Table of Contents Chapter 1: Professional Conduct ...... 4 Who is Affected by Professional Conduct obligations ...... 4 What is a Profession ...... 4 Regulation of the Legal Profession Today ...... 4 Lawyers Practice and Ethics ...... 4 Ethics v Legal Ethics ...... 5 Core Values of the Legal Profession ...... 5 Personal Responsibility ...... 5 Reconciling personal and Professional Values ...... 5 Ethical Dilemmas ...... 5 Decision Making Process ...... 6 Chapter 2 : Lawyers, Values and Sources ...... 7 Distinctions between barrister, lawyers, solicitors and attorneys ...... 7 The nature of values ...... 7 Values fundamental to the legal profession ...... 8 Common mistakes made by students in learning skills and values ...... 8 Sources of professional responsibility (the law of lawyering) ...... 8 Chapter 3: Ethics And Lawyering ...... 10 Lawyers as moral agents and agents of change ...... 10 The limits of the law of lawyering – recognising values ...... 10 Alternative visions of regulation of the profession ...... 12 Chapter 6: Communication Skills ...... 13 Lawyers as skilled helpers and representatives of the legal profession ...... 13 The meaning of participatory client-focused interviewing ...... 13 Communication skills ...... 14 Ethics and professional responsibilities in interviewing ...... 14 Choosing clients ...... 16 Dealing with clients with special needs ...... 16 Chapter 7: Advocacy ...... 18 Preparing yourself for trial ...... 18 Court basics – court etiquette ...... 18 The ethics of advocacy ...... 18 Your ethical responsibilities ...... 18 Chapter 8: Etiquette ...... 20 Borrowed manners: Court etiquette and the modern lawyer ...... 20 Chapter 9: Cross-Cultural Communication ...... 21 Intercultural communication and the language of the law ...... 21 Chapter 10: Aboriginal Clients And Witnesses ...... 23 Evidence, procedure and law ...... 23 Chapter 11: Criminal Law Practice – Defending Aboriginal Practice ...... 25 Things to consider when dealing with Aboriginal people ...... 25 Non-Aboriginal Understanding ...... 25 Chapter 13: The Lawyer-Client Relationship ...... 27
1 Creation of lawyer-client relationship ...... 27 Authority of lawyers under the retainer ...... 28 Lawyers’ acceptance of work ...... 30 Termination of lawyer-client relationship ...... 31 Chapter 14: Lawyers’ Duty To Clients In Tort ...... 33 Relationship between contractual and tortious liability ...... 33 Scope of the duty of care ...... 33 Standard of care ...... 36 In-court immunity from negligence ...... 39 Limiting liability – Professional standards regime ...... 41 Chapter 18: Confidentiality ...... 43 Nature of the duty ...... 43 Scope of duty ...... 43 Limits and exceptions to the duty ...... 44 Fulfilling the duty ...... 46 Chapter 19: Legal Professional Privilege ...... 47 Nature of the privilege ...... 47 “Purpose” of the communication ...... 48 Communications covered by the privilege ...... 49 Who is entitled to claim privilege? ...... 51 Privilege claims in non-judicial proceedings ...... 52 Abrogation of privilege by statute ...... 52 Waiver of privilege ...... 52 Chapter 20: Duty To Account ...... 54 The basic obligation ...... 54 “Trust money” ...... 54 Accounting for trust money ...... 55 Verification of trust accounts ...... 58 Failure to account ...... 58 CHAPTER 21: Costs Disclosure and Costs Agreement ...... 60 Costs disclosure and costs agreement ...... 60 Costs disclosure requirements ...... 60 Costs agreements ...... 62 Contingent fee costs agreements ...... 63 Setting aside and variation of costs agreements ...... 65 Chapter 22: Duty to the Court ...... 67 Context ...... 67 Independence ...... 67 Candour in the presentation of the law ...... 69 Dealing with witnesses ...... 71 Communications and relationship with judge ...... 72 Public disclosures and media communications ...... 72 Abuses of process ...... 72 Chapter 23: Duty to obey and uphold the law ...... 74 Client who behaves unlawfully ...... 74 Approach to the giving of advice ...... 75 Chapter 24: Criminal Practice ...... 76
2 Prosecuting counsel ...... 76 Criminal defence lawyers ...... 78 Chapter 25: Professional Colleagues and Third Parties ...... 80 Professional duties owed to other lawyers ...... 80 Chapter 26: Lawyers Acting as Mediators ...... 82 Different role to representing a client ...... 82 Chapter 27: Undertakings ...... 84 Context ...... 84 Liability in contract ...... 84 Liability under the court’s jurisdiction ...... 84 Professional disciplinary liability ...... 85 Steps to avoid liability on undertakings ...... 85 Chapter 28: Lawyers as Victims ...... 87 Chapter 29: The Disciplinary Jurisdiction ...... 88 Role of the court ...... 88 Nature of disciplinary proceedings ...... 88 Concept of “professional misconduct” ...... 89 Disciplinary orders ...... 92 Bringing misconduct to the attention of the relevant body ...... 92 Chapter 30: Types of Misconduct ...... 95 Misconduct in the court of practice ...... 95 Misconduct outside practice ...... 97
3 Chapter 1: Professional Conduct
Who is Affected by Professional Conduct obligations • Legal practitioners – people who have a recognised university qualification in law, practical legal training experience, have been admitted to the legal profession and also, crucially, have a practicing certificate • Legislation definition of legal practitioner – a lawyer who holds a current Australian practicing certificate • Legislation definition of a lawyer – A person who is admitted to the Australian legal profession in this jurisdiction or any other jurisdiction
What is a Profession • A profession may be generally defined as a group of people in broadly similar workplace occupations or vacations who consider themselves, and are considered by others, as having special skills or powers which raise that occupational or vocational grouping in status and financial reward • Indicia o Skill based on theoretical knowledge o The provision of training and education o Testing the competence of members o Organisation o An ethical code of conduct o Alturistic service
Regulation of the Legal Profession Today • Professional conduct for legal practitioners is governed by a series of interconnected laws and ethical attitudes • NSW Legislation o Primary Legislation § Legal Profession Uniform Law 2015 o Subordinate Legislation § Legal Profesion Uniform Admission Rules 2015 § Legal Profession Uniform Conduct (Barristers) Rules 2015 § Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 • Professional Conduct rules deal with the more broadly ‘ethical’ aspects of the legal practice, as well as certain practitioner specific duties, and are often codifications of accepted practices and common law rulings • Disciplinary Tribunals o Exist in all jurisdictions to deal with complainst against legal practitioners o Provide an arguably cheaper and timelier way of dealing with complaints against legal practitioners § NSW Civil and Administrative Tribunal
Lawyers Practice and Ethics • Ethics is the process by which we place Difference between S and B: Barristers wear special wigs and robes in most courts, not FCA. Solicitors don’t wear wigs or robes at any time. • Philosophical Ethics o Utilitarianism and Consequentialism § Will the consequence result in more good being done than harm? If so do it § Outcome of the greatest happiness for the greatest number o Deontological § Act only according to that maxim whereby you can, at the same time, will that it should become a universal law § Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end o Virtue
4 § A good person is one who exhibited the virtues of prudence, justice, temperance and fortitude and courage § Able to apply their characteristics of above to resolving a dilemma § No guidance as to how to make a decision of an ethical kind
Ethics v Legal Ethics • Personal, ethical, spiritual, economic and other factors influence a practitioner’s decision making so that it cannot simply be the purely objective application of the law • Legal ethics are the time-honoured duties and obligations that apply to legal partitioners as recognised by law • Ethics cannot be reduced to rules
Core Values of the Legal Profession • Honest • Fidelity (loyalty) • Integrity
Personal Responsibility • The law pertaining to misconduct is applied strictly and personally • If a legal practitioner is found to have engaged in professional misconduct, the practitioner will be liable regardless of the circumstances in which it occurred • If there is a culture of wrongdoing in a firm, the firm is not called to account for professional misconduct; only the individual practitioners are responsible • Re Mays and the Legal Practitioners Act o Partner struck from the roll as a result of his partners trust account defalcations o Even though he did not know, this is not an excuse as he should of known • Legal practitioners are unable to hide behind the argument that they were following orders of a superior
Reconciling personal and Professional Values • Argued that it should not be difficult to reconcile personal and professional values o Problem with this argument § A practitioner may be acting for a client in circumstances where the practitioner has personal, ethical concerns about the impact of the practitioner’s legal services on the greater good § May be occasions where a client holds certain views, or wishes to run an argument, or has certain characteristics, which are inconsistent with the practitioner’s personal values, such as spiritual and political values • For legal practitioners there are some, reasonably unique circumstances in which the requirements of the legal system compel a legal practitioner to act in a way that may seem inconsistent with general concepts of ethics or societal values
Ethical Dilemmas • For legal practitioners, ethical dilemmas arise when a practitioner finds themselves in situations where there appears to be a conflict of interest, a clash of professional conduct rules, or the reality of a broadly unethical result for a client or third party no matter what the practitioner does • Legal ethical dilemmas can arise in the most innocuous of circumstances and do not require any wrongdoing on the part of the practitioner for their creation • Simply answering the telephone may result in a legal practitioner speaking directly with the opponent or the opposing practitioner’s client • Dilemmas of six categories
5 o Conflicts of interest o Dealings with clients o Problems in litigation o Relationships with other practitioners o Problems within firm o Conflict with the lawyers own morals
Decision Making Process • When faced with a dilemma, the practitioner is required to evaluate and re-evaluate all rules, principles and perspectives, be they ethical, legal or otherwise, in order to make a decision that is consistent, or in equilibrium, with others
6 Chapter 2 : Lawyers, Values and Sources
Distinctions between barrister, lawyers, solicitors and attorneys • Difference between S and B: Barristers wear special wigs and robes in most courts, not FCA. Solicitors don’t wear wigs or robes at any time. Solicitors • Solicitors: Can appear in court, advises, primary client relationship, third parties, gets instructions from clients. Cost disclosure first, solicitor assesses the facts • Solicitors are responsible for advising clients on a wide range of legal matters, preparing legal docs, representing clients in court and instructing barristers in relation to complex court appearances. • Solicitors may practice as sole practitioners or they can practice in association Barristers • Barristers: Advocacy specialists, advises, clients can now go straight to barristers, • Barristers are prohibited by the Barristers’ Rules from practising in partnership with another person, or as an employee. Independent, sole practitioners. • A brief (given to a barrister): Has a chronology, affidavits, observations • Types of barristers: Junior counsel, senior counsel, queens counsel used to be Kings counsel Attorney • A person appointed by another to act in his place or represent him. • Power of attorney: Appointed and empowered nominated person to acting in place for specified period of time and specified purposes. Power terminates on expiration of the time period or completion of tasks, or if the person giving power, becomes incapable of making major decisions.
Distinction between lawyer and legal practitioner • LP is an Australian lawyer that has a current practising certificate – applies to both S and B • Become a lawyer when you get admitted to the Supreme Court – go on the roll, has done the training and skills – Legal Profession - Model Laws Project. • Must complete PLT to become a legal practitioner • When you practice without a practicing certificate – can be suspended, may result in jail if amounts to fraud
Requirements to practice: • Must obtain and renew yearly, a certificate to practise issued by the relevant professional body. • Before applying for a certificate, must be admitted to practice by the Supreme Court. • 2 prerequisites to admission to practise: 1. Educational – Must have completed a tertiary academic course, a PLT course and a period of work placement or traineeship. 2. Character-based – Needs to be of good fame and character. Fame = reputation in the relevant community, character is the person’s actual nature.
Structure of the legal profession: • Legal profession is divided into 2 branches – solicitors and barristers. • NSW inherited structure from England – main features of the inherited system were: o A division into 2 brances o Clients denied direct access to barristers. o A two-counsel rule: QC can’t appear without junior counsel. QC = leader o A leader can require a particular junior to be briefed as condition of accepting the brief. o Two-thirds rule: Junior received 2 thirds of the fee of the leader. • Prohibition on direct access to barristers by clients has been abolished. Choosing a junior and two-counsel rule abolished.
The nature of values Professional and personal values
7 • Wolski – Values are the beliefs or principles that are important to an individual or to a group. Values are used to evaluate ideas, choices and behaviour. • If a member of a profession, you’re committed to certain professional values. • Scholars: Many lawyers put their reputation, physical and psychological health at risk when they fail to act in accordance with their personal values.
Values fundamental to the legal profession • Lawyers take a public oath to honour values at the time they’re admitted to practice. • The MacCrate Report (1994): Fundamental professional values’ in support of which lawyers should apply their knowledge and skills: o Providing competent representation o Striving to promote justice, fairness, and morality o Maintaining and striving to improve the profession o Professional self-development • Stuckey: Separate values deserving attention at law schools: Sensitivity and nurturing quality of life. Profession • A profession is a membership/association, shared values, there’s education and training, you provide a service, and it’s a pursuit that’s usually regulated. Practice of law is a profession • Potentially won’t always be a profession – intro of wills you can do yourself, conveyancing, tax specialists • Public service as the principal goal of the professional undertaking. • Walmsley, Abadee and Zipser matters relevant to whether an occupation is a profession: Skilled work requiring study/training, an association or collective organisation, and ethical responsibilities.
Values • Providing competent service to clients, responsibility to justice system and to the profession. Personal conduct and self development. • Mandatory to do 10 units of study each year when practising
Common mistakes made by students in learning skills and values • Failing to connect, apply and comply with relevant substantive and procedural law • Thinking that skilled behaviour is about how you look, rather than about preparation and how you perform. • Failing to appreciate the interrelatedness of the various skills used by lawyers • Failing to think before acting • Failing to reflect upon performance and to consider what has been learned from the experience • Failing to make plans to improve performance and failing to implement those plans with further practice. • Failing to know and abide by the rules of ethics • Failing to acknowledge the role of values. Pages 25-27
Sources of professional responsibility (the law of lawyering) • Contract – The lawyer’s duty to a client only arises when the lawyer-client relationship has been established. When a lawyer accepts client’s instructions for the provision of legal services in return for a payment of an agreed fee, they enter into a contract of service with the client. 27 o Now possible for barristers and clients to enter into a contract of service. o Once a retainer exists, lawyers are under a contractual duty to perform the contract and exercise reasonable care and skill in doing so. o Jurisdictions that have implemented the Model Bill – clients instruct a law practice rather than a legal practitioner. 28 • Tort – A client may bring an action against a solicitor or barrister for the tort of negligence (Hawkins v Clayton (1988) 164 CLR 539). Scope of duty may be wider than a lawyer’s contractual duty. Lawyer’s owe clients a duty to exercise reasonable care. • Equity: Fiduciary relationship – Relationship between lawyer and client is fiduciary. Exists even without a formal retainer. A fiduciary is to give undivided loyalty to the client, to avoid a conflict of interest, to
8 disclose any personal interest, to account the benefit or gain obtained by the fiduciary and to protect confidentiality of info. o Money from a trust account cannot be withdrawn without a Trust Account Authority signed by the client, and only for stipulated and agreed purposes. o Trust account records must be externally audited each year. o Misuse of trust account funds may result in criminal penalties and professional sanction. Pg 30/1 • Legal profession legislation -Legal practice is regulated by legislation. Relevant legislation is the Legal Profession Uniform Law (NSW • State and territory professional practice rules – Law Societies and Bar Associations have established rules of conduct for their members. They are binding on local practitioners and interstate practitioners practising within the jurisdiction. Guidance on ethical issues. • Breach of professional practice rules – Breaches are categorised as unprofessional conduct or practice and professional misconduct. Can be removed from the roll = disqualified, suspended, fined, or subject to a compensation order. • Liability under other legislation – A breach of an implied term might entitle a client to a remedy under the general law of contract. Relief may also be available.
Regulation of legal profession New South Wales • The Legal Profession Uniform Law (NSW) 2015 , Legal Profession Uniform Conduct (Barristers) Rules 2015 and Legal Profession Uniform Law Australian Solicitors’ Conduct Rules National • Model Laws - The Model Laws envisaged scope for diversity by promulgating three forms of provisions: core uniform (CU), core non-uniform (CNU), and non-core (NC) provisions. • Legal Profession National Laws - The draft legal profession national law envisages the creation of a National Legal Service Board, to be responsible for the general administration, implementation and application of the Law and the National Rules, and the policies and practices it determines or adopts in connection therewith. Cases: Isn’t a court of precedence
Regulators • Office of the Legal Services Commissioner (OLSC) – resolution of matters and investigation, sends to Council of the Law Society of NSW or Bar Council. Law society council delegated powers to Professional Conduct Committee • Law Council of Australia – Function is to coordinate submissions from constituent orgs – State and Territory Law Societies and Bar Associations.
9 Chapter 3: Ethics And Lawyering
Lawyers as moral agents and agents of change • Ethics is about a set of rules, personal morality or values, the duties and responsibilities of lawyers and professional judgement. It’s distinguishing between right and wrong. • Enables a lawyer to put aside personal beliefs when making a decision in a professional capacity. • Personal responsibility conveys the notion that professionalism carries responsibility and duty with it. • Lawyers need to recognise an ethical dilemma when they’re confronted with one. • Arise because of lawyers duties, sometimes the rules governing the conduct of lawyer’s provide a clear answer to which duty it to prevail, rules governing lawyers’ behaviour are often general so discretion can be advised, the law doesn’t cover everything and the law isn’t always clear. • The lawyer must identify and take account of appropriate standards of conduct and underlying values and arrive at, and implement an ethical justifiable situation. • Minimum – lawyers must know the standards of conduct with which that are obliged to comply • Lawyers need diagnostic aids to assist them in making ethically justifiable decisions, the approach taken impacts the lawyer-client relationship and the way the lawyer represents the client. • Ethics is weighing up the conflicting values and norms of the legal profession, together with general values derived from social and applied theories of ethics, to make justifiable decisions. • Etiquette: The conventional rules of social behaviour of members of the legal profession towards each other and the court.
The limits of the law of lawyering – recognising values
Theories of social ethics • Deontological or rule-based theories, e.g. Kantian ethics – the notion “the ends justify the means” • Teleological or consequentialist theories, e.g. Utilitarianism – focuses on outcomes. An action is judged by evaluating the consequences of the action: Parker and Evens p 5
Deontology: • Deontology is the science of duty or moral obligations: that is, ethics. • Founded in Kantian philosophy; deals with first principles. o First Principles are defined in terms of either rights/duties, though emphasised on rights. Accepting a right(s) will become a maxim, causing it to be universal law. • Categorical Imperative - To act morally would be to act according to these truths without usually taking into consideration the effects that are produced by such action. o i.e. Duty of Truthfulness - have to tell truth to everyone, regardless of person. It is objective. • Nagel suggests deontology is subjective; he argues that one's agent-relative position will dictate whether an action is ethical based on the moral agent's specific relationship to the principal. • Deontologist either base their actions from God's will (religious) or natural law (how humans behave). o Essentially, both approaches require each human to be treated as an end, not as a means to an end.
Utilitarian (consequentialist) ethics • Focus on consequences/ outcome/ results • The greatest happiness of the greatest number • Ethics based on action that maximises happiness and reduces suffering • Moral worth of an action is determined by the resulting outcome (Consider actual, likely, intended consequences) • Action is justified even if it overrides individual autonomy • Right action requires us to maximise the good Virtue ethics • Eudaimonia: A flourishing human life, happiness • Essential element of character – what would a virtuous person do in the situation?
10 Applied ethics approaches: • The process of ethical reasoning requires us to: Be aware of the ethical issues, take into account standards and values, and implement that resolution in practice (Parker and Evans). • First step of ethical reasoning: Identify stakeholders, identification of conflicting and complementary values and interests at stake. • Next step: The standards and values which should be used to resolve ethical issues are identified. Once standards and values are identified, determine if there’s conflict and how it should be resolved (Parker and Evans pp1-18) • Step 3: Need to determine how the ethical decision can be implemented.
5 approaches in the decision making process Adversarial advocacy – Client focus, primary purpose. Structure in the law. • Lawyer should advance their clients interests • Two principles – partisanship and non-accountability. • Partisanship: Lawyers are partisan advocates for their clients. Required to seek to maximise the likelihood a client will prevail. Only within the limits of the law. o Lawyer puts the client’s interests above all else. • Non-accountability: Lawyer isn’t morally accountable for either the means used to advocate or for the ends pursued. • Amoral approach – client’s morals nor the lawyer’s morals are relevant. Provides some degree of certainty for lawyers. Doing everything possible within the limits of the law.
Responsible lawyer – moderated adversarial approach • Limits excessive adversarialism – proposes that lawyers behave as officers of the court as well as client advocates. Lawyers owe duties to the court. • Rush v Cavenaugh – advocate is required to behave with all due fidelity to the court and client. • Law of lawyering places limits on lengths to which lawyers may go to achieve clients’ objectives • If a lawyer believes in putting the client’s interests first, won’t necessarily institute court proceedings or adopt aggressive adversarial tactics. • Responsible lawyers will: Help clients understand/comply with law, will not unhesitatingly use loop holes and won’t say no to those prepared to use economic power to compromise integrity of justice system.
Contextual approaches • Two approaches – appropriate action on the lawyer’s part is determined by reference of circumstances of particular case – legal merit. And societal interests: o Legal merit: Allows lawyers’ to exercise discretion in resolving ethical dilemmas. o Social interests: Lawyers not imposing values on a client and it requires lawyers to accept personal moral responsibility for the consequences of their professional actions. § Assess their obligations in light of all social interests at issue in practice contexts. § The less confidence that attorneys have in the justice system’s capacity to deliver justice, the greater their own responsibility to attempt some corrective.
Moral activist – acting in the public interest, agent of justice. • An approach that injects morals into the lawyer-client relationship. Disclaims amorality. Lawyers view themselves as co-equal agents of their clients. • The lawyer is responsible for the consequences of his or her actions. • Moral activists don’t unquestioningly and zealously pursue the client’s goals. • Moral discourse must take place between client and lawyer if there are doubts about the client’s cause. • Advantages: promotes greater awareness of morality of actions, curb excessive adversarialism, lends itself to passion and may lead to innovative outcomes. • May also mean restrictions on access to justice. • Can be expensive, takes time, and not all clients will welcome it.
Ethics of care – focus on relationships and avoiding harm. Moral orientation of client • Exchange of moral views mean that lawyers don’t have to act in a moral vacuum.
11 • Lawyer gathers all relevant information from the client and identifies the persons involved. Lawyer’s opinion is also included. Lawyer and client then jointly identify central issue, alternative courses of action and selecting.
Preferred approach • Current professional conduct rules reflect the first and second approaches to ethics. • Many situations – all four processes will lead to agreement on right thing to do. Depends on the case for what approach should be used. • Considerations of adversarial advocacy and responsible lawyering are starting points for ethical practice. • Legal practice is so diverse that no single ethics can account for all the diversity.
Alternative visions of regulation of the profession Multiple codes of conduct (context specific approach): • Different roles and different kinds of practice require different ethical standards. • Different types necessitate different roles, behaviour, skills and conduct for the lawyer.
A contract model of ethics • Discretionary approaches assume one size fits all. • When moral dilemmas arise, lawyers will look at codes of conduct. • Contract model of ethics = problems of interpretation, regulation and enforcement.
Collaborative law • Collaborative lawyers signal their intention to collaborate by becoming members of collaborative law groups. • Uses a contract model of ethics. • Solution to the need for a sanction for failure to cooperate is to impose a mandatory obligation Wearing more than one hat – process pluralism • Mediation advocacy: Process of advocating on behalf of a client in mediation
12 Chapter 6: Communication Skills
Lawyers as skilled helpers and representatives of the legal profession • Their training and experience enables them, through their interactions with clients to manage problem situations and take advantage of opportunities in life. Lawyers = specialists in the law. • Setting for client/lawyer interactions is the legal interview: An interview where clients obtain info, advice and ideas in relationships to problems that have consequences for them, and lawyers obtain the info and instructions they need to provide legal services for clients. • Interviewing = first lasting impressions. Avenue by which public gains access to the law.
Flawed assumptions about clients, lawyers, interviewing and the law • Lawyers make the mistake of thinking clients will o Feel comfortable consulting lawyers o Feel comfortable talking about their personal and private life o Speak freely o Speak clearly and precisely o Know what they want o Knowing and reveal all relevant info o Want to act Lawfully o Understand or remember what is said in an interview o Agree to do what they said they would do in an interview o Be the same • Each client is a unique entity. Stereotyping can prevent accurate info processing. Stereotyping leads to making value judgments about others, inaccurate assessments, failing to remember initial info, ignoring new info. • Need to: Recognise our perceptions may be inaccurate, develop an awareness of personal tendencies, and establish interview procedures. • Assumptions clients make: o Lawyers are gladiatorial in their approach o Try to rip off clients o In it for the money • Clients assumptions regarding the law: o Truth and justice have universally accepted meanings o Trust can be established with certainty and justice will prevail o The function of the courts and legal process is to determine the truth based on facts o Facts are objective and can be precisely determined o This is only one interpretation of the law o Application of the law to the facts will result in a certain outcome • Lawyers must manage the clients expectations and assist them to understand how the legal process works
The meaning of participatory client-focused interviewing • Responsibility for decision-making in an interview may rest with the interviewer, interviewee, or shared. • Traditional view: Professionals have the knowledge and responsibility to make decisions on behalf of their patients and clients. • Client focused approach: Clients are capable of making their own decisions providing they are fully informed of their options and the consequences of exercising those options • Participatory client-focused approach: Ensures that the client retains the freedom of choice and responsibility for the consequences of action and doesn’t surrender these to the lawyer. • Interviewing – two models: o Lawyer-dominated model: Client follows the advice of the expert lawyer, client no right to exercise moral judgment o Client-controlled model: Lawyer does what client wants as long as it’s within the bounds of the law • Obligation to exercise independent judgment o Solicitors’ Rules 17.2
13 o Barristers’ Rules 43
Differentiating interviewing and counselling from courtroom advocacy • Some practitioners consider the adversarial advocacy approach more appropriate for their practice of law, approach = two principles, partisanship and non-accountability. Partisan advocates for their clients, required to advance the clients’ interests with the max zeal permitted by law. • Advocate is charged with persuading the decision maker as to the truth or justice as his client’s cause. • Give independent and candid advice – in an interview
Impact of culture • Many preconceptions we have about others are from culture. • Lawyers need to be aware of their preconceptions when working with different clients. • Don’t have to discard the participatory model of interviewing as people from diverse backgrounds share many communicative and interactive traits.
The lawyer’s role and responsibilities • Carry out instructions with due diligence and competence • Act in the clients best interests • Develop a situation of trust • Assist clients to recognise their interests, evaluate their options, make informed decisions • Elicit relevant information from clients • Explain the law in a way that is understood by clients • Check they hear and understand the information and advice given • Prepare client for adverse outcome
Communication skills • People skills o Tolerance of high emotions, empathy, sensitivity, supportiveness, non-judgmental attitude, respect, persistence, sense of humour, broad shoulders, ability to inspire confidence and trust, communicate. o Ability to solve problems • Communication skills o Way we relate to other humans. Needs skills to interview clients, prepare forms, negotiate, prepare for trial and conduct a trial. Need to be proficient so they can promote cooperation and trust, client participation, explain complex legal matters, etc. Listening in an interview is just as important as giving information. • Cognitive biases o Decision makers don’t always think and act rationally. Susceptible to error or bias in judgment. o 7 common biases: Status quo, loss aversion bias, framing effects (and context/contrast bias), anchoring and adjustment, egocentric self-serving biases and reactive devaluation: Irrational escalation of commitment • Responding to bias o Take biases into account, be patient with clients, lead clients through discussion of benchmarks they might use to evaluate their situation, don’t give initial assessments based on complete info, stress that early opinions are contingent and uncertain and give continuous assessments.
Ethics and professional responsibilities in interviewing Duties owed to the client • Duty of representation (and duty to disclose costs of services • Duty to inform, advise and act on instructions • Duty to continue to act • Duty of competence and diligence • Duty of loyalty • Duty of confidence.
14 o Generally not necessary to explain these to clients except to advise about the costs of the services.
Duty of representation (and duty to disclose costs of services) • Practitioner has a duty to accept instructions from a client if the practitioner is available and has the time, the matter is within the level of competence, client is willing and able to pay, no other reason to refuse. • If declining to act for a client because of a conflict of interest, they must inform the client of the decision in a way that doesn’t breach any confidences owed to former clients. • Clients should be provided with sufficient info to make a fully informed decision as to the costs of the services. o The Model Bill requires following info to be disclosed § Basis on which legal costs are calculated § Client’s right to negotiate a costs agreement § If reasonably practical, an estimate as to the total legal costs and an explanation of major variables that might affect calculation § Details of the intervals when client will be billed § Rate of interest that might be charged on overdue legal costs § If the matter is litigious, an estimate of range of costs that may be recovered if the client is successful (s177 LPUL) § Procedures available if there’s a dispute about costs • Formal disclosure needs not to be made in all cases. • Common practice that a lawyer and client enter into a written costs agreement stipulating the costs of services and the lawyer’s entitlement to recover costs. s174 - Disclosure obligations of law practice regarding clients175 (1) Main disclosure requirement A law practice- (a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and (b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client- together with the information referred to in subsection (2). (2) Additional information to be provided Information provided under- (a) subsection (1)(a) must include information about the client’s rights- I. to negotiate a costs agreement with the law practice; and II. to negotiate the billing method (for example, by reference to timing or task); and III. to receive a bill from the law practice and to request an itemised bill after receiving a bill that is not itemised or is only partially itemised; and IV. to seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs; or
Duty to inform, advise and act on instructions • Role isn’t to make decisions for clients but to assist clients to make informed decisions for themselves. • Practitioner may test a client on every aspect of their story to ensure that the practitioner is satisfied and won’t be taken by surprise at a later date. When practitioners do not have the answers • If they don’t and have doubts as to accuracy and comprehensiveness of the info they’re giving, they must inform the client of this. • Can be misleading and lead to liability for breach of duty or liability under relevant statutory provisions. • Interview can be adjourned until practitioner does research and has answers. Duty to continue to act • One accepted instructions, practitioner is under a duty to continue to act for the client until the matter is complete. Duty of competence and diligence • Must only take work if its within their area of practice and at their level of competence and if they can complete it in a timely manner. • Competence: The ability to get the job done right the first time. Application and integration of knowledge, skills, values and attitudes to effectively person the tasks to complete the instructions.
