Ethics Exam

Ethics 2010 ETHICS................................................................................................................................................ 6 Spaulding v Zimmerman (1962) 263 Minn 346 Supreme Court of Miinesota .............................................. 6 ATTRIBUTES OF THE LEGAL PROFESSION............................................................................................ 6 Garrard (t/a Arthur Andersen and Co) v Email Furniture Pty Ltd (1993) ...................................................... 7 Hoffman v Musk (1990) Unreported ............................................................................................................ 7 The Legal Practice Board v Said (1994) Unreported. .................................................................................... 7 Kekatos v Council of the Law Society of NSW (1999) NSWCA 288 ............................................................... 7 Orrong Strategies Pty Ltd v Village Roadshow Ltd (2007) VSC 1................................................................... 7 New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 NSWCA .................................................. 7 R v Leicester City Justices; Ex parte Barrow (1991) 1 QB 260 ....................................................................... 7 Ley v Kennedy (Finance) Pty Ltd (1975) Unreported .................................................................................... 8 MCKENZIE’S FRIEND .................................................................................................................................. 7 PRESENT STRUCTURE AND REGULATION ........................................................................................... 8 RESTRICTIVE RULES OF THE BAR .................................................................................................................... 8 Barristers Rules ................................................................................................................................. 8 BR 74. A barrister must confine the barrister's professional work to: ..................................................... 8 BR 75. A barrister must not, in the barrister’s professional work: ........................................................... 8 BR 76 ........................................................................................................................................................ 9 BR 77 ........................................................................................................................................................ 9 BR 80 ........................................................................................................................................................ 9 ADMISSION ...................................................................................................................................... 10 EDUCATIONAL AND PRACTICAL TRAINING REQUIREMENTS ................................................................................ 10 ENGAGE IN LEGAL PRACTICE ...................................................................................................................... 10 MUTUAL RECOGNITION............................................................................................................................. 10 GOOD FAME AND CHARACTER .................................................................................................................... 10 Re Matthew F Hale (1999) 723 NE 2d 206 .................................................................................................. 10 Re B (1981) 2 NSWLR 372 ........................................................................................................................... 11 Wentworth v New South Wales Bar Association (1994) Unreported ......................................................... 11 Morrissey v NSW (2006) NSWSC 323.......................................................................................................... 12 Re Eben Gossage (2000) ............................................................................................................................. 12 Re Tkacz (2006) WASC 315 ......................................................................................................................... 10 §14 Prohibition on engaging in legal practice when not entitled ........................................................... 10 READMISSION .................................................................................................................................. 12 Kotowicz v Law Society of New South Wales (No 2) (1987) Unreported .................................................... 12 Horak v Secretary of the Law Institute of Victoria (1995) Unreported ....................................................... 13 Evatt v New South Wales Bar Association (1981) Unreported ................................................................... 14 RE Livery [2006] QCA 152 ........................................................................................................................... 14 LAWYER CLIENT RELATIONSHIP: REPRESENTATION ......................................................................... 15 DUTY TO ACCEPT WORK ............................................................................................................................ 15 BARRISTERS RULES................................................................................................................................... 15 Cab Rank Rule ................................................................................................................................. 15 Briefs which must be refused .......................................................................................................... 15 BR 87 ...................................................................................................................................................... 15 BR 88 ...................................................................................................................................................... 16 BR 89 ...................................................................................................................................................... 16 BR 90 ...................................................................................................................................................... 17 BR 85 ...................................................................................................................................................... 15 BR 86 ...................................................................................................................................................... 15 Briefs which may be refused ........................................................................................................... 17 BR 91 ...................................................................................................................................................... 17 BR 92 ...................................................................................................................................................... 17 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 HCA ................................................ 17 REPUGNANT AND/OR UNPOPULAR CLIENTS ................................................................................................... 18 Barristers’ Rules .............................................................................................................................. 18 BR 16 ...................................................................................................................................................... 18 Ethics Week 1 Allen Hsu Page 2 REPRESENTATION FOR SERIOUS CRIMINAL CHARGES ........................................................................................ 18 DUTY TO CONTINUE TO ACT ....................................................................................................................... 19 Barrister Rules ................................................................................................................................ 19 BR 93 ...................................................................................................................................................... 19 BR 94 ...................................................................................................................................................... 20 BR 95 ...................................................................................................................................................... 20 BR 96 ...................................................................................................................................................... 20 BR 97 ...................................................................................................................................................... 20 BR 98 ...................................................................................................................................................... 20 BR 99 ...................................................................................................................................................... 20 BR 100 .................................................................................................................................................... 20 BR 101 .................................................................................................................................................... 