Professional Responsibility and Legal Ethics Final Study Notes

10 Found helpful • 216 Pages • Complete Study Notes • Year: Pre-2021

• Seminar 1: Structure of the legal profession in NSW… pg 1-3 o Sources of Lawyers and Professional responsibility… 1 • General law… 1 • Statute….1 • Professional rules…2 • Role of professional rules…3 • Seminar 2: History, philosophical ethics and trends in the legal profession… pg 4-6 o Ethics…4 o Professionalism…4 o Impact of the profession on the changed legal landscape…5 • Impact of competion law…5 • Impact of changes in social attitudes…5 o Division of Legal Profession [1829] NSWSC…6 • Seminar 3: Admission to practice… pg 7-17 • Seminar 4: Duty to Client…page 18-47 o Chapter 3: The Lawyer Client relationship…18 • Creation of lawyer client relationship…18 • Terms of a retainer…19 • Parties to the retainer…20 • Proof of the retainer….21 • Authority of lawyers under retainer…24 • Lawyer as an agent…24 • Forms of authority…24 o Actual…24 o Ostensible…25 • Lawyers acceptance of work…25 • Counsel’s duty to accept a brief: cab rank principle…25 • Grounds upon which counsel must/may decline a brief…25 • Acceptance of work by lawyers who parties as barristers…25 o Chapter 4: Duties to the client and their enforcement…28 • Nature of duties…28 • Schemas of duties to client…28 • Duties… 28-32 • Duty to be competent…29 • Duty of loyalty and trust…29 • Duty of confidence…30 • Duty to promote quality and client care…31 • Duty to promote access to justice…31 • Duty to encourage settlement…32 • Enforcement of duties- Remedies for breach of duty…32 o Chapter 5: Lawyers Duty to Client in Tort…34 • Relationship between contractual and tortious liability…34 • Liability in tort…35 • Liability under statue for misleading and deceptive conduct…35 • Identifying the clients’ interests…36 • Scope of duty of care…37 • Modifying the scope of duty via the retainer…37 • Impact of the circumstances in which advice is given or sought…39 o Urgent Circumstances…39 o Advice on a single occasion…39 • Can the giving of other advice fall within the retainer…40 • Standard of care…40 • Relevant standard…40 o S50(1) CLA…41 • In court immunity from negligence…44 • Scope of immunity…47 • Seminar 5: Loyalty… page 48-75 o Chapter 6: Lawyer client conflict and influence…48 • Proscription against lawyer client conflict…48 • Scope of proscription…48 • Rationale of proscription…48 • Informed client consent as elixir to conflict…49 • Circumstances where duty-interest conflict in issue…50 • Dealing with clients…50 • General proscription…50 • Borrowing from clients…51 o General law…51 o Professional rules…52 • Lending to clients…52 • Proscription against secret profits…53 • Application of fiduciary principle generally…53 • Specific application to undisclosed referral fees and commissions…53 • Undue influence by lawyer over client….54 • Presumption of undue influence…54 • Application to gifts from client to lawyer…55 • Unconscionable dealing by lawyer…55 • Lawyer client sexual relation…56 o Chapter 7: Concurrent conflicts…56 • Nature of conflict…56 • Importance of loyalty…56 • Cause of action grounded in fiduciary law…56 o Client-Client conflicts falling outside the fiduciary proscription…57 o Importance of concurrent conflict issues…57 o Need for alertness to concurrent conflict issues…57 • Scope of Proscription…58 • Basic Proscription…58 • Application to both contentious and non-contentious matters…59 • Concurrent conflict in contentious work…59 • No blanket proscription on concurrent representation in non-contentious work…60 • Application beyond the individual lawyer to the firm…61 • Application to relationship with opposing lawyer…62 • Limitation on scope of duty by consent…62 o Chapter 8: Acting against former clients…64 • Context…64 • Comparing current and former client conflicts…64 • Circumstances where former client conflict issues arise…64 • Interests that impact on decision to disqualify…65 • Former client interests in preserving confidentiality…65 • Interests of the general public-the question of appearance…66 • Current clients interest in choice of legal representation…67 • Are interest of the lawyer relevant? …67 • Threshold for judicial intervention…67 • Relevant inquiry…67 o General law…67 o Professional rules…68 • Dissecting the relevant enquiry the “real possibility”…68 o Possibility…68 o Real Possibility…68 o Risk of inadvertent disclosure…69 • Dissecting the relevant inquiry-reasonable observer aware of all the relevant facts…69 • Dissecting the relevant inquiry- “to the detriment” of former client…69 • Dissecting the relevant inquiry-the onus of providing misuse of confidential information…70 • Dissecting the relevant inquiry-can impressions constitute confidential information?... 