15 • Requirements of due diligence: advise client of rights/obligations, be frank and open with clients, give clients candid opinion, inform of alternatives to litigation, use their best endeavours to carry out instructions, not perform any unnecessary work, return phone calls, review files on regular basis, fulfil promises, etc. Duty of confidence • Clients need to be told of this. Importance of maintaining confidentiality.
Duties owed to the court • Clients may need to be told of these when: Asking you to institute proceedings that are frivolous or vexatious, asks you to misrepresent facts in court, clients instructs you to make unfounded allegations against another party or witness, and if a client instructs you to drown the other party in an endless sea of court documents.
Choosing clients • Cannot act for a client when there’s a conflict of interest or a potential one between the practitioner or between a former or existing client. • Can’t act for clients who want them to engage in illegal activity. • Should decline to represent o Friends, relatives and business associates § Nothing unethical or improper about it, although could be the worst clients. § Will often give instructions in general conversation, making the practitioner potentially off guard. o Themselves. § Cannot objectively run your own matter and there’s no point in suing yourself for incompetence.
Dealing with clients with special needs Clients with undisclosed concerns • They withhold relevant information, may border on lying by omission. • Interviewer might o Obtain permission to ask what they’re withholding o Identify the reason why the client is withholding information o Explain that can’t give advice without being provided the whole story o Or say that you can’t act for the client unless all info is given. High maintenance clients • Need to identify what they’re concerned about that’s making them act that way. Angry clients • Interviewers should try to remain calm and quiet • Try to ascertain why they’re upset • Discuss the client’s concerns. Defensive clients • Will repeatedly ask why the interviewer needs the information and then might give the info out in rations. • Respond by: o Reminding the client that they sought their assistance. o Explain that they need to be fully informed o Or reassuring confidentiality. Repetitive clients • Repeats the same info over and over or rambles. Overconfident client • There will become a time when they lose although success was assured, they receive only a fraction of what they thought was guaranteed or they receive an amount that exceeds what they expected to be charged. • Discuss benchmarks Clients who make decisions for the wrong reasons
16 • They want action against the party for the purpose of causing grief. Or they want to take action because “it is a matter of principle”. • Practitioner may decline to accept instructions if they are insistent. Clients who want the practitioner to decide • Practitioners must resist this. • Practitioners can help by: o Going over options and differentiating them o Using a process of elimination o Giving time o Reassuring client. • Must reiterate that the decision is for the client to make. Delinquent clients • Includes clients who don’t: o Do what they agreed to do for the practitioner o Contact practitioner when requested o Abide by court orders. • Need to: o Reach an agreement o Document agreement + consequences Clients who say they’re being coerced • Caution is required. • Cannot accept these instructions if they’re feeling the coercion is or even aren’t genuine. Clients who want advice so they can do it themselves • Some clients want to see the lawyer repeatedly for one-off advice so they can complete DIY kits. • Practitioner needs to be very thorough in documenting what he or she did and did not do. Clients who will not pay their account • Can reduce this by o Discussing costs in the preliminary interview o Explaining how costs are set o Discussing other fee arrangements o Pursuing other sources of payment o Exploring payment arrangements o Securing payment to the practitioner’s trust account.
17 Chapter 7: Advocacy
Preparing yourself for trial • Court fright: Fear of failure, and fear public humiliation in front of peers. • There is a need for new counsel to learn the basics and this is best done through observation. • Experienced counsel are comfortable in the courtroom because they know what to expect.
Court basics – court etiquette Where do you sit? • Ask court officers. • The most senior barrister sits at the right end of the table (on the judge’s left) • Seniority between barristers or solicitors is determined by reference to their date and order of admission. • All QC are more senior than any other barrister. • Criminal matters – A prosecutor, is deemed more senior than the defence counsel, regardless of title or date of admission. How do you address the judge? • Your Honour • Provide the full citation • Use against instead of v in crim cases. Civil cases = and. How do you address other counsel? • When mentioning lawyers – my learned friend • Colleague – lawyer/barrister working with you. • Address them as your “colleague” How do you address a witness or party to the action? • Witnesses: “Mrs Smith” • Parties to the action: The plaintiff or defendant. Criminal cases – the accused or defendant. A bow • Counsel bow when the judge enters or leaves the courtroom or when counsel leave/enter. Treat the court with respect: • Expected to hold your temper. No sarcasm. Do not talk to opposing counsel directly • Always speak through the bench. Communicate through the judge. • Wait to be addressed by the judge before speaking. Where and when do you stand? • Behind the bar table and when examining witnesses or making submissions – behind the podium. • Stand when judge enters, and when you’re speaking before the court. How do you start? • Judge asks for the appearances. “May it please the court my name is Kovacek, spell out name if only judge hasn’t been given a written appearance sheet. I appear for the plaintiff. • End submission: If your honour pleases, those are the submissions for the plaintiff.
The ethics of advocacy • Advocate is subjected to completing and conflicting duties. Don’t lose perspective. • Lord Birkett: No profession has a higher standards of honour and uprightness, and no profession, perhaps, offers greater temptations to forsake them. • US v Thoreen and Miskovsky v State of Oklahoma: Both cases a substitute accused was planted at the counsel table. Both counsel involved argued they had done zealous advocacy and unaware of any rules that prevented this. Both cases – counsel found in contempt of court.
Your ethical responsibilities • Awareness of a conflict is the first step to resolving the problem. • Common problems: o Disclosure of law:
18 § Your obligation to the court prevails over any sense of loyalty to the client. o Disclosure of facts: § Counsel isn’t obligated to produce a witness who can only harm their client’s case. • Must not go further and dissuade/discourage the witness from coming forward. o Conferring with witness: § Counsel don’t confer with their witness while under cross examination o Communicating with represented party: § Non communication rule prevents a lawyer from nullifying the protection a represented person has achieved by retaining counsel. o Alleging wrongdoing § Rees v Bailey Aluminium Products Pty Ltd – Allegation of fraud constitutes a serious dereliction of duty and misconduct by counsel. o Cross-examination on lying § It is not proper to have a witness comment upon the veracity of another witness’s evidence. § R v Foley [1998] QCA 225: Using questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses – isn’t a proper question, is unfair and these questions are inadmissible. o Acting for the guilty: § You can continue to act.
19 Chapter 8: Etiquette
Borrowed manners: Court etiquette and the modern lawyer Court etiquette: Definition and purpose: • It’s the customary behaviour, good manners, and courtesies extended between lawyers appearing in court, and between those lawyers and the bench. • Set of conventions t be followed which will aid the judge in the hearing of a matter • They ensure the efficient, professional and polite conduct of courtroom proceedings. • Purpose: To preserve the dignified and orderly conduct of litigation.
History and development of court etiquette • Magna Carta (13th century) stated that the powers of the King were not arbitrary, they were subject to the laws of the land and the rights and privileges of land holders. • Court of Common Pleas = first court, established at the turn of the 13th century. • Suspension of a pleader for 8 days if, in court, if he be near the judge without being invited.
A selection of rules of court etiquette 1. Always be considerate of other people 2. Always be on time 3. Properly prepared for the case 4. Know rules of procedure for each court and observe them. 5. Do not use the court processes for collateral purposes.
Respect for court procedure and administration: • Practice Notes provide info concerning the deadline for when a matter is to be vacated from a list and the time for submissions and/or the provision of a list of authorities to the court. • Advising the court of the settlement of a case at the earliest possible opportunity.
Respect for seniority, the Bench and the Bar table • When there are many practitioners in court, the most senior practitioners are entitled to occupy the Bar table. • The plaintiffs’ counsel should sit to the left. • The Bar table must not be left unattended while the judge is sitting. • One should not leave the court whilst a judge is delivering an oral or ex tempore judgment.
Court etiquette and impartiality • Court etiquette serves a role in avoiding any appearance of bias or partiality.
Court etiquette and good advocacy • Answering questions with a straightforward and concise answer. • One must focus on the question being asked.
20 Chapter 9: Cross-Cultural Communication
Intercultural communication and the language of the law From Sussex (2004), Australian Law Journal Working definition • Culture – set of socially inherited, learnt practices which underpin the society activity of a group of people and help to define them, providing the context for meaningful interactive behaviour.
Introduction: Languages and culture • Miscommunications occur through a mismatch of intentions/assumptions between the speaker & the hearer • Potentials are magnified by differences in language behaviour and in culture, differences are often unaware. • Mehrabian (1981) 93% of the emotional information in utterance may be conveyed be channels other than the strict use of the forms of language (sounds, grammar, vocabulary). • Five dimensions to the meaning of what is said • Formal, grammatical and semantic – Meaning of individual words and phrases • Pragmatic – Organisation of information and speech in phrases • Metalinguistic – The way that we use our voice • Non-linguistic – Body language • Contextual and cultural – Factors of the physical and cultural envirnoment • In homogeneous linguistic and cultural communication all these five aspects work in harmony. • Metalinguistic miscommunications involve a phenomenon like high rising tone, a rising intonation at the end of clauses. • Non-linguistic miscommunication could involve eye-contact, too little for an Anglo-Saxon suggest deviousness.
Condren’s case and its implications (R v Condren; Ex parte Attorney-General (Qld) [1991] 1 Qld R 574) • Kelvin Condren, aboriginal man. Convicted of murder 1987. Based on confession to police. Condren protested his innocence. Defence counsel consulted Diana Eades. She found Condren’s language in the confession unlikely. Found guilty. Conviction quashed by new Attorney General after reviewing the case • Traits that present problems for the equitable practice of law: o Gratuitous concurrence – Aborigines agree as it is the easiest way of avoiding stressful or unpleasant situations o Eye contact – Considered rude in Aboriginal societies o Aborigines don’t usually impart valuable info on demand in confrontational situtations o Responses like ‘I don’t know’ may not indicate a lack of knowledge od the issue, but rather a reaction like, ‘this is not an appropriate way for me to provide information o Silence is a part of regular Aboriginal conversations o Hesitations or dysfluencies, not recorded on court transcripts, can be a basic part of the presentation of information by Aborigines
Intercultural communication • Condren’s case: o Shows several important issues of communication across cultural boundaries; and these occur within Eglish-to-English communication o People who don’t speak English are given interpreters.
First and second languages – First and second cultures • Mother tongue – the language we learn first and are most proficient in. • Instances among bilinguals where their expertise in their first language may have been overtaken by expertise in a later learnt language. • Assume that features of culture are taken to be shared. • If the hearer isn’t aware of the potential for misunderstanding, the statement will be taken literally.
21
Culture dislocation Politeness • One of the core domains of intercultural communication studies. Covers a wide range of behaviours, including considerate treatment of the interlocutor, and more passive features. • Polite behaviour is sometimes interpreted as the avoidance of aggressive or hurtful words or actions. • Brown and Levinson (1987) Positive face is one’s wish to be well regarded by others, negative face is one’s wish not to be imposed on. Body language • 70% of the informational content of our messages is contained in non-verbal media. • Proxemics: The study of distance in conversation. Most cultures have 4 distance zones: Intimate, conversational, distanced and public. Power dynamics • Expressed differently by different cultures – through dress and uniform, location and situation in the org, by employment, by caste, ethnicity, variety of language, domicile, visible signs of wealth, religion etc. • Low power distance cultures: Where the language, social and cultural practices do not differ greatly between the vertical social extremes. • Power separation, and the ways in which it imposes on social and conversational roles, have a major effect on who will be ready to say what, when, and whom and in what circumstances. Metalinguistic factors • Tone of voice isn’t cultural universal. • In most western cultures silence is not welcomed. • Aboriginals give silence a value which is affectively quite different from that of default Anglophone Aus. Individualistic and collectivistic cultures • Hofstede (1980) US and Australia value individualism highly, promoting the achievement of outstanding people. • Asian countries tend to follow Confucian values and to be collectivist – the good feeling of the group is paramount, one should not asset their individuality. Interpreters and the multilingual courtroom: the cultural equaliser? • Interpreters translate language, not culture. • One remedy = the Anunga rules, procedures to allow Aboriginal people to represent their position more equitably. Framework in which legal matters can be transacted in a more culturally appropriate way. o Special care in formulating questions in a way appropriate to Aboriginal disclosure, and the presence of an interpreter, unless the Aboriginal has the equivalent English of an Anglo- Australian.
Discussion • Judges are custodians of cultural equity in the courtroom. Mediate between those in the professional circle of the law and those outside it. • Courts can modify the monolingual/monocultural policy in the direction of Aborigines • The requirement for awareness needs to be matched by enhanced tolerance. Also needs to be enhanced levels of intercultural communicative competence.
Consider impacts of: • First language, proficiency in learnt language, understanding of politeness, power dynamics, age, gender, education, socio-economic status. • Limitation of what interpreters can do.
22 Chapter 10: Aboriginal Clients And Witnesses
Evidence, procedure and law • Over representation of indigenous people in the criminal justice system o Higher rates of policing, arresting, charging o Processes such as interrogation increase the potential for injustice. o Cultural and language factors § Some aboriginal languages don’t have translations for certain words and some concepts such as distances and time are culturally different § Some words carry different meanings to those words in Standard Australian English § Style of questioning – narrative, not direct, approach more suitable to indigenous people o Differences in body language and gestures § Avoidance of eye contact – The Pinkenba case § Shame in certain offences – R v Kina § Gratuitous concurrence – tendency to say yes to positive questions and no to negative ones – The Pinkenba Case § Role of silence – Acceptable way to begin an answer to a question – The Pinkenba Case o Fear
Questioning Indigenous defendants and witnesses • Placed at a disadvantage when being interviewed when English isn’t their first language or when Aboriginal English is significantly different from Standard English: Eades (1992) • Factors that may impede effective communication: o Differences between English and Aboriginal languages, pidgins and creoles o Differences between Standard Australian English and Aboriginal English. o Differences in body language and gestures.
Problems confronting Indigenous people before courts – Lester (1974), Aborigines, Human Rights and the Law • Language problem – people don’t understand court language and procedures. Aboriginal people have a different sense of words, language, time and numbers. • They get confused about places. • Fear of the court situation • Cross questioning confuses people • Fear of payback affects people in court. • Aboriginal people can’t understand why they should be arrested for fighting, even if injury is done. • Cultural barriers impact on Indigenous witnesses who live in urban centres.
Cross-examination of Aboriginal children: The Pinkenba case (1995) – Eades (1995) • 3 Aboriginal boys gave evidence as prosecution witnesses in the committal hearing of 6 police officers charged with deprivation of liberty. • Alleged abduction of the boys some time after midnight, were taken in 3 separate police cars by 6 police from a shopping mall in Brisbane. They were then left in a wasteland, had to find their own way back. Weren’t taken to any police station or charged. • Used Aboriginal ways of communicating. • Issue was the cross-examining strategies that created answers of gratuitous concurrence: Tendency to say yes to any question or no to a negative question, regardless of whether they agree or understand the question. • The cross examination was full of gratuitous concurrence. • Second issue: Use of cross-examination techniques that multiplied the possibility of gratuitous concurrence occurring. Likelihood increases as the questioner raises their voice, a tactic of verbal intimidation frequently used through the cross-examination of the three boys. And through urged compliance with propositions. • Third issue: Misinterpretation by the boys’ use of the cultural practice of avoiding eye-contact with the person asking them questions.
23 Significance of shame: R v Kina (Unreported, Queensland CA, 29 November 1993): Pringle (1994) • Kina was convicted in 1998 of murder of her de facto husband, Black, and spent 5 years in prison. She didn’t give evidence on trial and no evidence was called on her behalf. Appealed unsuccessfully. Kina later said she was sexually and physically abused by Black, shortly before the fatal stabbing she had been beaten by him after refusing sex. He then threatened to have sex with Kina’s 14 year old niece, Kina then stabbed him. o Attorney-General then referred her case to the Court of Appeal for consideration. • Case demonstrates how shame relates to Aboriginal people in the criminal justice system – was silen because she was shamed by the events. • Kina was reluctant to communicate with her legal advisers. Didn’t have a close relationship with them. • Factors leading to the miscarriage of justice: Her aboriginality, battered woman syndrome and the shameful (to her) nature of events which characterised her relationship with the deceased.
Rules for conducting police interviews: Arunga rules – from R v Anunga (1976) 11 ALR 412 1. Interpreter should be present when an Aboriginal is being interrogated as a suspect unless fluent in English. 2. Have a prisoner’s friend present 3. The suspects understanding of the caution should be established – phrase by phrase 4. Great care in formulating questions so as not to suggest an answer 5. Even if a confession has been made, an interrogation should be made 6. Offer a meal and drink 7. No interrogation if drunk, disabled by illness or tiredness 8. Steps taken to provide legal assistance if it is requested 9. If clothes need to be removed, substitute clothing should be provided. • Not absolute rules • If police depart from them, may find statements excluded – as found in Gudabi v R (1984) 52 ALR 133 • Do not operate uniformly – applied in courts in SA, WA, ACT and Tasmania: Douglas (1998). • Failure may result in convictions being overturned. • The Crimes Act 1914 (Cth) s 23H – Guidelines for detention and questioning of indigenous persons. • In NSW, protection of Indigenous persons in police custody is regulated under Law Enforcement (Powers and Responsibilities) Regulations 2005. • Reg 33: Representative from the Aboriginal Legal Service to be notified. Reg 24 and 26 Abo persons and Torres Strait Islanders are classified as “vulnerable persons” who are entitled to a “support person”.
Educating legal professionals about Aboriginal English • Objective is to encourage lawyers to adopt more appropriate methods of questioning and examining to improve the quality of communication and veracity of testimony, reducing misinterpretation.
Aboriginal English in the Courts: A Handbook – Eades (2000) • Direct questions in Aboriginal society is used to determine background information, whereas non- Aboriginal cultures use them to seek information. • Direct questions in the courtroom are likely to be interpreted as hostile. Causing distress and confusion for Aboriginal witnesses. • Can be avoided by enabling the witness to talk freely by using hinting statements followed by silence.
24 Chapter 11: Criminal Law Practice – Defending Aboriginal Practice
Things to consider when dealing with Aboriginal people • Kinship o The Kinship system sums up all the rights and duties to other members of the family and community; who you can and cannot talk to; who you can crack jokes with; who you cannot even look at; who you must provide for • Languages o Language, culture and land are all entwined o Note: offensive to speak the name of the dead or the name of someone whose name sounds like the dead person’s • Being Together o Aboriginal people outside the towns and cities usually live and travel together o Often improper for a person to be alone • Ceremony o Essence of traditional communities o Land demands spiritual observance o If these duties are not kept up, the land will fail and so will its people • Death o When a person dies, it is no accident o Death is always the fault of someone or that persons relatives o Deceased’s name must never be mentioned
Non-Aboriginal Understanding • Confessions o Most Aboriginal people are basically courteous and polite and will answer questions by white people in the way they thing the questioner wants. o Even if they are not courteous and police there is the same reaction when they are dealing with an authority figure such as a policeman o Anunga Rules § Should be an interpreter § A ‘prisoner’s friend’ should be present § The person should be asked to repeat the caution to show that it is understood § Questions should not suggest the answers § Police should make further investigations from other sources. That may affect the accuracy of the confession § The person should be given a meal, something to drink and the use of a lavatory § No questions when the person is disabled by illness, drunkenness or tiredness § If the person wants legal advice, the questions must stop until advice is given § When clothing is to be tested, police must supply replacements o The fact that an Aboriginal suspect can speak English quite well may stop the Anunga rules from applying • Interpreters o The interpretation must be continuous, precise, impartial, competent and contemporaneous • Taking Instructions o Handshake will be a gentle touch o Client will rarely look you in the eye o Care must be taken to ensure that there is not some medical condition that hinders instructions § Chronic ear infections can lead to deafness o Many Aboriginal people do not regard the sequence of events as important o Better to take instructions slowly • Evidence in chief
25 o Courteous to call the Aboriginal client by a different name if that is what they prefer o Practice of Aboriginal communities may be troublesome. Eg. Aboriginal people regard hearsay as the same as witnessing it o Not a custom of Aboriginal people to speak alone. Usually is a joint effort. Only those who know do the talking o Aboriginal people will often be reluctant to contradict another Aboriginal person in the same group – it is often part of the kinship system o Lawyers should use simple English o A pause may mean that the person is contemplating the question and carefully considering an answer • Cross Examination o General rule; cross examiner of a witness who is plainly Aboriginal by culture should not put leading questions to such a witness without the leave of the trial judge o Stack v Western Australia (2004) § Nature of the cross-examination must be tailored to suit each witness § 18 yr old, had been to school until halfway through year 10, did well at school and was presently studying at TAFE, did not speak an aboriginal language § Leading questions were allowed • The field officer o Field officers may act as a liason between the lawyers and the Aboriginal communities o There may be some features of a case in which the legal aid field officer is your best adviser • Calling the Client o As Aboriginal people do not like to speak alone, many lawyers are reluctant to call their client to give evidence in the witness box o These difficulties may not be present with Aboriginal clients who have grown up in towns or cities • Other defences o May be other defences open to Aboriginal people § Eg. The taking of what otherwise would be a protected species when that taking is permitted under customary law § Or Duress based on the punishment for non-compliance with customary law • Role of traditional punishment o Traditional punishments are not automatically criminal o Aboriginal people so not have a legal right under Australian law to practice customary law § Hoewver • R v Minor (1992) – traditional punishments are not always unlawful
26 Chapter 13: The Lawyer-Client Relationship
Creation of lawyer-client relationship Retainer as a contract • Retainer o Contract between a lawyer and client for the provision of legal services, o Must be proved like any other contract: Wong v Kelly (1999) § Offer and Acceptance § Agreement § In writing or oral or inferred from the conduct of parties § Certainty § Consideration • Note not always essential eg. pro bono cases • Underlying consensus gives the client the ability to enforce the retainer
• Terms of the retainer – express/ implied – determine the nature/scope of the contractual rights and obligations • Needs certainty of terms, consideration as well – essential for creation of a retainer from the client.
Centrality of the retainer to lawyer and client duties and entitlements • Identifies the client and prescribes the services expected of the lawyer. • Determines who instructions the lawyer acts, scope of lawyer’s authority and scope of duties. • Charts parameters of the lawyer’s duty to care in tort to client o With limited exception, lawyer owes no tortious duty to advise a client on matters outside boundaries of the retainer. • Sets parameters for other duties owed by the lawyers o Fiduciary duties o Duties of confidentiality
Terms of the retainer Express terms • Usually express terms are documented in writing. • An ambiguity in those terms that generates a dispute will likely be construed strictly against the lawyer – as they are in a stronger position Implied terms • Basic implied term requires lawyer to use their best endeavours to protect client’s interest and exercise reasonable care and skill in carrying out the client’s instructions in matters in the retainer: Groom v Crocker [1939] • Also implied, are terms conferring on the lawyer authority to do all things incidental to the object of the retainer and requiring the lawyer to maintain confidential lawyer-client communications. • Some implied terms o Confidentiality of communications (goes beyond the retainer) o Fiduciary relationship o Lawyer uses his or her best endeavors in the clients interests o Lawyer exercises reasonable care and skill o Give the lawyer authority to do things incidental to the retainer o Onus on the lawyer to oust any implied term • Onus of establishing the term is modified or ousted in a retainer lies on the lawyer.
Parties to the retainer Importance of identifying the client • Take reasonable measure to ascertain a client’s identity as soon as reasonably practicable before accepting instructions to act in a matter: Ford v Financial Services Authority [2012]. • Take reasonable measures to ascertain the principal’s identity before accepting instructions: Sing r 11D(2)
27 Retainer agreements with counsel • Barristers’ Rules 17 – Cab rank principle, need written acknowledgment – then look at 11 and 13
Retainer agreements with counsel • Traditional relationahip of counsel with client o through a solictitor o Counsel avoided being liable in contract to client • In NSW, barristers may contract directly with client o BARRISTERS RULE’S - 22
Proof of the retainer • Easiest when it’s a written and signed document. • Scope remains for it to be effected orally. Oral retainers • Person alleging existence of a contract bears the onus of proof • A lawyer alleging existence of a retainer that isn’t in writing must adduce evidence in form of words/conduct: QCoal Pty Ltd v Cliffs Australia Coal Pty Ltd [2010] • Denning LJ in Griffiths v Evans [1953]: Word of the client is preferred as the “client is ignorant and the solicitor is, or should be, learned”. • Special knowledge and position the lawyer is presumed to have as compared to clients: Gummow v Bloom [1930]. Implied retainers • Retainers need not be created by express words, whether written or oral; their existence can be inferred or implied from the circumstances: Pegrum v Fatharly (1996). • Onus: person who alleges the existence of a retainer • Proof of implied retainer rests on proof of facts and circumstances sufficient to establish a tacit agreement to provide legal services: Pegrum. Expectations of client have strong weight here. • Pegrum v Fatharly (1996): o Solicitor-client relationship existed. Being paid a monthly fee and acted for him in past didn’t make him his solicitor. Solicitor should have disclosed details regarding W’s financial position, failure made him liable for the appellant’s loss. When a solicitor accepts responsibility there’s reliance on him to apply his expert knowledge/skill in the performance of his work • McGeoch v Hendriks [2007]: o Gzell J held a retainer existed between the P and solicitor, solicitor acted as the family solicitor. Failure to draw up an agreement would’ve protected P’s interests. Breach of retainer. • Requires clear statement as to the lawyer’s position (Pegrum), supported by documented advice to non- client to retain a lawyer and take independent advice: Irvine v Shaw [1992]. • Lawyer needs to make explicit to prospective client what duties the lawyer is assuming: Bridge Products Inc v Quantum Chemical Corporation (1995)
Authority of lawyers under the retainer Lawyer as agent • An authority or capacity in a person to create legal relations between a person occupying the position of principal and third parties: International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958). • Lawyer-client relationship = agency. Lawyer’s rights when acting for a client are not his or her own, but derivative: Thompson [1955].
Forms of authority • It is the agent’s authority arising out of the agency relationship that determines extent to which the agent can represent the principal’s interests. Actual authority • A legal relationship between principal and agent created by a consensual agreement to which they are parties: Freeman & Lockyer (a firm) v Buckhurst Park Properties [1964]. • Agent may, exercise powers conferred by the agency agreement and implicit to his position: Freeman
28 Ostensible (or apparent) authority • Agent may appear to have authority he or she lacks, usually by being ‘held out’ by the principal as authorised to act in a certain position • Principal (client) is bound to the third party regarding acts within an agent’s ostensible authority, even if it falls outside of actual authority • Principle however retains a cause of action for breach of contract against the agent in these circumstance
Lawyers’ actual (express or implied) authority • Terms of retainer usually dictate the scope of the lawyer’s representation, determining scope of lawyer’s authority as an agent of the client. • If unsure whether to act, seek written authority: Groom v Crocker [1939]. • South Bucks District Council v Flanagan [2002]: Held: Outside implied authority Implied authority to • Incur costs and disbursements o Lawyer has an implied authority to incur ordinary disbursements: Schiliro & Gadens Ridgeway (1995) o Re Blyth & Fanshawe (1882): If an unusual expense is about to be incurred, duty to inform the client fully of it. o Good practice to discuss with clients major disbursements prior to incurring them: Schiliro § Unless urgent • Receive money on a client’s behalf o Lawyer who acts in a transaction under which a client is to receive money from a third party may have implied authority to accept a bank cheque or cleared funds: Williams v Gibbons [1994]. • Compromise o Lawyer has implied authority to compromise on such terms as he thinks best for the client unless the client gives clear instructions restricting that authority: Little v Spreadbury [1910]. o Prudent lawyers will always seek client instructions before effecting a compromise: Sheonandan v Abdul (1935) No general implied authority to • Institute proceedings o Mere fact of acting as a lawyer doesn’t itself confer authority to institute legal proceedings on a client’s behalf: Hawkins Hill Gold Mining Co v Briscoe (1887). o Differs where express authority has been given to institute suits generally (but not to appeal) • Contract or vary contracts o Pianta v National Finance & Trustees Ltd (1964): Impliedly authorised solicitor to negotiate/agree with R’s representatives - terms to accept, advise client. Didn’t authorise solicitor to contract to sell on his client’s behalf. o Lawyer retained to effect the transfer of land doesn’t possess implied authority to vary/amend the contract: Nowrani Pty Ltd v Brown [1989]. • Recieve notices o Doesn’t constitute that a solicitor or firm the client’s standing agent to receive notice of material facts: White v Illawarra Mutual Building Society Ltd [2002]. o IVI Pty Ltd v Baycrown Pty Ltd [2005]: Revocation held to be ineffective. Fact that a solicitor acting for the offeree doesn’t authorise him/her to receive notice on behalf of the offeree or make his receipt equivalent
Lawyers’ ostensible authority • Client who has restricted the lawyer’s actual authority then places lawyer in a position that usually carries with it a broader authority, client = holding out the lawyer to possess the broader authority: Legione v Hateley (1983). Ostensible authority to • Act as “medium of communication” o Unlikely that nominating a lawyer to act in the event that a contract is concluded holds out the lawyer as a medium in respect of communications in pre-contractual negotiations.