21 BR 102 .................................................................................................................................................... 21 Dietrich v R (1992) 177 CLR 292 HCA .......................................................................................................... 18 R v Frawley (1993) 69 A Crim R 208 NSWCCA............................................................................................. 18 Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 NSWCCA .............................................................. 19 Andrews v Victoria Legal Aid (1999) VSC 281 ............................................................................................. 19 LAWYER-CLIENT RELATIONSHIP ....................................................................................................... 22 OFFERS OF SETTLEMENT ............................................................................................................................ 22 Dominion Metals Pty Ltd v Shemmession (SC(WA)) 1993 Unreported ...................................................... 22 New England Educational Services Inc v Silver Street Partnership ............................................................. 22 Von Schulz v Morriello (1998) 15 Qld 2 Queensland Court of Appeal ........................................................ 22 DUTY TO OBEY ........................................................................................................................................ 23 Barrister’s Rule ............................................................................................................................... 23 BR 17 ...................................................................................................................................................... 23 BR 17A .................................................................................................................................................... 23 BR 17B .................................................................................................................................................... 23 BR 18 ...................................................................................................................................................... 23 R v McLoughlin and Isaacs (1985) 1 NZLR 106 ............................................................................................ 23 R v Birks (1990) 10 NSWLR 677 NSW Court of Appeal ................................................................................ 24 Pawlowski v Tottrup; Re Estate of Andrew Pawlowski (no2) (SC(NSW)) 1995 Unreported........................ 24 R v Turner (1970) 1 QB 321 Court of Appeal, England ................................................................................ 24 GUILTY PLEAS ......................................................................................................................................... 24 CHILDREN AND CLIENTS WITH DISABILITIES.................................................................................................... 24 Cockburn v GIO Finance Ltd (CA(NSW)) 1996 Unreported ......................................................................... 24 COMPETENCE AND CARE ................................................................................................................. 25 STANDARD OF CARE ................................................................................................................................. 25 Civil Liabilities Act 2002 (NSW) ....................................................................................................... 25 §5O Standard of care for professionals .................................................................................................. 25 Edward Wong Finance Co Ltd v Johnson Stokes & Master (1984) 1 AC 296............................................... 25 Dutchess of Argyll v Beuselinck (1972) 2 Lloyd’ Rep 173 at 183 HC England .............................................. 26 Pegrum and Pegrum v Fatharly................................................................................................................... 26 Griffiths v Evans (1953) 1 WLR 1424 at 1427 Court of Appeal, England ..................................................... 26 Citicorp Australia Ltd v O’Brien (1996) 40 NSWLR 398 NSWCA .................................................................. 26 Hill (t/a R F Hill & Associates) v Van Erp (1997) 142 ALR 687 HCA .............................................................. 27 Hilton v Noss (SC(NSW) Giles J, No 5026/94, 16 May 1995, Unreported) .................................................. 27 Saif Ali v Sydney Mitchell & Co (1980) AC 198 House of Lords ................................................................... 27 NON-CLIENT LIABILITY............................................................................................................................... 27 DEVELOPMENT OF THE IMMUNITY DOCTRINE ................................................................................................ 27 `ABOLISHMENT OF THE IMMUNITY DOCTRINE IN ENGLAND............................................................................... 28 RETENTION OF THE IMMUNITY DOCTRINE IN AUSTRALIA .................................................................................. 29 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 HCA ................................................... 29 Hall & Co v Simons (2000) 3 All ER 673 House of Lords .............................................................................. 28 CONFIDENTIALITY AND PRIVILEGE ................................................................................................... 30 Parry-Jones v Law Society [1969] 1 Ch 1 at 9 .............................................................................................. 30 Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287 ......................................................................... 30 Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 .............................................................................................. 30 ETHICAL DUTY OF LAWYERS CONCERNING CONFIDENTIALITY ............................................................................. 30 Ethics Week 1 Allen Hsu Page 3 GROUNDS FOR DISCLOSURE ....................................................................................................................... 31 EXCEPTIONS TO CONFIDENTIALITY ............................................................................................................... 33 CONSEQUENCES OF UNAUTHORIZED DISCLOSURE ........................................................................................... 33 DIFFERENCE BETWEEN CONFIDENTIALITY AND PRIVILEGE .................................................................................. 34 DOMINANT PURPOSE TEST ........................................................................................................................ 34 Evidence Act 1995 (Cth and NSW) .................................................................................................. 34 §118 Legal advice ................................................................................................................................... 34 §119 Litigation ........................................................................................................................................ 34 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67 High Court of Australia ........................................................................................... 34 Baker v Compbell (1983) 153 CLR 52 HCA .................................................................................................. 35 SR 34 – Client’s intention to disobey court order ................................................................................... 33 Trade Practices Commission v Sterling (1979) 36 FLR 244 Federal Court ................................................... 32 SR 2. Confidentiality ............................................................................................................................... 30 BR 103 .................................................................................................................................................... 31 BR 104 .................................................................................................................................................... 31 BR 105 .................................................................................................................................................... 31 BR 106 .................................................................................................................................................... 31 RESTRICTIONS ON THE PRIVILEGE .................................................................................................... 35 Waiver ............................................................................................................................................ 36 Goldberg and Goldberg v Ng Hango Holdings Pty Ltd and Ng (1995) 185 CLR 83 HCA............................... 36 CONFLICT OF INTEREST .................................................................................................................... 37 ACTING FOR MORE THAN ONE PARTY ........................................................................................................... 37 SR 9 ......................................................................................................................................................... 