71 • Scope for disqualification-where no prior lawyer client relationship…72 o Duty sources from previous social or familial relationship…72 o Duty sourced from previous involvement in litigation…72 o Duty sourced from preliminary consultation…73 • Scope for disqualification-extension to the firm…73 o Disqualification of lawyers lacking relevant confidential information…73 o Role of Chinese walls…74 • Seminar 6: Confidentiality and Privilege…76-102 o Chapter 10: Confidentiality…76 • Nature of duty…76 • Rationale…76 • Source…76 • Scope of duty…76 • When sourced in contract…76 • When sourced in equity…77 • When sourced in professional rules…77 • Duration and priority of duty…77 • Comparison to legal professional privilege…77 • Limits and Exceptions to duty…78 • Client authorisation…78 • Disclosure compelled by law…80 • Disclosure ostensibly to support lawyers interest…80 • Disclosure of information that is not confidential…81 • Disclosure of clients criminal conduct or intent…81 • Disclosure in the public interest…83 o Chapter 11: Legal Profession Privilege…84 • Nature of the privilege…84 • Advice and Litigation Privilege…84 • Rationale for privilege…84 • Privilege under the uniform evidence law…85 o S188 Advice…85 o S119 Litigation…85 • Fulfilling the onus of proof…86 • Purpose of the communication…87 • Dominant Purpose test…87 • Litigation privilege-communication for the purpose of anticipated litigation…88 • Purpose of communication to further fraud…88 • Communications covered by privilege…90 • Concept of communication…90 o Application of privilege to copes, translations and modifications of non-privileged copies…90 o Application of privilege to attachments to privileged documents…91 o Application of privilege to communication of clients identity…91 o Application of privilege to communications of clients contact details….91 o Application of privilege to trust account records…92 o Application of privilege to bills of cost…92 • Privilege limited to “confidential communications”…92 o Video footage…93 o Documents in final form…93 • Privilege limited to communications within a lawyer client professional relationship…91 • Who is entitled to privilege…94 • The client…94 • Where the client is an entity…95 • Where the client has diet or become insolvent…95 • Privilege claims in non-judicial proceedings…95 • General rule…95 • Illustration-application of privilege in response to search warrants…96 • Abrogation of privilege by statute…96 • No ouster except where clear and unambiguous statutory intention…96 • Scope of statutory ouster by necessary implication…97 • Waiver of privilege…98 • Express/Implied Waiver…98 o S122(1) of the Uniform Evidence Law…98 • Waiver by intentional disclosure…99 o Pleading or affidavit…99 o Disclosure of legal advice…99 o Partial disclosure…100 • Waiver by unintended disclosure…100 o Inadvertent or mistake disclosure…100 o Chapter 12: Privilege in Aid of Settlement…100 • Context and Rationale…101 • Parameters of privilege…101 • Two main requirements…101 o General law…101 • Seminar 7: Trust Accounts, Liens and Undertakings…103-131 o Chapter 9: Duty to Account…103 • Basic Obligation…103 • Trust Money…103 • Concept of Trust money under LPA…103 • Money involved in financial services/investments not “trust money…104 • Money received for costs as “trust money”…104 • Accounting for trust money…105 • Duties related to accounts…105 o Records to be kept…105 o Duty to give account on request…105 o No mixing of trust money with non-trust money…105 o Trust account not be overdrawn…106 o Duty to report defalcations…106 o False names in trust account prohibited…106 • Prohibition on use or withdrawal of trust money without authority…106 o Withdrawal of trust money in payment of cost…107 o Solicitor lien not prejudiced…108 • Trust money not available to satisfy lawyers third party debt…108 • Verification of trust accounts…108 • External examiners and investigators…108 • Confidentiality and privilege in trust account verification…108 • Failure to Account…109 • Claims against fidelity fund…109 • Other consequences of failure to account…109 o Chapter 14: Costs disclosure and agreement…110 • Cost disclosure requirements…110 • Disclosure requirements other than South Australia…111 • What must be disclosed…111 • The challenge in disclosing cost estimates…112 • Who must the disclosure be made too…113 • Who need disclosure not be made…114 • Consequences of not disclosing…114 • Formalities for cost agreements…114 • Writing…114 • Signature…114 • Setting aside and variation of cost agreement…115 o Chapter 16: Solicitor Liens… 115 • General principle…115 • Two forms of solicitor liens…115 o Retaining…115 o Particular…115 • Policy underlying liens…116 • Retaining liens…116 o Liens are “possessory” and “general”…116 o What items come within the lien?...117 o Operation of liens where client changes solicitor…117 • Lawyer discharged by client…117 • Lawyer discharges the client…117 o Chapter 20: Conduct in practice…118 • Solicitation of business by lawyers…118 • Lawyer advertising…118 • Restriction on lawyer advertising…119 • False, misleading or deceptive advertising…119 • Vulgar and sensation advertising…120 • Comparison and testimonials…120 • Advertisement of speciality or expertise…121 • Representation of prior success or result in a matter…122 • Restriction on advertising personal/work injury maters…122 • Other restrictions on methods of soliciting work…122 • Approaching prospective clients…122 • Contacting clients upon leaving firm and poaching clients…123 • Obtaining work by offering rewards…124 • Practice Names, stationary and premises…124 • Practice Names…124 • Practice stationary…125 • Sharing stationary…125 • Sharing receipts with non-lawyers…126 • Traditional prohibition…126 • Lawyers business structure…126 • Traditional approach to business structure…126 o Chapter 22: Undertakings…127 • Context…127 • Importance of abiding by undertaking…127 • Potential liability for failure to fulfil undertaking…127 • Construing the undertaking…128 • Professional disciplinary liability…127 • Steps to avoid liability to undertaking…129 • Undertaking only to be given on clients behalf with client authority…129 • Written undertaking in clear and unambiguous terms…130 • Complete control…130 • Need for care in accepting undertaking…130 • Need for care regarding undertakings given by partners or staff…130 • Seminar 10: Duty to the court duty to obey the law…132-162 o Chapter 10: Duty to the Court…132 • Context…132 • Lawyer as an officer of the court…132 • Enforcing the duty to the court…132 o Courts jurisdiction to restrain lawyers from acting…132 o Courts jurisdiction to sanction a lawyer for breach of duty…133 • Independence…134 • Independence in present of case…134 • Independence undermined where a lawyer is a witness…135 o Proscription and rationale…135 o Courts jurisdiction to disqualify lawyer-witness from acting…136 o Exceptions to proscription…136 • Independence undermined by a lawyers conflict of interest…136 • Independence threatened by a lawyer’s relationship…137 o Relationship with client…137 o Relationship with opposing lawyer…137 • Candour definition…138 • Candour in the presentation of the law…138 o Duty to assist the court in the applicable law and procedure…138 o Duty not to withhold relevant law…139 • Candour in the presentation of fact…139 o Duty and Scope…139 • Importance of duty…139 • Duty is both proscriptive and prescriptive…140 • Limits to the duty…140 • BR r23…141 • Half-truths…142 • Especial Candour in ex parte application…142 • Verification of clients narrative…143 • Client perjury…143 • Where perjury has been committed…143 • Where perjury has been proposed…144 • Clients intention to disobey court order…144 • Duty not to illegitimately disobey or remove documents…144 • S177 LPR…145 • Dealing with witnesses…145 • Importance of maintaining integrity…145 • No conferring with witnesses together…146 • No coaching witnesses…146 • No communication in cross examination…147 • No property in witness…147 • Evidence subject to pre-existing confidentiality obligation…148 • Communications and relationships with judges…148 • Public disclosure and media communications…149 • Abuse of process…151 • Baseless aspersions or allegations…151 o Allegations of criminality, fraud or other serious misconduct…152 o Allegations in family law proceedings…153 o Naming third parties…153 • Wasting of time and money of in court proceedings…154 • Hopeless cases…155 o Approach in civil cases at general law…155 o Statutory initiatives…155 o No application to criminal proceedings…157 o Chapter 19: Duty to obey and uphold the law…157 • Client who behave unlawfully…157 • Lawyers duty…157 • Eg. Illegal transfer of money…158 • Eg-client