29 o IVI Pty Ltd v Baycrown Pty Ltd (2005): Purported revocation to be ineffective until it was notified to buyer. Only representation was in providing advice, only acting if contract was concluded, not a medium of communication. • Compromise o A lawyer retained in an action has an ostensible authority to compromise the suit without actual proof of authority, if the compromise does not involve collateral matters: Kontvanis v O’Brien (No 2) [1958]. o Compromise exceeding the lawyer’s actual but not ostensible authority binds the client: Fray v Voules (1859). o Fraser JA, Broadbent v Medical Board of Qld [2010]: “the appropriate stringent test”, findings that: § Compromise contrary to applicant’s emphatic instructions § Decision against which the applicant sought to leave to appeal was of great importance § Potentially serious consequential damage to his reputation § Applicant repudiated the compromise within hours of it being concluded § Respondent didn’t argue that it had changed the position in reliance upon the compromise
Lawyers’ acceptance of work Counsel’s duty to accept a brief – cab rank principle • Barristers professionally bound to accept brief, any court they practise, cab rank principle: Rondel v Worsley [1969 • Clerk who doesn’t want the brief, can raise fee within limits: Arthur J S Hall & Co v Simons [20 Barrister Rule - 17 A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practise if: (a) the brief is within the barrister’s capacity, skill and experience; (b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence; (c) the fee offered on the brief is acceptable to the barrister; and (d) the barrister is not obliged or permitted to refuse the brief under rule 101, 103, 104 or 105.
Grounds upon which counsel must or may decline a brief Independence and disinterestedness • Barristers’ Rules o Briefs which must be refused or returned – 101 § eg. • The solicitor or client prevents counsel from effectively conducting the matter • Impartiality of counsel is called into question • Possibility of impinging on another clients confidentiality • where a conflict of interest arises • A conditional cost agreement entitled the barrister to return the brief if the client rejects a settlement offer the barrister • Just because a Barrister holds strong personal views inconsistent with subject matter is not itself a ground for declining the brief. Competence • Counsel shouldn’t accept a brief outside their capacity, skill and experience: Steindl Nominees v Laghaifar [2003]. Practicality • Barrister may decline to accept a brief on grounds: Barristers’ Rules 101
Acceptance of work by Solicitors
30 Competence • Solicitor shouldn’t accept a retainer unless they can reasonably expect to serve the client honestly, fairly and with competence and diligence, and attend to the work required with reasonable promptness • When lacking requisite knowledge and skill, professional responsibility may be fulfilled if: o Solicitor’s able to obtain knowledge without undue delay and cost to the client o Where access to the relevant body of knowledge or to a lawyer of established competence in the field isn’t readily available – solicitor warns the client of those facts and likely delay and cost: Vulic v Bilinsky [1983]. • “Duty to avoid situations where overwork or other sources of stress prevent the proper processing of matters undertaken for clients”: Re Nelson (1991). Conflicting interests • That a client places trust and confidence in a solicitor regarding the matters within the scope of the retainer has led courts to impose upon solicitors fiduciary duties – avoid situations that raise conflicting interests.
Termination of lawyer-client relationship Duty to complete work – doctrine of entire contract • Lawyers shouldn’t terminate the retainer without completing the work required by it.
Qualifications to the entire contract doctrine • Solicitors’ Rules 13.1 - Completion or termination of engagement • Freedom of contract dictates that lawyer and client may mutually agree on the termination of the former’s retainer: Cachia v Isaacs (1985). • Clients should not be locked into a retainer with a lawyer they lack trust and confidence. • Just causes where lawyers can withdraw from a retainer: o Clients acts or omissions are inconsistent with continuing representation § Significant breach of written agreement – fees or expenses (Warmingtons v McMurray (1936). § Delays/refuses to pay lawyer’s costs: Super 1000 Pty Ltd v Pacific General Securities Ltd [2007]. § Makes material misrepresentations about facts to solicitor § Insists lawyer commit a breach of law or professional rules o Solicitor may terminate contract where the grant of legal aid is withdrawn, and the client is unable to pay for costs: SR 13.3 o Continued representation would require lawyer to commit a breach of professional rules o Potential claim for negligence against lawyer on outcome of proceedings o Continuing engagement in matter – effect upon lawyer’s health: Forney v Bushe (1954). o Client or lawyer has died or becomes insane: Whitehead v Lord (1852).
Impact of the entire contract doctrine on the recovery of fees • Lawyers who, without just cause, terminate a retainer prior to fulfilling their responsibility forfeit a claim for costs for the work done prior to terminating, cannot claim costs: Ex parte Maxwell (1955). • Lacks application where lawyer terminates for just cause, can be modified by the terms of the retainer. • Also, LPUL s 193(1) lets solicitor give an interim bill covering part of the legal services. • Walters J in Caldwell v Treloar (1982): Not reasonable for a solicitor to engage themselves for an indefinite time without payment. Advised that the opinion of counsel should be obtained, then refused to pay for it. • Implied into a retainer or inferred from it, is a term entitling the lawyer to request their fee upon a convenient break in the proceedings: Abedi v Penningtons (a firm) [2000].
Duties of lawyers on termination of retainer • Where a lawyer terminates a retainer for just cause, the prevailing ideal remains that the client in question must not be disadvantaged by reason of the termination: Nelson (2001). • Should advise the client of the need to attend matters/engage another lawyer particularly where there is a limitation period • Need to cooperate with new lawyer
31 o Solicitors’ Rules 14 Client documents • Transfer of a practitioner’s practice – each client needs notice
Return of brief by counsel • Barristers are entitled to return a brief, when o Where the conduct of the instructing solicitor or client prevents counsel from conducting effective representation – BR 105 § Eg. Where counsels requests for appropriate attendances by the instructing solicitor have been refused § Counsels advice as to the preparation or conduct of the case other than its compromise has been rejected or ignored by the instructing solicitor § Counsel’s fees have not been paid promptly or in accordance with the costs agreement and remain unpaid after a reasonable notice o Where the impartiality of counsel or the court may be called into question § eg. Where the brief is to appear before a judge whose relationship with the barrister is such as to make such appearance undesirable o Where the continued representation impinges, as a real possibility, upon consels duty of confidentiality to another client or a third party o Where a conflict of interest arises § eg. counsel briefed to appear for two or more clients becomes aware that the interests of those clients may conflict § Counsel believes on reasonable grounds that the interests of the client and those o the instructing solicitor may conflict o Where in a brief accepted under a conditional fee agreement, the barrister and instructing solicitor, if any, consider on reasonable grounds that the client has unreasonably rejected a reasonable offer of compromise contrary to the barristers advice o Also See Barristers’ Rules 101, 103 • Barristers’ Rules 107 –enough time for another to take over
Ownership of documents on termination of retainer • Solicitors’ Rules 14 – client given documents • Not all documents held by the solicitor necessarily belong to the client: Wentworth v de Montford (1988). • Documents prepared by the lawyer for the client’s benefits (Wentworth), and docs prepared by a third party and sent to the lawyer other than at the latter’s expense, are the property of the client. • Documents prepared by a lawyer for their own benefit and at which no charge was made (Wentworth) and documents sent by the client to the lawyer the property in which is intended to pass to the lawyer, are the lawyer’s property: Zeus Chemical Products Pty Ltd v Jaybee Design & Marketing Pty Ltd (1998).
Retention of files and documents • Lawyer must retain documents to which a client is entitled for the duration of the retainer, for 7 years: SR 14.2
32 Chapter 14: Lawyers’ Duty To Clients In Tort
Relationship between contractual and tortious liability • Lawyer who’s negligent is concurrently liable in tort/contract, may also be in tort independently of action in contract
Liability in tort • Lawyers who fail to attain the standard of competence expected are almost variably sued/liable in tort – owes client a duty of care in tort. • Retainer substantiates the existence of the relationship that has given rise to that duty, and often its terms chart the scope of the lawyer’s tortious duty of care. • General Rule: Lawyer is not liable in tort to a client in respect of events outside the scope of the retainer
Liability under statute for misleading or deceptive conduct • May be liable for breaching the statutory proscription against misleading or deceptive conduct: Australian Consumer Law s18. • Australian Consumer Law: Phrase “trade or “commerce” – any business or professional activity. Lawyers’ exposure to statutory liability visa-a-vis their client is arguable not constrained. • Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205 – examples of ways a lawyer might engage in misleading/deceptive conduct: In giving advice on prospects of success of proposed litigation, making a specific representation of fact or expressing an opinion on advantages/drawbacks of an action.
Identifying the client’s interests • Necessary at a preliminary stage to consider who determines the client’s interests and what there may be. • Ordinarily is subject to the duty to the administration of justice, follow the client’s instructions, having informed them of risks and drawbacks: Samper v Hade (1889); SR 8.1 • Client dictates the objectives of the representation and what their best interests are – in like with Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 • A lawyer who accurately explained the position of the client is instructed to proceed a course of action, not responsible for loss suffered by reason of that conduct: Drew v Richardson [1999] QSC 192. • Obliged to assist a client is defining the objectives of the representation in the clients best interests: Law Society of Singapore v Uthayasurian Sidambaram [2009] 4 SLR(R) 674 • Type/extent of advice required depends on subject matter of the retainer and nature of the client.
Breaches of duty: • In contract: Damages are generally the difference between the position the client would have been in by performance of the full retainer and position that has been created by the breach: • Tort: Causation needs to be established. Damages are for putting the client in the position o Negligence - Duty of care, breach of duty/ standard of care, need to establish damage, causation
Scope of the duty of care Modifying the scope of the duty via the retainer • Scope of the lawyer’s duty of care in tort is prescribed by the scope of the retainer: Hawkins v Clayton (1988) 164 CLR 539. • Lawyer who wishes to restrict the scope of the retainer should make full and clear disclosure of limits, and counsel the client to secure advice from another person outside those limits: Cote v Rancourt [2004] 3 SCR 248 • Terms of the retainer can expand the scope of duty of care
Liability in tort can arise outside the scope of the retainer • The retainer may not in every case chart exclusively the perimeters of the tortious duty of care. • Hawkins v Clayton (1988): tortious duty of care may require a lawyer to take positive steps beyond the specifically agreed professional task/function to avoid real and foreseeable risk of economic loss sustained by client
33 o Deane J: Duty of care may require a lawyer to go beyond the specifically agreed professional task or function to avoid a real or foreseeable risk of economic loss being sustained by the client (an exception, not a rule). • Curnuck v Nitschke [2001] NSWCA 176 – Solicitors obliged by their retainer to provide the clients with info and advice appropriate for the finalisation of their relationship. Solicitor breached tortious and contractual obligation. • Credit Lyonnais SA v Russell Jones & Walker (a firm) [2003] Lloyd’s Rep PN 7 – Duty to inform the client. Neither go beyond scope or do extra work for which he is not paid. • Dal Point – Even if a duty of care in tort extends beyond retainer, lawyer’s negligence cannot be assumed to have been the cause of the loss, client may have acted same way irrespective of lawyer’s omission. • Davies v Camilleri (2000)– Defendant borrowed money, security of her home, solicitor acted as the lender (plaintiff), moneys lost, plaintiff sought to enforce mortgage against defendants home. Claim against solicitor succeeded – S acknowledged that the client was uneducated, appeared solicitor wanted to control the defendant at the conference, silence should have rung alarm bells.
Impact of the circumstances in which advice is given or sought Advice given or sought in urgent circumstances • Urgency or tight pressure in which the lawyer’s advice is sought can influence scope of duty. • May v Mijatovic (2002) 26 WAR 95 – Found: Need balance between acting with sufficient resolution to achieve a result and acting with due care to not expose client to liability. Solicitor negligent Preliminary advice supplied on a single occasion • Where it’s a single occasion, it is legitimate to inquire whether lawyer has, by giving advice, assumed a duty. • Issue is fact specific, depends on extent of preliminary consultation. • Fortune v Bevan [2001] QLD CA – Solicitor who had given verbal advice but failed to confirm limitation period in writing after à no breach of duty of care.
Impact of the nature of the transaction or dealing Transaction or dealing with unusual terms or characteristics • A lawyer retained to effect a transaction must follow the client’s instructions and bring to the client’s attention any aspect or term of the transaction that is unusual, or could generate liabilities or obligations. • Scope of duty depends on the client’s experience, nature of the lawyer-client relationship and risk the client may be exposed to: Austrust Ltd v Astley (1993) Failure to warn of absence of standard clause • Lawyer may be liable in negligence for failing to advise clients of the absence of a standard clause in a document, and its implications, as occurred in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 (FC). • Littler v Price [2005] 1 Qd R 275 – To draw the clients’ attention to the absence of the guarantee was a necessary part of the solicitors’ duty to explain the terms of the proposed lease. Where a transaction or dealing is improvident • Consider whether the client needs to be warned against pursuing the transaction, or at least advised explicitly of the risks they may be exposed to. • General principle: If the client is fully informed of all risks and doesn’t lack capacity, the lawyer has fulfilled her or his duty and may act in the transaction: Cousins v Cousins (1990) • Advice must be given in a private meeting, documented in writing and signed by the client.
Disclosure of information relevant to the representation Scope of the duty of disclosure and prospects of liberty • Lawyer’s failure to disclose a conflict of interest proscribed by fiduciary law may give rise to a civil liability • Torts: Duty of care requires a lawyer to reveal to the client all material info within their possession relating to the client’s affairs: McKaskell v Benseman [1989] 3 NZLR 75. • Roberts v Cashman [2000] NSWSC 770 – Solicitor made aware of client’s potential cause of action had a duty to use that info to bring the prospect of that action to the client’s attention. • No duty to disclose info to a client who has given informed consent to non-disclosure of particular info, or where the disclosure would be in breach of the law or a court order.
34 190 Progress reports (1) A law practice must give a client, on reasonable request, without charge and within a reasonable period, a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter. (2) A law practice retained on behalf of a client by another law practice is not required to give a report to the client under subsection (1), but must disclose to the other law practice any information necessary for the other law practice to comply with that subsection.
107 Disclosure obligations (1) This section applies if a person engages a law practice to which this Division applies to provide services that the person might reasonably assume to be legal services and the law practice provides both legal services and other services. (2) The law practice must, in accordance with the Uniform Rules, make a disclosure to the person informing the person- (a) whether the services are legal services; and (b) of any other matters specified in the Uniform Rules for the purposes of this section. (3) If a proper disclosure has not been made under this section, the standard of care owed by the law practice in respect of the service is the standard that would be applicable if the service were a legal service that had been provided by an Australian legal practitioner.
Is the duty of disclosure imputed to the firm? • Generally the duty of disclosure of relevant info is in terms of the individual lawyer, not partners or staff of firm • Counterargument rests on the nation that the knowledge of one partner of a firm is imputed to fellow partners: Mallesons v KPMG (1990). • To conduct a conflict check doesn’t require considerable information. Knowledge check is a greater hurdle Client consent to non-disclosure? • An experienced and sophisticated client will more likely be found to have accepted a restriction on the lawyer’s duty via the retainer than one who is not so positioned. • National Home Loans Corp plc v Giffen Couch & Archer (a firm) [1997] – respondent solicitor acted for both parties to a re-mortgage transaction. Held that solicitor would only be required to inform the lender of this info if their instructions required them to do so. o Case has been said to show that a solicitor may assume either that the lender would make its own inquiries or is prepared to take the risk without enquiry. • Bristol & West Building Society v Fancy & Jackson (a firm) [1997] – defendant solicitors who acted for both lender and borrower were retained on the basis of the lender’s standard form documentation under which they were required to notify the lender of any matters that might prejudice its security. o Chadwick J: Held that by not notifying the lender that the price in the offer wasn’t true price paid by the borrower to the vendor, the solicitor commits a tortious breach of duty.
Can the duty of care include giving financial advice? General principle – no duty to provide financial advice • Courts will not assume that the retainer attracts a duty to supply financial advice: Cadoks Pty Ltd v Wallace Westley & Vigar Pty Ltd (2000) • General rule is that a lawyer whose retainer does not impose a duty to give commercial advice, or advice as to the financial prudence of a transaction, will not be negligent in failing to do so: Orszulak v Hoy (1989) Financial advice and professional indemnity insurance cover • Financial advice falls outside the terms of lawyers’ professional indemnity insurance cover, and so negligent financial advice may generate personal liability in the lawyer for resultant loss. • Solicitors’ Liability Committee v Gray (1997) – Solicitors promoted property schemes aimed at providing investment advice and tax advantages. Court viewed the schemes as the actions of businesspersons rather than solicitors, loss fell outside the policy. Giving of financial advice where contemplated by the retainer • Type of advice a lawyer is professionally required to give depends on the nature and extent of the retainer. • Tarzia v National Australia Bank (1995) – Full Federal Court said that in certain situations it may be negligent of a solicitor not to ensure that his client has good financial advice, particularly when the client is at a disadvantage with respect to the other parties to the transaction.
35 • Rexstraw v Johnson [2003] held that a lawyer who proceeded a settlement with a valuation from a valuer unknown to him, whose valuation exceeded the loan, should have queried whether the valuation was independent and whether the client investors would consider it satisfactory. • Where retainer doesn’t require financial advice of the transaction, concentrate on giving a clear account in summary of salient features of the transaction: Citibank Savings Ltd v Nicholson (1997) • Lawyer should frame their inquiries by reference to the particular circumstances facing the client. Where necessary this requires advice to a borrower that: PAGE: 410 • Where the client is a guarantor, solicitor must advise the guarantor that: PAGE 411 Giving of financial advice required by the nature of the client • When a client in full command of her or his faculties and apparently aware of what he or she is doing, seeks a lawyer’s assistance in carrying out a particular transaction, the lawyer is arguably under no legal duty to go beyond those instructions by proffering unsought advice on its wisdom: Clark Boyce v Mouat [1993] 3 NZLR 641. • Southern Law Society v Westbrook (1910) 10 CLR 609 – O’Connor J said the fiduciary nature of the relation between the respondent and the old lady client was of a peculiarly delicate nature, making it his duty to take care that the lady was properly advised and fully understood the dealings with her property. • Citicorp Australia Ltd v O’Brien (1996) – Trial judge’s finding of negligence against the solicitor for not providing the advice of the financial implications to the respondents was reversed. Trial judge’s approach imposed a duty upon the solicitor beyond the terms of the retainer and outside assumed responsibility. Not the role of the solicitor to do that. Consequence of having a duty would require solicitors to give opinions, not qualified to do. Can giving of other advice come from within the retainer? • Lawyers owe no legal duty to furnish any other forms of advice to their clients: Dominic v Riz (2009) • Lawyers should raise awareness and discuss with clients: Conduct by clients that may injure 3rd parties or designed to avoid legal obligations, what an objectively fair disposition of the case would be, lawyer’s own moral inclinations and obligations to third parties that the lawyer believes should be honoured.
Standard of care Relevant standard Standard at general law and under statute • Common Law o Relevant standard of care § That of the ordinary skilled person exercising and professing to have that special skill – Rogers v Whitaker (1992) 175 CLR 479 § One who is qualified, competent and careful lawyer in the circumstances in the practice of their profession: Bannerman Brydone Folster & Co v Murray [1971] § Reasonably competent: Heydon v NRMA Ltd (2000) § Ordinary, so a lawyer is not negligent for an error of judgement, unless this is gross. • Standard of care provides no guarantee against all mistakes or omissions: Jennings v Zilahi-Kiss Pty Ltd (1972) 2 SASR 493. • Expression of an opinion or the giving of advice by a lawyer doesn’t normally constitute a promise that its correct: Trust Co of Australia v Perpetual Trustees WA Ltd • Under Statute o Civil Liability Act 2002 (NSW) s 5O
5O Standard of care for professionals (1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
36 § Does not supersede common law but provides a defence that insulates professionals from tortious liability where they act in accord with ‘peer professional opinion’ Knowledge of the law and procedure • Lawyer is expected to possess the knowledge held by a reasonably competent lawyer of well-settled principles of law, and the relevant rules of court applicable to the client’s needs: Re Farmer (1997) 950 P 2d 713 • Not expected to know all law but be capable of research/acquiring knowledge: SC of Canada, Central Trust Co v Rafuse (1986). Need to tell client if legislation is going to commence that will influence their case Standard not informed by extraordinary foresight • A lawyer isn’t bound to exercise extraordinary foresight, learning or vigilance: Jennings v Zilahi-Kiss • Heydon v NRMA Ltd – Ruled respondent’s counsel/ solicitors not liable – couldn’t have led a competent and skilled lawyer to foresee or warn against the possibility of the HC substantially changing the legal principle. • Role for foresight in the standard of care – duty to warn a client of potential risks of a course of action the lawyer is retained to effect and warn the client when there’s a real and foreseeable risk of economic loss. Standard not informed by hindsight • Court doesn’t allow hindsight to insinuate itself into its reasoning in cases of alleged negligence, should generally be avoided when determining liability: Heydon v NRMA Ltd • Standard of care expected by a professional must be based on events as they occur, not in retrospect o Capital Brake Service Pty Ltd v Meagher – Issue was whether the solicitor should have warned a client of the risks of settling, Court found good reason for the solicitor to believe that the client would succeed. Standard of care may be raised • Specialisation means that there’s a stricter standard of care regarding work carried out in that field. • Yates Property Corporation v Boland: o Standard of care should reflect the relationship with the expertise. A solicitor who is an expert, the requirement should be that the solicitor must carry out their retainer as would a reasonably competent solicitor who is an expert in that particular area of law. • Heydon v NRMA Ltd – standard of care for someone professing to have a special skill in a particular area of law is of the ordinary skilled person exercising or professing to have that special skill. Cannot reduce the standard of care • Against public policy for the standard of care to be lowered below the ordinary tortious professional standard • The fact that the lawyer conducts a general practice, is inexperienced in legal practice or a law or jurisdiction, doesn’t reduce the standard: Siskamanis v Pandeli Barbayannis & Co (a firm); Holdway v Acuri (No 2) [2007] • Isn’t reduced because the lawyer acts without a fee, for a reduced fee or in a legal aid matter or in a country practice. Impact of urgency • May v Mijatovic –Hasluck J suggested that the standard depends on the urgency, taking into account time restraints in determining what reasonable care and skill could be expected to do. • Doesn’t involve a reduction in standard in urgent matters, but what reasonable care and skill requires may be affected by the circumstances. Reliance on advice of counsel • Solicitor is entitled to rely upon the advice of counsel properly instructed; indeed for a solicitor without specialist expertise in a field, to rely on counsel’s advise is to make normal and proper use of the Bar: Moy v Pettman Smith (a firm) [2005] 1 WLR 581. • Boland v Yates Property Corporation Pty Ltd Kirby J – If the solicitor reasonably considers that the barrister’s advice is obviously wrong, it is the duty to reject that advice and to advise the client independently • Solicitors aren’t required to replicate the consideration that counsel has given to the matter, this would obviate the need to instruct counsel: Harley v McDonald [1999] • Wakim v McNally – Solicitor should have raised his doubts with counsel in a courteous and professional way Exclusion and disclaimer of liability • Retainer also cannot exempt lawyers for defaults in performing their professional responsibilities.
37 • Attempts to exclude lawyers’ liability via the retainer will be unsecussful – Wilkinson v Feldworth Financial Services Pty Ltd, Relevance of expert evidence and professional rules • Court may rely on its own knowledge concerning what the ordinary, reasonably prudent and careful lawyer ought to know and do, although this doesn’t preclude the calling of expert evidence: Neagle v Power [1967] SASR 373 • Some judges don’t place great value on expert evidence, Oliver J in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm): Evidence which really amounts to no more than an expression of opinion by a practitioner of what he thinks would have been done, is of little assistance to the court.
Standard of care in settlement advice Curial reticence to find negligence in settlement advice • Lawyers retained to prepare and conduct court or tribunal proceedings are ordinarily expected to advise on the settlement of those proceedings. • Must exercise reasonable care and skill, may place pressure on clients to settle. • Courts inquire into whether the settlement advice was within the range that, in the circumstances, could be reasonable and properly given: Luke v Wansbroughs (a firm) [2003] EWHC 3151. • Moy v Pettman Smith (a firm) – Counsel advised client to proceed with a trial, lost money by going to trial as the trial judge ruled against its admission so the offer was reduced, client sued counsel for negligence for his loss – house of lords rejected the claim. Circumstances where advice as to strength of case can attract liability • Seamez (Australia) Pty Ltd v McLaughlin – Sperling J found these considerations that led the clients to settle constituted a breach of duty by the solicitors, statements that: Clients couldn’t win, an application for adjournment would be unsuccessful, statements that both counsel had withdrawn whereas one had not and an incorrect statement that a threatened injunction would prevent clients from continuing in business. • Failure to give competent advice as to the strength of the client’s case can generate a liability in negligence. • Kolavo v Pitsikas – By failing to advise that her case was hopeless, lawyers had breached their duty to the appellant. A lawyer who acts in a matter that lacks reasonable prospects of success may be the subject of a personal costs order. Failure to meet with a client • On most occasions client contact is essential. • Risk is entrusting to a client the task to either explain the transaction to another client or to secure the latter’s execution of a relevant document. • Eade v Vogiazopoulos [1999] 3 VR 889 – Solicitor acted for husband and wife in a mortgage over the family home for a loan to the husband’s business. Husband forged wife’s signature. Solicitor never saw the wife. Wife successfully sued the solicitor for negligence when the husband’s business became insolvent. o Where a person is entrusted to secure a spouse’s signature, a lawyer cannot proceed on the assumption that one spouse has authority to act for the other. • Multiple clients are involved in a transaction/matter, and possibility exists that one client may have influence over another, a prudent lawyer will meet with the clients separately, or refuse to act for each of them • Lawyer who’s taken steps to confirm client’s identity doesn’t warrant the client’s identity to a 3rd party for the purposes of the doctrine of breach of warranty of authority if the client proves to be an impostor – Dal Point
Danger of supplying unqualified advice • Should be wary of bold and confident assurances to the client: Hunt v A [2008] 1 NZLR 368. • Hall v Foong – Advice given was contrary to a recent Full Court decision and counsels advice. Lawyer had been negligent. Reasonably competent lawyer would have disclosed to the client that the advice had been tendered on a preliminary basis, and until counsel’s opinion was received, it’s impossible to assess any final prospects. o Breach of contract (retainer) only as couldn’t establish causation • Giving the advice the client wishes to hear: Levicom International Holdings BV v Linklaters (a firm) – Gave over optimistic advice, found to be negligent and causative of the appellant’s loss.
38 Giving non-legal advice • Lawyer to advise client of the limits of the duty the lawyer is undertaking – retainer • Client should seek advice outside these limits from another person • May not be covered by professional indemnity insurance.
Standard of care in a specialised area – tax advice • Whether a lawyer has a duty to give advice on a particular area of law depends on scope of retainer and applicable standard of care. • Taxation is a specialised area, outside the competence of most lawyers. • Hurlingham Estates Ltd v Wilde & Partners – Defendant solicitor acted for a client in a restructuring transaction, solicitors structured it exposing client of substantial tax liability. Lightman J ruled that in not structuring it effectively, the solicitors had not attained the requisite standard of care. o Expect any reasonably competent conveyancing or commercial law solicitor to be aware of the concealed trap for the unweary. • Standard is that of a lawyer practising in a particular field of law: Because the solicitors in Hurlington Estates practised in the field of conveyancing and commercial law, some tax knowledge is expected. • Goddard Elliott (a firm) v Fritsch: Bell J stated that taxation arises in property settlements in the Family Court. The firm can reasonably be expected to identify the relevant taxation issues and take the steps to bring them to the client’s attention and have them resolved. Involves referring the issue to a specialist lawyer or accountant.
In-court immunity from negligence • Barristers are immune from negligence claims in NSW in conducting litigation, for in court work. And giving advice for how to act in court. This immunity carries on to the solicitor or a solicitor engaging in litigation • Rondel v Worsley [1969] 1 AC 191: House of lords decision – barristers are immune from negligence accounts by clients relating to work in conducting litigation • Giannarelli v Wraith (1988) 165 CLR 543: Applied the principle of Rondel • Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC615: Led many to believe the High Court would do likewise. • Immunity remains in Australia. • D’Orta-Ekenaike v Victoria Legal Aid & anor (2005) 223 CLR 1: o Client sought to sue. Majority judgment (6 to 1) to retain barristers’ immunity (Kirby J dissenting) o Extended to solicitors in relation to court work
Justifications for the immunity Threat to public interest from collateral attack on original decision • It would permit court decisions to become the subject of collateral attack by another means. • If liable in tort in conducting litigation, it would encourage unsuccessful litigants to bring action to show that if it weren’t for their barrister’s negligence, they would have obtained a more favourable result. • Arthur J S Hall & Co (a firm) v Simons [2002] rejected immunity regarding civil proceedings. • D’Orta: Majority decision to retain immunity, relitigation would be inevitable and essential in demonstrating that an advocate’s negligence had caused damage to the client Adverse effect that fear of litigation may have on efficient conduct of court proceedings • May influence the exercise of independent judgment by making counsel more mindful of the need to avoid any possibility of liability. • Rondel v Worsley [1969]: Impossible to expect an advocate to prune their case of irrelevancies against his clients wishes if he faces an action for negligence when he does so. • Hall v Simmons – core immunity aim – secure the efficient administration of justice in the criminal courts. Special character of the judicial process wherein participants are immune from civil action • Fundamental to the admin of justice that participants in court proceedings be encouraged to speak and act freely unimpeded by the prospect of civil process as a consequence of having done so: D’Orta • Privilege against civil liability applies to the parties, counsel, witnesses and judges has been applied in the context of immunity from actions in defamation. • Arthur J S Hall & Co case – counsel are the only participants who have a duty of care to the client.
39 Unique role of counsel • D’Orta-Ekenaike v Victoria Legal Aid – practice of advocacy is unique in this and other respects – few other professions require their practitioners to attempt to see into the minds, and anticipate the thinking, reactions and opinions of other humans • D’Orta – Common law requires its members to act contrary to their client’s interests Fear that barristers would be deflected from observing their duty to the court • If counsel could be sued for negligence, they would be tempted to prefer interests of their clients to their duty to the court. Assistance the court obtains from advocacy of an independent profession would be imperilled: Rondel v Worsley [1969]. Inability to sue for fees and the cab rank principle • Cab rank rule – barristers have to take the work briefed to them if enough time, in their specialty. • Absence of a contractual rule is no bar to liability in tort, lack of contractual relationship is irrelevant. • Rondel v Worsley: Lord Upjohn suggested that the immunity could be justified by reference to the cab rank • Arthur J S Hall – Cab rank justification rejected, depriving clients of a remedy for negligence causing them grievous financial loss is too high a price to pay for protecting counsel from what is in practice a small risk.
