Web viewClient can request itemised bill any time after receipt of lump sum bill. Law firm has 21 days to provide itemised bill upon request. S . ... Griffiths v Evans (1953)

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LLS1.1 Structure

1. Identify relationship between persons2. Identify issues and conflicts3. What is the law

a. LPA/Evidence Act/Family Law Actb. Solicitors Rules/Barristers Rulesc. Casesd. Regulations

4. Remedies and consequences5. Context

2.1 Framework1. Need for ethics established in law, policy and institutions

a. Legislation: Legal Profession Act; Evidence Act; Family Law Actb. CL: Negligence; confidentiality; contract; agency; conflicts of interest; disciplinary SC decisionsc. Admin decisions: Legal Service Division, ADT, Legal Practitioners Admission Board; OLSCd. Self-regulation: Professional Conduct & Practice rules; Barristers’ Rules; Law Soc and Bar

Association rulingse. Mediation/Arbitration : Costs assessors; OLSCf. Social Structure: Law firm structure; gender; social status b/w lawyer and client; social normsg. Social Ethics: justice, equality, ROLh. Personal integrity: Personal beliefs and values, and their application to your life

2. 4 approaches of ethical reasoning (Parker 2004)a. Adversarial advocacy : duty to C only; moral theory irrelevant; partnership and non-

accountabilityb. Responsible lawyering: duty to C & maintaining justice and integrity in legal system;

consequentialistc. Moral activism: Pro justice in/outside legal system; encourage own moral convictionsd. Ethics of care: relational- responsibility to people, communities, relationships; holistic; risky

3.1 Lawyer-Client Communication1. Historical L-C relationships, customer service & regulation2. L-C communication breakdown

a. Kina’s Case, 1993 - Exhausted all avenues of appeal, petition to AGi. Breakdown of L-C communication resulting in satisfactory representation & affecting

capacity to make informed decisions on the basis of proper advice can lead to a miscarriage of justice

b. Reasons for breakdowni. Adequacy of legal representation can depend on culture and psychological factors eg

aboriginality, age, battered women’s syndrome, shame (Kina’s Case)ii. Cultural differences in communication styles, dealing with conflicts, decision making,

disclosure, relationship buildingiii. Language barriers , process & jargon, esp indigenous languages & lack of interpreters

3. Aboriginal clientsa. Different communicators, lawyers require special trainingb. Preference for indirect rather than direct questionsc. Language barriers, lack of interpretersd. Importance of establishing relationshipe. Tendency to give approximations rather than exact valuesf. Tendency to recall events when asked for a quantifiable answerg. Avoid use of negative questionsh. Differing use of gestures, eye contact, silence

4. Inexperienced, incompetent counsel (R v Birks, 1990)a. Counsel breached rule in Brown v Dunn, and failed to rectifyb. Where there is a miscarriage of justice, a higher court has the power & duty to intervene


c. General rule – accused is bound conduct of counseli. Cannot over-turn convictions for decisions made with disregard to instructions, errors

of judgement, negligenced. Exception: ‘flagrant incompetence’ can lead to a miscarriage of justice; does not include

deliberate, tactical decisions or calculated risks

3.2 Fees and Costs (see p 80 V2)1. Disclosure

a. Who i. Pt 3.2 LPA 2004 – regulates L’s obligation to disclose fees in advance and in writing,

and content of costs agreements ii. Client is person to whom or for whom legal services are provided (s 4)

iii. s 302A – definitions:1. Associated 3rd party payers: not client but under obligation to pay all/part legal

costs e.g. guarantors2. Non-associated 3rd parties e.g. mortagees, leasors

iv. s 318A – Must disclose to associated by not to non-associated third party payersb. Notification of rights

i. Client’s rights re notification of costs – (309 – p. 82 V2) ii. if another law practice to be retained – earlier firm my disclose costs (310 85 V2)

iii. Disclosure in writing, before retainer or as soon as practicable (ss 311)iv. Exceptions – sophisticated client (s 312(1)(c))

c. Uplift fees i. S 324: Most not exceed 25% of litigation costs (Penalty 100 p.u)

ii. Must be disclosed (s 314)d. Ongoing obligation to disclose – S 316 re any substantial changes to anything in disclosure doc

e.g. length of trial, number of witnesses, changing counsel.e. Exceptions (312) (p 85 V2)

i. When fees under $750 (312(1)(a))ii. Sophisticated clients

iii. Clients may agree to waiver right (312(1)(b))1. S122(3) Must keep record of decision to waiver

iv. S 315(5) does not take away right to progress reports, reasonable information, bills of costs and to negotiate costs agreements.

f. Failure to disclose i. S 317(3) client/associated 3rd party payer not required to pay if costs not disclosed,

until costs have been assessed(p 87 v2); law practise cannot sue ii. 317(3) May apply to cost assessor

iii. Costs of assessment bore by law practise iv. S 317(4) – cost assessor has discretion to reduce costs, proportionate to seriousness of

failure to disclosev. s 393(2) Cost assessor can decide of conduct amts to unsatisfactory professional

misconduct and refer matter to Commissioner to consider disciplinary action2. Cost agreements

a. 322(1)(d) may be made with client, associated 3rd party payer.b. S 322(2) must be in writingc. Conditional cost agreements (p 90 V2)

i. S 323(1) payment of sum/all legal costs conditional on winii. S 323(4)B requirements of costs agreements include independent legal advice, cooling

off period, signing conditional costs agreement1. Sophisticated clients automatically waiver above

iii. S 324 uplift fees cannot be greater than 25%iv. s 325 contingency fee prohibitedv. s 327 Law firm cannot recover costs if breach ss 324, 325.