37 Moddy v Cox [1917] 2 Ch 71 ....................................................................................................................... 38 Blackwell v Barroile P/L (1994) 51 FCR 347................................................................................................. 38 Clark v Barter (1989) NSW ConvR 55-483 ................................................................................................... 37 THE LAWYER, THE CLIENT AND VESTED INTERESTS ........................................................................................... 38 THE LAWYER AS A WITNESS ....................................................................................................................... 41 SR 19 ....................................................................................................................................................... 41 BR 87 ...................................................................................................................................................... 41 Corporate Systems Publishing Pty Ltd v Lingard [2004] WASC 24 .............................................................. 41 SR 10 ....................................................................................................................................................... 38 SR 11 ....................................................................................................................................................... 38 SR 12 ....................................................................................................................................................... 39 SR 37 ....................................................................................................................................................... 39 Law Society of New South Wales v Harvey (1976) 2 NSWLR 15 ................................................................. 40 OPPOSING A FORMER CLIENT ..................................................................................................................... 41 SR 3 ......................................................................................................................................................... 41 Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831 ...................................................................................... 42 Prince Jeffri Bolkiah v KPMG [1999]............................................................................................................ 42 TESTS .................................................................................................................................................... 42 No real risk of disclosure test .......................................................................................................... 43 Australian cases that have adopted this test: ................................................................................ 43 Chinese Walls .................................................................................................................................. 43 THE ADVERSARY SYSTEM ................................................................................................................. 45 RULES/ROLE OF ADVOCACY ....................................................................................................................... 45 DUTY OF CANDOUR & FRANKNESS (13.16-13.18) ........................................................................................ 45 Frankness in court........................................................................................................................... 45 Duty to opponent............................................................................................................................ 45 Interference with witnesses/Integrity of evidence: No coaching.................................................... 46 BR 43 ...................................................................................................................................................... 46 BR 44 ...................................................................................................................................................... 46 BR 54 ...................................................................................................................................................... 46 BR 55 ...................................................................................................................................................... 46 BR 62 ...................................................................................................................................................... 46 PROSECUTOR’S DUTIES ............................................................................................................................. 46 Ethics Week 1 Allen Hsu Page 4 DEFENCE COUNSEL .................................................................................................................................. 48 Delinquent or guilty clients ............................................................................................................. 48 THE ROLE OF THE JUDGE............................................................................................................................ 48 Huang v University of New South Wales (No 3) (2006) FCA 626 ................................................................ 48 BR 63 ...................................................................................................................................................... 47 BR 64 ...................................................................................................................................................... 47 BR 65 ...................................................................................................................................................... 47 BR 66 – Disclosure .................................................................................................................................. 47 BR 66A – Non disclosure......................................................................................................................... 47 BR 66B .................................................................................................................................................... 47 BR 67 ...................................................................................................................................................... 48 BR 68 ...................................................................................................................................................... 48 BR 69 ...................................................................................................................................................... 48 BR 70 ...................................................................................................................................................... 48 BR 71 ...................................................................................................................................................... 48 DISCIPLINE ....................................................................................................................................... 49 INHERENT POWER OF THE COURTS .............................................................................................................. 49 STATUTORY CATEGORIES OF MISCONDUCT .................................................................................................... 49 Legal Profession Act 2004 (NSW) ................................................................................................... 49 §496 Unsatisfactory professional conduct ............................................................................................. 49 §497 Professional misconduct................................................................................................................ 49 §498 Conduct capable of being unsatisfactory professional conduct or professional misconduct ........ 50 Myers v Elman (1940) AC 282 House of Lords ............................................................................................ 49 COMMON LAW CATEGORIES OF MISCONDUCT ............................................................................................... 50 Serious and less serious misconduct ............................................................................................... 51 Inquisitorial aspects – candour and cooperation............................................................................ 51 Clyne v New South Wales Bar Association (1960) 104 CLR 186 HCA .......................................................... 51 Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605 HCA ............................................... 51 RE Veron; Ex parte Law Society of New South Wales (1966) 84 WN (NSW) (pt 1) 136 NSW Court of Appeal .................................................................................................................................................................... 50 Kennedy v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 ............ 51 COMPLAINTS .......................................................................................................................................... 52 Unsatisfactory Professional Conduct .............................................................................................. 52 Legal Professional Act 2004 (NSW) Chapter 4 ................................................................................ 