Justifications for removing the immunity • Arthur J S Hall & Co (a firm) v Simons reasons: Enhancement of public confidence in the legal system. Exposure of isolated acts of incompetence. Benefit of avoiding the need to distinguish acts of counsel. • Bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong Arthur J S Hall & Co (a firm) v Simons. o Influenced Lai v Chamberlains – majority = wrong that a victim of professional incompetence should have no remedy for loss caused to him or her. • Arguments against retaining immunity: Distinction between in court and out of court work. Vexatious claims by litigants where immunity is removed has not been borne out. Courts can strike out a challenge to a criminal conviction. Courts acknowledge time and other pressures on counsel – acknowledge mistakes • LPUL Section 11 (Prohibition on engaging in legal practice when not entitled) and 15 (prohibition on advertisements or representations by or about unqualified entities)
10 Prohibition on engaging in legal practice by unqualified entities (1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity. Penalty: 250 penalty units or imprisonment for 2 years, or both. (2) An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it. (3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.
11 Prohibition on advertisements or representations by or about unqualified entities (1) An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity. Penalty: 250 penalty units. (2) A director, partner, officer, employee or agent of an entity must not advertise or represent, or do anything that states or implies, that the entity is entitled to engage in legal practice, unless the entity is a qualified entity. Penalty: 50 penalty units.
40 Scope of the immunity Immunity limited to negligence • Counsel’s immunity applies to negligent acts and omissions, and to a concurrent claim in contract emanating from the same conduct: Attard v James Legal Pty Ltd [2009] NSWSC 811. • Provides no immunity for: Fiduciary breach or a contempt finding • Doesn’t oust the jurisdiction to order costs against counsel or shield counsel from criticism from the bench. • Full High Court in Clyne v New South Wales Bar Association (1960) 104 CLR 543: From the view of a profession maintaining decency and fairness, its essential that the privilege, and power of doing harm which it confers, should not be abused. “In court” compared to “out of court” work • No justification for its application to work performed out of court lacking any connection with work done in court. • Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 560: “preparation of a case out of court cannot be divorced from presentation in court” and he saw the scope for the immunity to extend to “work done out of court which leads to a decision affecting the conduct of the case in court”. • Doesn’t extend to failures to advise on commencing proceedings (Saif Ali v Sydney Mitchell & Co [1980]), a short notice application for injunction without cause or advise on prospects of a case (May v Mijatovic (2002)). • Settlement of an action during its progress in court can be regarded as connected with the conduct of litigation. Richardson J in Biggar v McLeod [1978] 2 NZLR 9 at 14: The advice given by the barrister and the settling of the terms are immediately connected and involves the termination of litigation. • Kelley v Corston [1998] QB 686 at 711-712 English Court of Appeal: Found the compromise of proceedings at the door of the court prior to the trial was intimately connected with in-court work. o Butler-Sloss LJ: The compromise of the proceedings is an important and valuable part of the litigation process and ought to be encouraged. Impact of the D’Orta decision • Following the High Court’s decision in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 its unlikely that Australian courts will adopt a restrictive approach to applying immunity to out of court work. • Concluded that the barrister’s advice was protected by immunity. Intimate connection between the hearing of a matter and advice as to a plea in that matter. Solicitor’s position couldn’t be differentiated from that of the barrister. No difference in duties owed by solicitor or barrister existed. Solicitor-advocates • Public policy underlying barristers’ immunity applies with equal force to solicitors who act as advocates: Rees v Sinclair [1974] 1 NZLR 180. • High Court ruling in D-Orta in applying the same principles to both the barrister and instructing solicitor • Solicitors cannot by assuming the dual role require an immunity that they lacked had they acted as solicitors alone and briefed other counsel: Feldman v A Practitioner (1978) 18 SASR 238. • Immunity applies to work that is sufficiently connected to “in-court” work. Immunity applicable to counsel employed by the crown • Immunity applies equally to counsel employed by the Crown, e.g. prosecutors: Love v Robbins (1990) 2 WAR 510. • Cannot seek to redress against the prosecutor. Ouster of immunity by statute • An Options Paper developed for the Standing Committee of Attorneys-General outlined options to confine immunity to criminal proceedings, preserving it for categories of legal services providers. • Appropriateness of leaving the issue to Parliament was argued in Arthur J S Hall & Co (a firm) v Simons and Lai v Chamberlains. Check pg 450
Limiting liability – Professional standards regime • Lawyers are ordinarily indemnified from loss stemming from their negligence by the terms of their professional indemnity insurance, which they must maintain as a condition of holding a practising certificate: LPUL 211 • Raising professional indemnity insurance premiums and application of competition principles has prompted initiatives aimed at capping professionals’ liability.
41 • Corporations Act 2001 (Cth) reduces liability exposure as lawyers’ personal assets are immune unless pledged • Initiatives viewed against the professional standards regime, commenced in NSW via the Professional Standards Act 1994 (NSW). • S 5(1) of the regime enables the creation of schemes to limit the civil liability of professionals, except for “any negligence or other fault of a legal practitioner in acting for a client in a personal injury claim”, a “breaching trust” or a “fraud or dishonesty”. Pg452
42 Chapter 18: Confidentiality
Nature of the duty • Lawyer-client relationship is one of confidence – duty on the lawyer to maintain inviolate clients’ confidences. • Legal professional privilege is a right that vests in the client
Rationale for the duty • Justified as a vehicle to encourage full and frank disclosure between client and lawyer. • Clients can seek and obtain legal advice without the fear of being prejudiced by its subsequent discourse: Fruehauf Finance Corp Pty Ltd v Feez Ruthning (a firm) [1991]. • Foster public confidence in lawyers and the legal system
Source of the duty • Sourced from a mixture of contract law and equity stemming from the relationship of lawyer/client. • In contract o Via a term implied in the retainer agreement: Parry-Jones v Law Society [1969]. • Equity o Protects confidentiality information from unauthorised use or disclosure.
Scope of duty When sourced in contract • Scope of lawyer-client duty of confidentiality is determined according to its source. • Primarily sourced in contract through the wording of the relevant implied term that prescribes its scope. When sourced in equity • Protection attaches to information capable of meeting the legal test of confidentiality, which revolves around whether the info is public knowledge and whether its communication was for a limited purpose. • Equitable duty requires an investigation into whether or not the information fulfils that description. • In equity the duty of confidentiality remains until inter alia, the information loses its confidentiality. When sourced in professional rules • Not all info connected with the retainer, meets the legal test of confidentiality. CONFIDENTIALITY & CONFLICTS – Barristers Rules 114. A barrister must not disclose (except as compelled by law) or use in any way confidential information until… 115. A barrister must not disclose (except as compelled by law) or use confidential information… 116. A barrister will not have breached by showing briefs to or disclosing information to the barrister’s instructing solicitor… 117. A barrister who is shown a brief as a reader or under an arrangement under 113, is bound by the same duties of confidentiality Solicitors’ Rules 9 - Confidentiality
Duration and priority of the duty • Lawyer’s duty of confidentiality is not ousted by the termination of the retainer or by the death of the client. Nor is it reduced by a duty owed to another client: Gartside v Sheffield, Young & Ellis [1983]. • Can also owe legal duties of confidentiality to third parties – Dal Point. Compared to legal professional privilege • Privilege doesn’t depend on a contractual, equitable or professional duty, rests on grounds of wider public policy • Communications protected by confidentiality are more extensive than those of privileged: Minter v Priest [1930] • Privileged information is protected from compulsory disclosure, unless the privilege is ousted by statute or waived, whereas non-privileged confidential information must yield to such compulsion.
43 Limits and exceptions to the duty Client authorisation • Client may authorise the lawyer to disclose what otherwise comes under the mantle of confidentiality – can elect to waive or modify the relevant obligation. • Scope of any client authorisation, consent or waiver is determined by its terms. • Consent to the disclosure for the purposes of a retainer doesn’t entitle a lawyer to disclose or use the info for other purposes: Fordham v Legal Practitioners Complaints Committee (1997). Inferred client authorisation for disclosure incidental to the conduct of the retainer • Authority or consent need not, for this purpose, be express. Can be inferred from the nature/terms of retainer. • Contents of pleadings involve the disclosure of information disclosed by a client in the course of a retainer • Non-contentious matters – lawyer must communicate with court info received within the confines of the retainer. • Duty of confidentiality must be read subject to the lawyer’s authority to use and disclose information – albeit for the limited purposes of the retainer – where this is necessary for the proper/ normal conduct of the retainer. Inferred client authorisation for disclosure to others within the firm • Except for info clearly confided personally and exclusively, implied authority or consent to disclose covers a lawyer’s disclosure of client confidential information to partners or employees in her or his firm, who are then subject to the obligation of confidence: SR 9.1. Firm that owes the relevant duty Inferred client authorisation for disclosure to other lawyers outside the firm • The lawyer’s authority may encompass the disclosure of client confidential information to a lawyer outside the firm. May be legitimate to make a disclosure to another lawyer even without express authority: SR 9.2.3 • McKaskell v Benseman [1989] – Disclosing to senior lawyer a letter sent to client for purposes of advice didn’t breach confidence, it was “in the course of a serious and earnest search for assistance in the interests of clients” Disclosure compelled by law • Duties imposed by the general law (confidentiality), can be ousted by statute. Disclosure limited in scope and purpose • Disclosures compelled by statute represent occasions where Parliament decrees that the public interest in access to info overrides client interests in preserving its confidentiality. • Any duty to disclose is therefore restricted and is directed to a regulatory body to secure a regulatory objective • Financial Transactions Reports Act 1988 (Cth) – report on cash transactions of $10,000 or more entered into them • Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Lawyer’s must lodge reports with AUSTRAC Compulsory disclosure does not override privileged communications • Even disclosures compelled by statute must yield to claims that the communication in question is subject to legal professional privilege
Disclosure ostensibly to support lawyer’s own interests Disclosure to substantiate entitlement to remuneration • A lawyer may disclose confidential information pertaining to the retainer in reasonably seeking to establish or collect the fee in respect of the retainer. • Lawyer unable to disclose to a court, or to a taxing officer or costs assessor, the nature and scope of the retainer may be effectively unable to substantiate an entitlement to costs. Disclosure to defend disciplinary or legal proceedings against lawyer • Client who institutes proceedings against a lawyer for breach of duty, or to recover costs paid, is treated in relation to the matters he or she has put in issue by pursuing the claim: Benecke v NAB Ltd (1993) • Premised on the ground of procedural fairness – Lawyers unable to adduce evidence pertaining to the retainer because of confidentiality would find it almost impossible to defend their actions. • Same is true for a lawyer defending a disciplinary charge or complaint, recognised depending on the jurisdiction, and/or professional rules (SR 9.2.6), or as a necessary corollary of the broad info
44 321 Waiver of privilege or duty of confidentiality - complaints (1) If a client of an Australian legal practitioner makes a complaint about the practitioner, the complainant is taken to have waived client legal privilege, or the benefit of any duty of confidentiality, to enable the practitioner to disclose to the appropriate authorities any information necessary for investigating and dealing with the complaint. (2) Without limiting subsection (1), any information so disclosed may be used in or in connection with any procedures or proceedings relating to the complaint.
Disclosure of information that is not confidential • Duty of confidentiality is designed to protect the client, and encourage the client to make full disclosure, neither of these purposes is threatened by a disclosure of info already in the public domain. • Where the information is public knowledge – the purposes served by maintaining the confidence expire: BR 114(a) and Re a Firm of Solicitors [1995]. • Information in the public domain may not be entirely accurate. As lawyer’s knowledge of their client’s affairs is likely to be more extensive than published information, there remains the danger of inadvertent disclosure of confidential information.
Disclosure of client’s criminal conduct or intent Tension between confidentiality and protecting society • Lake Pleasant case – People v Belge (1975) Client disclosed to the lawyers that they committed unsolved murders, never came forward. Lawyers were held to have acted in accord with their professional duty of confidentiality. • Stakes are heightened for disclosures that the client has committed crimes for which another person has been wrongly convicted. • Ethical issue also arises where the client discloses an intention to behave in a criminal manner Where the balance lies under the professional rules • SR 9.2.2, 9.2.4, 9.2.5 • Australian rules don’t limit disclosure to events that may physically endanger another person. • Exception to confidentiality is expressed in this regard, it is no blanket entitlement to disclose to all and sundry (or to the media). • Disclosure must be restricted in its audience to achieving the purpose for the exception in the first place. • Disclosure may only be directed to a law enforcement authority charged with responsibility of policing felonies Disclosure of client’s intention to disobey a court order • Prohibits a lawyer who is informed by a client that the client intends to disobey a court’s order from informing the court or the opponent without the client’s consent, unless the lawyer believes client’s conduct is a threat to any person’s safety: SR 20.3.3, BR 81(c) Disclosure in the public interest • If the lawyer’s duty of confidentiality lies in equity, may be grounds for recognising the public interest defence to disclosure in breach of confidence. • The public interest in maintaining the confidence is outweighed by the higher public interest, such as the interests of justice or the interests of the community or certain of its members. • Lawyer who discloses confidential info in public interest assumes the heavy burden of establishing the defence. • A v Hayden (1984): There is no confidence as to the disclosure of iniquity. Iniquity = serious crime in this case • SR 9.2.4 – Permitting disclosure for purpose of avoiding the probably commission of a serious criminal offence. • Legal Practitioners Complaints Committee v Trowell (2009): Iniquity rule didn’t justify media disclosure of allegations of a proposal to bribe the judiciary of country the respondent’s client was charged with drug offences. • Mere assertion of the public interest of knowing about the admin of justice is unlikely to discharge that burden. • Stewart v Canadian Broadcasting Association (1997): Court held the lawyer’s duty of confidentiality was weightier, and therefore not to be diluted by reference to an incidental and imprecise notion of public benefit.
45 • Stakes are increased where a lawyer discovers that the client is producing or marketing a product that is dangerous to the general public, but not withstanding pleas refuses to recall it. • Disclosure outside the client is a breach of contract, likely to justify termination of employment. • Pt 9.4AAA Corporations Act 2001 (Cth) – protects whistle-blowers from civil/criminal liability in circumstances
Fulfilling the duty Consequences of unauthorised disclosure • May lead to embarrassment, loss of clients, damage to reputation, conflict of interest allegations, disciplinary sanctions, claims for breach of contract and injunctive relief disqualifying the lawyer from continuing to act. • An inadvertent disclosure of confidential privilege may disadvantage the client by waiving any legal professional privilege in respect of it. Procedures directed at preserving confidentiality • Lawyers must guard against unauthorised or inadvertent disclosure of clients’ confidential information. • Canadian Bar Association’s Code of Professional Conduct: Lawyer should avoid indiscreet conversations, shouldn’t repeat any gossip/ information about the client’s business or affairs that may be overheard or recounted to the lawyer. Respect of the listener for the lawyers concerned and legal profession will be lessened. Prejudice to the client • Lawyers should implement procedures designed to impress upon other lawyers and staff in the firm the importance of confidentiality – e.g. ensuring client files are securely stored. o Important in protecting client confidences from unauthorised access, and fulfilling applicable privacy law obligations (Dal Point). • Lawyers who use serviced office spaces and shared photocopying facilities should exercise particular care, as should lawyers who outsource work to others.
46 Chapter 19: Legal Professional Privilege
Nature of the privilege Advice and litigation privilege • Advice privilege o Communications between solicitor and client made for the purpose of advice o Attaches to the confidential communications for purpose of enabling client to obtain, or lawyer to give legal advice. • Litigation privilege o Use in existing/anticipated litigation: O’Reilly v Commissioners of the State Bank of Vic (1983). o Confidential communication between client and lawyer, or between lawyer or client and 3rd parties, made for purpose of use in litigation.
Rationale for the privilege • Both forms of privilege are grounded in public policy directed at fostering trust/candour in the lawyer- client relationship (Bullivant v Attorney-General (Vic) [1901]). • Encourages clients to fully and frankly disclose the relevant circumstances to their lawyer without fear of being prejudiced by their subsequent revelation: Smith v Jones [1999].
STATUTORY PRIVILEGE EVIDENCE ACT 1995 (Cth) S117 Definitions (1) In this Division: "client" includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service); (b) an employee or agent of a client; (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory; or (ii) a body established by a law of the Commonwealth or a State or Territory; (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of aclient--a manager, committee or person so acting; (e) if a client has died--a personal representative of the client; (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "confidential communication" means a communication made in such circumstances that, when it was made: (a) the person who made it; or (b) the person to whom it was made; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "confidential document" means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. "lawyer" means: (a) an Australian lawyer; and (b) an Australian-registered foreign lawyer; and (c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and (d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c). "party" includes the following: (a) an employee or agent of a party; (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of aparty--a manager, committee or person so acting; (c) if a party has died--a personal representative of the party; (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act.
47 S119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or (b) the contents of a confidential document (whether delivered or not) that was prepared; for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
S118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer; or (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
S125 Loss of client legal privilege: misconduct (1) This Division does not prevent the adducing of evidence of: (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of apower. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that: (a) the fraud, offence or act, or the abuse of power, was committed; and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power; the court may find that the communication was so made or the document so prepared. (3) In this section: "power" means a power conferred by or under an Australian law.
Common Law Privilege Fulfilling the onus of proof • Courts presume communications of a professional nature from a lawyer (or agent) to a client touching the subject matter of the lawyer’s retainer, and communications in connection with that engagement to be prima facie privileged: Dalleagles Pty Ltd v Australian Securities Commission (1991). • Once the person claiming privilege can establish the facts, the onus shifts to the person who disputes the claim to establish facts that prima facie rebut it: Australian Hospital Care Pty Ltd v Duggan (No 2) [1999]. • Party claiming privilege must then establish the propriety and validity of the claim: Grant v Downs (1976). • Onus is concerned with substance, Newnes M in Boase v Seven Network Operations (Ltd) [2005]: o Unless documents are sufficiently described, its impossible to discern whether claim is properly made.
“Purpose” of the communication • Only communications made for the dominant purpose of securing financial advice or for use in existing or reasonably anticipated litigation can possibly be privileged. • In Ex parte Campbell (1870), the court put the test in these terms: “what a solicitor is privileged from disclosing is…some fact which the client communicates to the solicitor for the purpose of obtaining the solicitor’s professional advice and assistance;
“Dominant purpose” test Shift from the “sole” purpose to the “dominant” purpose test • Only confidential communications made for the purpose of advice or for use in existing or anticipated litigation come within the privilege. • Grant v Downs (1976) 135 CLR 674 – Held that in order to be privileged, a communication must have been made for the sole purpose of legal advice or contemplated litigation.
48 • HCA held: dominant purpose test is the appropriate test for privilege: Esso Australia Resources Ltd v FCT (1999). Determining the dominant purpose • Need to show that purpose dominated the decision to make the relevant communication: GSA Industries Pty Ltd v Constable [2002]. • Document is privileged doesn’t meant all annexures and enclosures are privileged: Actew Corp Ltd v Mihaljevic [2007]. • The dominant purpose of the communications must be either: The advice privilege or the litigation privilege. Litigation privilege – communication for the purpose of anticipated litigation • Mitsubishi Electric Australia Pty Litd v Victorian Workcover Authority (2002): o Factors meeting the threshold: Nature of event that often leads to litigation, instructed early on topics suggesting expectation of a claim and the party claiming privilege had already resorted to its insurer. o Many cases – litigation is likely before evidence gathering process has begun. • For companies, documents aren’t privileged because an intended destination is the desk of a lawyer, or they constitute reports or litigation is a contingent possibility: Brunswick Hill Apartments v CGU Insurance Ltd [2010]. • Applies only where communications are made for the dominant purpose of use in existing or reasonably anticipated litigation means that, although advice privilege may apply, its difficult to extent: AWB v Cole (2006).
Purpose of communication to further fraud Why fraudulent communications are not privileged • Privilege doesn’t attach to lawyer-client communications, relating to advice sought or give in the furtherance of, or to facilitate criminal, fraudulent or unlawful purposes: R v Cox & Railton (1884). • Fraudulent communications go against public interest serves to outweigh public interest in their protection: R v Bell (1980). What amounts to fraud? • Fraud: Isn’t confined to crime but includes conduct that has an obvious taint of dishonesty: Kupe Group Ltd v Seamar Holdings Ltd [1993]. Section 125(1)(a) Evidence Act • Privilege may also not apply to communications made for the purpose of frustrating the processes of the law itself: R v Bell (1980). Onus and standard of proof • Party alleging fraud bears onus of establishing it to the standard of a prima facie case: Freeman v Health Insurance Commission (1997) • Suggest that the advice facilitated the fraud: R v Shirose (1999) Evidence that gives substance to the allegation (Freeman v Health Insurance Commission), at least enough to shift the onus to the person making the claim to show that privilege attaches: Commissioner Aus Fed Police v Propend Finance (1997)
Communications covered by the privilege Concept of communication • Orally or mechanically, electronically or video recorded: Rosenberg v Jaine [1983]. • Drafts may = privilege: Dingle v Cth Development Bank of Aus (1989) • No privilege attaches to documents that constitute/ evidence transactions: Baker v Campbell (1983). Application of privilege to copies, translations and modifications of non-privileged documents • Copies of privileged documents are clearly privileged: Cole v Elders Finance & Investment Co Ltd [1993] • Established by Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997): Privilege attaches to copies of non-privileged documents provided to a lawyer for obtaining/giving legal advice or use in litigation. Application of privilege to attachments to privileged documents • Documents attached to a statement, where the documents aren’t in nature privileged, doesn’t amount to a legal communication. Application of privilege to communications of a client’s identity • Identity of client isn’t ordinarily privilege: Bursill v Tanner (1885). Exceptional cases
49 • Z v NSW Crime Commission (2007): Kirby and Callinan JJ: Accepted that in light of circumstances of retainer and purposes in the case, privilege attached to disclosure of clients name and address. Application of privilege to communications of a client’s contact details • Case endorsed by Aus courts: Ex parte Campbell (1870), James LJ: Solicitor is privileged from disclosing what’s communicated to him sub sigillo confessionis. Client’s residence is a mere fact Application of privilege to trust account records • Not ordinarily communications for purpose of obtaining legal advice/assistance, not privileged: Re Ontario Securities Commission (1983) Application of privilege to bills of costs • Detailed bill of costs is generally privileged – contains history of nature and legal work: Chant v Brown (1852). • Maranda v Richer [2003]: Canadian court upheld privilege claim over gross amount of fees/ disbursements billed Privilege limited to confidential communications • To be privileged, a communication must be confidential in the context of a lawyer-client relationship: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22) (1988). • Evidence Act s117 (1) defining confidential communication as “communication made by or to a person who was under an express or implied obligation not to disclose its contents”. Video footage and confidentiality • J-Corp Pty Ltd v Australian Builders’ Labourers’ Federated Union of Workers (WA) (1992): Video of P’s work site, not privilege as they weren’t taken in circumstances where confidentiality attached • Palace Gallery Pty Ltd v Police [2008]: Suveillance footage seized by police. Similar outcome to J-Corp. • Boyes v Collins (2000): Surveillance video of appellant suing for injuries, footage was privileged as video was taken at the instruction of the respondent’s lawyer with intention of keeping it confidential for use as evidence. Documents in their final form • Agreements in final form intended to effect that transaction between parties, records made to evidence an actual transaction or docs lodged/ pleadings filed aren’t privileged: Dalleagles Pty Ltd v Aus Securities Commission (1991) Privileged limited to communications within a lawyer-client professional relationship • In order to attract privilege a communication must be made in the context of a professional relationship between a competent and independent lawyer and client: Cook v Leonard [1954]. Drafts likely to remain privileged: pg 401 Do not necessarily need a retainer • Reasonable expectations of the client are the perspective from which the existence of the relevant relationship is ascertained. Former retainer isn’t essential to sustain a claim for privilege: Hawksford v Hawksford [2008]. Communication made in a legal professional capacity • Communication must have been made to or by the lawyer in her or his professional capacity: Trade Practices Commission v Sterling (1979). It must be fairly referable to the relationship: Minter v Priest [1930]. • Social context not privileged. Neither is in the course of seeking non-legal advice: Kennedy v Wallace (2004). • Basic inquiry: Whether lawyers are being asked qua lawyers to provide legal advice: Three Rivers District Council v Governor & Company of the Bank of England (No 6) [2005] Competence – need for admission to practice and practising certificate? • Waterford v Commonwealth (1987) admission to practice is sufficient/ necessary condition for attracting privilege • Courts denying privilege arising out of communications with or from legally qualified persons not admitted to practice law: Glengallan Investments v Arthur Andersen [2002]. Evidence Act s 117(1) Aus lawyer = admitted. • Crispin J Vance v McCormack (2004): Denied privilege to communications with legal offciers of ADF lacking a practising certificate – relevant in whether advice is ought to be privilege Independence – application of privilege for employee lawyers? • Lawyer must not give advice independent of own interests, but also must exercise independent judgment. Advice from foreign lawyer or on foreign law
50 • Privilege applies to communications between a client and their foreign lawyer: Great Atlantic v Home Insurance [1981] • Grofam Pty Ltd v Aus and NZ Banking Group Ltd (1993): Privilege as it would be deviating from the standard • Kennedy v Wallace (2004): A refusal to recognise foreign lawyers’ advice privilege would undermine the rationale of the privilege and administration of justice. Evidence Act s117(1) includes foreign lawyers
Statutory exception for unrepresented parties EVIDENCE ACT 1995 - SECT 120 Unrepresented parties (1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the party and another person; or (b) the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party; for the dominant purpose of preparing for or conducting the proceeding.
Extension of privilege to communications with or from third parties Agents of a client – s 119 Evidence Act • Communications to or from 3rd parties acting as agents of a client, can be regarded as communications of the client itself, attract litigation and advice privilege. • Pratt Holdings Pty Ltd v Commissioner of Taxation (2004): Seeking of non-legal professional advice can rarely stake a claim to privilege, appears more likely to advise the client in making communication to the lawyer • Scope for third party communications under litigation privilege – s 119 Evidence Act Agents of the lawyer – s 117 Evidence Act • Privilege extends to any communication made through agents of the lawyer: Trade Practices Commission v Sterling (1979). Communications with lawyers employee for purpose of obtaining legal advice: b Witness statements • Applies to statements a lawyer takes from witnesses for purpose of advising a client in relation to an anticipated claim, whether by or against client: Sanko Steamship v Sumitomo Ltd (1992) • Expert witnesses Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1): Docs generated by expert and info recorded (opinion) aren’t claim of privilege. Claim when communication is made for purpose of use in litigation.
Who is entitled to claim privilege? The client (or the lawyer on the client’s behalf) • The client is entitled to claim privilege as privileged is designed to protect the client’s interests. • Lawyer claims privilege on client’s behalf. Ensure a valid claim of privilege isn’t lost: Rosenburg v Jaine [1983]. Where the client is an entity • Privilege is of that entity or officers + entity: joint privilege. Evidence Act s117 – client: employee or agent of client Where the client has died or become insolvent • Privilege is not terminated by the client’s death, it then vests in the client’s personal representatives who can elect whether or not to waive: Chant v Brown (1849). Check Evidence act 117 (1) successor section. • A bankrupt’s right to assert privilege cannot be exercised by trustee-in-bankruptcy: Re Furney (1964) Parties with a common interest (common interest privilege) • Recognised under Evidence Act s122 (5)(c): General waiver provisions don’t apply to common interest. • Where a person entitled to claim privilege discloses a doc to a third party who has an interest sufficient for common interest privilege, there is no loss of privilege: Bulk Materials Services v Coal & Allied Operations (1988). Parties with a joint interest (joint privilege) • Privilege that protects communications from disclosure belongs to all people who are joined in seeking the service or obtaining the advice – is a joint privilege: Farrow Mortgage Services v Webb (1996). • An insurer cannot use communications against the insured unless the insured waves the privilege: Fai General Insurance Co Ltd v CAN Pty Ltd (2000). Check s 124 Evidence Act.
51 Privilege claims in non-judicial proceedings General rule • Baker v Campbell (1983) – extension of privilege to non-judicial proceedings represents protection of the citizen • Murphy J (Majority ruling): “the important public policy which justifies the privilege would often be defeated if the privilege were not generally available.” Illustration – application of privilege in response to search warrants • Individual should be able to seek and obtain legal advice and legal assistance, without the fear that what has been prepared solely for that advice or assistance may be searched or seized under warrant: Baker • Denying privilege against a search warrant would engender an atmosphere where people feel their private papers are insecure and confidential relationships are no longer safe from intrusion: Baker • Question of Law Reserved (No 1 of 1998) (1998): Seizure unlawful if the police obtain possession of docs that are privileged at the time at which possession is obtained.
Abrogation of privilege by statute No ouster except where clear and unambiguous statutory intention • Statute cannot revoke the privilege in an indirect way: Rosenburg v Jaine [1983]. • Federal Commissioner of Taxation v Citibank (1989)– s 263 Income Tax Assessment Act 1936 (Cth) contained no express reference to privilege – nothing to suggest that Parliament directed its attention to privilege. • S 123 Evidence Act: Privilege doesn’t apply to adducing of evidence in criminal proceedings unless evidence of… Scope for statutory ouster by necessary implication • Parliament’s intention to oust a privilege may be ousted by necessary implication: Baker v Campbell • Daniels Corp International Pty Ltd v ACCC (2002): Far from obvious that that the retention of privilege would significantly impair the ACCC’s statutory functions • Z v NSW Crime Commission (2007): Held a statutory provision under which a lawyer must, if required, give the name and address of the person who communication was made, presented an obstacle to the maintenance of privilege.