d. Setting aside cost agreementsi. S 328 can be said aside by cost assessor (p 92 V2)

1. Can consider circumstances/conduct of parties before or after agreement made


2. Whether billing under agreement changes circumstancese. Contingency fees

i. S 325 allowed only in non-litigious matters f. Bill of costs

i. S 309(1)(b)(iii) Client can request itemised bill any time after receipt of lump sum bill1. Law firm has 21 days to provide itemised bill upon request.

ii. S 332A(4)(5) Client has 30 days to pay lump sum (ss332A(4) upon receipt of itemised bill 332A(5)

iii. S 332(6A)Must be in writing, unless requested by sophisticated client to be sent electronically

3. Costs assessments a. S 350 clients, associated and non-associated 3rd parties can apply for assessment (p 103 V2)

i. Can apply whether or not bill has been providedii. Must be made within 12 mths after bill given or request for payment made (s 350(4))

iii. If paid partly/fully, apps must be made within 12 months from date of payment to client/3rd party payer (s 350(4))

b. Applications out of time (s 350(5))i. Cannot be made by sophisticated client/3rd party payer who is sophisticated

ii. SC can allow for applications to be accepted out of time, except where client/3 rd party payer is sophisticated, if they find it is just and fair to deal with app.

c. Non-associated 3rd party payeri. On written request, practice must provide sufficient information to consider making app

for costs assessment (s 350(6))d. Client/associated 3rd party payer, can make >1 separate app for costs for which they are

severally liable (S 350(8))e. Client/associated 3rd party’s participation in assessment process (S 350(7)(a)(b):

i. Where they make application for assessment in which they are liable Where they are parties to assessment

f. Practice’s participation in assessment process (S 350(7)(c):i. Where app is made by 3rd party payer

ii. Where app is made by clientiii. (s 350(6)) as a party to assessment, bound by assessment iv. Where disclosure is made by one practise to another, law practise has only 60 days

from receipt of bill of costs fo make an application (s 351)g. Cost assessor’s obligations to assess:

i. Amount of any disputed costs, refer to costs agreement, amount, means of calculating amount, except where (s 363):

1. assessor is satisfied that costs agreement does not comply with disclosure requirements

2. where practice is precluded from recovering amount of costs under Div 5 3. where parties agree

ii. Does not have to initiate examination of matters above (s 361)4. Other

a. Clients should be notified that estimates provided are only estimates and not a quotation and subject to change

b. Cannot charge for preparation of disclosure documents, costs agreements and bills of costs (s319(2))

5. Overcharging & professional misconducta. Cannot charge ‘excessive legal costs in connection with the practice of law’ (498(1)(b) LPA)b. Gross overcharging as such may constitute professional misconduct (NSW Bar Assn v Meakes,

2006)i. E.g. reckless in charging fees in respect of which he had no idea of the time spent on the

provision of each service or as to whether they were justified or notii. Conduct could have been either dishonest or highly irresponsible, but need not be

fraudulent

http://www.austlii.edu.au/au/legis/nsw/consol_act/lpa2004179/s4.html#legal_costs


iii. It was conduct which should reasonable have been held to violate or to fall short of, to a substantial degree, the standard of professional conduct approved of by members of the Bar of good repute and competence.

iv. ‘Fair and reasonable’ will require consideration of various factors (s363(2) LPA 2004) - Veghelyi v the Law Society of New South Wales, 1995)

6. Billable hour (Law society journal, 2003)a. Constraints of billable hour, Alternative is to quote a lump sum for particular tasksb. This will encourage efficiency in undertaking tasks and allows clients to be informed of the cost

of the task and make proper provision for it need to find effective rewarding alternative

4.1 Representation I – Duty to accept work & obey client1. Duty to hold documents

a. SR 8: Practitioner must hold onto client’s documents for whole of retainer & 7 years after unless it is passed to another practitioner, authorised by client

i. Must provide client with documents on request as soon as retainer is terminatedii. Practitioner cannot claim costs for storage/ retrieval of documents

iii. If practitioner terminates for just cause and on reasonable notice, practitioner has lien over the documents for costs due

1. Except where documents essential to client’s current case2. Duty to accept work

a. SR 1: ‘fairly, honestly and with competence and diligence’; should only accept retainer when practitioner expects to act in manner required with reasonable promptness

b. BR 16: Barrister must advance client’s interest to best of barrister’s skill and diligence, uninfluenced by personal view of client’s activities and not withstanding threatened unpopularity or criticism

c. Cab Rank Rule i. BR 85: Barrister must accept a brief that is:

1. Within barrister’s capacity, skill & exp2. Available to do work; ‘real possibility’ to prevent barrister form advancing

client’s interests3. Fee offered is acceptable to barrister4. Not obliged to refuse under BR 87, 90, 91

ii. BR 86: Must set acceptable feeiii. Lawyers play a certain role in the justice system that requires them to zealously pursue

the goals and interests of clients no matter what their personal opinioniv. Cab Rank rule is designed to ensure unpopular individuals and issues are properly

representedv. Lawyers are conditioned to accept that the legal process requires competent advocates

on either side of any issue (Temby 1982)vi. There are 14 exceptions to this rule (NSWLRC 1982)

vii. Effect of rule is not force reluctant barristers into accepting unpopular cases but rather that it reduces criticism of barristers who do take such cases

viii. Barristers who might otherwise be willing to take unpopular cases could be deterred if such appearances were generally construed by professional colleagues and the public as expressions of sympathy for the client’s case

ix. Cab-rank rule can play a valuable role in providing some protection for a barrister against such allegations

