SOME ETHICAL DILEMMAS

S Stuart Clark

4 May 2015

Clayton Utz

SOME QUESTIONS TO CONSIDER

Stop An Abortion?
A woman

is pregnant
The father has fallen out with his partner
The father has a fundamental moral objection to
abortion
You are instructed that the abortion would be unlawful
The abortion will be performed in the next 60 minutes
The father wishes to stop the abortion proceeding
Will you apply for an ex parte injunction?

SOME QUESTIONS TO CONSIDER

Overturn A Murder Conviction?
A man

is convicted of brutally beating a woman to

death with a heavy pipe wrench
He is convicted on the basis of his confession
He is sentenced to life imprisonment
The conviction is confirmed by Court of Appeal (twice)
and in the High Court
Your potential client claims it was a 'fit up'
Will you act?
How hard will you run the case?

SOME QUESTIONS TO CONSIDER

Defend Participants In Genocide?
A multinational

mining company operates a mine in

the Democratic People's Republic of the Congo (DRC)
Rebel soldiers commit mass murder of villagers living
near the mine site
The mining company's helicopter and trucks/drivers
transported the troops to the village
The company and its employees are charged with
multiple offences, including genocide
Will you accept instructions to defend the accused?

SOME QUESTIONS TO CONSIDER

Advise On A Document Retention Policy
You

are acting for an NGO that has collected material relating to a

multinational corporation supporting a repressive, totalitarian African
regime
The NGO holds documents evidencing wrongdoing on the part of its
employees in collecting that material
If used by the regime, the documents could establish a claim for
damages that might destroy the NGO and expose its employees to
action by the African government
No proceedings are on currently on foot against the NGO/its employees
although they have been mooted
The NGO seeks advice on the need to retain all of its historical records
What advice would you provide?

SOME QUESTIONS TO CONSIDER

Disclose Evidence That Will Damage Your
Client's Case?
You

are defending product liability claim involving a

medical device
Client has pleaded and asserted no physical defect
You conduct electron microscopy and see a chip on the
device
The defect was probably caused by the microscopy
Your client instructs you not to disclose the existence of
the chip to its opponent or the Court
What do you do?

ETHICAL ISSUES IN PRACTISE

Large Firm Approach
Ethical & Professional Responsibility

Critical issue for all firms

Priority issue for graduate training
Conduct regular training sessions
Ethics committees and advisors (GC's office)
Assessed regularly and for promotion
Quickest way to get the sack!

Key

focus area for regulators

Can end your career as a lawyer

ETHICAL ISSUES IN PRACTISE

In

most cases the issue will be -

Straightforward
Not Controversial
Easily resolved Apply the rules
Use common sense!
Dont

sit on a problem

Ask for help advice - support

Don't

assume it has or will be recognised!

ETHICAL ISSUES IN PRACTISE

Pretty well every day you are likely to
have to consider your
Duty to the court
Duty to your client
Duty to fellow practitioners
Duty to your partners/employer

ETHICAL ISSUES IN PRACTICE

Should

that document be included in

the list of documents?
Can we plead fraud or misconduct?
What can I say in the negotiations?
Can I give an undertaking?
Can we/should we act in that deal?
Do I have to tell the judge that?

DUTY TO THE COURT

[the lawyers] duty to the court is
paramount. *
Duty

of disclosure to the court

Duty not abuse the courts process
Duty not to corrupt the administration of justice
Duty to conduct cases efficiently
* DOrta-Ekenaike v Victorian Legal Aid [2005] HCA 12

DUTY TO THE COURT

Australian Solicitors Conduct Rules
Duty of disclosure

Must not deceive or mislead the court

Must correct any misleading statement ASAP
Must draw binding authority to the court's attention
Ex parte applications
Must disclose all matters (other than privileged) adverse
to clients case

Reputation

with judges and colleagues

DUTY TO THE COURT

Australian Solicitors Conduct Rules
Your independence is fundamental
Not just a mouthpiece for the client
Must exercise forensic judgment
Must have a proper basis for allegation,
submission or question
Must not allow proceedings to be used in way
that constitutes an abuse of process

DUTY TO THE COURT

"Overriding purpose is facilitate just,
quick and cheap resolution of the real
issues in the proceedings." *
Court

must give effect to overriding purpose

Parties have duty to assist the court
Lawyer's conduct must not cause party to
breach its duty to the court
* s. 56 Civil Procedure Act, NSW (2005)

DUTY TO THE CLIENT

Duty of Confidentiality
Home
Pub/coffee
In

shop

the lift
On planes
What about that folder?

DUTY TO THE CLIENT

Conflicts
Basic rule dont act against your own client!
Deemed knowledge
Contracting out
Informed

consent

Information barriers
Commercial

conflicts
Problems for plaintiffs lawyers

THE CAB RANK RULE

Doesnt

apply to solicitors
Consequences of acting for unpopular
clients or causes
How do you decide if you should act?
Should you put aside personal beliefs and
prejudices?
How far would you be prepared to go?
What about your partners and employees?

SOME QUESTIONS TO CONSIDER

Stop An Abortion?
A woman

is pregnant
The father has fallen out with his partner
The father has a fundamental moral objection to
abortion
You are instructed that the abortion would be unlawful
The abortion will be performed in the next 60 minutes
The father wishes to stop the abortion proceeding
Will you apply for an ex parte injunction?

SOME QUESTIONS TO CONSIDER

Overturn A Murder Conviction?
A man

is convicted of brutally beating a woman to

death with a heavy pipe wrench
He is convicted on the basis of his confession
He is sentenced to life imprisonment
The conviction is confirmed by the Court of Appeal
(twice) and in the High Court
Your potential client claims it was a 'fit up'
Will you act?
How hard will you run the case?

SOME QUESTIONS TO CONSIDER

Defend Participants In Genocide?
A multinational

mining company operates a mine in

the Democratic People's Republic of the Congo (DRC)
Rebel soldiers commit mass murder of villagers living
near the mine site
The mining company's helicopter and trucks/drivers
transported the troops to the village
The company and its employees are charged with
multiple offences, including genocide
Will you accept instructions to defend the accused?

SOME QUESTIONS TO CONSIDER

Advise On A Document Retention Policy
You

are acting for a multinational tobacco company

The company holds many documents
Some documents might be used in evidence in future litigation.
If used by a plaintiff, some documents might establish a claim
for damages that could bankrupt the company and expose its
employees to claims and abuse
No proceedings are on currently on foot against the
company/its employees, although they have been mooted
The company seeks advice on the need to retain all of its
historical records
What advice would you provide?

SOME QUESTIONS TO CONSIDER

Disclose Evidence That Will Damage Your
Client's Case?
You

are defending product liability claim involving a

medical device
Client has pleaded and asserted no physical defect
You conduct electron microscopy and see a chip on the
device
The defect was probably caused by the microscopy
Your client instructs you not to disclose the existence of
the chip to its opponent or the Court
What do you do?

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