Waiver of privilege At general law • Only the person entitled to claim privilege, the client, can waive it. • Can also be lost through an implied or imputed waiver, where because of some conduct by the client, it becomes unfair to the opponent to maintain privilege: Attorney-General (NT) v Maurice (1986). o Criterion of fairness dictates that a court can impute waiver even if it wasn’t intended – A-G v Maurice • Imputed waiver – Goldverg v Ng (1995): Basis of an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Consider whether “fairness requires that his privilege shall cease whether he intended that result or not” • Privilege may be removed Attorney-General (NT) v Kearney (1985): Law strikes a balance between securing rep by encouraging full disclosure, and requiring production of all relevant evidence, balancing favours disclosure. Under the uniform evidence law • Consent includes implied and express consent: Adelaide Steamship Co Ltd v Spalvins (1998). • Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996): The effect of the advice may also be its substance. • Southern Cross Airlines Holdings (Ltd) v Arthur Andersen & Co (a firm) (1998): Substance isn’t equated with effect. EVIDENCE ACT 1995 - SECT 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if:
52 (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
Waiver by intentional disclosure • Person doesn’t inevitable waive privilege, whether partially or wholly, by disclosure to a 3rd party: Harbour Inn Seafoods v Switzerland General Insurance Co [1992] • A failure to claim privilege, if represents an informed decision with opportunity for consideration, can constitute a waiver of privilege: Norman v O’Mahoney [2006]. Disclosure in pleadings or affidavit • Privilege is not waived by every disclosure to the opponent. Not waived by mere reference to a privileged document in pleadings (Buttes Gas and Oil Co v Hammer (No 3)), in an affidavit (Lyell v Kennedy (No 3) (1884)) or in a list supplied, although position is different if doc is reproduced in full in pleadings or affidavit. • Not misleading/unfair to refer in a pleading or affidavit to a doc that is not put into evidence: A-G (NT) v Maurice Disclosure of legal advice • Mere reference to legal advice, without disclosing its substance, is not a waiver of privilege of its contents: Assistant Treasurer and Minister for Com Policy and Consumer Affairs v Cathay Pacific (2009) • If a party’s explanation for an action is that he or she relied upon legal advice, this doesn’t oblige that party to disclose the terms of the advice: Miller v Commissioner of Inland Revenue [1999]. • Osland v Secretary to the Department of Justice (2008): Press release revealed little about actual content. • Bennett v Chief Executive Officer, Australian Customs Service (2004): Different where its explanation/reference to the substance of legal advice – can amount to a waiver of privilege. Partial disclosure as waiver of associated or entire document • A party may waive privilege as to certain documents but claim privilege as to others: Lyell v Kennedy (No 3) (1884) • General principle: Mere production of the doc on discovery cannot in the ordinary course be treated as a waiver of anything beyond the document itself: General Accident Fire & Life Assurance Corp Ltd v Tanter [1984] • Great Atlantic Insurance Co v Home Insurance Co [1981]: Disclosed a doc that contained part of a memorandum dealing with the matter, held to have waived privilege of whole memorandum. Waiver by unintended disclosure Inadvertent or mistaken disclosure • Disclosure won’t necessarily carry with it the consequence of waiver where production can be shown to be the result of inadvertence (Great Atlantic), error or other unintentional: Hooker Corp Ltd v Darling Harbour Authority • Objective test: Party claiming privilege must satisfy the court that a reasonable person in the shoes of the recipient ought to have realised the disclosure was by mistake: Director of Public Prosecutions (Cth) v Kane (1994) • Celanese Canada Inc v Murray Demolition Corp: parties should litigate disputes without fear their opponent has obtained insights. Lawyer’s duty upon receipt of inadvertently disclosed material • Solicitors’ Rules 31 – return, destroy or delete; notify the other solicitor etc. Overhearing by third parties • General rule according to Wigmore (1971): As the means of preserving the secrecy are in the client’s hands, its improper to extend it to third parties who obtain knowledge of the conversations. • R v Uljee [1982]: Rule doesn’t apply where comminuication has been overheard by a third party whose presence the client had no reason to suspect.
53 Chapter 20: Duty To Account
The basic obligation • General law: If moneys are entrusted to an agent to be held for the benefit of another person, the agent becomes trustee of those moneys: Mann v Hulme (1961) 106 CLR 136 • BR 13 o Barrister must not act § (h) administer any trust estate or fund any other person § (l) hold, invest or disburse any funds for any other person • LPUL s 133
LPUL – s 129 Meaning of trust money (1) For the purposes of this Law, "trust money" is money entrusted to a law practice in the course of or in connection with the provision of legal services by the law practice, and includes- (a) money received by the law practice on account of legal costs in advance of providing the services; and (b) controlled money received by the law practice; and (c) transit money received by the law practice; and (d) money received by the law practice, that is the subject of a power exercisable by the law practice or an associate of the law practice, to deal with the money for or on behalf of another person. (2) However, the following money is not trust money for the purposes of this Law- (a) money received by a law practice for legal services that have been provided and in respect of which a bill has been given to the client; (b) money entrusted to or held by a law practice for or in connection with- (i) a managed investment scheme; or (ii) mortgage financing; undertaken by the law practice; (c) money received by a law practice for or in connection with a financial service it provides in circumstances where the law practice or an associate of the law practice- (i) is required to hold an Australian financial services licence covering the provision of the service; or (ii) provides the financial service as a representative of another person who carries on a financial services business; (d) money received by a law practice for investment purposes unless- (i)the law practice received the money in the ordinary course of legal practice and primarily in connection with the provision of legal services at the direction of the client; and (ii) the investment is or is to be made in the ordinary course of legal practice and for the ancillary purpose of maintaining or enhancing the value of the money or property; (e) money determined under section 152 not to be trust money; (f) money declared by the Uniform Rules not to be trust money. s 133 Receiving or holding money by or on behalf of barristers on account of legal costs for legal services It is intended that jurisdictional legislation may include provisions prohibiting, regulating or otherwise providing for the receiving or holding of money by or on behalf of a barrister, on account of legal costs for legal services, in advance of the provision by the barrister of the legal services.
S 137 Certain trust money to be deposited in general trust account A law practice must deposit trust money (other than cash) into the law practice’s general trust account as soon as practicable after receiving it unless- (a) the law practice has a written direction by a person legally entitled to provide it to deal with the money otherwise than by depositing it in the account; or (b) the money is controlled money or transit money; or (c) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person. Civil penalty: 100 penalty units.
“Trust money” The concept of “trust money” under the legal profession legislation • Obligation to deposit into a trust account money received for or on behalf of any person to be held exclusively for that person applies to money that is “trust money” • Solicitors are required to deposit trust money into a trust account • The law practitioner/solicitor is the trustee of the money
54 • The moneys relating to the practice are held in an office account • See definition for controlled money below – s 139 o Money received by a solicitor/law practice for or on behalf of another in the course of or in connection with the provision of legal services
LPUL - S 128 Definitions (1) In this Part: "controlled money" means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control.
"transit money" means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice.
"trust money" means money entrusted to a law practice subject to instruction to pay or deliver it to a third party, other than an associate of the law practice
LPUL - S 139 Controlled money (1) As soon as practicable after receiving controlled money, a law practice must deposit the money in the account specified in the written direction relating to the money. Civil penalty: 50 penalty units
Money involved in financial services or investments not “trust money” • Money entrusted to or held by a law practice for or in connection with a financial service provided by the practice in circumstances where the practice is required to hold an Australian financial services licence covering its provision – is not trust money: LPUL S 129(c) • Money entrusted to hold in connection with: (a) a managed investment scheme or (b) mortgage financing isn’t trust money – LPUL 129(b) Money received for costs as “trust money” • Money received in payment of professional costs already incurred need not to be treated as trust money – paid directly into the office account: LPUL 129(a) • Money received in advance must be accounted for in trust money: LPUL 129(1) s 143 Trust money received in the form of cash (1) A law practice must deposit all trust money received in the form of cash (other than controlled money) in the law practice’s general trust account as soon as practicable after receiving the money, even if it has a written direction to deal with it in some other way. Once deposited, the money may be dealt with in accordance with the written direction. Civil penalty: 50 penalty units. (2) A law practice must deposit controlled money received in the form of cash in a controlled money account and deal with it in accordance with the Uniform Rules. Civil penalty: 50 penalty units.
Accounting for trust money Duties related to accounting • Duty to account represents a necessary incident of a trustee’s personal obligation to hold and deal with trust property for the benefit of the beneficiaries: Re Simersall (1992) 35 FCR 584. • Requires a lawyer holding trust money to maintain an accurate, accessible and ordered account of that money. Requires a system of financial controls. Records to be kept • A lawyer holding trust money. Records to be kept – LPUL s 147
LPUL s147 Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the law practice. Civil penalty: 50 penalty units. (2) The law practice must keep the trust records- (a) in accordance with the Uniform Rules; and
55 (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person; and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined; and (d) for a period of 7 years after the last transaction entry in the trust record, or the finalisation of the matter to which the trust record relates, whichever is the later. Civil penalty: 50 penalty units. (3) A law practice must not knowingly receive money or record receipt of money in the law practice’s trust records under a false name. Civil penalty: 100 penalty units. (4) If a law practice is aware that a person on whose behalf trust money is received by the law practice is commonly known by more than one name, the law practice must ensure that the law practice’s trust records record all names by which the person is known. Penalty: 50 penalty units. (5) In this section, a reference (however expressed) to "keeping trust records" includes a reference to making and keeping backup copies of trust records.
Duty to give account on request • General law: Trustee must give an account of receipts and payments to those interested in the account when it is properly demanded: Wroe v Seed (1863) 4 Giff 425 • Duty to give an account on request – LEGAL PROFESSION UNIFORM GENERAL RULES – 52(4)
LEGAL PROFESSION UNIFORM GENERAL RULES Rule 52 – Trust Account statements (1) A law practice must give a trust account statement to each person for whom or on whose behalf trust money (other than transit money and written direction money) is held or controlled by the law practice or an associate of the practice. (4) A trust account statement is to be given: (a) as soon as practicable after completion of the matter to which the ledger account or record relates, and (b) as soon as practicable after the person for whom or on whose behalf the money is held or controlled makes a reasonable request for the statement during the course of the matter, and (c) except as provided by subrule (5) or (6), as soon as practicable after 30 June in each year.
No mixing of trust with non-trust moneys • A trustee at general law has no duty not to mix her or his own property with trust property: Re Todd (No 2) (1910) • Must not mix trust with non-trust money: S 146 LPUL
LPUL 146 Intermixing money A law practice must not mix trust money with other money unless authorised to do so by the designated local regulatory authority, and only in accordance with any conditions the designated local regulatory authority imposes in relation to that authorisation. Civil penalty: 50 penalty units.
Trust account not to be overdrawn • There must not be a deficit in the trust account. LPUL s 148
LPUL s148 Deficiency in trust account A law practice, an Australian legal practitioner or any other person must not, without reasonable excuse, cause- (a) a deficiency in any trust account or trust ledger account; or (b) a failure to pay or deliver any trust money. Penalty: 500 penalty units or imprisonment for 5 years, or both. Duty to report irregularities • Lawyer who believes on reasonable grounds that there’s an irregularity in connection with the receipt, recording or disbursement of any trust money, received by a law practice, including the place they’re employed, must notify the designated local regulatory body in writing: LPUL s154(1)
LPUL s154 Reporting irregularities and suspected irregularities (1) As soon as practicable after- (a) a legal practitioner associate of a law practice; or
56 (b) an Authorised Deposit-Taking Institution; or (c) an external examiner; or (d) another entity of a kind specified in the Uniform Rules for the purposes of this section- becomes aware that there is an irregularity in any of the law practice’s trust accounts or trust ledger accounts, the associate, ADI, examiner or entity must give written notice of the irregularity to the designated local regulatory authority. Civil penalty: for a corporation-250 penalty units; for an individual-50 penalty units. (2) If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to the designated local regulatory authority. Civil penalty: 50 penalty units.
False names in trust account prohibited • A law practice that knowingly receives money, or records receipt of money in the practice’s trust records under a false name, is liable to penalty: LPUL s147(3) **see above** • Cahill v Law Society of NSW (1988) 13 NSWLR 1: NSW CA held that a lawyer who allowed transactions to be carried out in which clients adopted fictitious names, designed to effect a fraudulent purpose, was guilty of professional misconduct. Prohibition on use or withdrawal of trust money without authority • Refrain from treating trust money as their own property or as moneys for their own direct or indirect benefit: Brown v Inland Revenue Commissioners [1964] AC 244. • Statute prohibits lawyers from withdrawing trust money except to pay to or disburse according to the direction of, the person for whom the money is held LPUL s138; s144 • Lawyer isn’t liable to a third party who suffers loss as a result of the lawyer following these directions. Moffitt P in Adams v Bank of New South Wales: Mere knowledge could not make him a constructive trustee of money which he had never held other than as agent and over which he had no control.
138 Holding, disbursing and accounting for trust money in general trust account (1) Except as otherwise provided in this Part, a law practice must- (a) hold trust money deposited in the law practice’s general trust account exclusively for the person on whose behalf it is received; and (b) disburse the trust money only in accordance with a direction given by the person. Civil penalty: 50 penalty units. (2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law. (3) The law practice must account for the trust money as required by the Uniform Rules. Civil penalty: 50 penalty units.
144 Withdrawal of trust money (1) A law practice must not withdraw trust money from a general trust account otherwise than by cheque or electronic funds transfer. Civil penalty: 50 penalty units. (2) A law practice may do any of the following, in relation to trust money held in the practice’s general trust account or controlled money account- (a) exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the law practice, where the law practice is otherwise entitled to do so; (b) withdraw money for payment to the law practice’s account for legal costs owing to the practice if the relevant procedures or requirements specified in the Uniform Rules for the purposes of this Division are complied with; (c) deal with the balance as unclaimed money, after- (i) deducting any legal costs properly owing to the practice; and (ii) exhausting any other means of distributing it in accordance with the client’s instructions. Withdrawal of trust money in payment of professional costs • Premised on the lawyer following the prescribed procedure. Regulations generally entitle the withdrawing where it has rendered a bill to the client, and they haven’t objected within 7 days, or has objected but not applied for a cost review within 60 days. • Once the client has received a request for payment, where money is withdrawn in accordance with a valid costs agreement or with client instructions, or owned by reimbursement of money paid on behalf of the client.
57 Solicitors’ lien not prejudiced • Statutory requirements to apply money as directed don’t affect any claim or lien a lawyer has in respect of money in a trust account at a financial institution: LPUL 144(2) Trust money not available to satisfy lawyer or third party debt • Trust moneys aren’t available for the payment of debts of the lawyer, nor are they liable to be attached or taken in execution for the purpose of satisfying a judgment against the lawyer: LPUL s145 • A financial institution where the account is held has no right against money standing to the credit of the trust account: LPUL s145(2)
Verification of trust accounts External examiners and investigators • Statute requires lawyers to engage an external examiner generally once a year, to examine their records in respect of trust money: LPUL s155
155 Appointment of external examiner to conduct external examination of trust records (1) A law practice must once in each financial year have its trust records externally examined by a suitably qualified person appointed in accordance with the Uniform Rules as an external examiner. Civil penalty: 50 penalty units. (2) The designated local regulatory authority may examine, or may in writing appoint a suitably qualified person as an external examiner to examine, a law practice’s trust records if the designated local regulatory authority is not satisfied- (a) that the law practice has had its trust records externally examined as required by this section; or (b) that an external examination of the law practice’s trust records has been carried out in accordance with the Uniform Rules..
Confidentiality and privilege in trust account verification • Where an external examiner/investigator is given the right to access trust records/docs, a lawyer must comply despite any duty of confidentiality to the client. Examiner prohibited from unauthorised disclosure
Failure to account Claims against the Fidelity Fund • Statute entitles a person who has suffered pecuniary loss by reason of a lawyer’s trust account defalcation to make a claim against a guarantee or fidelity fund for compensation for the loss • Nature of the defalcation that triggers a claim for compensation is a default, check LPUL 218, 219, 221 • Trend: Exclude from fidelity fund coverage claims of solicitors’ investment and mortgage schemes s 218 - Objective The objective of this Part is to establish a fidelity cover scheme to ensure that persons who suffer pecuniary loss as a result of defaults by law practices have a source of compensation for defaults arising from or constituted by acts or omissions of associates of law practices. s 219 - Definitions "default" means- (a) in relation to trust money or trust property received by a law practice in the course of legal practice by the law practice- a failure of the law practice to pay or deliver the trust money or trust property, where the failure arises from an act or omission of an associate that involves fraud or other dishonesty; or (b) in relation to trust property received by a law practice in the course of legal practice by the law practice-a fraudulent dealing with the trust property, where the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves fraud or other dishonesty; s 221 -Defaults to which this Part applies (1) This Part applies to a default of a law practice only to the extent that it occurs in connection with the provision of legal services by the law practice. (2) It is immaterial where a default occurs. (3) This Part applies to a default even though an associate involved was but is no longer an Australian legal practitioner or an Australian-registered foreign lawyer. (4) This Part does not apply to defaults or classes of defaults specified in the Uniform Rules.
58 s 223 - How this Part applies to this jurisdiction (1) This Part applies in relation to this jurisdiction, so that- (a) the term “the fidelity fund” refers to the fidelity fund of this jurisdiction; and (b) the term “the fidelity authority” refers to the fidelity authority for this jurisdiction.
Other consequences of failure to account • Professional disciplinary action – may be stricken off the roll, and action by the client for compensation directly against the lawyer for breach of trust (Dal Pont) or even negligence. • Lawyers who destroy or convert trust property to their own use may also be subjected to criminal penalties under the general criminal legislation: Director of Public Prosecutions v Werden [2006] VSC 397. • R v Cole (1974) NSW Court of Criminal Appeal: “Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations.” Officer of this Court, “not possible for courts to regard lightly the defaulting solicitor whose actions tend to undermine the security of ordinary people”. • Dunford J in R v Smith (2000): When community’s trust in lawyers is abused by the commission of fraud, “not only does the client or person of fraud suffer, but the integrity of the profession is called into question”.
59 CHAPTER 21: Costs Disclosure and Costs Agreement
Costs disclosure and costs agreement • Safeguards on charging of costs: Extensive costs disclosure requirements, disciplinary sanction for grossly excessive fees, review of a bill of costs by independent adjudicator and costs agreements being set aside.
Costs disclosure requirements • Trend: Require lawyers to disclose to prospective clients in writing the way the lawyer will charge and an indication of their likely costs exposure. Should be able to make an informed decision and comparison • Costs disclosure statement should be separate from the retainer or costs agreement
What must be disclosed? s 174 Disclosure obligations of law practice regarding clients (1) Main disclosure requirement A law practice- (a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and (b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client- together with the information referred to in subsection (2). (2) Additional information to be provided Information provided under- (a) subsection (1)(a) must include information about the client’s rights- (i) to negotiate a costs agreement with the law practice; and (ii) to negotiate the billing method (for example, by reference to timing or task); and (iii) to receive a bill from the law practice and to request an itemised bill after receiving a bill that is not itemised or is only partially itemised; and (iv) to seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs; or (b) subsection (1)(b) must include a sufficient and reasonable amount of information about the impact of the change on the legal costs that will be payable to allow the client to make informed decisions about the future conduct of the matter. (3) Client’s consent and understanding If a disclosure is made under subsection (1), the law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs. (4) Exception for legal costs below lower threshold A disclosure is not required to be made under subsection (1) if the total legal costs in the matter (excluding GST and disbursements) are not likely to exceed the amount specified in the Uniform Rules for the purposes of this subsection (the "lower threshold" ), but the law practice may nevertheless choose to provide the client with the uniform standard disclosure form referred to in subsection (5). (5) Alternative disclosure for legal costs below higher threshold If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed the amount specified in the Uniform Rules for the purposes of this subsection (the "higher threshold" ), the law practice may, instead of making a disclosure under subsection (1), make a disclosure under this subsection by providing the client with the uniform standard disclosure form prescribed by the Uniform Rules for the purposes of this subsection. (5A) To avoid doubt, the uniform standard disclosure form prescribed by the Uniform Rules for the purposes of subsection (5) may require the disclosure of GST or disbursements or both. (6) Disclosure to be written A disclosure under this section must be made in writing, but the requirement for writing does not affect the law practice’s obligations under subsection (3). (7) Change in amount of total costs-where previously below lower threshold If the law practice has not made a disclosure, whether under subsection (1) or (5), because the total legal costs in the matter are not likely to exceed the lower threshold, the law practice must, when or as soon as practicable after the law practice becomes aware (or ought reasonably become aware) that the total legal costs (excluding GST and disbursements) are likely to exceed the lower threshold- (a) inform the client in writing of that expectation; and (b) make the disclosure required by subsection (1) or (if applicable) subsection (5). (8) Change in amount of total costs-where previously below higher threshold If the law practice has not made a disclosure under subsection (1) but has made a disclosure under subsection (5) because the total legal costs in the matter are not likely to exceed the higher threshold, the law practice must, when or as soon as practicable after the law practice becomes aware (or ought reasonably become aware) that the total legal costs (excluding GST and disbursements) are likely to exceed the higher threshold- (a) inform the client in writing of that expectation; and
60 (b) make the disclosure required by subsection (1).
175 Disclosure obligations if another law practice is to be retained (1) If a law practice (the "first law practice" ) intends to retain another law practice (the "second law practice" ) on behalf of a client, the first law practice must disclose to the client the details specified in section 174(1) in relation to the second law practice, in addition to any information required to be disclosed to the client under section 174. (2) If a law practice (the "first law practice" ) retains or intends to retain another law practice (the "second law practice" ) on behalf of a client, the second law practice is not required to make a disclosure to the client under section 174, but must disclose to the first law practice the information necessary for the first law practice to comply with subsection (1). (3) This section does not apply if the first law practice ceases to act for the client in the matter when the second law practice is retained. • Disclosure requirements are also imposed on a law practice that intends to retain another law practice on behalf of a client: LPUL s175 • Requirements must be fulfilled in writing o May be in another language if a client is more familiar Challenge in disclosing cost estimates • Some lawyers do estimates in a broad range. Limits to this range. • Casey v Quabba [2005]: Between nil and $250,000 – not a genuine attempt to inform the client. When and to whom must the disclosure be made? • Disclosure requirements must be met before the lawyer is retained to provide services, where this isn’t reasonable practicable, as soon as practicable after being retained: LPUL s174(1) • To another practice, disclosure made before retained except in urgent circumstances, orally: LPUL s 175 • Directed to prospective clients: A person to or for whom legal services are provided o Also requires disclosure to any third party payer of the client: LPUL s 176 o Third party payer: Person is if they’re under a legal obligation to pay any costs When need disclosure not be made? • Total legal costs are unlikely to exceed $750: LPUL s 174(4) Consequences of failing to fulfil disclosure requirements • Cost agreement concerned is void; Client doesn’t need to pay the costs, lawyer cannot maintain proceedings for their recovery: s 178(1)(a) • Client not required to pay costs until they have been assessed by the designated local regulatory body: s178(1)(b) • Possible proceedings or unsatisfactory professional conduct or professional misconduct: s178(1)(d) • Where third party payer is involved: s178(2)
Other disclosure obligations s176 - Disclosure obligations of law practice regarding associated third party payers (1) If a law practice is required to make a disclosure to a client of the law practice under section 174 or 175, the law practice must, in accordance with subsection (2), also make the same disclosure to any associated third party payer for the client, but only to the extent that the details or matters disclosed are relevant to the associated third party payer and relate to costs that are payable by the associated third party payer in respect of legal services provided to the client. (2) A disclosure under subsection (1) must be made in writing- (a) at the time the disclosure to the client is required; or (b) if the law practice only afterwards becomes aware of the legal obligation of the associated third party payer to pay legal costs of the client-as soon as practicable after the practice became aware of the obligation.
Disclosure Prior to Settlement 177 - Disclosure obligations regarding settlement of litigious matters (1) If a law practice negotiates the settlement of a litigious matter on behalf of a client, the law practice must disclose to the client, before the settlement is executed- (a) a reasonable estimate of the amount of legal costs payable by the client if the matter is settled (including any legal costs of another party that the client is to pay); and (b) a reasonable estimate of any contributions towards those costs likely to be received from another party. (2) A law practice retained on behalf of a client by another law practice is not required to make a disclosure to the client under subsection (1), if the other law practice makes the disclosure to the client before the settlement is executed.
178 Non-compliance with disclosure obligations
61 (1) If a law practice contravenes the disclosure obligations of this Part- (a) the costs agreement concerned (if any) is void; and (b) the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority; and (c) the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority or under jurisdictional legislation; and (d) the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention. (2) In a matter involving both a client and an associated third party payer where disclosure has been made to one of them but not the other, this section- (a) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and (b) does not prevent proceedings being maintained against the one to whom the disclosure was made for the recovery of those legal costs. (3) The Uniform Rules may provide that subsections (1) and (2)- (a) do not apply; or (b) apply with specified modifications- in specified circumstances or kinds of circumstances.
Costs agreements • Lawyer isn’t prohibited from contracting with a client regarding amount/ manner of payment for lawyer’s costs. • Client has the right to require and to have a negotiated costs agreement with the law practice Construing a costs agreement • Can form part of a retainer or be an agreement separate. Must be an agreement that law will enforce as contract. • PM Sales & Associates Pty Ltd v Oliveri [2009] – absence of a true agreement, backdated costs agreement not signed or accepted by other conduct. Hadn’t agreed on an hourly rate, which is a fundamental term. • Lack of clarity that sounded in denial of a fee – Baker Johnson Lawyers v Jorgensen [2002]: No win no fee basis, didn’t define in costs agreement what a win was, outcome couldn’t be viewed as a win unless recovering $$$ • Spence v Gerard Malouf & Partners Pty Ltd [2010]: No win no charge – made no mention of prospect of law firm ceasing to act if plaintiff couldn’t achieve a better outcome, month before trial was advised they wouldn’t act, Bergin CJ – a most unreasonable threat, had to give file to new lawyers. Effect of costs agreement • A cost agreement stipulates the lawyer’s entitlement to recover costs, limiting the lawyer to costs specified and calculated according to the agreement.
Formalities for costs agreements Writing • Costs agreements will be in writing, not meeting this will make them void: LPUL s 180(2) • Absence of a written costs agreement doesn’t deny a lawyer any claim for costs. Signature • An offer in respect of a purported costs agreement can be accepted by conduct other than writing: LPUL s 180(3) o Except in the case of a conditional cost agreement • No requirement that a client sign a costs agreement: O’Neill v Wilson [2011] • Good practice to secure a signature – reduces prospects for an allegation that they haven’t agreed: PM Sulcs & Associates Pty Ltd v Oliveri [2009].
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180 Making costs agreements (1) A costs agreement may be made- (a) between a client and a law practice retained by the client; or (b) between a client and a law practice retained on behalf of the client by another law practice; or (c) between a law practice and another law practice that retained that law practice on behalf of a client; or (d) between a law practice and an associated third party payer. (2) A costs agreement must be written or evidenced in writing. (3) A costs agreement may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct. (4) A costs agreement cannot provide that the legal costs to which it relates are not subject to a costs assessment.
Costs recovery where costs agreement is unenforceable or void • A costs agreement that contravenes any of the requirements to be void: LPUL s185(1) • Legislation prevents the recovery or retention of an amount exceeding the amount the lawyer would have been entitled to recover had the costs agreement not been void: s 185(2) • See section 185 if contravened section 182 or 183 • Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) (No 4) [2006]: Uplift fee exceeded the statutory limit, deprived the solicitor of costs. CA saw it as an ordinary conditional costs agreement.
185 Certain costs agreements are void (1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division is void. Note: If a costs agreement is void due to a failure to comply with the disclosure obligations of this Part, the costs must be assessed before the law practice can seek to recover them (see section 178(1)). (2) A law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received. (3) A law practice that has entered into a costs agreement in contravention of section 182 is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in respect of the uplift fee to the person from whom it was received. (4) A law practice that has entered into a costs agreement in contravention of section 183 is not entitled to recover any amount in respect of the provision of legal services in the matter to which the costs agreement related and must repay any amount received in respect of those services to the person from whom it was received. (5) If a law practice does not repay an amount required by subsection (2), (3) or (4) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction.
Contingent fee costs agreements Definition • Contingency fee arrangement is an agreement pursuant to which the payment of a lawyer’s fee is contingent on a specified event. • Three types: o Speculative (or conditional): Lawyer takes usual fee if successful o Uplift (success): Receive in addition to usual fee, an agreed flat amount or percentage. o Percentage: Lawyer receives as fees an amount calculated as a % of amount secured. Advantages and drawbacks • Main advantage: Access to justice. Incentive for lawyers to make an early assessment of prospects of success. • Conflict of interest: Lawyer’s interest to settle at a time maximising their fee, not consistent with client’s interests: Wallersteiner v Moir (No 2) [1975]. Contingency fees at general law • Percentage and uplift fees are champertous – can be viewed as being in substance a share of the proceeds of judgment: Clairs Keeley (a firm) v Treacy (2003). • Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006): Upheld the legitimacy public policy-wise of litigation funding agreements under which the funder receives a share of the proceeds of litigation. • Re Robb (1996): Solicitors had substantial personal interest – led to conflict between interests, obscured the solicitors’ perceptions of their fiduciary duties. Statutory regulation of contingency fees • No legal prohibition on speculative fee agreements.
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183 Contingency fees are prohibited (1) A law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates. Civil penalty: 100 penalty units. (2) Subsection (1) does not apply to the extent that the costs agreement adopts an applicable fixed costs legislative provision. (3) A contravention of subsection (1) by a law practice is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.