d. Exceptions to cab-rank rule i. Briefs that must be refused

1. BR 87: Briefs which must be refused (p 71 v2)2. BR 88: Barristers need not refuse brief:

a. exceptions to BR 87 (c) potential witness; (e) personal rep 3. BR 89: Brief must be refused on confidentiality issues4. BR 90: Brief must be refused on timing issues, already going to court

ii. Briefs that may be refused1. BR 91: Briefs may be refused (p 73 v2)2. BR 92: Used with BR 91(c) reasonable ground of doubt of payment


iii. Return of briefs1. BR 93: Must not return brief to defend charge of srs criminal offence unless

certain criteria is satisfied2. BR 94: Srs criminal offence comes before other briefs3. BR 95: Must not return one brief to accept another, unless with consent4. BR 96: Must not return brief to attend social occasion, unless with consent5. BR 97: Barrister wishes to return brief, must give time to another practitioner to

take over the case 6. BR 98: Barrister must give notice as soon as aware that he may have to return

the brief 7. BR 99: May return brief on the following criteria: e.g. advice rejected, fees not

paid (p75 v2)8. BR 100: May return brief under conditional cost agreement in certain

circumstances 9. BR 101: Barrister must return brief if there is a real possibility that he ceases to

be a disinterested advocate, becomes witness/defender, unless:a. Allegations raised in order to remove barriersb. Allegations can be met without diminish disinterestednessc. Approval by member of Professional Conduct Committee SC

10. BR 102: Must return brief is hearing about family/household, unless learns identity of person so close to hearing date

e. Reasonable prospects of success - Civil i. s 345 LPA Must provide legal services unless there is a reasonable prospect of success

on facts and law (p100 v 2)ii. s 346 Preliminary legal work not affected by s 345

iii. s 347 Providing services where there is no reasonable prospect of success is not an offence, but is capable of constituting unsatisfactory professional conduct, or professional misconduct

1. Cannot bring any claim without certification from principal of the practise or legal practitioner associate; where they test reasonable prospect of success

iv. s 348 Court can order costs against practise acting without reasonable prospects of success

v. s 349 Where court decides party did not have reasonable prospect of success, onus shifts to that party to suggest that at the time they believed they had a reasonable prospect of success

3. Duty to continue to act & termination of retainer a. SR 5: Practitioner must complete work required by retainer, unless:

i. practitioner and client have agreed otherwiseii. client discharges practitioner, or

iii. practitioner terminates retained for just cause on reasonable notice of time4. Duty to inform, assist client to understand issues and rights

a. BR 17: Barrister must seek to assist client to understand issues, rights, obligations – to permit client to give proper instructions

5. Duty to obey client’s instructions a. Duty’s derive from

i. Contract of retainer, implied duty of care enforceable in contract and tortii. Agency relationship, authority to bind client within bounds of instructions

iii. Fiduciary relationship, bound to exercise rights and powers in good faithb. Client’s instructions sets the boundaries, lawyer acts reasonably within those boundaries e.g.

incurring ordinary expenses c. Balance of control between lawyer & client decision making (McLoughlin and Isaacs, 1985)

i. Counsel had no right to disregard client’s instructions and his duty was to either act on the instructions he then received or to withdraw from the case

ii. Counsel should inform client that unless the instructions are changed he will be unable to act

iii. Counsel may not take it upon himself to disregard instructions and to then conduct the case as he himself thinks best


iv. Here, the present applicant was deprived of the proper opportunity to put his defence to the jury (cf s354 of Crimes Act).

v. If difficulty arises during trial, should inform judge then withdrawd. Settlement

i. Ultimate decision to settle or go to trial lies with the clientii. Client can pass decision making to lawyer expressly, implied or ostensibly

iii. s 313 LPA – duty to disclose legal costs if practise negotiates settlement on client’s behalf: costs to firm & potential costs to other side

e. During the trial i. Once trial has begun, client is bound by lawyer’s actions, so long as they are within the

client’s instructions (Birks)6. Duty to obey the law

a. Lawyer who acts within client’s instructions, but helps client disobey or evade the law – may be subject to disciplinary action, contempt of court, or criminal/regulatory offence

4.2 Representation II – Good lawyer & good person 1. Wasserstrom 1975

a. Lawyer’s world is often amoral b. Job of lawyer is not to judge rights & wrong of the client, but to defend the client to the best of

their ability c. Immorality should be distinguished from illegality – nothing wrong with representing a client

whose aims and purposes are immoral d. Moral conflicts should be identified and separated from legal conflictse. Lawyer who detaches his own moral judgement from professional judgment may deprive

himself of resources from which arguments regarding his client’s legal rights and duties can be fashioned

2. Simon 1988a. Lawyers should have the ethical discretion to refuse to assist in the pursuit of legally

permissible courses of action and in the assertion of potentially enforceable legal claimsb. This discretion should not be a personal privilege of arbitrary decision but a professional duty

of reflective judgementc. Discretionary approach

i. Take cases which are most likely to promote justiceii. Assess merits to confront and resolve competing factors

iii. Client’s ability to pay is not relevantd. Internal merits conflicts

i. Substance v procedure: the less reliable the institutions and procedures, the more direct responsibility law resumes for substantive justice and vice versa

ii. Purpose v Form: a lawyer can take advantage of procedural rules designed to promote accurate, efficient decision making in a way that frustrates this purpose

iii. Broad v Narrow Framing, lawyers have broad discretion in determining if broad or narrow framing is appropriate for the case

3. Shaffer 1981a. Ethics of care

i. The role and function of the lawyer in society.ii. The second orientation is of moral isolation, a moral position is either accepted or

rejected.iii. The third orientation is aspiration to care for the client and to be cared for by him.