using false names…158 • Eg-suspicion that client using premises for illegal purposes…158 • Potential consequences for the lawyer of the clients unlawful acts…159 • Civil liability…159 • Criminal responsibility…160 • Disciplinary consequences…160 • Approach to the giving of advice…160 • Line between advising on legal and illegal conduct…160 • Illustration-Taxation advice…161 o Duty to client…161 o Client choice…161 o The tax lawyer and moral advice…162 • Seminar 11: Criminal Defence and Prosecution … 163-175 o Chapter 18: Particular Applications of Duty to Administration of Justice…163 • Prosecuting Counsel…163 • Basic Duty of Fairness and Impartiality…163 • Impact on attitude of prosecutor…164 o Importance of not inflaming bias against accused…165 o Importance in avoiding emotive language…165 o Consequences of failure to observe the standard of fairness…166 • Prosecutors duty of disclosure…166 o What should be disclosed…167 o Circumstances were disclosure is not required…168 o Disclosure of availability of evidence…168 o Consequences of failure to disclose…168 • Calling of Witnesses by prosecutor…169 o General rule…169 o Distinguishing which witnesses need/need not be called…169 o Calling of witnesses by the court…170 • Submissions on sentence…170 • Miscarriage of justice test…171 • Criminal defence lawyers…171 • Guilt of accused…171 o When accused confesses to guilt…171 o Denial of guilt but plea of guilty…172 o Attribution of criminal responsibility to another…173 • Disclosure of prior convictions…173 • Advice on plea and giving evidence…174 • Duties of family lawyers in cases involving children…174 • Circumstances where interest of child is paramount…174 • Lawyers as mediators in family proceedings…175 • Appointments of an independent children’s lawyer…175 • Seminar 12: Misconduct and the disciplinary jurisdiction…174-201 • Disciplinary Jurisdiction…174 • The role of the court…174 • Nature of disciplinary proceeding…174 • Objectives of disclosing proceedings…174 o Main aim…174 o Relationship between protection and punishment…175 o Impact of protective aim on nature of sanction…176 o Impact of protective aim on procedure…176 o Impact of protective aim on need to comprehensively consider misconduct…176 • Proof in disciplinary proceedings…177 • Procedural fairness in disciplinary proceedings…177 o Conduct of investigation…178 o Conduct of disciplinary hearings…178 o Bias decision maker…178 • Costs of disciplinary proceedings…179 • Publicising disciplinary sanction…180 • Concept of Professional Misconduct…180 • Misconduct as defined at common law…180 • Misconduct as defined under statute…181 • Disciplinary order…182 o Striking off…182 o Suspension…182 o Reprimand…183 • Factors that impact on disciplinary orders…183 • Frequency of misconduct and prior misconduct findings…183 o Isolated as opposed to persistent misconduct…183 o Previous disciplinary findings…184 • Lawyers attitude…184 • Lawyers level of appreciation of wrongdoing…184 • Lawyers level of experience…184 • Illness and external stressors…185 o Medical condition or addiction…185 o Pressure and external stressors…185 • Testimonials and opinions by third parties…185 • Loss suffered by others as result of misconduct…185 • Loss already suffered by lawyer as a result of misconduct…186 o Chapter 24: Disciplinary Procedures…187 • Brining attention of misconduct to the relevant body…187 • Reporting by courts…187 • Reporting by lawyers…187 • Professional responsibility regarding inquiries from regulatory bodies…188 • Procedure in NSW…188 • Complaints…188 • Investigation by Comissioner of Council…188 • Mediation…189 • Review of Council decision…190 • Administration Decision Tribunal…190 • Appeals from Tribunal…191 o Chapter 25: Types of Misconduct…191 • Misconduct in court…191 • Misleading the court…191 • Misleading lawyers or third party…191 • Misleading professional body…191 • Disrespect to the court or its authority…192 • Trust accounting and irregulaties…193 • Lawyer client conflict…193 • Client-client conflict…193 • Breach of client confidentiality…193 • Overcharging…194 • Delay or neglect…194 • Failure to properly supervise…194 • Misconduct outside of practice…195 • Relevance of a criminal conviction…195 • Convictions for sex offences…196 • Drug related convictions…176 • Convictions of stalking…196 • Convictions for after offence…197 • Lawyers Tax indiscretions…197 • Misleading statement to a court other than as a lawyer…198

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