53 Legal Services Division (LSD) of Administrative Decisions Tribunal (ADT) ...................................... 53 Law Society v Martin................................................................................................................................... 53 Law Society v Gillroy ................................................................................................................................... 53 Law Society v Wall ..................................................................................................................................... 53 Malfanti v Legal Profession Disciplinary Tribunal ....................................................................................... 51 PENALTIES, PROCEDURES AND OVERCHARGING .............................................................................................. 54 Some possible penalties.................................................................................................................. 54 The Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 NSW Court of Appeal ......................................................................................................................................................... 54 Veghelyi v the Law Society of New South Wales (1995 Unreported SC(NSW) Full Court) .......................... 55 In the matter of Saeed Asif Mirza (SC(SA), Full Court, 1996, Unreported) ................................................. 55 Ziems v Prothonatary of the Supreme Court of New South Wales (1957) 97 CLR 279 HCA ....................... 55 Somerville v The Law Society of the Northern Territory (1995) 119 FLR 22 Full Supreme Court ............... 56 Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77 NSW Court of Appeal ...... 56 A solicitor v Council of the Law Society of New South Wales (2004) HCA 1 HCA ....................................... 56 CONDUCT OUTSIDE PROFESSIONAL PRACTICE ................................................................................................. 55 Ethics Week 1 Allen Hsu Page 5 Ethics Definitions Ethics is derived from the Greek words ethos and ethikos; the former means ‘character’ and the latter means ‘practice or custom of the community’. Professional Ethics – the values and rules of conduct of an occupational group Morals – derives from the latin mores, meaning “custom or conventions of a social group”. The modern meaning includes distinguishing between right and wrong. Values – principles or qualities which we consider worthy or desirable Beliefs – acceptance of an idea or statement of fact as being true Conventions – unwritten rules and practices governing the behaviour of a social or professional group Amoral – an indifference to moral responsibility Immoral – a failure to conform to what is generally accepted by a culture as correct behaviour Positivism – the separation of law from personal and cultural norms and its connection to the use of force Deontology – the science of duty or moral obligation. It assumes that there are certain absolute truths arising out of natural law Teleology – the doctrine of final causes. It states that reality is determined by final goals and purposes rather than mechanical causes Utilitarianism – the ethical view that right conduct is achieved when an action or result leads to the greatest good for the greatest number of people Spaulding v Zimmerman (1962) 263 Minn 346 Supreme Court of Miinesota • • David Spaulding was passenger in car driven by John Zimmerman, they were involved in accident and Spaulding suffered extensive injuries. During discovery Zimmerman’s solicitors discovered Spaulding had aneurysm and did not disclose, which could be life threatening. Defence withheld information so settlement could be achieved at a lowest possible cost. It was not until Spaulding was required by Army reserves to do a checkup when he discovered he had aneurysm. Subsequently followed another suit. It was plaintiff’s counsel that were negligent for not diligently discovering available information. Defence was doing their job, they had no obligation to notify plaintiff, may be a moral issue but not a legal issue. • • Attributes of the legal Profession • • • • • • Skill based on theoretical knowledge; The provision of training and education; Testing the competence of members; Organization; An ethical code of conduct; and Altruistic service Ethics Week 1 Allen Hsu Page 6 Garrard (t/a Arthur Andersen and Co) v Email Furniture Pty Ltd (1993) • Discourtesy is not limited to the tone of correspondence or the vigour of its language. That was said towards the solicitors of both parties whom tried to stall time in order to cross the deadline for submissions. Hoffman v Musk (1990) Unreported • • • Appellant told client he was the only practitioner in the state capable of handling such a complicated case. The legal profession, like the medical profession is considered so skillful and important that only qualified lawyers should be able to practice. So far as the professional man is concerned, he does not sell a commodity but offers only his personal expertise and the member of the public obtains the benefit of that expertise by consulting a practitioner who has obtained the necessary professional qualification. The Legal Practice Board v Said (1994) Unreported. • • • • Said having extensive personal litigation experience decided to take on a case instructing clients on legal matters. He was not a qualified solicitor. His argument was he charged fees to engage legal counsel. Nagle case was applied, Nagle’s case refers to ‘taking an unqualified person to court to take notes and assist’ Said was ordered to pay costs as well as return plaintiff’s costs. Kekatos v Council of the Law Society of NSW (1999) NSWCA 288 • Kekatos had his practicing certificate cancelled in 1993 and was struck off the roll in 1994. He had sold his practice on which requires substantial law experience to Ms Bouzanis and appears to continue give legal advice using her licence. Kekatos was ordered to pay costs, notwithstanding success in the Tambouz debt transaction. • Orrong Strategies Pty Ltd v Village Roadshow Ltd (2007) VSC 1 • • Ziegler worked for Orrong, which was Ziegler’s private family company. Mr Ziegler had invoices VRL as taxation advice and not legal advice, he was qualified in accounting though not registered but this case was dealing with Mr Ziegler providing legal advice when not registered nor licenced. It was found Mr Ziegler did not provide legal work. Orrong was entitled to $5,979,511 owed by VRL. • McKenzie’s Friend New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 NSWCA Hope JA: • There are many problems associated with the concept of a McKenzie friend, including the question of legal professional privilege. R v Leicester City Justices; Ex parte Barrow (1991) 1 QB 260 • Mr and Mrs Barrow (the applicants) were liable to pay a community charge, they fell into arrears and the City Council obtained orders against both applicants. Justices erred in refusing to allow them assistance of a McKenzie’s friend, the applicants appealed. Ethics Week 2 Allen Hsu Page 7 • • McKenzie’s friend raises several issues such as confidence, liability if misinforms the litigant. McKenzie’s friend was not permitted. Ley v Kennedy (Finance) Pty Ltd (1975) Unreported • Court was considering whether they should allow Mr Ley to represent himself when he is not qualified at law. He often read from cue cards that were disconnected and had no relevance to the law or case at hand. It was deemed to be within the court’s power to make appropriate orders to protect the interests of that party and those who are involved in the litigation by or with him and to prevent the improper waste of public time and money.. • Present Structure and Regulation Presently in our legal system there is the two layer law, one is solicitor and the other being the barrister, when is it beneficial for the solicitor to handle most of the work, when is it beneficial for client for solicitor to engage barrister immediately? Conflict of interest prevents solicitors from the same firm to act for opposing clients. In a law firm of 100 solicitors, if a client retains the said law firm then no one else from that firm can represent the opposing side. Hence the reason why barristers must work alone and cannot form a partnership or form a company. For instance, human nature and social affinity will nearly always produce what the statisticians call “assertive mating” when people group together for an activity. Like-minded barristers are far more likely to join in partnership with each other than barristers who have nothing professionally in common. Barristers are far more likely to know and appreciate each other of they practise in similar or related areas, and have had the opportunity to observe each other in action at close quarters. The very barristers who formerly competed in specific areas of practice, against each other, are therefore likely to be the barristers who band together to dominate that area of practice. Because they could not appear against each other, the supply of skilled services in that area will be reduced, and if the demand continues at comparable levels then the price is most unlikely to fall, and is more likely to rise. Restrictive rules of the bar Barristers Rules BR 74. A barrister must confine the barrister's professional work to: (a) appearing as an advocate; (b) preparing to appear as an advocate; (c) negotiating for the client with the opponent to compromise the case; (d) representing the client in a mediation; (e) giving legal advice; (f) advising on documents to be used in the client's affairs; (g) acting as a referee, arbitrator or mediator; and (h) carrying out work properly incidental to the kinds of work referred to in (a)-(g). 