonable forseeability
and public policy
considerations
Reliance based
May be reduced by
contributory negligence.
26
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
29
The assignment is suitable, in terms of technical scope and certainty, competence required and inherent
risk to the firm/solicitor.
30
Spend enough time with the client to ascertain all relevant issues and select best approach
31
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
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.
[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.
33
34
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.
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
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).
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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)
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.
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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.
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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.
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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)
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).
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.
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).
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
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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.
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