October 27, 2011 Seminar 12

EXERCISE ONE In seminar one, we explored what might be the features or characteristics of a good legal practitioner. Have your views altered? What features would you attribute to a good legal practitioner? The tensions that the subject exposes Duty that it exposes Rule that is exposes Changed view of different lawyers that there are Rule, regulations, act only provide framework so up to you decide what kind of lawyer you want to be and Parker & Evans give all types of lawyers Have to be risk averse when we act Open to civil litigation which can be risky Advocates immunity Disclosure reqs. On cost is v. exhaustive list In retainer for legl services nowhere is it mentioned that youre immune frm any negligence claim arising frm crt connected work Need to communicate clearly w/client

EXERCISE TWO Discuss and prepare an essay plan on this topic: Legal practitioners have a range of duties, responsibilities and obligations to the courts, clients, other practitioners and the wider community. What do you think are the critical features of a legal practitioner who seeks to be an ethical professional in the 21st century?

EXERCISE THREE Discuss what frameworks are available for a legal practitioner to draw on when faced with ethical dilemmas Need to know professional responsibility new lawyer should be prepared to deal with and respond to challenges and dilemmas that come from use of informal DR and settlement processes so they should be aware of different options avail. To clients understanding of professional conduct

Exercise 2 and 3: Discuss diff. models of lawyering Pick paradigm of lawyering and then headings for: duty of courts, client, other

practitioners and discuss contemporary exs. - discuss wider community and how they view lawyers Last lecture quote frm Kirby J about professionalism and the tension b/w professionalism and billable hours Parker and Evans model, and mercantile mdl of lawyering Whether pro bono work should be mandatory - b/c there is slow and steady demise of legl aid today - see Steven Parker article - govt duty to prov. Access to justice fundamental to Australian legl sys Talk about adversarialism and tension of this Rise of ADR - legislative enactment requiring practitioners to engage in pre litigation reqs. - so non adversarialism but there is duty to client - but whats better for client and better for admin. Of justice Could discuss natl legl profession -incorporation of legl practice Multi disciplinary practices How do you deal w/issues of confidentiality? Incorporating rules and guidelines Costing

EXERCISE FOUR (previous exam question) Stephen recently started work as an employee solicitor at the firm of Hard & Fast. The firm specialises in commercial matters. He previously worked at Mouse, Palm & Pilot, a firm with a boutique clientele of people in the IT industry. He mainly advised about intellectual property work but was also engaged in the formation of companies and taxation matters. In his second week at his new firm, Julia comes to see him. Julia was one of Stephens friends at University. They were members of the Computer Club. But they lost touch when Julia moved overseas to work. He has followed closely the development of her successful software company INFOTEL Inc. Julia tells Stephen INFOTEL Inc is in dispute with a marketing company, COVERAGE Inc (CR) over a part payment pursuant to a contract dealing with the launch and marketing of a new software package. CR has initiated court proceedings against INFOTEL Inc. seeking payment. Stephen fleetingly recalls that CR was a client of Mouse, Palm & Pilot. He does not give this matter any further thought as he is so delighted to see Julia after all these years. Julia confides to Stephen that although the stated reason for the dispute is that the other two directors of her company are not satisfied with the proposed marketing strategy, she does not care about their views. She really wants her company to get out of this agreement with CR because she has managed to secure a much more attractive arrangement with another firm that will have international exposure. Julia also has concerns about CRs financial sustainability and does not want INFOTELs reputation to be tarnished by association with CR. She intimates to Stephen that CR has limited capacity to withstand a long drawn out legal battle. Julia indicates that she has come to him because her previous legal advisors were too straight. She instructs Stephen to vigorously defend the litigation commenced by CR Stephen agrees to act for Julia as he is sure his new bosses will be pleased to have a new client. He puts in a defence to CRs claim and commences a range of successive and increasingly nitpicking (strictly unnecessary) interlocutory proceedings that will consume considerable legal resources. As the matter progresses, Julia is impressed by Stephens commitment to the case and asks him out for dinner. Julia is keen for Stephen to invest in her new business venture. All is going well until a partner from Mouse, Palm & Pilot, the firm acting for CR spots them in an expensive restaurant having a romantic dinner. Stephen, on seeing the partner, suddenly remembers that he provided some tax advice to CR while employed by Mouse Palm & Pilot (and loses interest in the exquisite risotto he had been enjoying). Stephen frets all night. First thing the next morning the opposing solicitor is on the telephone. Stephen asks the secretary to tell him that Stephen is not available. Stephen finally realises he has some ethical dilemmas and telephones the Law Institute for advice. He presents the above material to you as the ethics counsellor on duty. Identify the ethical issues facing Stephen, a legal practitioner, arising from this situation. Describe what Stephen should do now and any likely consequences for Stephen. Justify your opinion by reference to relevant sources.

Confidentiality and Conflict of interest Conflict of interest w/client of former firm Rule 4 Former firm acted in tax matter so they could have info. Thats detrimental See spincode b/c this is v. similar to that Issue of confidentiality Stephen knows about issue she has told him Conflict of interest w/personal relationship w/Julia b/c he may have hard time giving objectively gd advice this affects independent as well - is there prescription on relationships w/clients in Vic? no Criml law and fam law clients have to be treated diff. in respect of these issues w/pwr imbalance, objectivity and dependency - so if you think that client is dependent on sol. Then talk about it; but here dont know how relationship is panning out but Julia seems like sophisticated client Competence Hes done tax matters and commercial work Doing this commercial litigation and he says bosses will be glad to have new client Is he competent to take the case? - doesnt sound incompetent Mention the type of work he did See into to the rules re. competence Competence is implied term of retainer and has interface w/tortious liability Can you practice in IP, taxation matters etc and work for IT firm and then run commercial matters? yes there no reason you cant practice in other areas Standard is s 58 and 59 of Wrongs Act and Boland v Yates case - standard of practice that could reasonably be expected by practitioner - cant lower the standard -but if you hold yourself out to be expert than standard can be higher In this case, Stephen hasnt held himself out, so look @ reasonable standard Consequences Tort Hes breached rules/act so as detailed above in abuse of process, conflict of etc. Competence as conduct matter, not any action for negligence will be conduct matter, it has to be gross negligence Conflict of interest Abuse of process

Not likely to be misconduct Not really an issue

Breach of fid. Duty Potentially could be restrained frm acting See Mallesons case Breach of contr. Charge by LSC w/LSC can ask for damages in civil dispute so 2 ways to go w/LSC, disciplinary complaint or civil dispute - out of 2nd way have 2 arms: cost dispute and pecuniary loss