14 BR 75. A barrister must not, in the barrister’s professional work: (a) commence proceedings or file process in any court on behalf of the client in the barrister’s name; (b) serve any process of any court; Ethics Week 2 Allen Hsu Page 8 (c) make any demand, by letter or otherwise, on behalf of the client in the barrister’s name, except for the purposes of work under Rule 74(c) and (d); and (d) conduct correspondence on behalf of the client in the barrister’s name or deal on behalf of the client with any other person, unless: (i) the correspondence is to seek information from a potential witness; or (ii) the dealing is a conference with a potential witness; or (iii) it is for the purposes of work under Rule 74. BR 76 A barrister must take reasonable steps to avoid the possibility of the barrister becoming a witness in the case as a result of any correspondence conducted by the barrister or of any dealing by the barrister with persons other than the client. BR 77 A barrister must not, in the barrister’s professional work, hold, invest or disburse any funds for any other person. BR 80 A barrister who proposes to accept instructions directly from a person who is not a solicitor or a professional acting as such must inform the prospective client in writing of: (a) the effect of Rules 74 and 75; (b) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the case; (c) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor; and (d) the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and (e) a fair description of the advocacy experience of the barrister. Ethics Week 2 Allen Hsu Page 9 Admission Usually the admission to practicing law will require that you have good fame and character. Educational and practical training requirements In NSW, one must demonstrate understanding and competence of criminal law and procedure; torts; contracts; property; both real (including Torrens title system land) and personal; equity (including trusts); administrative law; federal and state constitutional law; civil procedure; evidence; company law; and professional conduct. Additional requirement in all jurisdictions is practical training. Engage in Legal Practice Legal Professional Act 2004 (NSW) §14 Prohibition on engaging in legal practice when not entitled (1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty: 200 penalty units. Mutual recognition The (Cth) Mutual Recognistion Act 1992 (together with complementary state and territory legislation) provides for reciprocal recognition of admission to practise across State boundaries. §17 (1) states: … a person who is [admitted] in the first State for an occupation is, by this Act, entitled after notifying the local [admitting] authority of the second State for the equivalent occupation: a) To be [admitted] in the second State for the equivalent occupation; and b) Pending such [admission], to carry on the equivalent occupation in the second Sstate. Re Tkacz (2006) WASC 315 In In Re David (1947) 75 CLR 409, majority of High Court held that notwithstanding the use of the mandatory expression “shall” to apply to “every candidate” approved by the Board, the court retained a residual discretion to determine whether a person approved by the Board would be admitted to practice. The Court examined the nature of the crime. It is found that it was committed almost 9 years ago, events did not reveal a flagrant disregard for the law or a sustained course of dishonesty. Did not revoke licence. Good fame and character Re Matthew F Hale (1999) 723 NE 2d 206 Matthew F Hale is a white supremacist who once burned an Israeli flag. He graduated from law school then passed the bar exam but Illinois Bar Association hearing panel refused to grant him a licence to practice law. The panel by 2-1 vote said “… free... to incite as much racial hatred as he desires and to attempt to carry out his life’s mission of depriving those he dislikes of their legal rights but in our view he cannot do this as an officer of the court.” Justice Heiple in dissent of denial of full review: Ethics Law Week 3 Allen Hsu Page 10 • • • This is not a case about violation of First Amendment rights, he can say what he wants, however, Rules of Professional Conduct says certain “fundamental truths” and non-discrimination must be preferred over the values found in First Amendment. Second issue that outcome would be different if petitioner was already practicing. The committee speculates that petitioner would be on a collision course with the Rules of Professional Conduct. “I find significant facts hence dissent from the denial of the petitioner for review.” Re B (1981) 2 NSWLR 372 Wendy Bacon, a well known activist and journalist, applied for admission to the bar. She included in her application all information concerning former arrests and convictions for her political activities. The objections to her admission by the Prothonotary and the Bar Association were based on her political and social activism. The main reason for her admission being refused by the court related to her action in standing bail for a prisoner (SS). Moffitt P: • If a person meets to requisite learning standards and is of good fame and character so he meets the requirement that he be a fit and proper person to be admitted to practice as a barrister, it hardly need be said that there is no other discretionary bar to admission. The judicial system and the right to participate in it is an essential part of our democratic institutions. What a student may do as a student particularly of a student activist type in the exuberance of development and the exploitation of new freedom opened to his developing mind, might call for some scrutiny but is still a student. When he undertakes the actual responsibility of being such and has ceased to be a student they often change. The past conduct commenced when plaintiff was 24 and a graduate and has extended over some eight years. She had been untruthful in her denying knowledge of where money came from. She may have been truthful in her writings but she has not been truthful to authority. She was prepared to be untruthful and to mislead the court, namely to be a barrister. She cannot be trusted to tell the truth and so she is not fit to be a barrister. Is such that he can be trusted to perform his duty … including that performed when what he does is unlikely to be the subject of scrutiny. Reputation is also a relevant factor because the effectiveness of the law depends materially upon the confidence of the public in the due administration of it. That confidence is less if those who administer the law, whether judges, barristers or solicitors, lack a reputation for integrity and that they will uphold and observe the law. Her history showed she was a professional protester, however that does not affect her ability to be a barrister. It was found she falsely pretended “that they were her moneys and knowing the true course thereof” It is not a question of any differences of view as to her political ideology or indeed a dislike of the vigour with which she has pursued the many causes she has espoused. This is a question whether she will break the law if she regards it as impeding the success of her cause. That she has done many times in the past, though it may be said that in those cases dishonesty was not involved. • • • Reynolds JA • • • Wentworth v New South Wales Bar Association (1994) Unreported Wentworth’s application for admission was opposed by the Bar Association. Campbell J, in the lower court, found that she was not of good character. • • It was found that the appellant had made false and serious allegations against judges that were involved in conspiring with a party to procure a verdict by fraud without strong and compelling evidence. First principal, as a person of litigant the future of the barrister can be measured by her past conduct. If she was admitted to the bar, she would abuse the privilege conferred upon a barrister as to the making of defamatory allegations, and would not Page 11 Ethics Law Week 3 Allen Hsu • • • properly discharge the responsibilities that privilege carries with it, which is sufficient to lead to the conclusion that the appellant is not a suitable person to be admitted as a barrister. Second principal, she also lacked understanding of a fundamental matter of proper conduct in relation to the making of applications constituting abuses of the process of the Court. Third principal, finding and ultimate conclusion was the appellant was very likely to mislead the court deliberately. The court would not have confidence in what she says in a difficult situation. On three separate matters the appellant gave evidence in cross examination which she did not believe to be true. Appeal dismissed. Morrissey v NSW (2006) NSWSC 323 Mr. Morrissey had a very colourful career in law in Virginia, it resulted in his removal from being able to practice. Mostly as it was interpreted to be politically motivated. Mr. Morrissey did fail to disclose some other relevant facts, at time of submission it was in his opinion to be of no significance such as the barring from practicing in Federal Court of the USA. The determination of significance should be the role of the Bar Association which is the purpose that they’re there. In the end it was the misrepresentation to Mr. Tedeschi and Mr. Bennett which may have swung the decision to not granting Mr. Morrissey the right to practice. Re Eben Gossage (2000) • Committee of Bar Examiners appealed a recommendation by the State Bar to admit Gossage whom was found guilty