Conditional Costs agreements are allowed • Entitles a lawyer to make a costs agreement under which the payment of some or all of lawyer’s costs is conditional on successful outcome of the matter: LPUL s 181
181 Conditional costs agreements (1) A costs agreement (a "conditional costs agreement" ) may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate. (2) A conditional costs agreement must- (a) be in writing and in plain language; and (b) set out the circumstances that constitute the successful outcome of the matter to which it relates. (3) A conditional costs agreement must- (a) be signed by the client; and (b) include a statement that the client has been informed of the client’s rights to seek independent legal advice before entering into the agreement. (4) A conditional costs agreement must contain a cooling-off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement, but this requirement does not apply where the agreement is made between law practices only. (5) If a client terminates a conditional costs agreement within the cooling-off period, the law practice- (a) may recover only those legal costs in respect of legal services performed for the client before that termination that were performed on the instructions of the client and with the client’s knowledge that the legal services would be performed during that period; and (b) in particular, may not recover any uplift fee. (6) A conditional costs agreement may provide for disbursements to be paid irrespective of the outcome of the matter. (7) A conditional costs agreement may relate to any matter, except a matter that involves- (a) criminal proceedings; or (b) proceedings under the Family Law Act 1975 of the Commonwealth; or (c) proceedings under legislation specified in the Uniform Rules for the purposes of this section. (8) A contravention of provisions of this Law or the Uniform Rules relating to conditional costs agreements by a law practice is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention. • Validates uplift fee arrangements that provide for the payment of a premium not exceeding 25% of the costs otherwise payable on the successful outcome of the matter. S 182 182 Conditional costs agreements involving uplift fees (1) A conditional costs agreement may provide for the payment of an uplift fee. (2) If a conditional costs agreement relates to a litigious matter- (a) the agreement must not provide for the payment of an uplift fee unless the law practice has a reasonable belief that a successful outcome of the matter is reasonably likely; and (b) the uplift fee must not exceed 25% of the legal costs (excluding disbursements) otherwise payable. (3) A conditional costs agreement that includes an uplift fee- (a) must identify the basis on which the uplift fee is to be calculated; and (b) must include an estimate of the uplift fee or, if that is not reasonably practical- (i) a range of estimates for the uplift fee; and (ii) an explanation of the major variables that may affect the calculation of the uplift fee. (4) A law practice must not enter into a costs agreement in contravention of this section or of the Uniform Rules relating to uplift fees. Civil penalty: 100 penalty units.
64 Setting aside and variation of costs agreements • Traditionally viewed costs agreements with great jealousy, due principally to the lawyer’s opportunity to exercise influence over the client. Jurisdiction to set aside unfair or unreasonable costs agreement • Common law courts exercise jurisdiction to set aside/modify costs agreements lacking fairness or reasonableness. Statutory jurisdiction • Determining whether or not the agreement is fair and reasonable, look at s 199 Concept of fairness at common law • Reflects the requirements that a lawyer not “take advantage of relationship to receive any benefit from an agreement in which a client has been induced to enter by reliance upon the lawyer”: Emeritus v Mobbs (1991) • Client needs to fully understand & appreciate that agreement satisfies fairness requirement: Re Stuart (1893) Need for costs disclosure and explanation • Failure to explain differences between scale and agreement costs + effect on recoverable is important to fairness. • Brown v Talbot & Olivier (1993), Ipp J: Any agreement that seeks to remove the limit imposed by scales will be regarded as unreasonable if full disclosure isn’t made of limits and benefits. Circumstances that may influence a client in deciding whether to enter the costs agreement that should be expressly disclosed to client: Check pg 663 • Requisite disclosure should be made prior to entry into a costs agreement. • Stoddart & Co v Jovetic (1993): Insufficient to advise client that costs calculated may exceed statutory scale, another firm may do work for less and may obtain independent advice. • Re Blyth & Fanshawe (1882): An expense not necessary for proper enforcing of a client’s rights cannot be recovered from the client unless prior authority was secured. • Kasmeridis v McNamara Business & Property Law [2006]: Clients are entitled to proper advice about the extent to which they’re committing themselves before the lawyer accepted instructions authorising unusual disbursements Impact of nature of the client • Nature and scope of the explanation required rests on the client’s knowledge, experience and position. • Client of limited experience or sophistication requires a greater explanation • Computer Accounting & Tax v Bowen Buchbinder Vilensky [2009]: Client’s personal knowledge and experience of litigation and what it entails, depending on all circumstances, be relevant to a consideration of the scope and content of disclosure required. • For clients who are vulnerable/reliant on lawyer, a failure to fully/frankly advise as to the relative levels of fees proposed to be charged, if those are exorbitant, is no better than theft: Re Law Society of ACT and Roche (2002). • Cerini v Mcleods (a firm) [2004]: Client with business experience, understood costs agreement and charging of different hourly rates, Pullin J: No requirement to explain the terms of the agreement. • McNamara Business & Property Law v Kasmeridis [2002]: Doyle CJ: Clients should have been told of difference between time charging and charging according to scale, disclose that other competent lawyer’s might charge less. Concept of reasonableness at common law • Agreement is unreasonable if terms or effect are unreasonable to client: Jovetic v Stoddart & Co (1992). Rate of and approach to charging • Failure to stipulate a rate of charging is prima facie unreasonable: Brown v Talbot & Olivier (1993). • Charging a simple flat hourly rate irrespective of experience or seniority, or nature of work: Singleton v Macquarie Broadcasting Holdings Ltd (1991). • Factors: Lawyer’s seniority, expertise, nature and extent of work involved, including its novelty, difficulty and complexity: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (No 3) (1992). • Athanasiou v Ward Keller (6) Pty Ltd (1998): Mildren J Costs agreement unreasonable cause: Difference between scale costs/ costs payable significant, case wasn’t difficult, charges weren’t fixed and same hourly rate regardless of the experience.
65 Time charging • Costs agreements are commonly based on time costing – hourly rate covering overheads and remuneration • Potential to result in overcharging: Law Society of NSW v Foreman (1994). Rounding up 6 minute intervals: Legal Profession Complaints Committee v O’Halloran [2011]. • Fails to discriminate as to the type of work done: Kasmeridis v McNamara [2006]. • Law Society of NSW v Foreman: Solicitor in a position of conflict – her duty to client may conflict with interest. • Fryberg J in Re Morris Fletcher & Cross’ Bill of Costs [1997]: Set aside a time costing agreement. In discharging fiduciary duty, firm should have disclosed: Time charging was normal in large commercial firms, risk, task-based charging was normal, and Federal Court scale was limited.
Consequences of a finding of unfairness or unreasonableness • Where a determination is made that a costs agreement isn’t fair or reasonable, directs the court to determine fair and reasonable legal costs: s 199 199 Costs assessment (1) Assessments of legal costs are to be conducted by costs assessors, and are to be conducted in accordance with this Part, the Uniform Rules and any applicable jurisdictional legislation. (2) On a costs assessment, the costs assessor must- (a) determine whether or not a valid costs agreement exists; and (b) determine whether legal costs are fair and reasonable and, to the extent they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable.
200 Factors in a costs assessment (1) In considering whether legal costs for legal work are fair and reasonable, the costs assessor must apply the principles in section 172 so far as they are applicable. (2) In considering whether legal costs for legal work are fair and reasonable, the costs assessor may have regard to the following matters- (a) whether the law practice and any legal practitioner associate or foreign lawyer associate involved in the work complied with this Law and the Uniform Rules; (b) any disclosures made, including whether it would have been reasonably practicable for the law practice to disclose the total costs of the work at the outset (rather than simply disclosing charging rates); (c) any relevant advertisement as to the law practice’s costs or the skills of the law practice or any legal practitioner associate or foreign lawyer associate involved in the work; (d) any other relevant matter. (3) The costs assessor must take into account the incidence of GST in a costs assessment. (4) In conducting an assessment of legal costs payable by a non-associated third party payer, the costs assessor must also consider whether it is fair and reasonable in the circumstances for the non-associated third party payer to be charged the amount claimed.
66 Chapter 22: Duty to the Court
LEGISLATION • Civil Procedure Act 2005 (NSW) – s 56-60 • Legal Profession Uniform Conduct (Barristers) Rules 2015: 23-32, 34, 42-48, 54-55, 57-67, 69-71, 73, 76- 79, 101 • Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015: 17, 19-22, 24-28
Context Lawyer as an officer of the court • Duty to the court is paramount or overriding: Giannarelli v Wraith (1988). • Cannot be a party to the presentation of false evidence, for to do so would be inconsistent with the honesty and candour required of officers of the court: Law Society of Singapore v Nor’ain bte Abu Bakar [2009]. • Lord Reid in Rondel v Worsley [1969]: Overriding duty to the court. Counsel must not mislead the court. Enforcing the duty to the court • Court retains inherent supervisory jurisdiction over its officers, directed at preserving administration of justice. Court’s jurisdiction to restrain lawyer from acting • May restrain a lawyer from appearing where it would breach client confidence, fiduciary duty to existing client, or an appearance of the lawyer changing sides: Cleveland Investments Global Ltd v Evans [2010]. • Relevant inquiry is whether a fair-minded reasonably informed person would find it subversive to the administration of justice to allow the representation to continue: Davies v Clough (1837). • Misleading the court – criminal matters, can amount to miscarriage of justice. Judgment can be set-aside in a civil case. Meek v Fleming [1961]: Deception tipped the scale in his favour, wrong to allow him to retain the judgment. • Rees v Bailey Aluminium Products Pty Ltd (2008): Repeated misconduct by the defendant’s counsel – likely had a prejudice effect on the jury – miscarriage of justice. P’s appeal upheld.
Independence • Integrity of judicial process is undermined if lawyers lack “objectivity and independence which their professional responsibilities and obligations to the court require of them”: Kooky Garments Ltd v Charlton [1994] Independence in presentation of the case • Lawyer’s duty “is to do right by their clients and right by the court” (Lougheed Enterprises Ltd v Armbruster (1992))– requires taking all legal points into consideration. • Giannarelli v Wraith (1988): Barristers’ duty to have independent discretion or judgment in the conduct and management of a case, eye for client’s success and speedy and efficient administration. • Lawyers should not allow clients to take control over litigation: Wentworth v Rogers [1999]. Solicitors’ Rules 17 – Independence – avoidance of personal bias Barristers’ Rules 23, 42-48 – Independence Independence undermined where lawyer is a witness in the matter Proscription and its rationale • Lawyer must not accept a retainer if there’s reason to believe they will be required to give evidence Solicitors’ Rules 27 – Solicitor as material witness in client’s case Barristers’ Rules 101 (d)(e) – Briefs which must be refused or must be returned • The bases of proscription justify extending its application to solicitors who instruct counsel: Jeffrey v Associated National Insurance Co Ltd [1984]. • Unwise for solicitor who’s aware its likely he’ll be called as material witness to continue: Chapman v Rogers [1984
Courts jurisdiction to disqualify lawyer-witness from acting
67 • Court’s power to disqualify a lawyer from representing a party in circumstances where the lawyer may be called as a witness: Gugiatti v City of Stirling (2002) Exceptions to the proscription • A lawyer-witness may continue representing if its not possible to withdraw without jeopardising client’s interest.
Independence undermined by a lawyer’s conflict of interest • Where it becomes apparent that a lawyer may have criminal or civil exposure on a matter in which he represents a client, the need for independence requires the lawyer to withdraw: Kooky Garments v Charlton [1994]. • Clay v Karlson (1997): Plaintiff succeeded in an order restraining the solicitors from continuing to act for the second defendant in this action. Solicitor had person interest in outcome. • Scallan v Scallan [2001]: Windeyer J refused the defendant’s application. Its not unusual for instructing solicitors in contested probate proceedings to give evidence as to facts relevant to instructions for and execution of a will.
Independence threatened by a lawyer’s relationships Relationship with client • To pursue personal, or business relationships (R v White (1997)) with clients risks objectivity and independence. • Lack of independence may lead a lawyer to participate in a client’s wrongful conduct (NSW Bar Association v Livesey [1982]), and possibly encourage unprofessional conduct: Guess v Law Institute of Victoria Ltd [2006]. • Friends and relatives: Issues of independence and objectivity, cut corners, accept work beyond competence: Legal Practitioners Complaints Committee v Chang [2007]. Relationship with opposing lawyer • Independence of lawyer may be called into question. CIVIL PROCEDURE ACT 2005 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note : Examples of persons who may have a relevant interest are insurers and persons who fund litigation.
57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
68 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
Candour in the presentation of the law Duty to assist the court in the applicable law and procedure • Lawyers should be aware of the relevant legal principles and the requirements of applicable rules of court, and be adequately prepared in their submissions: ERS Engines Pty Ltd v Wilson (1994). • Involves researching relevant law/properly instructing judge to reduce scope for judicial error: R v Dick [1982]. • Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008): Where a party wishes to say a legal point at trial, appropriate to provide as much assistance to the trial judge in determining that issue. • Copeland v Smith [2000]: Judges in a position to give judgment without having to do research. Lawyer who knows that presiding judge is unfamiliar with the law/procedure should draw judge’s attention to all relevant matters. Duty not to withhold relevant law • Lawyers must not withhold authorities that may tell against their client but which the law or standards of the profession require them to produce: Rondel v Worsley [1969]. Barristers’ Rules 29 - 32 Duty to the court Solicitors’ Rules 17 – Independence and 19.6 Frankness
Candour in the presentation of the facts The duty and its scope Importance of duty • Assistant in administration of justice, lawyer must be able to command confidence/respect of the court: Re Davis (1947). • Misleading the court – Barristers’ Rules 24; Solicitors’ Rules 19.1 – Frankness in court – knowingly deceiving
69 • Misleading a court, unless warranted by law, undermines the confidence that courts and lawyers place in a lawyer’s integrity: Swinburne v David Syme & Co [1909]. Duty is both proscriptive and prescriptive • Duty prohibits a lawyer from being a party to the presentation to the court of any evidence, or the making of any statement, which is to the lawyer’s knowledge false or misleading: Re Gruzman (1968). • Barristers’ Rules 34 - Duty to the court; Solicitors’ Rules 19.11 • Take all necessary steps to correct any misleading statement: BR 25, SR 19.2. • Vernon v Bosley (No 2) [1999]: Medical condition wasn’t as severe. Held: Failure to disclose before courts final order meant the court = misled. Counsel should have advised P to disclose and withdrawn if client refused. Limits to the duty • “Fail in his duty to his client were he to supplement the deficiencies in his opponent’s evidence”: Khudados v Hayden [2007]. No misleading a court by not correcting an error stated by opponent: SR 19.3 • SR 19.12, BR 26 – must alert opponent and inform court of mistakes
False documents • Lawyer must not knowingly submit a fake document to the court: Rajasooria v Disciplinary Committee [1955]. • Ipp J in Kyle v Legal Practitioners Complaints Committee (1999): Lawyers may not, prepare and file affidavits known by them to be perjured. If after filing a witness statement, a lawyer is put on an enquiry as to the truth of the facts, lawyer should check whether they’re true. • Re Thom (1918): Court to brand a practice of stating in an affidavit that the deponent doesn’t admit a charge the deponent knows to be a true charge as a very reprehensible one.
Half-truths • Lawyers must avoid statements or conduct that are half-truths. Meek v Fleming [1961]: Fact that the defendant’s advisers were prepared to act as they did showed great importance which they attached to the facts concealed.
Especial candour in ex parte applications • Unique character of ex parte applications in an adversarial system requires the imposition of especial candour on behalf of applicants to avoid an abuse of the court’s processes. • Ex parte applications must display fairness/ good faith, bring all matters to the courts attention: Re Cookie (1889). • SR 19.4 and 19.5, BR 27, 28
Verification of client’s narrative • Y v M [1994]: Cause of misleading affidavit in a custody and access dispute was the unquestioning acceptance by the lawyer of what the mother had to say. • Lawyer should press client until properly satisfied, in meantime, not put submissions to court that are potentially misleading: Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999].
Client perjury Where perjury has been committed • Solicitors’ Rules 20 – Delinquent or guilty clients. Learning during hearing/after judgment that the client has lied, falsified, supressed, must… Barristers’ Rules 79 – Delinquent or guilty clients • If client refuses, withdraw from the case: Perpetual Trustee Co Ltd v Cowley [2010]. • Position is different where the client maintains their innocence against compelling prosecution evidence and refuses to say they’ve presented perjured evidence. Where perjury is proposed • Upon being informed by client that they plan to lead a perjured testimony, lawyer’s first duty is to try to dissuade. • American Bar Association: Record that D is taking the stand against the advice of counsel. Reilly CJ: perjured evidence, intend to commit crime – rule sometimes = exception to confidentiality • Aus rules may justify disclosure of intended perjury to prevent client’s commission of offence.
70 Client’s intention to disobey court order • Lawyer must not advise a client, or third party, to disobey a court order (K(R) v K(S) (2006)), or give encouragement or approval to such course. • Lawyer must not inform the court or opponent of the client’s intention unless previously authorised by the client or lawyer believes on reasonable grounds that client’s conduct = threat to any person’s safety.
Duty not to illegitimately destroy or remove documents *********
Dealing with witnesses Importance of maintaining integrity • Lawyer’s role as a participant in the admin of justice attracts the responsibility to protect the integrity of evidence
No conferring with witnesses together • Lawyer shouldn’t confer with/condone another lawyer conferring with over 1 witness at a time SR 25.1, BR 71 • Roads Corporation v Love [2010]: Exercise ultimately self defeating, witnesses no longer giving own opinion. • Day v Perisher Blue Pty Ltd (2005): Teleconference with witnesses discussing evidence, Sheller JA: Impression that it was done to ensure they would speak with one voice regarding events. Undermines evidence process. • Roads Corporation v Love [2010]: Pre-trial meetings isn’t improper where convened for purpose of lawyers being supplied info that in turn is provided to a party with legal advice.
No coaching of witnesses • Under no circumstances may a lawyer advise or suggest to a witness that false evidence should be given, or suborn a witness: SR 24.1.1, BR 69(a) • Lawyers role precludes suggesting the content of evidence the witness should give: SR 24.1.2, BR 69(b) • Doesn’t prohibit a lawyer from expressing a general admonition to tell the truth or questioning and test evidence a witness plans to give: SR 24.2, BR 70 • Should prep witnesses (and client) for type/manner of questioning (Re Equiticorp Finance Ltd (1992)), and not put a witness on the stand without knowing how they will respond to vital questions: R v Chapman (1958).
No-communication in cross examination • Professional rules prohibit a lawyer conferring with any witness while witness under cross-examination: SR 26.1, BR 73
No property in a witness • No property, court has a right to every man’s evidence: Harmony Shipping Co SA v Saudi Europe Line Ltd [1979]. • Lawyer may confer with any witness (or expert), whether or not subpoenaed or to be called by an opposing party • Lawyer need not disclose to an opponent the existence of a witness who would assist an adversary and injury their own client: NSW Bar Association v Thomas (No 2) (1989)
Evidence subject to a pre-existing confidentiality obligation • Lawyer may be prevented from using info to benefit their client that comes to them by a person subject to contractable/equitable obligations of confidentiality. • AG Australia Holdings Ltd v Burton (2002): Orders restraining a former employee from disclosing • Lawyers should exercise caution “in obtaining advice from an expert who has previously been consulted by another party to the proceedings so as not to encourage a breach of confidentiality”: Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005].
71 Communications and relationship with judge • Lawyer must not deal with a court/judge on terms of familiarity: Porter v Australian Prudential Regulation Authority [2009]. • Endeavour to avoid being alone with a judge from start to finish of the case: R v Turner [1970]. • If consent is given, lawyer should promptly inform the opponent of what was said: SR 22.5-22.6, BR 54-55 • Disclose any relationship the lawyer has with the judge: Parent, sibling, spouse, child or member of the lawyer’s household: Cf Marriage of Kennedy & Cahill, Re (1995). BR require counsel to decline a brief: BR 101(j)
Public disclosures and media communications • Traditionally assumed that the admin of justice is better served if lawyers are seen but not heard in public • Solicitors’ Rules 28 – Public comment during current proceedings – must not publish… • Barristers’ Rules 76, 77, 78 – Media comment
Abuses of process • Public administration of justice extends to ensuring that the court’s processes don’t lend themselves to oppression and injustice: Reid v New Zealand Trotting Conference [1984]. • Lawyer should eschew conduct that is an abuse of process, irrespective of the motivation for doing so
Baseless aspersions or allegations • Lawyer must not be a party to the presentation to a court of any evidence, or statement or allegation, for which there is insufficient evidentiary foundation: SR 21.3, BR 64 – Responsible use of court process and privilege • May require a lawyer to decline instructions to institute proceedings designed to antagonise or gratify the client’s own anger or malice: Re Cooke (1889). • Clyne v NSW Bar Association (1960): Appellant barrister described as unrestrained and vicious public attack on the person the subject of the proceedings. Appeal from being struck off rejected. o “Privilege may be abused if damaging irrelevant matter is introduced into a proceeding. • Solicitors’ Rules 21.1, 21.2. – Responsible use of court process and privilege. • Barristers’ Rules 60, 61, 63 – Responsible use of court process and privilege
Allegations of criminality, fraud or other serious misconduct • Allegations of fraud shouldn’t be made lightly: Saltoon v Lake [1978]. • Lawyers may be expected to exert a moderating influence on their clients: Bandwill Pty Ltd v Spencer-Laitt (2000) • Professional discipline may flow from unreasonable or reckless allegations of dishonesty or fraud: Holborrow v MacDonald Rudder [2002]. • Solicitors’ Rules 21.4, 21.5, 21.7 and Barristers’ Rules 65, 66, 67
Allegations in family law proceedings • Y v M [1994]: If one succumbs to beef up an affidavit by recording as fact which isn’t a fact, the solicitor may become exposed to personal liability.
Naming third parties • Rules require a lawyer who, in mitigation of client’s criminality, has instructions that justify submissions involving serious allegations in the case, to avoid disclosing that person’s identity: SR 21.7, BR 67.
Wasting of time and money in court proceedings • White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998): Not proper to adopt a obstructionist or delaying strategy which isn’t in the interests of justice and inhibits the court from achieving timely resolution. • Barristers’ Rules 57 and 59 – Efficient administration of justice • Lawyers are jointly responsible for the orderly and prompt disposition of cases: Kennedy v Cynstock Pty Ltd (1993)
72 • Barristers’ Rules 57 and Solicitors’ Rules 17.2 – obligations on lawyers
Hopeless cases Approach in civil cases at general law • For a lawyer to institute civil proceedings lacking any legal foundation – abuse to court processes: CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1994]. • Weak arguable case – may represent client, need to inform client of weakness/ consequences: Re Cooke (1889) • Davies JA in Steindl Nominees Pty Ltd v Laghaifar [2003]: Improper for counsel to present, even on instructions, a case which he or she regards as bound to fail • Ordering costs against lawyers personally who pursue hopeless cases – unsatisfactory professional conduct • Degiorgio v Dunn (No 2) (2005): Barret J – equate the phrase without reasonable prospects of success with “so lacking in merit or substances as to not be fairly arguable • Duty is ongoing – cease to act if at any time in a matter its concluded it has no reasonable prospects of success: Momibo Pty Ltd v Adam (2004). • Migration Act 1958 (Cth) Pt 8B: Prohibits a person pursuing migration litigation that has not reasonable prospects No application in criminal proceedings • Hopeless case rule doesn’t apply or applies with less rigour, to defendants in criminal law cases.
73 Chapter 23: Duty to obey and uphold the law
Client who behaves unlawfully Lawyer’s duty • If a lawyer becomes aware that a client is engaging in unlawful conduct, the appropriate response is to counsel the client against it and to eschew any involvement in that conduct. • Reason to believe a client with disregard advice, and contravene the law or legal obligation, counsel client on responsibilities then if client persists, terminate instructions: Greenwood (1991) Example – illegal transfer of money • Lawyer cannot turn a blind eye to disclosed or apparent illegality • Financial Transactions Reports Act 1998 (Cth) – duty to report cash transactions over $10,000, breach = offence • Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – lawyer who advances loans = reporting obligations Example – clients using false names • Lawyer should enquire where he or she suspects that a client has given a false name for a trust account Example – suspicion that client using premises for illegal purposes • Lawyer is entitled to disregard unsubstantiated rumours that the premises are or about to be used for illegal or unlawful purposes • If lawyer knows or receives instructions that they ARE being used for illegal/unlawful purpose, they cannot act in any way to further that purpose.
Potential consequences for the lawyer of the client’s unlawful acts • Involvement in a client’s unlawful acts may generate civil liability, criminal responsibility and/or disciplinary sanction Civil liability • Lawyers who carry out client instructions involving fiduciary/trust breach, liable if exhibit requisite knowledge, as recipient of trust property transferred in breach or dishonesty assisting breach: Eden Refuge Trust v Hohepa [2011] • Lawyer isn’t ordinarily liable for following directions unless party to a conspiracy to defeat interests of persons lawfully entitled to benefit of $ (beneficiaries) (Adams v Bank of NSW [1984]), or acting contrary to an undertaking. Criminal responsibility • Mere giving of advice in ordinary course of retainer, usually insufficient to attract criminal sanction: Commisso v United Telecasters Sydney Pty Ltd [1999]. • Street CJ in R v Tighe & Maher (1926): Must be proved that he did things in combo with him, over and above duty, leads to an inference of guilt. • R v Pearce (2004): 2 lawyers guilty of conspiracy to fraud, marketed a scheme to other clients that was a fraud. • R v Freeman (1985): Lawyer conspired to obtain security for bail for a prisoner using p’s own money, convicted • Hatty v Pilkinton (No 2) (1992): Lawyer entered plea of guilty on a client’s behalf knowing she had been charged under an assumed false name. Black DJ: Intended that the court be mislead as to real name Disciplinary consequences • Saunders v Edwards [1987]: Lawyer who knowingly involved in a false apportionment to avoid stamp duty for a client commits professional misconduct • Law Society of NSW v Dennis (1981): Solicitor party to a scheme whereby a building society was mislead. Participation in a scheme of this character is consistent with the integrity of a practising solicitor. Struck off • Attorney-General v Bax [1999]: Lawyer falsified docs and transactions, antedated a deed of loan and intentionally deceived a creditors’ meeting – struck off.
74 Approach to the giving of advice Line between advising on legal and illegal conduct • Professional judgment of a lawyer must at all times be exercised within the bounds of the law • Lawyer must not tender advice to a client that he knows/reasonable grounds to believe is requested to advance an illegal purpose: Sing r 22. Not advise on how an unlawful purpose may be achieve or concealed • Any proposed course of conduct (legal status unclear), client fully explained of risk and consequences of illegality
Illustration – taxation advice • Prohibit lawyers from engaging in tax evasion and tax avoidance • Lawyer may and must where scope of retainer encompasses this, advise client as to legal means of tax planning • Latilla v Inland Revenue Commissioners [1943]: If they succeed, increase tax load on body of good citizens • R v Pearce (2004): Need to take care to avoid ethical desensitisation, what was right had become blurred. Responsibility of the legislature • Fed Commissioner of Taxation v Westraders Pty Ltd (1980): Parliament prescribe circumstances attracting tax or provide occasion for its reduction or elimination. Duty to the client • Bayer v Balkin (1995) per Cohen J: “Duty on solicitors to advise client how they can avoid, as far as possible, making what the government regards as a proper contribution”. • Simcock (1994): Client’s right is to receive the best advice the practitioner can provide, which may involve taking advantage of loopholes. Client choice • Issues of morality in tax minimisation are within the exclusive province of the client, in that the client chooses, whether or not to pursue it. The tax lawyer and moral advice • Barrister, subject to the “cab rank” rule, cannot decline the brief by reason of strong personal views inconsistent with the subject matter. Disclose views then let prospective client decide: Wilson (1979). • Outside cab rank rule, lawyer may decline to represent a client who proposes a course of conduct that offends the lawyer’s sense of morality: Chernov (1991). • Lawyer must not tailor advice to his/her criteria of morality: Freedman (1975). • Make some comments about weightier demands of law (justice/good faith) – Greenwood (1991) • McHugh J (1988): Assess “whether the objective or the means of achieving it, although not prohibited by law, may nevertheless be regarded as dishonest by the standards of the community”.