4. Parker 1999a. Reactive lawyering – narrow view

i. Confine lawyer’s role to strictly legal and their advice is reactive, neutral risk analysis, given only when sought, accepting as problem and corporations’ interest

b. Preventive - Broad viewi. Role in building compliance goals, prevention and monitoring mechanisms to reach

those goals into the company’s own strategies and routine operations ii. Translating law into business practice with capacity to guide & influence practical

business behaviour


iii. Reactive is not unethical, but preventive presents more opportunities for a corporate lawyer to engage in ethically reflective and responsible practice

iv. Learning preventive law means learning about the way that legal norms are likely to interact with management and market norms and ensuring occupational health and safety, affirmative action, and consumer protection

v. Creative task of designing systems for ensuring legal compliance and public legitimacy add value to products /services, improve business efficiency & enhance corporate image

5. Terms (textbook)a. Amoral – an indifference to moral responsibilityb. Immoral – failure to conform to what is generally accepted by a culture as correct behaviourc. Positivism – separation of law from personal and cultural norms and its connection onto the use

of forced. Deontology – science f duty or moral obligation, assumes that there are certain absolute truths

arising out of natural lawe. Teleology – doctrine of final causes, states that reality is determined by final foals and purposes

rather than mechanical causesf. Utilitarianism – ethnical view that right conduct is achieved when an action ro result leads to

the greatest food for the greatest number of peopleg. Positivism – separation of law from personal and social norms (Simon 1978)

i. Application of positivism leads lawyers to impute ends for their clients because clients do not understand legal doctrine

5.1 Representation III – Intellectually disabled & children1. Independent child lawyers (Law Society Journal 2006)

a. What is an independent children’s lawyer? i. Represents child and acts in their best interests

ii. Family Court appoints one where there are:1. Allegations of abuse2. Intractable conflict between the parents3. Alienation of the child for one parent4. Cultural or religious issue differences affect the child5. Proposals to separate siblings6. Child is of mature years nad expresses strong views about changing long-

standing residence arrangements or denial of contact to one parent7. Neither parent appears to be a suitable custodian

iii. Court cannot order Legal aid to fund child’s lawyer; practical difficulties of independent children’s lawyer can arise as children rarely have access to financial resources

b. What is the role of the independent children’s lawyer? i. Form an independent view based on evidence available of what is best interest of the

child and advocate for those interests in the proceedingsc. Does the independent children’s lawyer have to act on the instructions of the child?

i. No, Lawyer is not representative of childii. Lawyer must submit to court whatever course of action is in child’s best interest in

Lawyer’s opiniond. “The best interests of the child”

i. Under Act, best interest is a two-tiered test with “primary” and “additional” considerations (p128 v1)

e. “Wishes” vs “views” i. Views capture child’s perception and feelings and allow decision to me made without

them having them to be active E.g. express a wish as to which parent he or she is to live with or spend time with

ii. “Except for exceptional circumstances, it is expected that independent children’s lawyers will have contact with children to discuss their view”

iii. s 68L(5) FLA court can make an order allowing Lawyer to find out about child’s viewsiv. s 68LA(5)(b) Lawyer must present views even if contrary to child’s best interests

f. Legal duty of confidentiality with the child? i. Client legal privilege does not apply to the relationship


ii. s 68LA(6) – Lawyer is under no obligation and not required to disclose any information communicated by child to Lawyer

iii. Lawyer may disclose “confidential” info if it is in child’s best interest even if it is against child’s wishes

g. Other specific duties? i. Lawyer must also analyse any reports or docs that are to be used in the proceedings and

bring the most significant matters in those documents to the court’s attentionii. Lawyer must also endeavour to minimize trauma to child associated with the

proceedingsiii. Explain to child role of Lawyer, nature of proceedings, court process and possible

consequences of proceedings (Law Society guidelines and Family Court guidelines)iv. Lawyer must act impartial to either party – third party to proceedings

2. Intellectual disability and the criminal justice (Davis 2000)a. At international, national and state level, it would appear that human rights of the intellectually

disabled are well protected by major legal, social, and philosophical frameworksb. International Covenant on Civil and Political Rights states “Everyone shall have the right to

recognition everywhere as a person before the law”c. However, increasing evidence shows that intellectually disabled people are not protected and

more vulnerable to criminal offences than others; high % sexual assault & be robbedd. The intellectually disabled’s social isolation, lack of awareness of rights, inability to often clearly

articulate issues, and powerful forces of myths and stereotypes assign them as members of a devalued societal group – so they get abused more easily

e. People with intellectual disabilities continue to be characterized as “unreliable” witnesses because those within the law hold negative attitudes relating to the individual’s perceived ability, although research shows they usually have very good memories (Petersilia, 1998)

f. Court system has been unable or unwilling to adopt processes where rights of individual are regarded as paramount over-riding purpose: case management – quick just & fair – rather than the rights of the individual

o Eg. Use of screens, closed circuit TV remain discretion of magistrate or judge o Witnesses are frequently cross-examined for long periods exceeds their ability to conco Lack of willingness to make reasonable accommodation to individual differences

g. To solve problem: lies in community attitudes to disability – who is valued, what is valued and why is it valued?