of involuntary manslaughter, forgery, numerous driving offences, theft, possession of heroin, and other violations of the law. Omission in information provided in his criminal history of the application. He was asked to disclose each conviction for the “violation of any law, ordinance, misdemeanor or felony” whether obtained by a guity verdict or by a plea of guilty or no contest. Gossage only disclosed 4 convictions. Did not mention any of the other 13 criminal convictions that he had sustained. The omissions lead him to perjury since he signed where it said “carefully read the questions” and “answered them truthfully, fully and completely”. It was found Gossage perceived a dangerous tendency to excuse his misdeeds, including those committed after he entered law school. Admission has been denied where the applicant did not fully disclose his criminal history, information material to an accurate moral character assessment. It did not matter whether concealment was intentional, reckless disregard for the truth, or an unreasonable refusal to perceive the need for disclosure. Omission is a strong evidence applicant lacks “integrity” and/or “intellectual discernment” required to be an attorney. • • • • • Readmission When practitioners seeking readmission after having been struck off the roll, they must not only show they are of “good fame and character” but also they have fully accepted the decision which resulted in their removal from the rolls. Further, they must also show the authorities they have rehabilitated. Kotowicz v Law Society of New South Wales (No 2) (1987) Unreported In 1978 Kotowicz was struck off the roll of solicitors, in 1986 he applied to be readmitted. Legal principles that needs to be applied are: Ethics Law Week 3 Allen Hsu Page 12 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Court is not to punish nor further punish the former solicitor, that is jurisdiction of criminal law. Court is there to protect the public which deals with solicitors that are members of honourable profession. The claimant that has been removed needs to establish his fitness to be restored to the Rolls, he bears the onus of proof in his case. Whether claimant is fit and proper person and one to be trusted to exercise the high responsibilities of a “minister of justice” is one to be determined on solid and substantial grounds. After being removed from the Rolls, he is in a more disadvantageous position than the original applicant. He must displace the decision that was made. That decision involves a judge’s opinion that he is unfit to practice. Decision in each case is based on facts proved, there are no formula which can be applied by reference to the seriousness of the offences nor the passing of time. There are no sure path to restoration to the Roll, guaranteed by engaging in particular activities, whether employment or service to the community. The court will consider all evidence then can conclude whether the claimant is now a fit and proper person to join other members of an honourable profession. It has been said many times that what is at stake is not so much the reputation of the claimant but the Court’s assessment of his character, uprightness, honour and trustworthiness. Nonethless relevant to the decision to be made is any evidence concerning the reputation which the claimant holds, the employment he has pursued, any community activities he has engaged in, the time which has passed within which to assess the question posed for the Court and, if the time is long, whether the claimant would be sufficiently knowledgeable to re-join a learned profession without retraining. Because the jurisdiction is for the protection of the public, regard also may be had, the the public’s intereste in the restoration to the Roll of such person, which includes their work, activities and life. In cases of some offences, committed over an extended period, with deliberate intent and resulting in severe losses by clients, it will be difficult to contemplate any circumstances in restoring the offender to the Roll. But where the offences are isolated, where there is no evidence of prolonged deliberate conduct and where, to the full extent possible in the circumstances, the funds of clients have been restored so that there is no eventual pecuniary loss, practitioner’s restoration will appear in better light. If offender has been afforded a second chance, the Court can impose conditions relating to limitations or preconditions as to refresher legal education which take account of developments in law during the period of removal from the Roll. He has shown to have restored the Court’s faith in him. He was readmitted. Horak v Secretary of the Law Institute of Victoria (1995) Unreported Solicitor board refused Mr. Horak’s application for an Employee’s Practicing certificate. His practicing certificate had previously been cancelled in 1989 due to his conduct: 1. Improper dealing with Mr Reid (client’s husband), can be described as making inappropriate threats. 2. His conduct towards Miss Mooney, a law clerk engaged in the matrimonial dispute, was aggressive, confrontational and breach of appropriate standards. 3. Gave false account to the Secretary of the Professional Standards Committee of the institute. • Dr Kenny an experienced psychiatrist, formed the view that Mr. Horak’s behavior was caused by emotional involvement with Mrs. Reid. He also expressed that Mr. Horak coped well over the past few difficult years, and expressed Mr. Horak was not likely to make the same errors in judgment. Mr. Horak’s employer (when he was struck off he worked as legal clerk) also expressed good opinions of Mr. Horak and was prepared to employ him. Mr. Horak had burden of proof that he will not re-offend and has changed his ways. Page 13 • • Ethics Law Week 3 Allen Hsu • Mr. Horak was readmitted. Evatt v New South Wales Bar Association (1981) Unreported Evatt a barrister had been struck off by the High Court in 1968. He applied a year after disbarment, Supreme Court felt it would have gone behind High Court’s decision. He applied a second time three years after disbarment, he was denied on the grounds that it was not long enough to determine whether he has changed. This is his 3rd application, he is now a prominent art dealer. Evatt was struck off for charging excessively as well as assisting solicitor in gross malpractice. Over the years he has established a business in art dealing and has shown honour in his business practice. Seven members of the Bar and five solicitors have known Evatt and spoken for him has continued their regard for him. He has shown that he’s changed since the offence. He is now regarded as fit and proper person to be restored to the roll. RE Livery [2006] QCA 152 • • Applicant disclosed a finding against him of academic misconduct. Whilst in Practical Legal Training Course at Griffith University, he copied the work of another student, M. Letter from Dean indicated it was substantial copying and not just what the applicant had asserted, of material available in public forum. He failed the subject, resat and passed. The Solicitors Board has not opposed his admission because the incident appeared to be one-off aberration and, significantly, because “the applicant was clearly experiencing significant external stressors of a financial and domestic nature at the time of the incident”. It is inappropriate that we should, without pause, accept as fit to practise an applicant who responds to stress by acting dishonestly to ensure his personal advancement. M who provided the work was admitted, but it does not mean applicant should also be admitted. Matter adjourned. • • • • Ethics Law Week 3 Allen Hsu Page 14 Lawyer Client Relationship: Representation Lawyer’s primary duties are: 1. To represent; 2. To communicate; 3. To obey instructions; 4. To act competently; 5. To maintain confidences; and 6. To be loyal. Duty to accept work Barristers Rules Cab Rank Rule BR 85 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 Rules 87, 90 or 91. BR 86 A barrister must not set the level of an acceptable fee, for the purposes of Rule 85(c), higher than the barrister would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be deterred from continuing to offer the brief to the barrister. Briefs which must be refused BR 87 A barrister must refuse a brief or instructions to appear before a court if: (a) the barrister has information which is confidential to any other person other than the prospective client, and: (i) the information may, as a real possibility, be helpful to the prospective client’s case; and (ii) the person entitled to the confidentiality has not consented to the barrister using the information as the barrister thinks fit in the case; (b) the barrister has a general or special retainer which gives, and gives only, a right of first refusal of the barrister’s services to another party in the case and the barrister is offered a brief to appear in the case for the other party within the terms of the retainer; (c) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case; (d) the brief is to appear on an appeal and the barrister was a witness in the case at first instance; Ethics Week 4 Allen Hsu Page 15 (e) the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case; (f) the barrister has a material financial or property interest in the outcome of the case, apart from the prospect of a fee in the case of a brief under a conditional costs agreement; (g) the brief is on the assessment of costs which include a dispute as to the propriety of the fee paid or payable to the barrister, or is for the recovery from a former client of costs in relation to a case in which the