75 Chapter 24: Criminal Practice Tuckiar v The King (1934) 52 CLR 335 – Indigenous, problem of language, lawyer treated Aboriginal as a lesser person. Breached confidentiality R v Apostilides (1984) 154 CLR 563 – issue of calling witnesses and whether a judge can intervene
Prosecuting counsel The basic duty of fairness and impartiality • Deane J in Whitehorn v R (1983): Prosecuting counsel will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with procedures/standards • SR 29 Prosecutors duties • Duty to secure a fair trial is shared with defence counsel (Vella v R (1990)): duty to the court above duty to client. • Prosecutor should avoid public comment to the media about a trial they’re prosecuting or has prosecuted – risk endangering appearance of objectivity and impartiality of criminal justice: R v Sheikh (2004) o Not appropriate to comment other than to remind media that they shouldn’t be reporting • NSW Court of Criminal Appeal in R v MG (2007): prosecutor entitled on an appropriate occasion to draw attention to the ordeal of victims of crime, suggest systematic reform, and discuss relative merits of adversarial and ameliorate system of justice. Prosecutors statement = lack of detachment. Ordered retrial, another prosecutor
Impact on attitude of prosecutor • Duty of fairness and impartiality impacts on attitude the law expects a prosecutor to display in carrying out the prosecutorial function. • Attitude should be consistent with a duty to assist the court in attaining purpose of criminal prosecutions, to make certain justice is done – ministers of justice: R v Lucas [1973]. • Shouldn’t view it as a contest between individuals or Crown and accused. Role must be performed without any concern as to whether case is won or lost: R v Livermore (2006). • Refrain from tactical manoeuvres & taking advantage of minor procedural error by defence c: King v R (1986). Need for detachment and self-control • Must avoid giving own reaction to the evidence by accused; a prosecutors personal convictions or opinions on issues of fact, on credibility of witnesses, and on guilt and character of accused, all irrelevant: R v Kaufman (2000) • Professional rules prohibit a lawyer making submissions or expressing lawyer’s personal opinion: SR 17.3 Importance of not inflaming bias against the accused • Fairness dictates that a prosecutor must not seek to inflame or bias the court against the accused: R v DDR [1998] • Need to ensure they don’t say anything that appeals to that prejudice: de Jesus v R (1986) • Where the crime charged has apparent racial/religious motives, e.g. R v Thomas (1998): Arson, accused Nazi tattoos and newspapers of hate crimes. Wasn’t strong circumstantial case, trial judge should have halted tactics of using the evidence to inflame jury. Accused was a victim of a miscarriage of justice Importance of avoiding unduly emotive language • Prosecutor must not conduct proceedings with unduly emotive language – language calculated to ignite: R v Roulston [1976]. • McCullough v R [1982] – Murder case, compared accused to Yorkshire Ripper, remarks as calculated to prejudice the jury against the accused by arousing feelings of disgust and revulsion • QLD CA, R v Day [2000]: Duty of counsel to elicit answers which will give jury appropriate insights into the conduct which will facilitate the drawing of inferences on issues • Fairness criterion is aimed at undue prejudice or emotion – alleged rape case, R v Deriz: Prosecutor described defendant’s conduct as barbarous, involving sexual atrocities, WA Court of Criminal Appeal – prosecution case was supported by evidence led, given the evidence it wasn’t inappropriate. Consequences of failure to observe the standard of fairness • May provide grounds for an accused who’s been convicted to appeal the conviction for a miscarriage of justice
76 • Appellate courts are disinclined to interfere where defence counsel at trial was experienced and didn’t object at the time to the prosecutor’s statements or questions: Vella v R (1990) • Prosecutor’s departure from good practice is so gross, persistent and prejudicial – court condemns trial as unfair. • Duty of fairness is owed to the court in admin of justice, no duty of fairness of accused: Love v Robbins (1990)
Prosecutor’s duty of disclosure • Accused must have adequate notice of the case against him or her. • Inherent power imbalance between the Crown and the individual – Sulan J in R v Ulman-Naruniec (2003): o Prosecution determines what evidence is placed before jury – gives prosecution/police too much power. What should be disclosed? • Prosecutors should not shut out, but disclose, any evidence that the jury could reasonably regard as credible and that could be of importance to the accused’s case • Professional rules require prosecutors to disclose as soon as practicable with all material available, that could constitute evidence relevant to the guilt or innocence of the accused: SR 29.5, BR 86 • Fairness dictates that material in the prosecutor’s possession also requires inquiry into material that may affect the credibility of potential Crown witnesses: R v H [2004]. Circumstances where disclosure isn’t required • SR 29.5, BR 87: May decline to make disclosure, threaten integrity of the admin of justice or safety of any person • R v Spiteri (2004) per Simpson J – prosecution’s duty of disclosure doesn’t extend to disclosing material: o Relevant only to the credibility of defence o Relevant only to the credibility of the accused o Only because it might deter an accused from giving false evidence or issue of fact that may be false o For the purpose of preventing an accused from creating a trap for themselves, if at the time the prosecution became aware of the material it was not a relevant issue at trial. • Prosecutor who intends to use material they believe on reasonable groups may have been unlawfully/ improperly obtained must inform the opponent of the material, and make available a copy: SR 29.8, BR 91 Disclosure of availability of evidence • Duty not to mislead the court + duty of fairness, means that prosecutors should not inform the court or their opponent that they have evidence supporting an aspect of their case unless they believe on reasonable grounds that the evidence can be obtained from material already available: SR 29.10, 29.11, BR 93, 94 Consequences of failure to disclose • Ground of appeal against a conviction on basis that accused has suffered a miscarriage of justice: R v Ward [1993] • Not enforceable by civil action at the instance of the accused against the prosecutor: Cannon v Tahche (2002) • May generate professional disciplinary sanction: R v Chaplin (1995)
Calling of witnesses by prosecutors General rule • Prosecutor decides who is called as a witness for the Crown, this discretion must not be exercised to obtain unfair advantage for the prosecution. • Barwick CJ, McTiernan and Mason JJ in Richardson v R (1974): o Crown prosecutor – it is for him to determine what witnesses will be called for the prosecution. o Responsibility that the Crown case is properly presented and to decide what evidence will be adduced o Witnesses – need to consider: whether witness is essential, credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown • Fairness – must not pick and choose witness/evidence to be presented to only favour a conviction, not seek to hide any weaknesses on the prosecution case: R v Deriz (1999)
77 • Avoid miscarriage of justice by calling all witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. Distinguishing witnesses that must be called from those that need not be called • Only justified by reference to the overriding interest of justice: R v Apostillides (1984). • No duty to call witnesses that the opponent consents to not being called or whose entire evidence has been dealt with by an admission on behalf of the accused. • Doesn’t need to when the testimony would harm the administration of justice as it would establish a point already adequately established by other witnesses: Whitehorn v R (1983); SR 29.7, BR 88(c)(iii) • When the prosecutor believes on reasonable groups that the testimony is unreliable or plainly untruthful need not to be called SR 29.7, BR 89(b)(iv). Walsh v State of Western Australia [2011]: o Witness, complainant’s mother, aligned herself with the appellant and his interests before she knew the details of the allegation. Held: Conduct provided a proper basis for the prosecutor to form an adverse view as to the credibility of the statements. • Suspicion, scepticism and errors on subsidiary matters don’t make a witness unreliable • Prosecutor must not espouse a theory and tailor a case accordingly: R v Anderson (1991) • R v Kneebone (1999): prosecutor failed to call witness who allegedly witnessed crime. Miscarriage of justice found Calling of witnesses by the court • Trial judge may call a person to give evidence. • HC in Richardson v R (1974): Should be rare/ infrequent as trial judge lacks knowledge and info about the witness • Prosecution’s refusal to call a witness, even for reasons a judge thinks insufficient, isn’t a reason to exercise this jurisdiction. R v Busson [2007]: Bleby J refused to call a witness the prosecutor held as a witness of truth fearing. Queries on whether the court would have to lead the witness, assist jury
Submissions on sentence • Duty and fairness and impartiality dictates that a prosecutor should not seek to persuade the court to impose a vindictive sentence: SR 29.12, BR 95 • Prosecutor can make submissions as to precise quantum of the sentence or urge the court not to impose a penalty less than a specified sentence: R v Casey (1986). May submit a custodial/non-custodial sentence is appropriate: R v Wilton (1981) • Assist court on appropriate range of penalties by reference to authority: R v Tait & Bradley (1979).
NSW Barristers’ Rules 2014: Criminal pleas 39, 40, 41. Delinquent or guilty clients 79 – 80 Prosecutor’s duties 83 – 95
Criminal defence lawyers • It is their duty to protect their client so far as is possible from being convicted, except by a competent tribunal and upon admissible evidence sufficient to support a conviction for the offence with which the client is charged.
Guilt of the accused • Having accepted a brief, a defence lawyer is duty bound to defend the accused irrespective of any belief or opinion they may have formed as to accused’s guilt or innocence. Where the accused clearly confesses guilt • May represent even if client wishes to plead not guilty. Where confession is made during proceedings, professional rules require the lawyer to continue to act: SR 20.1, BR 79. Same for confessions made prior to commencement. • Prosecution bears the burden of establishing guilt beyond a reasonable doubt. • High Court in Tuckiar v R (1934): A prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed • Legal aid, conditions which aid granted may require lawyer to report disclosure of guilt, further legal aid declined. • Confession of guilt, and a not guilty plea, severely curtails how the lawyer can conduct the accused’s representation in line with a duty not to misrepresent the court: SR 20.2.2, BR 80
78 o Cant: Falsely suggest another person committed it, call evidence in support of an alibi for the accused or allow the accused to deny the truth of the prosecution case • Counsel must ensure that the accused’s confession is indeed true and voluntary Denial of guilt but plea of guilty • General principle: Accused must not plead guilty unless he has committed the offence charged: R v Turner [1970]. Clients may reject this advice and insist on entering a plea of guilty. • Lawyers aren’t ethically prohibited from representing a client in these circumstances – reason identified by Brennan, Toohey and McHugh JJ in Meissner v R (1995): Person charged is at liberty to plead guilty or not guilty. No miscarriage of justice if the court acts on the plea, and the person entering isn’t in truth guilty of the offence. • Before entering a guilty plea for a client who maintains innocence, lawyer seek ascertain reasons for decision • Client advised on strength of prosecution case, prospects of acquittal, and consequences of plea of guilty. • Advice in writing and client instructions received in writing: R v Allison (2003). Attribution of criminal responsibility to another • Defence lawyer shouldn’t attribute another person the offence unless facts/circumstances disclosed by evidence or that form the lawyer’s instructions, or rational inferences, raise a reasonable suspicion
Disclosure of prior convictions • Defence counsel owes no duty to disclose the court material adverse to a client’s interests of which prosecution is unaware, and indeed should not do so unless instructed by a client who understands the consequences • Counsel must not without client’s instruction and informed consent to disclose other convictions, of which prosecution is unaware, that impact sentence. Shouldn’t correct info given by prosecution to client’s detriment • Cannot deliberately mislead the court. SR 19.10, BR 33
Advice on plea and giving evidence • Client has the sole right to decide whether to plead guilty or not, and whether to give evidence: R v Turner [1970]. • Defence counsel may advise client about pleading guilty or giving evidence, but client must be given freedom of choice. Premised upon client making an informed decision: R v Goodyear [2005]. • Lawyers should advise a client about any law, procedure or practice which holds some prospect of advantage • It is prudent for the lawyer to take written instructions. Solicitors’ Rules 29 – Prosecutor’s duties Solicitors' Rules - 20 - Delinquent or guilty clients Barristers’ Rules 38
79 Chapter 25: Professional Colleagues and Third Parties
Professional duties owed to other lawyers Professionalism, honesty and courtesy • In dealings between one another, lawyers should act with honesty, fairness and courtesy, and adhere to their undertakings, in order to transact lawfully and competently the work they undertake for clients in a manner consistent with the public interest: SR 4.1.2 • Confidence, mutual respect, cooperation between lawyers promotes efficient admin of justice: Beevis v Dawson [1957].
Honesty and accuracy in representations (including in negotiations) • Generating potential civil liability, inaccurate statements or representations to other lawyers negatively impact on the efficient admin of justice. • A lawyer must not knowingly make a false statement – must take all the necessary steps to correct any false statement: SR 21.1, 22, BR 49, 50, 51 • Lawyers should avoid false statements in negotiations on a client’s behalf. • Negotiation may give cover to unethical practices, where these do not place the other party on notice. • Cannot now be assumed that misleading conduct by lawyers in the course of negotiation has no ramifications. • Byrne J, Legal Services Commissioner v Mullins: Disciplined a barrister for misleading conduct in mediation. Intentionally deceived insurer’s barrister/ representatives, guilty of professional misconduct – reprimanded, fine. • Legal Services Commissioner v Voll [2008] referred to Mullins, “probability is essential to the utility of mediation as a form of alternative dispute resolution”. • Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352: Held – a solicitor who, in representing a client in a dispute over a deceased estate, had behaved unprofessionally in conveying the impression that the will was legally enforceable. Acted dishonestly and unfairly. Should have advised the client otherwise. • Virzi v Grand Trunk Warehouse and Cold Storage Co: D applied to have the settlement in personal injury action set aside, in negotiating, the P’s lawyer omitted to disclose that the plaintiff had died. o US District Court: Candour and honesty require the disclosure of such a significant fact.
Animosity between clients not to be reflected in professional relations • Lawyers must not permit any acrimony or discourtesy that may exist between the parties to seep through into their professional relations with another. • Canadian “Code of Professional Conduct”: Any ill feeling that may exist between clients, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. • Expected to suppress what may be natural negative human emotions in professional dealings with other lawyers.
Confidential communications • Lawyers should not disclose or seek to adduce communications that are expressed without prejudice or that come within the veil of confidentiality or legal professional privilege. • Lawyers who receive a doc sent by opposing lawyers by mistake should avoid reading and immediately return. SR 31.1.1 • Unprofessional and potentially a breach of contract/ confidence, to disclose communications that are confidential
Recording conversations • Arguably unprofessional, discourteous and an invasion of privacy to record a conversation without consent. • Avoid broadcasting a phone conv. with another lawyer without identifying each person & securing prior consent. • “A person who speaks to an attorney with whom he has no attorney-client relationship must realise that his statements are subject to publication”.
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Derogatory comments about other lawyers • Lawyers should refrain from publicly making disparaging or derogatory remarks or comments about other lawyers • Unfounded Allegations SR 32.1 • Unfair and demeaning comments by a lawyer in the course of submissions to a court “diminishes the public’s respect for the court and for the administration of justice: R v Felderhof (2004) 235 DLR (4th) 131.
Avoid discrimination, harassment and bullying • Lawyer is ethically obliged to recognise the essential dignity of each individual in society and the principles of equal rights and justice, and obligation that applies to lawyer’s relationships. • Discrimination, Sexual harassment and workplace bullying: SR 42.1 • Any kind of conduct or verbal oppression or intimidation that projects offensive and invidious discriminatory distinction is especially offensive: Re Vincenti (1989) 554 A 2d 470.
Second opinions • Lawyer may confer with or give a second opinion to the client of another lawyer. • Ordinarily professional courtesy to notify the first lawyer beforehand.
Dealing with other persons • Communication with another practitioners client o SR 34.1; BR 52 – Should not deal directly with a party other than his or her client who is legally represented unless….
81 Chapter 26: Lawyers Acting as Mediators • The role of a third party facilitator imposes a distinct set of ethical dilemmas and obligations requiring standards for impartiality, fee payment, conflict, confidentiality, professional conduct and fairness • Facilitative model of mediation o A procedure in which a neutral third part facilitates parties’ communication and negotiations for the purposes of coming to a self-determined settlement. o Facilitative mediation is non-binding and does not involve any adjudication, evaluation or direction on the part of the third party
Different role to representing a client • Do professional conduct rules apply when the lawyer is acting as a mediator? • Generally yes, however advocacy rules will not apply • Some rules will, otherwise, Cukier suggests ‘best practice’ • Best practice guidelines designed to ensure that mediation process is not tainted by a lawyer’s paradigm shift from that of an advocate for one party to a neutral facilitator for two or more parties • Best practice includes o Diligence § The lawyer must act efficiently and in a timely manner, in line with the duty of care owed to the parties under law or contract o Competence § The lawyer must ensure that he or she possess the requisite knowledge to facilitate a particular dispute § The lawyer must act as the third party neutral ‘only in cases where the neutral has sufficient knowledge (and skill) regarding the process and subject matter to be effective o Conflict of Interests § The lawyer-neutral should not seek to establish any financial, business, representational, neutral or personal relationship with, or acquire any interest in, any party, entity or counsel who is involved in the matter in which the lawyer is participating as a neutral unless all parties consent after full disclosure o Neutrality and Impartiality § Lawyer –neutral must be mindful and refrain from any behaviour which indicates favouritism or bias toward parties and must commit to act and serve parties equally o Fairness and Integrity § Lawyer-neutral should seek to protect the integrity of the ADR process and also to protect against the appearance of corruption/unfairness of the process § Lawyer-neutral must do anything reasonably within his/her power to ensure the integrity of the process and balance this with an obligation to ensure fairness for the parties and any third parties involved o Confidentiality § Lawyer-neutral shall maintain confidentiality of all information acquired in the course of serving as a third party neutral unless permitted by the parties or by law to disclose the information o Fees § Lawyer neutral should, before or within a reasonable time after being retained as a third party neutral, communicate to the parties, in writing, the basis or rate and allocation of fees for service, unless the third party neutral is serving in a no-fee or pro bono capacity § Must not charge a contingency fee o Independence § Neutral must endeavour not to be influenced by lobby groups, government or his/her own values or political leanings when facilitating a dispute o Variation in Preparation § Must make a deliberate choice as to the degree of preparation they might engage in before commencement of the ADR process o Listening § Neutral must be a disciplined listener and aspire to understand parties statements
82 § Should demonstrate active listening by asking questions, geared toward understanding the parties, not to problem solving o Fact and Issue finding § Neutral must to the best of their ability, facilitate the ‘airing’ of the facts, concerns and underlying interests of both parties in order to ensure effective negotiation between them o Process management § Neutral should manage all participants in the ADR process, including the present parties, lawyer representatives, expert advisors, thirst parties and any others in attendance o Management of philosophies and values § Lawyer neutral’s personal philosophies and values should never be allowed to influence the content or outcome of a dispute, it must be acknowledged that they may to an extent, affect the process of the dispute
83 Chapter 27: Undertakings
Solicitors' Rules - 6 - Undertakings 6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction. 6.2 A solicitor must not seek from another solicitor, or that solicitor's employee, associate, or agent, undertakings in respect of a matter, that would require the co-operation of a third party who is not party to the undertaking.
Context Importance of abiding by undertakings • An undertaking is a promise to do or refrain from doing something. • Given by legal practitioners for the specific purpose of enabling legal activities to be carried out. They are personal to the legal practitioner and bind that practitioner: Copini [1994] NSWLST 25.
Potential liability for failure to fulfil undertaking • Undertaking given by court, a breach of or failure to fulfil, undertaking constitutes contempt of court: Al- Kandari v JR Brown & Co (a firm) [1988]. • Undertaking given by third party, or to another lawyer, may be enforced through civil claim for breach of contract if contract requirements are met. Assurance that proves to be false/misleading can generate liability in tort (Allied Finance & Investments Ltd v Haddow & Co [1983]), or misleading or deceptive conduct under statute. • The recipient of a lawyer’s undertaking may lodge a complaint if the undertaking isn’t properly fulfilled.
Liability in contract Assuming personal liability in undertakings • Lawyer assumes no contractual liability to non-clients unless they enter a contractual relationship with them. • Where a lawyer contracts on behalf of a client, ensuring they don’t contract in a personal capacity, it is the client who is contractually responsible. • No contractual responsibility to a third party lies where the contract is effected within the ostensible authority with which the lawyer has been vested by the client, even if beyond their actual authority. Construing the terms of an undertaking • Courts closely scrutinise the terms of an undertaking to ascertain whether the lawyer has given it on the client’s behalf. Any ambiguity is usually construed strictly against the lawyer. • Gorman v Norton (1887) 8 LR (NSW): Plaintiff successfully sued solicitors for a fleeing debtor on an undertaking the solicitors had given to “pay any sum that may be awarded against the debtor”. • Curial interpretation will not be strained to undermine the nature of the relationship or transaction involved. • Russo v Dupree (1989) 217 ALR 54: Solicitor had undertaken to protect the costs and disbursements of another lawyer, solicitor taken over a personal injuries claim. Bryson J construed the undertaking as given by the solicitor, though it wasn’t a personal guarantee or promise of payment. • The rule of construction must yield to a contrary express or implied intention of the parties. • Barclays Bank plc v Weeks Legg & Dean (a firm) [1998] 3 WLR 656: Solicitors acting for purchasers of land gave bank an undertaking that the sums would be applied for title to property. Sued solicitors for breach – solicitors had failed to obtain a title. Concluded it was a qualified undertaking – undertaking of liability only if failure was due to their own default.
Liability under the court’s jurisdiction Judicial remedies • Court’s jurisdiction over lawyers’ undertakings is based on its inherit right to insist and require that its officers observe a high standard of conduct (Re Hilliard (1845)), LPUL 264 – Supreme Court jurisdiction and powers over (a) local legal practitioners and (b) interstate legal practitioners
84 • Jurisdiction is given effect by: An order, or an order compensating a person suffering loss from non- fulfilment. • Refusal to comply with court order will place the lawyer in contempt of court: Solicitor-General v Miss Alice [2007]
Nature of jurisdiction Discretionary and disciplinary nature • Jurisdiction is discretionary and so the court will not exercise it as a matter of course. • Court order is premised on a failure that merits reproof – that the failure to honour it is inexcusable: Commissioner of Inland Revenue v Bhanabhai [2006] 1 NZLR 797. • Bentley v Gaisford [1997] QB 627: First solicitors (P) released client’s file to new solicitors (D), who undertook to hold the docs to our order in respect of outstanding fees/disbursements. Ds gave file to client. English CA held that D’s acted bona fide. Result is the exceptional rather than the usual case. • Commissioner of Inland Revenue v Bhanabhai: D acted as solicitors for two companies involved in a construction project, had obligations to pay GST, undertaking not met, ordered D pays compensation for the loss. Laurenson J held that the undertaking was given personally by the D, didn’t order them to perform the undertaking but give Commissioner compensation for loss. Summary nature • Court’s jurisdiction can be invoked by summary proceeding, it is normally invoked by originating summons, and doesn’t usually involve pleadings, discovery or oral evidence: Geoffrey Silver & Drake v Baines [1971]. Construing the “undertaking” • Jurisdiction may be attracted “whenever a solicitor has accepted an obligation in his capacity as solicitor”: Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1991] • Important the court scrutinises the scope of the undertaking, whether its personal, construe the language.
Professional disciplinary liability • Failure to fulfil a personal undertaking given in a professional capacity is unprofessional, and so can generate a professional disciplinary consequence: Keppie v Law Society of the ACT (1983) 62 ACTR 9.
Steps to avoid liability on undertakings Undertakings only to be given on the client’s behalf with the client’s authority • Prudent lawyers will avoid giving personal undertakings: Countrywide Banking Corp Ltd v Kingston [1990]. • Undertaking on client’s behalf should pledge the undertaking is that of the client, disclaim any personal liability. • Imperative for lawyer to secure the client’s express irrevocable authority before giving an undertaking on their behalf. Requires full understanding by the client of the legal consequences of their act – nature/extent of liability. Written undertaking in clear and unambiguous terms • Reduce scope of dissension as to nature and scope of, or liability under, essential that the undertaking be written or at least be confirmed in writing. Complete control • Lawyers should only give personal undertakings, if at all, where the means of fulfilment are within their complete control: Re McDougall’s Application [1982] 1 NZLR 141. Should be made subject to conditions. SR: 6.2
Need for care in accepting undertakings • Care in accepting undertakings that lack clarity in expression. • If an undertaking isn’t enforceable or only against a person not capable of fulfilment lawyer accepting undertaking may have breached a duty to protect their client’s interests: Re McDougall’s Application • Sound practice: Lawyers who receive an undertaking to confirm it immediately. • Need to make clear who is giving the undertaking: To avoid being personally liable. Any ambiguity will be construed against the lawyer. Prudent to provide unambiguous undertakings in writing
85 Need for care regarding undertakings given by partners and staff • General principle: Undertaking given by an employee of a lawyer will professionally bind the lawyer: Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] • Lawyers shouldn’t permit their employees to give undertakings • Liability for breach of personal undertaking by a partner may accrue to other partners: Partnership Act 1892 (NSW • Where the wrongful act/omission of a partner acting in the ordinary course of business, or with authority of co-partners, loss or injury is caused to a third party or penalty incurred, the firm is liable: Partnership Act s 10. • Burbery Mortgage Finance & Savings Ltd (in receivership) v O’Neil: Partner obtained a loan, gave undertaking that the loan complied with requirements of lender, lender claimed firm breached undertaking – amount borrowed exceeding purchase price. Firm liable. • Unfulfilled undertakings given by staff or co-partners can give rise to professional sanction. o Keppie v Law Society of the ACT (1983) 62 ACTR 9: Employed solicitor breach undertaking. Held: Solicitor reprimanded as undertaking was given personally, should know the conduct of breaching is serious.
86 Chapter 28: Lawyers as Victims • Social and institutional victimisation of members of the legal profession, including judges, has a long history • Lawyers have long had a poor public image o Lawyers are often shown to be pompous, arrogant, insensitive, obsessed with money, boring, inhuman, lacking humour, incomprehensible, devious and untrustworthy o Court behaviour by some advocates has one little to improve the image of lawyers • Jokes about lawyers fall into 5 broad categories o Those dealing with lawyers’ obsession with money o Those which suggest lawyers are devious, manipulative, untrustworthy and unethical o Those which imply that lawyers are pompous, inhuman, boring and useless o Those which imply that lawyers are hateful and contemptible, and we should get rid of them o Those which imply that there are too many lawyers and that we need less of them • Nearly all of the lawyer jokes reflect the emotion of sneering contempt directed at humiliating lawyers • Popular social images of lawyers have not improved despite the efforts of Law Societies and Bar Associations to raise the standards of the profession and to present a more endearing profile • What can be done to get rid of the poor image? o A vigorous defence of the honour of the profession in both word and deed by all of us o Reminding the public of the true heroes and heroines of the profession o Remind the public that a strong independent legal profession is a necessity if we want to prevent authoritarianism and inhumanity • To this day, lawyers are subject, and have long been subject to ill-advised, out of date and complex regulatory regimes which either do not apply to other professions, or at least, not to the same degree o Eg. The old rule limiting a partnership to not more than 20 members o Laws which precluded legal practitioners from incorporating o The old torts or maintenance and champerty which have still not been abolished in all State Territory jurisdictions o Laws which prevent barristers from suing for their fees • The greatest asset of any lawyer is his or her good name and courage in adversity. Perhaps then, stigmatization of lawyers will disappear in just the same way as it is no longer acceptable to make racist remarks or to discriminate against women
87 Chapter 29: The Disciplinary Jurisdiction
Role of the court • Lawyers should discharge their professional duties with integrity, probity, and complete trustworthiness: Bolton v Law Society [1994] 1 WLR 512 • Maintenance of a high standard of conduct, in both professional and personal spheres, is critical for lawyers and clients, because the proper functioning of the legal system depends upon the manifest integrity of its members: Ziems v Prothonotary of the Supreme Court (NSW) • When requested to review a matter of discipline, the court attaches weight to a decision of the relevant disciplinary body or tribunal responsible for upholding standards of the profession made after a careful and objective consideration of the evidence: Re a Practitioner (1975) • Court will interfere with an order only on clear grounds, where it’s clearly appropriate and in a very strong case: Re a Practitioner (1975) • Matters can be determined by: o Legal Services Commissioner is the first port of call for complaints. o The councils – Law Society and Bar Association can also make their own complaints. o The NSW Civil and Administrative Tribunal (NCAT) – Legal practitioners. o The Supreme Court: On appeal from NCAT and inherent jurisdiction (LPUL s264). o May also be heard on appeal in the High Court
Nature of disciplinary proceedings Objectives of disciplinary proceedings Main aim is protective • Main purpose of disciplinary proceedings is protective. Aims to protect members of the public from misconduct: Southern Law Society v Westbrook (1910) 10 CLR 609. • Also aims to safeguard the reputation of the profession: Southern Law Society v Westbrook (1910) 10 CLR 609. Relationship between protection and punishment • Chief purpose is protection, not punishment. Sanctions feel like punishment: Southern Law Society v Westbrook • Prospect of punishment may discourage lawyers from engaging in conduct that threatens the public interest Impact of protective aim on nature of sanction • As they protect the reputation of a profession, it may impose on the lawyer a sanction more severe than were its object directed to punishment: Re Maraj (a legal practitioner) (1995) 15 WAR 12 • Legal Practitioners Conduct Board v Trueman (2003) 225 LSJS 503 at 22: Lawyer struck off for misconduct explainable by a psychiatric condition. • A person who suffers financially as a result of a lawyer’s misconduct may recover by instituting civil proceedings or by an application to the fidelity fund. Jurisdiction applies even if a client hasn’t suffered Impact of protective aim on procedure • That disciplinary proceedings are directed at protecting the public is a reason why the civil rather than the criminal standard of proof applies. Although not like civil proceedings. Impact of protective aim on need to comprehensively consider misconduct • Protective aim requires a court or tribunal to deal comprehensively with the misconduct issues before it. • Any of one multiple matters alleged against a lawyer would, if established, justify a striking off order. Reasons: Lawyers conduct is matter of public concern. All matters constituting misconduct should be addressed • Lawyer may petition for own removal to shield misconduct: Smyrnis v Legal Practitioners Admission Board [2003]
Proof in disciplinary proceedings • The onus of proving misconduct lies on the party alleging it, namely, the relevant regulatory or professional body or other complainant standing: Southern Law Society v Westbrook (1910)
88 • Z v Dental Complaints Assessment Committee [2009]: Held the civil standard applies but judges require stronger evidence of more serious allegations before the issue is proved to their reasonable satisfaction • Z v Dental Elias CJ dissented, favouring the criminal standard as the criminal process was more convincing. • The applicable Bar Code of Conduct in the application of the criminal standard didn’t prevent the Privy Council in Campbell v Hamlet [2005] from applying the criminal standard of proof in legal disciplinary proceedings • Test in Briginshaw v Briginshaw (1938) 60 CLR o Reasonable satisfaction Procedural fairness in disciplinary proceedings • Requirements of procedural fairness are superimposed on the statutory framework by the general law, and so many extend beyond the specific requirements of the statute. Conduct of investigation • Important to ensure that the particulars of the misconduct alleged against the lawyer are carefully draw to avoid any ambiguity – Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149. • Lawyer must be afforded an appropriate opportunity to be heard and to lead evidence: Smith v New South Wales Bar Association (1992) 176 CLR 256. Impartiality is important. • Practitioner must be informed in clear and precise terms of the conduct he or she is asked to address Conduct of disciplinary hearings • Most jurisdictions – statute dictates that hearings are to be conducted in public unless the body/tribunal determines otherwise in the interests of justice. • Transparency and public exposure in cases involving a profession are required by public policy as a means of maintaining public confidence: Law Society of Tasmania v LH [2003] TASSC 90. • Disciplinary body/tribunal must make findings concerning the lawyers conduct, integrity or evidence: • Giving of reasons for findings is to properly inform the court and is necessary to satisfy the parties that the issue has been addressed, and to satisfy the public: Malfanti v Legal Profession Disciplinary Tribunal Bias of decision-maker • Bias commonly surfaces where the decision-maker has a connection with the dispute that creates an impression that it may incline towards a particular result. • Test for bias is whether there is a reasonable apprehension on the part of a fair-minded and informed member of the public of a lack of impartiality in the decision-maker or adjudicator – Newfoundland Telephone Co v Board of Commissioners of Public Utilities [1992] 1 SCR (4th) 623 • Lord Clyde in Roylance v General Medical Council (No 2) [2000] 1 AC 311 at 318: o Essential element of a fair hearing is impartiality. o Impartiality calls for a state of mind which is free from influences • Solicitor X v Nova Scotia Barristers’ Society (1999) held that the manner/substance of questioning of the lawyer by the disciplinary panel exceeded simple clarification of the evidence. Court concluded reasonable person wouldn’t see that the panel acted fairly, impartially and judicially.
Costs of disciplinary proceedings • Statute vest in the relevant professional disciplinary body/tribunal like a court, a discretion as to the award of costs, including the costs of investigating the conduct that led to the finding. • General principle: Discretion is exercised against a lawyer found to have behaved unprofessionally • Lawyer who succeeds on merits can’t be assured costs. Costs may be ordered against a lawyer if the sole or principle reason the proceedings were instituted was a failure to co-operate with the relevant body • Costs of disciplinary proceedings are generally paid by the practitioner who is found to have engaged in unsatisfactory professional conduct or professional misconduct.