3. Representing clients with diminished capacity (Law Society Journal 2010)a. Dealing with an incapable client poses many ethical problems to a solicitor as exampled in R v P

i. Conflict between duty to do what the solicitor considers best for the client and the duty to act in accordance with the client’s instructions.

ii. To what extent can the solicitor be able to reveal client’s confidential information to third parties in order to protect the client’s interests? It is often desirable to enlist the aid of third parties, such as family members, health professionals or community workers. However disclosure to third parties is in conflict with the duty of confidentiality.

iii. There is scope for implied consent to disclosure of confidential information sufficient to enable an application to be made to have the client declared incapable of managing their affairs. (Riley)

b. Possible amendment to SR to include a section with regards to guidelines in dealing with clients of diminished capacity:

i. “If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained because the client lacks sufficient capacity to communicate or make adequately considered decisions in connection with the representation then the lawyer is permitted to take protective measures deemed necessary.” (R 1.14 ABA page 139 v1)

4. Cockburn v GIO Finance Ltda. A solicitor in the circumstances of this case would be deficient if he did not ensure that undue

influence which he was aware was a significant factor was adequately guarded against in the decision of the client to execute security documents


i. Plaintiff was under influence of father, not free of his father’s control and under a disability or disadvantage

b. Mr Cockburn was also in a situation with conflict of interest as he was also advising father in regard to the management of his video rental business

i. Solicitor must not act for both parties (s65 Solicitors rules)c. Mr Cockburn should have made enquiries which would have satisfied himself as to the plaintiff’s

independence from his father or that the plaintiff was emancipated from his father’s influencei. Had a duty to investigation matters such as the reason for the loan, how the money

would be used and how repayments would be made so as to ensure that his client was entering into an appropriate transaction with adequate protection and not merely doing something for his father’s benefit

ii. Just giving plaintiff advice that he should not sign if he did not want to go ahead is insufficient

iii. “Advice was really required that the financial situation should be investigated because a mortgage of his home could prove disastrous if the loan was merely going to prop up an ailing business bearing in mind that all that the plaintiff would be likely to have for the whole of his life was whatever was left of the amount of his damages”

d. Contractual Retaineri. Solicitor was also in negligent breach of their contractual retainer

ii. Solicitor’s retainer required him to take reasonable care and if he pressed father for detail, facts may have emerged to cause solicitor to realise that transaction was unwise.

iii. Solicitor should also have understood plaintiff’s current financial position more and advise the plaintiff in much stronger terms than he did that it would be the height of folly to mortgage his home

5. P and P v Legal Aid Commission of New South Wales 1995; Human Rights and Equal Opportunity Commission (Intervener)

a. Parents do not have the right to consent to a sterilisation procedure upon a child who cannot give consent for her or himself. (Marion’s case)

b. Must have Court’s authorization and child has to be incapable and likely to remain incapable of giving informed consent to the proposed procedure (Marion’s case)

i. Moore J in lower court was convinced that Lessli has no capacity to understand the nature and effect of the proposed procedure to enable her to make a decision about it.

ii. Family Court found that Trial J misunderstood issue before her and the reality was that her Honour was being asked to sanction a sterilization that would enable Lessli to engage in sexual activity free of the consequence of pregnancy

iii. Benefits of this treatment will be termination of menstruation, assistance in controlling her fitting and removal of the possibility of pregnancy

c. Nature and degree of risk to the child in authorizing the proposed treatment will be negligible and the risk of not doing so far outweighs any risk involved

d. The role of the independent child representative is outlined on pg 329 txtbk (Bennett and Bennett)

5.2 Aspects of Practice1. Women and the law

a. Constraintsi. Reverse discrimination policy – concern of hiring more women than men (Thornton

2008)ii. Boys club culture (Thornton 2008)

iii. Need for work-life balance harder re family life (Thornton 2008)iv. Stats for M:F practising solicitors – see p. 149

b. Approaches to address constraintsi. Legislation

1. Discriminatory conduct (incl. sexual harassment) by local (a) or interstate (b) practitioner in connection with practice of law prohibited (s 175 LPA)

a. Mandatory continuing legal education (s 169 LPA), including areas of equal employment opp (a), law re discrimination/harassment (b)

2. Balancing the pressures of legal practice


a. Pressures i. 40% law students suffer from depression (Hickie 2008)

ii. Influenced by nature of work – adversarial, conflict driven, personality traits of those attracted to practice (Gautam 2006)

b. Strategies for managing pressuresi. Look at own mental state of yourself and colleagues (McClelland 2009)

ii. Encourage dialogue and early interventioniii. ALSA – handbook, NSW Bar Associaion – conferences/professional developmet

programs, government initiatives- COAG National Action plan ($5 millino for research of rel b/w employment and mental illness; Firms – collaborative programmes

iv. Flip to p. 158-160 for advice lines. Will not need this for exams.

6.1 Admission and Legal Education1. LPA

a. s 24 Eligibility for admission(1) A person is eligible for admission only if the person is a natural person aged 18 years or over and:

(a) the person has attained:(i) approved academic qualifications, or(ii) corresponding academic qualifications, and

(b) the person has satisfactorily completed:(i) approved practical legal training requirements, or(ii) corresponding practical legal training requirements.

b. s 25 Suitability for admission(1) In deciding if an applicant is a fit and proper person to be admitted, the Admission Board:

(a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and(b) may consider any other matter it considers relevant.

(2) However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter.

2. Good Fame & Character - Dishonestya. Re Davies (1947)

i. It was discovered a year after he was admitted as a barrister that Davies had not revealed in his application that he had been convicted of breaking, entering and stealing when he was 21 yrs old.

ii. Conviction occurred 12 yrs before he applied for admission. iii. No other breaches since then. iv. HC upheld that he was ‘not a fit and proper person to be made a member of the Bar:

1. ‘Crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the admission to the Bar.’

b. Ex Parte Leneham (1948) i. Applicant revealed to the admitting authorities that he had committed a number of

dishonest acts as an articled clerk about 20 years before his application.ii. He was refused admission by NSWSC, but successfully appealed to the HC.