barrister appeared for the client; (h) the brief is for a party to an arbitration in connexion with the arbitration and the barrister has previously advised or appeared for the arbitrator in connexion with the arbitration; (i) the brief is to appear in a contested hearing before the barrister’s parent, sibling, spouse or child or a member of the barrister’s household, or before a bench of which such a person is a member (unless the hearing is before the High Court of Australia sitting all available judges); (j) the brief is to appear before a court of which the barrister was formerly a member, or before a court from which appeals lay to a court of which the barrister was formerly a member (except the Federal Court of Australia in case of appeals from the Supreme Court of any State or Territory), and the appearance would occur: (i) within 2 years after the barrister ceased to be a member of the court in question, if the barrister was a member of the court for less than 2 years; (ii) within a period after the barrister ceased to be a member of the court in question equivalent to the period for which the barrister was a member of the court, if the barrister was a member of the court for 2 years or more but less than 5 years; or (iii) within 5 years after the barrister ceased to be a member of the court in question, if the barrister was a member of the court for 5 years or more; or (iv) within 3 months after the barrister ceased to be a parttime member of the Administrative Decisions Tribunal of New South Wales; (k) there are reasonable grounds for the barrister to believe that the failure of the client to retain an instructing solicitor would, as a real possibility, seriously prejudice the barrister’s ability to advance and protect the client's interests in accordance with the law including these Rules. BR 88 A barrister need not refuse a brief to appear before a court notwithstanding the application of Rules 87(c) or (e) if: (a) the barrister believes on reasonable grounds that: (i) allegations involving the barrister in such a way as to apply one of those Rules have been raised in order to prevent the barrister from accepting the brief; and (ii) those allegations can be met without materially diminishing the barrister's disinterestedness; and (b) a member of a Professional Conduct Committee of the Bar Association who is Senior Counsel approves of the barrister accepting the brief after the barrister has informed that Senior Counsel of the circumstances. BR 89 A barrister must refuse a brief to advise if the barrister has information which is confidential to any person with different interests from those of the prospective client if: Ethics Week 4 Allen Hsu Page 16 (a) the information may, as a real possibility, be helpful to the advancement of the prospective client's interests in the matter on which advice is sought; and (b) the person entitled to the confidentiality has not consented beforehand to the barrister using the information as the barrister thinks fit in giving advice. BR 90 A barrister must not accept a brief to appear on a day when the barrister is already committed to appear or is reasonably likely to be required to appear on another brief unless: (a) the person offering the later brief has expressly permitted the barrister to do so; and (b) the instructing solicitor in the earlier brief has been informed beforehand of the barrister's intention to accept the later brief. Briefs which may be refused BR 91 A barrister may refuse a brief to appear before a court if: (a) the brief is not offered by a solicitor; (b) the barrister considers on reasonable grounds that the time or effort required for the brief threatens seriously to prejudice the barrister's practice or other professional or personal engagements; (c) the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement; (d) the brief may, as a real possibility, require the barrister to cross-examine or criticize a friend or relation; (e) the solicitor does not agree to a request by the barrister that appropriate attendances by the instructing solicitor, solicitor's clerk or client representative will be arranged from time to time for the purposes of: (i) ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief; (ii) ensuring that the client adequately understands the barrister's advice; (iii) avoiding any delay in the conduct of any hearing or compromise negotiations; and (iv) protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused; (f) the prospective client is also the prospective instructing solicitor, or a partner, employer or employee of the prospective instructing solicitor, and has refused the barrister's request to be instructed by a solicitor independent of the prospective client and the prospective client's firm; or (g) the barrister, being Senior Counsel, considers on reasonable grounds that the case does not require the services of Senior Counsel. BR 92 A barrister may regard the current listing of a solicitor by the Bar Association as one who has failed to pay another barrister's fee without reasonable excuse as a reasonable ground for the doubt referred to in Rule 91(c). Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 HCA • Each of appellants carried on business selling tobacco products by wholesale to supermarkets and other retailers. Appellant had about 21,000 customers. Ethics Week 4 Allen Hsu Page 17 • • Wholesaler had invoices retailers a licence fee which wholesalers did not remit to the taxing authority. Mr. Adrian Firmstone, sole director of Firmstones Pty Ltd sought to encourage retailers to claim from wholesalers a refund of tobacco licence fees. Firmstones was to foot all legal bills but the arrangement was if successful Firmstones would retain 33.3% of awarded but if unsuccessful then Firmstones would bear all legal costs. Firmstones wrote to all retailers asking for authority to act on the retailer’s behalf in recovering these amounts. Firmstones has nothing to do with this case. As Einstein J said, Firmstone’s conduct as “trafficking in the litigation”. Appeal dismissed. • • Repugnant and/or unpopular clients Barristers’ Rules BR 16 A barrister must seek to advance and protect the client's interests to the best of the barrister's skill and diligence, uninfluenced by the barrister's personal view of the client or the client's activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules. Representation for serious criminal charges Dietrich v R (1992) 177 CLR 292 HCA • Dietrich was charged with importing a quantity of heroin. At a lengthy trial, Dietrich was unrepresented at all stages. He sought to have representation at numerous times, but his request was denied by the trial judge. His request for appointment of a McKenzie friend was also refused. Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Trial judge’s failure to adjourn the trial resulted in an unfair trial and deprived the applicant of a real chance of acquittal. Appeal allowed, new trial ordered. Application for special leave to appeal was founded on the submission that the applicant, who did not have the means of retaining counsel at his own expense, was denied a legal entitlement to counsel at public expense fails. There was no miscarriage of justice arising simply from the fact that the applicant was not legally represented. Grant special leave to appeal to raise the question of a general entitlement to legal aid but I would dismiss the appeal. Mason CJ and McHugh J: • • • • Brennan J: • • R v Frawley (1993) 69 A Crim R 208 NSWCCA • Applicant was due for trial. An application for legal aid was granted on basis that a solicitor employed by the Legal Aid Commission would represent him, and instruct a public defender. Ethics Week 4 Allen Hsu Page 18 • The appellant appealed to the Legal Aid Review Committee, complaining that he wanted private representation. As a result of the appeal the trial was adjourned on a number of occasions. The appellant kept altering instructions forcing counsel to withdraw. In the end the trial judge could not further adjourn the hearing and proceeded. It was the Criminal Court of Appeal’s finding that there was no unfairness and subsequently no miscarriage of justice but the appeal was allowed on another ground. • • Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 NSWCCA • The Legal Aid Commission had made a number of offers of representation to the accused for his forthcoming trial on 7 counts of murder. One of these offers included the services of a senior counsel Public Defender, a junior counsel whom the accused could choose and a solicitor from the commission’s office. All of the above were rejected, and Milat chose his own legal representative who rejected the fees offered by the commission. The trial was stayed by Hunt CJ until increased funds were made available to Milat’s lawyers. A-G appealed the decision. The question was whether the respondent had proved, by evidence, that he was unable to obtain legal representation and that his trial would be unfair. The right to representation would not extend to representation by a so-called “Rolls Royce” team of lawyers. Appeal allowed, orders made by Hunt CJ at CL set aside. • • • • Andrews v Victoria Legal Aid (1999) VSC 281 • Mr. Andrews was denied Legal Aid. Question is whether the accused would not receive a fair trial if he was unrepresented or there was a substantial risk of that and so the focus of the application postulates the need of legal assistance because the applicant is unable to afford the full cost of obtaining assistance from a private practitioner. He is 67 years old, has a sick wife of 63, a daughter with terminal condition and for whom he cares and has a granddaughter unmarried with