Concept of “professional misconduct” Misconduct as defined at common law • Defined at common law as behaviour by a lawyer that would reasonably be regarded as disgraceful or dishonourable by their professional brethren of good repute and competency – Allinson test – Allinson v General Council of Medical Education and Registration [1894] 1 KB 750. o Lopes J at 768: “Infamous conduct in a professional respect if in the pursuit of his profession, he had done something… which would reasonable regarded as disgraceful or dishonourable by his professional brethren of good repute and competency”.
89 • Darling J in Re a Solicitor; ex parte Law Society [1912] 1 KB 302 adopted the Allinson test • Rests on the application of peer judgment. Implications: o Compliance with rulings and pronouncements of the relevant professional body o That the impugned practise is widespread among the professional § Law Society of Tasmania v Turner (2001): Crawford J conceded that other firms had engaged in the same practises, no evidence. Applying the Allinson test didn’t prevent a finding of misconduct. o Requirement that the conduct be disgraceful or dishonourable excludes mere negligence from professional misconduct: Myers v Elman o The Allinson definition of misconduct isn’t limited in its scope to behaviour in lawyer’s practice, but also their personal life – Ziems v Prothonotary of the Supreme Court of NSW o It has been said that to come within professional misconduct at general law, the misconduct must be brought home to the solicitor himself. Member of a firm doesn’t make other members liable. • Rich J in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563: A charge of misconduct need not fall within any legal definition of wrongdoing. Doesn’t need to fall into a criminal offence. Need to look at it as a whole and conclusion drawn on whether the unfitness… • Fullagar J in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279: o Professional misconduct within practise is going to have a higher bearing, although professional misconduct outside of practise can lead to a strike off
Misconduct as defined under statute 296 Unsatisfactory professional conduct For the purposes of this Law, "unsatisfactory professional conduct" includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
297 Professional misconduct (1) For the purposes of this Law, "professional misconduct" includes- (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct- (a) conduct consisting of a contravention of this Law, whether or not- (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention; (b) conduct consisting of a contravention of the Uniform Rules; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; (e) conduct in respect of which there is a conviction for- (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (f) conduct as or in becoming an insolvent under administration; (g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules;
90 (i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law); (j) conduct in failing to comply with a compensation order made under this Chapter.
299 Determination by local regulatory authority-unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders- (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring- (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice- to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice. (2) If the designated local regulatory authority proposes to determine a disciplinary matter under this section- (a) the designated local regulatory authority must provide the respondent or associate and the complainant with details of the proposed determination and invite them to make written submissions to the designated local regulatory authority within a specified period; and (b) the designated local regulatory authority must take into consideration any written submissions made to the designated local regulatory authority within the specified period, and may, but need not, consider submissions received afterwards; and (c) the designated local regulatory authority is not required to repeat the process if the designated local regulatory authority decides to make a determination in different terms after taking into account any written submissions received during the specified period; and (d) the rules of procedural fairness are not breached merely because no submissions are received within the specified period and the designated local regulatory authority makes a determination in relation to the complaint, even if submissions are received afterwards. (3) If the designated local regulatory authority determines a disciplinary matter under this section, no further action is to be taken under this Chapter with respect to the complaint. (4) If a complaint contains both a consumer matter and a disciplinary matter and the designated local regulatory authority has already made a determination of the consumer matter under section 290, the designated local regulatory authority may, in subsequently making a determination about the disciplinary matter, take into account the determination already made about the consumer matter, but not so as to make further orders under that section.
302 Determination by designated tribunal-disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following- (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer’s practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer’s practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer’s practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer’s Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period;
91 (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct. (2) Subject to section 303, the designated tribunal may make ancillary or other orders, including- (a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed; and (b) an interlocutory or interim order, including an order of the kind referred to in subsection (1). (3) The designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct. (4) If the designated tribunal makes an order that a lawyer pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court. (5) To avoid doubt, the power of the designated tribunal under subsection (1) to make any of the orders that the designated local regulatory authority can make under section 299 extends to making orders of that kind in relation to a lawyer whom the tribunal finds is guilty of professional misconduct. (6) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.
Disciplinary orders • Appropriate form of disciplinary order depends on the seriousness or gravity of misconduct, which in turn is determined by the potential impact of the conduct on the protection of the public and the reputation of the profession. • Fines, the imposition of conditions on practice and compensation orders, amongst others.
Striking off – s 302(1)(f) • Most serious professional sanction, exercised where the lawyer is found not to be a fit and proper person to remain a member of the profession: Re Davis (1947) • Nothing short of removal from practice can properly protect the public and/or preserve the reputation of the profession. • Dishonesty is a common way to be struck off • A lesser sanction may fulfil the tribunal’s protective responsibility, such as suspension or reprimand • A lawyer may be struck off due to forms of unfitness – mental illness or loss of faculties from age: Re Davis • Re a Practitioner [1960] SASR 178 the lawyer suffered from a paranoid episode rendering him unfit to practice. • Where the lawyer’s conduct justifies removal from the roll, and undertaking is inappropriate: Re Maraj
Suspension – s302(1)(h) • Appropriate disciplinary order in limited circumstances. May follow where a lawyer’s failure didn’t involve dishonesty, but will not ordinarily follow where a lawyer has repeatedly behaved dishonestly: Law Society of the Australian Capital Territory v Gates [2006]; Attorney-General v Bax [1999] • Serves to warn other lawyer to avoid the impugned acts or omissions, and as an attempt to reform the lawyer – Re Evatt (1967) 67 SR (NSW) 236 at 250. • May have a role when they will be fit to practise in a finite amount of time: Re Mack (1968) • Lawyer who has been suspended has the right to resume practice when the period of suspension expires.
Reprimand • Usually confined to breaches of professional standards that aren’t so substantial to merit suspension/striking off: Southern Law Society v Westbrook • Evidence of the isolated nature of the conduct and of the lawyer’s good character are common to cases in which a reprimand has been ordered: Re a Barrister and Solicitor (1979) 40 FLR 26. • Hint of dishonesty, if only isolated, may generate a reprimand coupled with a fine: Ellis v Auckland District Law Society [1998] 1 NZLR 750
Bringing misconduct to the attention of the relevant body Reporting by courts and costs assessors • Most disciplinary proceedings arise out of client complaints.
92 • Courts play a role as they can’t overlook issues of misconduct, but must draw the attention of the relevant body. • Legal Profession Uniform Law: Makes a provision for a costs assessor to refer a matter for disciplinary inquiry. Reporting by lawyers • Scope for lawyers to report other lawyers’ misconduct. “Practitioners have an obligation to do so” Legal Practitioners Complaints Committee v Fleming [2006] WASAT 352 at 78. • Victorian professional rules require a lawyer to promptly disclose the occurrence of any conduct. • Professional rules have traversed into lawyer whistleblowing. • English rules mandate reporting where a lawyer becomes aware of a serious misconduct by another lawyer • Failure to report can amount to misconduct. Issue of protecting a reporting lawyer, may fear reprisal. Concern heightened in intra-firm scenario. Professional responsibility regarding inquiries from regulatory body • Professional obligation on lawyers to promptly respond to any inquiry of the relevant regulatory body: SR 43 • Lawyers are obliged to assist an inquiry into their own professional conduct. Duty “to cooperate reasonably in the process” – Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 at 36.
Complaints • Any person may make a written complaint concerning the professional conduct of a lawyer to the designated local regulatory authority – LPUL 265-267 • Complaint made more than 3 years after the conduct cannot be dealt with unless its fair/ just to deal with it LPUL s 272 s 265 - What is a complaint? A "complaint" may relate to any dispute or issue about any conduct to which this Chapter applies. s 266 - Who may make a complaint? (1) Any person or body may make a complaint. (2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only. s 267 - How is a complaint made? (1) A complaint is made to or by the designated local regulatory authority. (2) A complaint must be made or recorded in writing and must- (a) identify the complainant; and (b) identify the lawyer or law practice about whom the complaint is made (or, if it is not possible to identify the lawyer, identify the law practice concerned); and (c) describe the alleged conduct that is the subject of the complaint. s 268 – Matters in a complaint (1) A complaint may contain either or both of the following- (a) a consumer matter; (b) a disciplinary matter. (2) A dispute or issue about conduct that is the subject of a complaint can be both a consumer matter and a disciplinary matter. Note: For example, a dispute or issue relating to costs could be both a consumer matter (i.e. a costs dispute) and a disciplinary matter. (3) A commercial or government client making a complaint cannot obtain relief under this Chapter in relation to a consumer matter, but this subsection does not prevent the dispute or issue that is the subject of the consumer matter from being dealt with as a disciplinary matter. s 269 - Consumer matter (including costs disputes) (1) A "consumer matter" is so much of a complaint about a lawyer or a law practice as relates to the provision of legal services to the complainant by the lawyer or law practice and as the designated local regulatory authority determines should be resolved by the exercise of functions relating to consumer matters. Note: A determination of the designated local regulatory authority under subsection (1) does not prevent the dispute or issue also being dealt with as a disciplinary matter -see section 268(2). (2) A "costs dispute" is a consumer matter involving a dispute about legal costs payable on a solicitor-client basis where the dispute is between a lawyer or law practice and a person who is charged with those legal costs or is liable to pay those
93 legal costs (other than under a court or tribunal order for costs), whether as a client of the lawyer or law practice or as a third party payer. s 270 – Disciplinary matter A "disciplinary matter" is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct. s 271 - Mixed complaints If a complaint contains or may contain both a consumer matter and a disciplinary matter, the designated local regulatory authority may give priority to resolving the consumer matter as soon as possible and, if necessary and appropriate, separately from the disciplinary matter. s 272 - Time limits on making complaints (1) Subject to subsection (2), a complaint must be about conduct alleged to have occurred within the period of 3 years immediately before the complaint is made, but the designated local regulatory authority may waive the time requirement if satisfied that- (a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or (b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint. (2) To the extent that a complaint involves a costs dispute, the complaint must be made within the required period referred to in subsection (3), but the designated local regulatory authority may waive the time requirement if satisfied that- (a) the complaint is made within 4 months after the required period; and (b) it is just and fair to deal with the complaint having regard to the delay and reasons for the delay; and (c) the lawyer or law practice has not commenced legal proceedings in respect of the legal costs. s 273 - Withdrawing complaints (1) A complaint may be wholly or partly withdrawn by the complainant. (2) No further action is to be taken under this Chapter with respect to a consumer matter contained in a complaint to the extent it is withdrawn, but- (a) the designated local regulatory authority may initiate or continue to investigate disciplinary matters, or proceed with disciplinary matters despite the whole or partial withdrawal of a complaint; and (b) the whole or partial withdrawal of a complaint does not prevent- I. a further complaint being made under this Chapter, by the same or any other person, with respect to the same subject matter; or II. action being taken on any other complaint made with respect to the same subject matter. (3) The whole or partial withdrawal of a complaint in any jurisdiction does not of itself affect any proceedings in the designated tribunal. s 274 - Where complaint is dealt with A complaint is to be dealt with in the participating jurisdiction with which the complaint has the closest connection.
94 Chapter 30: Types of Misconduct • Conduct capable of attracting a disciplinary order is professional misconduct at general law, although behaviour outside the court of practice – personal misconduct – can also generate a disciplinary order.
Misconduct in the court of practice Misleading a court or tribunal • The proper administration of justice necessitates that courts and tribunals be able to rely on what a lawyer says and does: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408. • A lawyer proven to have knowingly and deliberately deceived a court or tribunal commits professional misconduct, often struck off as a consequence: Re Sawley (1894) 15 LR (NSW). • Recklessly misleading the court can also attract a sanction: Law Society of New South Wales v McElvenny [2002] • Kyle v Legal Practitioners Complains Committee (1999) 21 WAR 56: Lawyer advanced to the court as true, on his instructions, which he knew to be untrue. Clear and conscious failure to observe the duty owed. Reprimanded and ordered him to pay the costs of the Law Society. • Misleading the court by way of a false document. Myers v Elman [1940] AC 282, Viscount Maugham found the solicitor guilty of professional misconduct for preparing and putting on the file affidavits of docs that were inadequate. Allowed client to swear an affidavit knowing it contains false information – professional misconduct. Misleading another lawyer or a third party • The making of knowingly false statements, is prima facie professional misconduct. • Mellifont v Queensland Law Society Inc [1981] Qd R 17: Attempting to deceive clients, another lawyer and the Minister for Justice to cover up misconduct by falsehood. • Re Wheeler [1991]: Lawyer knowingly made a false statement to another lawyer who inquired as to the whereabouts of moneys paid to the latter by a client. • Attorney-General v Bax [1999]: Lawyer, acting for a client in dire financial circumstances, falsified documents and transactions, antedated a deed of loan and intentionally deceived a creditors’ meeting. Struck off o McPherson JA: It conveys a very poor image of the honesty and integrity of solicitors • False statements to a funding body, such as a legal aid commission, also undermine a lawyer’s claim to the requisite integrity. Legal Practitioners Conduct Board v Hannaford (2002) 83 SASR 277 lawyer received clients moneys for fees in advance, failed to bring this to the Legal Aid’s attention and instead said the client had no prospects of private funding. Striking the lawyer off the roll. o Also found this behaviour justified in striking off the roll in National Standards Committee v Poananga: Forging and falsely attesting client signatures on legal aid applications. Misleading a regulatory body • As lawyers are obliged to be entirely frank in communications with their regulatory body, misleading that body is usually misconduct: Veghelyi v Council of Law Society of NSW (unreported, SC (NSW)). • Law Society of NSW v McNamara (1980) 47 NSWLR 72 a lawyer who delayed a client’s case and lied to the client as to its progress gave misleading replies to the Law Society inquiries, and persisted with deception in subsequent evidence to the Solicitors Statutory Committee. It was the attempts to mislead the Law Society, led the NSW Court of Appeal to conclude that the lawyer had demonstrated his unfitness to remain on the roll. • Attitude lacking in candour in disclosures, can impact upon the severity of a disciplinary response. Disrespect to the court or its authority • A court may punish a lawyer who has shown disrespect to the court for contempt of court • In Legal Services Commissioner v Turley [2008] LPT 4, a solicitor was reprimanded for using “grossly offensive language” in court proceedings and adopting “an intimidatory approach to a judicial officer based on an untenable interpretation of what had occurred in the court proceedings”. • Ellis v Law Society [2008]: A solicitor was suspended for persisting in allegations of an offensive and derogatory character directed at the Law Society and some judges • Council of the New South Wales Bar Association v Slowgrove [2009]: Barrister struck off for writing a letter in a threatening tone with inflammatory language. Private communication with a judge that shows lack of respect can trigger disciplinary consequences.
95 • A lawyer’s conviction for contempt will not always produce disciplinary consequences, depending on the nature of the contempt, the entirety of the circumstances surrounding it and other relevant considerations: Garde-Wilson v Legal Services Board [2007] VSC 225 • Disrespect to the court can generate disciplinary consequences where it occurs during the course of the disciplinary proceedings: Legal Aid Practitioner’s Complaints Committee v De Alwis [2006] WASCA 198. Trust accounting irregularities • The fraudulent misappropriation of trust money is clearly professional misconduct and usually justifies an order striking off the lawyer: Re a Barrister & Solicitor (1979) 40 FLR 1. This is the case when it occurs persistently. • Re a Practitioner (1982) 30 SASR 27: King CJ: Need to treat clients’ money in all respects as their money and to use their money for their purposes and no other. • Re Robb (1996) 134 FLR 294: Solicitors who undertook personal injury work – no win no fee basis. Solicitors transferred trust money for the payment of counsel’s fees to their office account but delayed paying counsel fees for months. Treated trust money as their own. Finding of professional misconduct. • Lawyer must report another lawyer: LPUL NSW s154(2). • Technical breaches of trust account requirements that involve no element of dishonesty, such as an isolated failure to pay moneys directly into a trust account or a failure to account, may not justify suspension or disbarment: Re a Practitioner of the Supreme Court [1940] SASR 154. • Trust account irregularities – s 562 not keeping trust account in a matter that can be verified Lawyer-client conflict • Lawyers who personally transact with clients without ensuring that the clients receive independent advice breach fiduciary duty and may be guilty of misconduct. • Law Society of NSW v Harvey [1976] 2 NSWLR 154, where the solicitor used client money, without client informed consent, as a reservoir for cheap risk moneys for his private speculative ventures. Any attempt to justify the practices is likely to indicate of the lawyer’s fundamental lack of appreciation of their professional responsibilities Breach of client confidentiality • Importance of confidentiality to the lawyer client relationship, which is recognised by both the general law and professional rules, an unauthorised disclosure of information derived in the course of a retainer can generate professional disciplinary consequences (Legal Services Commissioner v Scott 2009). • This is all the more where the disclosure is directed at benefitting the lawyer, including by publicity (Legal Practioners Committee v Trowell 2009) or is made to a person with an interest adverse to the client to whom the duty is owed (Legal Practioners Committee v Walton [2006]). Overcharging • Charging of extortionate/grossly excessive fees is professional misconduct (Re Veron (1966)), as is charging of costs and disbursements where none are properly chargeable (Baker v Legal Services Commissioner 2006). • The relevant inquiry is whether the lawyer has charged fees grossly exceeding those that would be charged by lawyers of good repute and competency: NSW Bar Association v Meakes [2006] NSWCA 340 • A court or tribunal will inform itself about what would be an approximate reasonable fee or range of fees for the work in question, compare, and then decide whether the difference is so gross as to amount to misconduct: De Pardo v Legal Practioner’s Complaints Committee (2000). • Relevant factors include: The amount the costs in question were, or would likely to be, taxed or assessed, complexity/difficulty of case, lawyer’s experience, quality of their work, the amount of time spent on the matter and any cost agreements entered into: D’Alessandro v Legal Practitioners Complaints Committee (1995). Impact of costs allowable on taxation or assessment • Search is to see whether or not there is a gross overcharge, not just an unreasonable fee which would not be allowed on a taxation or assessment: De Pardo (2000) • Lawyer who charges a fee substantially exceedings what would have been allowed on assessment/taxation won’t necessarily have acted unprofessionally: Re Veron (1966) • Council of the Queensland Law Society Inc v Roche [2004] 2 Qd R 574: Bill of costs submitted to client exceeded costs on an indemnity basis – exorbitant and well outside those charged by any reasonable practitioner. Impact of costs assessment
96 • A properly made C.A commits client to fees greatly in excess of scale fees is not of itself evidence of misconduct. • Proof of a costs agreement is no bar to disciplinary proceedings against the lawyer for overcharging: D’Alessandro & D’Angelo v Cooper (1995). Clients may not have given fully informed consent to the agreement or extent of charges may evidence inexcusable rapacity: Council of Queensland Law Society Inc v Roche. • The court considers the circumstances in which the charge was made and the terms of the agreement in question (D’Alessandro v Legal Practitioners Complaints Committee 1995). • Fees well outside the range chargeable by a reasonable lawyer in the circumstances are clearly triggers for disciplinary action: Shown in Council of QLD Law Society v Roche and Law Society of the ACT and Roche (2002). Delay or neglect • Gross neglect and delay can constitute professional misconduct because it both endangers client interests and brings the profession into serious disrepute: Re Moseley (1925) 25 SR (NSW) 174. • A single instance of neglect or delay ordinarily will not justify a finding of misconduct (a Legal Practitioner v Law Society of Tasmania 2005), and nor by itself will a failure to answer correspondence (Re a Barrister 1976). • Society of South Australia v Murphy (1999) 201 LSJS 456: Solicitor appropriated fees money from trust accounts without giving client an account, failed to reply to client inquiries. Failed to reply to requests by the Legal Practitioners Complains Committee for an explanation. Solicitor’s name removed from roll. • Tribunal: basic negligence shouldn’t be brought before the Tribunal. Endorsed by legal services commissioner • Law Society of New South Wales v Gallagher [1999] – Tribunal cannot effectively hear a claim for negligence against a legal practitioner Failure to properly supervise • The lawyer’s individual personal responsibility to a client has been described as “the essence” of the lawyer-client relationship: Re Bannister. Serious omissions to properly supervise employees, or be vigilant to the activities of partners, may amount to professional misconduct. • Law Society of NSW v Foreman (1991) 24 NSWLR 238: clerk employed lent client money to a company in which clerk’s wife had an interest, conflict of interest situation. The solicitor didn’t supervise = didn’t detect transaction. o Mahoney JA: Not all failures to supervise were professional misconduct; but that the solicitor’s gross failure to concern himself with the clerk’s activities amounted to professional misconduct. • Lawyer’s duty to be vigilant is stricter when aware of factors that may indicate greater supervision is required. • Bridges v Law Society of NSW [1983] 2 NSWLR 361: Appellant aware that his partners had perpetrated gross breaches of fiduciary duty, accepted verbal assurances that isn’t wouldn’t occur. Order of striking off appellant. • Re Mayes [1974] Reynolds and Hutley JJA: No answer for a lawyer to claim that he left the conduct of the financial affairs of the firm to his partner. Risk involved if he allowed one partner to be the sole practitioner so far as control of the trust account. Professional misconduct – trusted partner, complete indifference to performance
Misconduct outside practice 297 Professional misconduct (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
Relevance of a criminal conviction • A criminal conviction for conduct that is inconsistent with the integrity expected of members of the legal profession may be prima facie evidence of misconduct.
97 • A conviction for repeated acts of dishonesty is clearly probative in a disciplinary matter, as it bears directly on an aspect of the lawyer’s character that is central to legal practice: Bolton v Law Society (1994). o Deceitfulness, character flaw. Trust. Honest dealing is fundamental to fitness. • Convictions other than for dishonesty may attract disciplinary consequences, evidences a lawyer’s lack of fundamental respect for the law, or an absence of self-control, in circumstances where to allow the matter to pass without a disciplinary response could threaten the public perception of the proper administration of justice. • Re a Practitioner (1997), a lawyer who was convicted of four serious offences of making improper use of his position as chairman of a company to gain for himself an advantage and to cause detriment to the company was struck off the roll, the court being influenced by the fact - committed over a long period of time. • Prothonatory of the Supreme Court of New South Wales v Carr: NSW CA ruled that a solicitor convicted of defrauding a company whilst a director should be struck off. o Same in Prothonotary of the Supreme Court of New South Wales v Pangallo: Lawyer convicted of bribing a public officer. • Where a conviction stems from an offence unrelated to the practice of law, whether or not it should generate a disciplinary sanction and, if so, what sanction, rests on the extent to which the lawyer’s conduct Ziems v Prothonotary of The Supreme Court of NSW (1957) 97 CLR 279: • Barrister convicted of motor manslaughter. Kitto J: Conviction had neither connection with, nor significance for, any professional function. Need to form a judgment, look at evidence concerning nature/character of conduct. • Fullagar J: Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister. • Kitto J: Conduct may show a defect of character incompatible with membership of a self-respecting profession…”
298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct- (a) conduct consisting of a contravention of this Law, whether or not- (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention; (b) conduct consisting of a contravention of the Uniform Rules; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; (e) conduct in respect of which there is a conviction for- (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (f) conduct as or in becoming an insolvent under administration; (g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules; (i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law); (j) conduct in failing to comply with a compensation order made under this Chapter.
Convictions for sex offences • Law Society of South Australia v Rodda (2002) 83 SASR 541: Respondent guilty, two counts of indecent assault of a minor. Unlikely to reoffend. Solicitor still struck off. • Barristers’ Board v Pratt [2002] QCA 532: Barrister pleaded guilty to 12 child sex offences. De Jersey CJ: Personal offending of such gravity over a substantial period of time is inimical to the high standard of respect for the law, integrity, trustworthiness and common decency expected.
98 • Lawyer convicted of a sex offence, public stigma attached to such a conviction, motivated professional bodies to pursue disciplinary action (Legal Practitioners Complaints Committee v McKerlie 2007). • Former magistrate in Law Society of South Australia v Liddy [2003] SASC 379 convicted on multiple counts of indecent assault and unlawful sexual intercourse, sentenced to imprisonment for 25 years. Struck off. Warren CJ, three points relevant to her determination: o Conviction for any serious breach of the law questions a lawyer’s willingness and ability to obey the law. o Any conviction that shows disdain for victims will raise a serious concern about fitness o Any suggestion that crimes committed at an arms length, e.g. child pornography, can be considered of lesser seriousness in deciding fitness should be the subject of intense scrutiny. • Legal Services Board v Williams [2009] retired QC removed from roll by consent – pleaded guilty to possessing, accessing and transmitting child pornography. • HCA decision – A Solicitor v Council of the Law Society of New South Wales – Four counts of aggravated indecent assault on two young daughters of his partner. Convicted again. Victims’ mother forgiven and remarried him. Evidence of behavior being unlikely to recur. High Court ruled: o Nature of trust and circumstances of the breach were so remote from professional practice. • Lack of candour with second set of charges justified striking off, even though the conduct not disclosed wouldn’t have justified such an order. Professional misconduct arising out of non-disclosure. • Warren CJ in Legal Services Board v McGrath (No 2): Lack of regard for victim – question of fitness. Conviction calls into question the lawyer failing to obey and uphold the law and ability to do so Drug-related convictions • Conviction for drug trafficking is not usually seen as consistent with fitness to practise law, and so will ordinarily generate a striking off order. Occurred in Re a Practitioner [2004], to a lawyer knowingly concerned in the importation of narcotics, and the possession of and trafficking in drugs. • Although “there is no place in the profession for drug addicts” (Prothonotary of the Supreme Court of NSW v Darveniza 2001), a conviction arising out of personal use may attract a more lenient disciplinary response • Need to determine whether the protection of the community and the profession would be endangered: Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320. • Disciplinary response will be more severe where the drug addiction is manifested in dishonest or reckless behavior in client matters or in other criminal behavior. • Re a Practitioner [2002]: Struck off – dishonesty stemming from need to fund a heroin addiction. • Auckland Standards Committee v Flewitt: Convictions for 17 dishonesty offences Conviction for stalking • The appropriate disciplinary response to a conviction for stalking rests heavily on its duration and severity. • In Legal Practitioners Complaints Committee v Tomlinson [2006], solicitor pleaded guilty to stalking his former girlfriend. Repeated damage to the victim’s car and possessions, stealing her dog and goods, attendances at her home, and the sending of videotapes to the victims place of employment of her sexual activity. o According to the court, “conduct opposed to his capacity to practice as a legal practitioner”. Conviction for other offences • Minor offences – which are tried summarily and don’t involve dishonesty – may not amount to misconduct. • Traffic offences – depends on seriousness of offence, respect for law, frequency of misbehavior, attitude • New South Wales Bar Association v Bryson [2003] – barrister convicted of handling a firearm in a public place – professional misconduct, reprimanded and fined. • Minor offences can generate a declaration of unfitness where lawyer tries concealing them – dishonest conduct. o Legal Practitioners Complaints Committee v Palumbo [2005] – Ran a red light, arranged for nephew to take responsibility for the infringement. Plea of guilty for also having cocaine. Unfit for practice. o Council of the New South Wales Bar Association v Einfield (2009) – False statements to a court to avoid minor traffic infringement notices. Dishonesty. Unfitness.
99 Lawyer’s tax indiscretions Tax offences • At a court level, attempts to argue that civic failure to pay tax should fall outside the disciplinary net, have been rejected (NSW Bar Association v Cummins). • New South Wales Bar Association v Hamman (1999): Mason P – Defrauding the revenue for personal gain is of lesser seriousness than defrauding a client, member of public or corp. But behind each are human faces who are worse off in consequence of the fraud. Pleaded guilty to 5 charges of knowingly understating income to benefit. o Mason P: Established unfitness to practice and removed him from the roll. o Same removal in NSW Bar Association v Somosi – failure to lodge tax returns for 17 years. • LPUL s 298 (1) (e) (ii) Conduct capable of being unsatisfactory prof conduct or prof misconduct is conduct in respect of which there is a conviction for: a tax offence. Tax indiscretions independent of tax offences • Disciplinary consequences are not reserved for tax indiscretions support by convictions. • NSW Bar Association v Cummins (2001) – Struck off for not lodging a tax return in 38 years of practice • At a disciplinary hearing the tribunal or court is concerned not just with how long tax obligations have been shirked, but with lawyer’s attitude to those obligations. o On occasions, where the non-compliance period is far shorter, a closer inquiry into the lawyer’s actual attitude and the reasons behind it, assume greater significance. • Wardell v NSW Bar Association (2002) 50 ATR 302: Barrister was made bankrupt on his own petition although found out the barrister lived a lavish lifestyle. Cripps AJ: Reckless disregard for his obligations. Declined to interfere with Bar Council’s decision to cancel the barrister’s practicing certificate. • NSW Bar Association v Murphy (2002): Barrister became bankrupt, not paid tax for 7 years, barrister was poorly advised to make an application to vary provisional tax. Trial judge found the barrister was a fit and proper person. • Law Society of Tasmania v Schouten [2003] Cox CJ declined to strike off a solicitor who breached tax laws for 15 years, as he was not motivated by a desire to cheat the revenue. Making misleading statements to a court or tribunal other than as a lawyer • Treated severely in a disciplinary forum. The concern is that misleading the court in a personal capacity displays a lack of integrity that may directly translate to dishonesty in a professional environment. • Qld CA, de Jersey CJ in Barrister’s Board v Young [2001], in striking off a barrister who had knowingly given false evidence on oath: “the notion of a barrister’s deliberately giving false evidence on oath is utterly repugnant to the essence of what goes to make up a barrister’s fitness to practise” • Position is otherwise if the misleading/false statements are not made knowingly, but due to mistake or oversight. • Law Society of Tasmania v R (a Practitioner) [2006] TASSC 108, during cross examination the respondent lawyer made a false statement. Underwood CJ remarked that “the fact that the respondent gave an untrue answer while under oath does not amount to misconduct” and found no misconduct, respondent was genuinely mistaken.
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