1. HC found that he had led an exemplary life since that time, including distinguished war service, and excused what he had done in his youth.

c. Wentworth v NSW Bar Assoc. (1993)i. Wentworth’s application for admission was opposed by the Bar Assoc.

ii. Campbell J in the lower crt found that she was not of good character. iii. She lacked an understanding of what was the proper conduct in relation to the making

of applications constituting abuses of the process of the crt. And that that situation was unlikely to change.

d. Morissey v NSW Bar Association (2006)


i. Although M sources strength from the fact that he is skilled, experienced and that such incidents only come to show his commitment and zeal in representing his client’s interests, the court was of the view that M’s lack of civility and deplorable conduct outweighs such factors.

ii. Such incidents show that M was continuously disrespectful of the law. iii. M’s conduct seems to have gone well beyond minor misjudgements in the heat of the

moment in zealous pursuit of his client’s interests. iv. M chose not to fully disclose to those persons he requested references from (breach of

trust) was so bad - not fit3. Good Fame & Character – Political Activity

a. Re Julius [1941]i. Guy was an alleged communist and disloyal to the king

ii. “It does not necessarily follow that because a person agrees with one or more planks in a platform…that he must be taken to be wholly in accordance with the views of the body whose platform that is”

b. Re B [1981]i. Wendy Bacon- well-known activist and journalist who applied for admission to the bar.

ii. He concludes that as long as a person meets the learning standards ( as WB has) and is of good character, no other issues such as race, colour, sex religion or political outlook can be a bar to discretion.

1. This said no matter how extreme those views are. This approach is compatible with type of democratic society in which we live, where freedom of mind is not reprimanded.

iii. The fact that she had been dishonest about the source of funds for the bail – lying and saying that they were her own funds, when it was most likely from different persons associated with SS; was a big blow. It was seen as though she was prepared to be untruthful to the crt, over something that was not regarded as a worthy cause.

4. Good Fame & Character – Re-admissiona. Kotowicz v Law Society of NSW (No2) (1986)

i. K applied to be restated to the roll of solicitors after being struck off.ii. K had appeared to discount his earlier deception of the court and this was found to

display that he didn’t acknowledge the wrongness of the act and there is unwillingness to faces the reasons behind being struck off: Lack of candour

iii. K had also misled the real estate authorities when he failed to disclose in his application for real estate licence the fact that he had been struck off.

iv. Applicable legal principles: 1. The purpose if the jurisdiction is not the punishment or further punishment but to protect public &

preserve their confidence2. The claimant who wants to be restored to the Roll, bears the onus of proving his case.3. Whether the claimant is fit and proper person is to be determined on solid & substantial grounds.4. After having his name removed from the Roll, is in a more disadvantaged than an original applicant

b/c he must in effect, displace the decision made to strike him off –disprove unfitness. 5. The decision to be made in each case depends on the facts proved.6. The issue in case is whether the crt hearing the application can conclude, on the basis of all

evidence, that the claimant is now a fit and proper person to join other members. What is at stake is not so much the reputation of the claimant but the crt’s assessment of his character, uprightness, honour and trustworthiness.

7. However, it is still relevant to the decision to consider any evidence concerning the claimant’s reputation, the employment which he has pursued, any community activities he has engaged in, the time which as elapsed since being struck off. If the time has been long then crt needs to consider whether it has been too long – does he need retraining?

8. Need to also consider the public’s interests re restoration to the Roll. 9. If in a certain case the offences committed by the claimant are recurrent over an extended period

and were done with deliberate intent, it will be difficult decide for the claimant to be restored. However if the offences are isolated –no evidence of prolonged deliberate conduct, then the crt is more likely to look see in favour of the claimant.

10. The public is better served if, in appropriate cases, those who have offended are given a second chance. The crt has full power to protect the public anyway by imposing appropriate conditions re limitations in practice or pre conditions as to refresher legal education


b. Evatt v NSW Bar Association (1981)i. E was a barrister who had been stuck off by the HC in 1968

ii. Went on to become a full time student and then a successful art dealer restored to bariii. Considered what E has accomplished since disbarment. There was impressive feedback

regarding his success as being an art dealer. He has shown through this that he has a reputation for being honourable, and fair in trading.

iv. Evidence satisfied J that E has changed: “His roved conduct in recent yrs is antithetical of the careless disregard for others that characterized his earlier career at the Bar”.

c. Meredith v Legal Profession Admission Board of NSW [2008]i. Plaintiff struck off in 2004 for misappropriating trust funds worth $219,510.95

ii. Applied the principles in Kotowitz part 9: The misappropriation happened over an extended period of time

iii. Court found that the plaintiff lacked appreciation of his moral obligations and hence not of a type of person suitable for readmission at the present time

iv. Left it open for readmission in the future when plaintiff demonstrates and appreciation of the conduct and personal qualities expected of a member of the profession

6.2 Regulation, Competition & Reformsdfds

7.1 The Disciplinary Process – Categories of Misconduct1. Professional Misconduct at CL

a. Only category of misconduct that could be disciplined b. ‘Something that would reasonably be regarded as disgraceful or dishonourable by his

professional brethren of good repute and competency’ (Allinson v General Medical Council 1884)

c. Question is whether the solicitor is a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor (Re Veron)

d. Misconduct does not need to be an offence – ‘grave impropriety affecting the solicitor’s professional character…indicative of a failure either to understand or to practise the precepts of honesty or fair dealing’ is sufficient’ (Kennedy 1939)

e. Desire to win does not excuse conduct – struck off the rollf. HC distinguished between what was serious & less serious misconduct

i. Breach of conventional rules is less serious, regulates conduct of the members of the profession with each other eg. advertising restrictions & retainer rules

ii. Breach of fundamental rules – generally accepted standards of common decency & fairness, usually so fundamental that they are not in writing eg. barrister does not lie

2. Supreme Court of NSW – Inherent jurisdiction (Myers v Elman 1940)a. SC has inherent jurisdiction to discipline legal practitioners as officers of the court

i. s 590 Legal Profession Act 2004 (NSW) – preserves this jurisdictionb. Professional misconduct is a failure on part of solicitor to fulfil duty to court and to realise his

duty to aid in promoting justice c. Matter does not need to be criminal – mere mistake or error of judgement is not generally

sufficient, but a gross neglect or inaccuracy in a matter which the solicitor must ascertain with accuracy may suffice

d. Jurisdiction to suspend, and punish by ordering practitioner to pay costs e. Solicitor must be given sufficient opportunity to answer the complaint against himf. May take place of an action for negligence or breach of warranty

3. Chapter 4 LPA - complaints handling & disciplinary process for legal practitioners in NSWa. s 496 Unsatisfactory professional conduct – falls short of the standard of competence &

diligence that a member of the public is entitled to expect of a reasonably competent practionerb. s 497 Professional misconduct – includes:

i. Unsatisfactory PC – substantial or consistent failure to reach or maintain a reasonable standard of competence & diligence

ii. Conduct that justifies practitioner is not a fit & proper person to engage in legal practice


c. s 498 Conduct capable of being unsatisfactory PC or PM (non-exclusive list) (p123 v2)i. Contravention of this Act, regulations or profession rules – does not require conviction

ii. Excessive legal costsiii. Conviction for serious offences, tax offences, dishonestyiv. Insolvencyv. Disqualified from managing

vi. Failure to comply with a noticed. s 570 Request by complainant for compensation order

4. Conduct outside professional practice a. Can affect their fitness to practise under CL & statuteb. Violations of the law may be serious enough to have the practitioner struck off the rollsc. Ziems v Prothonotary of the SC of NSW (1957)

i. Barrister guilty of involuntary manslaughterii. SC held: incongruous & impossible for the status of a barrister to be held by a person

serving a sentence for this offence, ordered to be struck off the rolliii. HC held: Does not warrant striking off the roll

1. Despite being a felony, not a conviction of premeditated crime – does not indicate a tendency to vice or violence

2. Does not reflect general character – one off incidentiv. Barrister carries exceptional privileges & obligations – involves a rship of intimate

collaboration with judges and members of the Barv. Not all convictions of breaches of the law = unfitness of the Bar

vi. SC Court – ‘personal & professional sides of his life cannot be dissociated’ 1. HC accepts personal misconduct may be ground for disbarring – shows person is

not a fit & proper person (Re Davis)2. Yet professional misconduct has a more direct bearing on the question of one’s

fitness to practices than personal misconductvii. Outcome: 3:2 majority – suspended from practice during the term of his imprisonment

d. A Solicitor v Council of the Law Society of NSW (2004) HCAi. 4 offences of indecent assault on 2 of partner’s daughters; aggravated offences & age of

children; admitted offences, sought professional helpii. Jurisdiction:

1. Statutory definition of PM also encompasses personal misconduct which demonstrates unfitness

2. SC’s inherent jurisdiction – determines cases on unfitness, may be appropriate to give PM a wider meaning but no need to in this case

iii. Conduct outside of professional practice1. Conduct did not occur in course of practice, but involved ‘qualities of character

which were incompatible with the conduct of legal practice’ and it was a ‘most serious breach of trust’ considering he had a parental-like role

2. Nature of trust – so remote from anything to do with prof practice - characterisation of personal misconduct as prof misconduct was erronerous

iv. Fitness to be decided at time of the hearing – misconduct may have occurred yrs earlier v. If true contrition is shown, may not be stuck off the roll despite professional misconduct

e. Council of NSWBA v Einfield 2009i. Actions were careful, purposeful and pre-meditated attempt through a series of direct

lies to influence the outcome of the administration of justice ii. Not a passing mistake or an unfortunate and apparently uncharacteristic lapse but a

studied and liberate attempt to avoid the consequences of his actions and deflect and pervade the course of justice

iii. Deeply reflects character of defendant – repeated over 7 years, involved innocent people

8.1 Duties of Competence & Care (Liability in Negligence & Contract, Advocates’ Immunity)

1. NSW, remedies available to clients for consumer disputes:a. ‘Consumer disputes’ – mediation or/ and disciplinary action involving unsatisfactory PC or PM

(ss514-524 Legal Profession Act 2004) p130 v2


b. Misconduct cases – Tribunal can order compensation of not more than $10,000 be paid by a lawyer to a client (s573 LPA) p150 v2

2. Duty in Contracta. A contract of retainer between a solicitor and client – implied that lawyer would act

competentlyb. Lawyer will carry out the retainer with due care and skillc. Pegrum & Pegrum v Fatharly – to show how a lawyer-client relationship can be established

w/o an expressed retaineri. In Groom v Crocker Scott LJ said in regard to the contractual relationship between sol

and client ‘The relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the two parties shows that the relationship of sol and client has in fact been established between them.

ii. Applying the rule expressed by Thomas J in Australian Energy Ltd v Lennard Oil NL, the de facto relationship of sol and client has to be a necessary and clear inference from the proved facts before a retainer will be presumed.

iii. Prima facie, the oral exchange between the parties, coupled with the clause in document (legal costs and fees) is clear evidence of an acceptance by the respondent that there was a relationship of sol and client.

iv. Duty of care is implied in contract unless expressly excluded by terms of the contract

3. Duty in Torta. Liability in negligence extends to liability for pure economic loss (Hedley Byrne v Heller)b. Lawyer owes a duty of reasonable care and skill to a client in tort unless expressly excluded by

contract 4. Elements of liability:

a. Duty of care – in contract & tort; scope of duty?b. Breach of duty – standard of care?c. Causation – expectation loss? d. Damage

5. Scope of Dutya. In contract : the scope of duty in contract depends on the terms and limits of the retainer,

express or implied.b. In torts , the terms of the retainer will be an important indicator of the scope of the duty but does

not limit the scope of the duty of care. i. May require taking positive steps beyond the specifically agreed profession task or

function if it is necessary to avoid a real and foreseeable risk of economic loss to the client (Deane J – Hawkins v Clayton )

c. Griffiths v Evans (1953)i. It is unreasonable to expect solicitors to know about all areas of the law

d. Vulic v Bulinsky [1983]i. Contrasts Griffiths as a solicitor was found negligent for failing to advise on possible

common law remedies.ii. Claimed to be inexperienced but this was rejected as the solicitor should’ve informed

client of his inexperience so client can seek alternate avenues.e. Citicorp v O’Brien (1996) – extent of non-legal functions

i. Was there a relation of proximity that gave rise to a duty to take positive steps, beyond professional task to avoid a foreseeable risk of economic loss to the client?

ii. If duty not found in the express, inferred or implied terms of the retainer, would depend upon the sol’s assuming responsibility to the plaintiff and the plaintiff’s relying upon the sol to perform diligently and skilfully the services for which the sol so assumed responsibility (Hedley Byrne)

iii. No evidence that the O’Briens looked to Mr E to advise them about the financial wisdom of buying the house or of the finance agreement or mortgage. The O’Briens evidence was that they decided they could afford the proposed the loan before meeting Mr E for the first time. Mr E did not inquire into the full financial circumstances of the O’Bs, nor were those circumstances volunteered.


iv. Held: That it was not within the solicitor’s duty of care to advise on financial situations – does not need to go beyond the client’s instructions

f. Heydon v NRMA Ltd [2000]i. Applied the assumption of the responsibility and reliance will, in general, determine the

content of the duty (Citicorp v O’Brien) ii. Board decision based on case in HC

iii. There was no evidence that Mr Heydon assumed responsibility for making a prediction how the law might change or develop during the prospective life of the proposal. There was no evidence that Mr Heydon’s instructing sol’s or the relevant officers of the NRMA relied upon his opinion as involving any prediction – question of proximity

6. Standard of Carea. The relevant standard is that of a qualified competent and careful lawyer in the given

circumstances in the practice of his or her profession.i. A professional cannot be found liable in negligence if the professional acted in a manner

that was widely accepted in Australia by peer professional opinion as competent professional practice. (s5O(1) Civil Liability Act)

b. Duchess of Argyll v Beuselinck (1972)i. Question if a client employs a sol of high standing and great experience, will an action

for negligence fail if it appears that the sol did not exercise the care and skill to be expected of him, though he did not fall below standard of a reasonably competent sol?

ii. The standard of care to be expected of a professional man must be based on events as they occur and not in retrospect.

iii. On any footing, the duty of care is not a warranty of perfection.c. Standard of care of a practitioner professing to have a special skill in a particular area of law

required is that of the ordinary skilled person exercising and professing to have that special skill (Heydon v NRMA Ltd)

7. Advocates’ Immunity a. Saif Ali v Sydney Mitchell & Co (1980)

i. Rondel v. Worsley, 1969: decided that a barrister was immune from an action for professional negligence in respect of acts or omission during the trial of criminal proceedings against his lay client.

ii. The scope of the immunity extends beyond what is done in court to pre-trial work, but protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing… absolutely necessary in the interests of administration of justice.

iii. Solicitors acting as advocate in court enjoy the same immunity as barristers. iv. Immunity is based on public policy

1. This immunity is given to all persons participating in the courtroom – judges, court officials, witnesses, parties, counsel and solicitors etc

2. Designed to ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them

b. Keefe v Marks (1989)i. The barrister failed to include in the statement of claim interest on the damages.

ii. Held that the interest on the damages fell within the scope of the immunity doctrine because it was intimately related to the litigation.

iii. Suggests that preparation of a case out of court is inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court.

iv. Extending the immunity any further risks taking protection beyond boundaries of public policy considerations.

v. The degree of connection between the in-court and out-of-court work must be assessed (relatively) to establish a positive connection.

c. D’Orta-Ekenaike v Victoria Legal Aid & Anor [2005]i. Immunity applies to both criminal and civil cases


ii. Final order can’t be overturned on appeal, intermediate consequence can’t be repaired or expunged on appeal and costs order cannot be set aside, and costs incurred cannot be recovered from opposite party

iii. Removal of immunity would have adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings

iv. RESULT: considerations of finality meant that the advocate’s immunity should be extended to the advice allegedly given by solicitor on behalf of VLA

v. Where a legal practitioner (whether acting as advocate, or as solicitor instructing an advocate) gives advice which leads to a decision which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account

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Web viewClient can request itemised bill any time after receipt of lump sum bill. Law firm has 21 days to provide itemised bill upon request. S . ... Griffiths v Evans (1953)