two children for him he cares part-time and his assets amount to an interest in a joint property between him and his wife valued at approximately $130,000 and a superannuation at $67,000. Mr. Andrews is not able to afford the full cost of obtaining private representation and so he needs assistance from Legal Aid. The only question is whether he is entitled to such assistance without committing any of his funds in any way. Mr. Andrews has made a decision not to commit any of his funds towards his legal representation. Application is refused. • • • • Duty to continue to Act Barrister Rules BR 93 A barrister must not return a brief to defend a charge of a serious criminal offence unless: (a) the barrister believes on reasonable grounds that: (i) the circumstances are exceptional and compelling; and (ii) there is enough time for another legal practitioner to take over the case properly before the hearing; or Ethics Week 4 Allen Hsu Page 19 (b) the client has consented after the barrister has clearly informed the client of the circumstances in which the barrister wishes to return the brief and of the terms of this Rule and Rule 94. BR 94 A barrister who holds a brief to defend a charge of a serious criminal offence and also any other brief, both of which would require the barrister to appear on a particular day, must return the other brief as soon as possible, unless the barrister became aware of the appearance being required on that day in the first brief after the barrister was committed to appear on that day in the other brief. BR 95 A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client, as the case may be, in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client, as the case may be, of the circumstances in which the barrister wishes to return the brief and of the terms of this Rule and Rule 97. BR 96 A barrister must not return a brief to appear on a particular date in order to attend a social occasion unless the instructing solicitor or the client, as the case may be, has expressly permitted the barrister to do so. BR 97 A barrister who wishes to return a brief which the barrister is permitted to return must do so in enough time to give another legal practitioner a proper opportunity to take over the case. BR 98 A barrister must promptly inform the instructing solicitor or the client, as the case may be, as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated. BR 99 A barrister may return a brief if, after acceptance of the brief: (a) the instructing solicitor or client, as the case may be, has refused the barrister's request that appropriate attendances by the instructing solicitor, solicitor's clerk or client representative will be arranged from time to time for the purposes of: (i) ensuring that the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief; (ii) ensuring that the client adequately understands the barrister's advice; (iii) avoiding any delay in the conduct of any hearing or compromise negotiations; or (iv) protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused; (b) the barrister's advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be; or (c) fees have not been paid reasonably promptly or in accordance with the costs agreement, and have remained unpaid after reasonable notice by the barrister to the instructing solicitor or client, as the case may be, of the barrister's intention to return the brief for that reason. BR 100 A barrister may return a brief accepted under a conditional costs agreement if: Ethics Week 4 Allen Hsu Page 20 (a) the barrister, and the instructing solicitor if any, consider on reasonable grounds that the client has unreasonably rejected a reasonable offer of compromise contrary to the barrister's advice; (b) the client has refused to pay the barrister a reasonable fee for all work done or to be done after the client's rejection of the offer; (c) the client was informed before the barrister accepted the brief of the effect of this Rule; and (d) the barrister has the firm view that the client has no reasonable prospects of success or of achieving a result better than the offer. BR 101 A barrister who has reasonable grounds to believe that there is a real possibility that the barrister may cease to be solely a disinterested advocate by becoming also a witness in the case or a defender of the barrister's own personal or professional conduct against criticism must return the brief as soon as it is possible to do so without unduly endangering the client's interests, unless: (a) the barrister believes on reasonable grounds that: (i) allegations which involve the barrister in that way have been raised in order to remove the barrister from the case; and (ii) those allegations can be met without materially diminishing the barrister's disinterestedness; and (b) a member of a Professional Conduct Committee of the Bar Association who is Senior Counsel approves of the barrister keeping the brief after the barrister has informed that Senior Counsel of the circumstances. BR 102 A barrister must return a brief to appear in a contested hearing before the barrister's parent, sibling, spouse or child or a member of the barrister's household, unless: (a) the barrister learns of the identity of the person or persons constituting the court so close to the hearing date that return of the brief would not give another legal practitioner enough time to take over the case properly before the hearing; and (b) the barrister has sought to draw the circumstances to the court's attention so as to permit the constitution of the court to be changed. Ethics Week 4 Allen Hsu Page 21 Lawyer-Client Relationship R v Szabo [2000] SCA 194, client discovered his defense counsel was in a de facto relationship with the Crown prosecutor. The Court of Appeal ordered a new trial due to miscarriage of justice. Offers of settlement • • • • • • Lawyer has duty to inform client with all necessary information to make an informed decision about settlement of the case. The client should be the one to be in control of the settlement process. Duty – offer objective advice about prospects of success and appropriateness of settlement offer If client refuses settlement advice – can cease to act Prudent lawyer won’t settle without instructions – disputes arise about nature of instructions Need clarity: in writing & usually with info re $ (payable by client or estimate of $ recoverable from other side) Dominion Metals Pty Ltd v Shemmession (SC(WA)) 1993 Unreported • Defendant went bush and was uncontactable, prior to leaving he advised his solicitor that his son could be used as a contact. Defendant’s son instructed solicitor to cancel the application on basis that each party pay their own costs. When defendant returned, he dismissed his solicitor and denied solicitor had authority to act as he did. Defendant tried to cancel the agreement. Warden in this case was a mining warden, not a court’s warden. Defendant’s solicitor contacted mining warden to settle. Mining warden does not have authority. Defendant cannot be held to the agreement reached by his solicitor. • • • New England Educational Services Inc v Silver Street Partnership • Negotiations between plaintiff and defendant’s lawyers to settle a dispute for discharge of mortgage to prevent foreclosure. Defendant expressly authorized $10,000 to settle. Offer was rejected and no other authority was given. Later, defendant’s lawyer entered into settlement agreement for $60,000. Defendant gave express authority to settle for $10,000, plaintiff cannot reasonably relied on this to assume attorney had authority to settle at $60,000. There was no apparent authority for attorney to agree to $60,000. Judgment was reversed. • • • In USA where client granted general power to settle without giving specific limits, the Court has held that is enough to constitute “express authority” to settle Smedley v Temple 782 F2d 1357 (1986). Von Schulz v Morriello (1998) 15 Qld 2 Queensland Court of Appeal • • Appellant instituted action in Supreme Court against respondents, their landlord and a pest control company, for poisoning with arsenic. Judge dismissed case and assigned mediator Mr. Hanger QC. My Hanger was busy so the solicitors agreed to an alternate mediator Ms Wilson QC. Mediation was attended Page 22 Ethics Week 6 Allen Hsu • • by all parties, solicitors and barristers. “Release Discharge and Indemnity” was signed by all parties at mediation. Appellant after failing to have respondent solicitor pay them directly sued his own solicitor for corrupt behaviour, acting for the defendant, further did not give express authority for solicitor to change mediator and all involved conspired against the appellant. No evidence was presented for the allegations of fraud or conspiracy. Appellant’s solicitors acted without impropriety, the orders show no error. There are no basis to challenge the agreement on ground of lack of authority. Motion dismissed with costs. Duty to Obey Barrister’s Rule BR 17 A barrister must seek to assist the client to understand the issues in the case and the client's possible rights and obligations, if the barrister is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connexion with any compromise of the case. BR 17A A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation. [Inserted Gazette No.7 of 21 January 2000, p.348 BR 17B A barrister must (unless circumstances warrant otherwise in the barrister’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.[Inserted Gazette No.7 of 21 January 2000, p.348] BR 18 A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client's and the instructing solicitor's desires where practicable. [Amended Gazette No. 66 of 20 June 1997 p 4552] R v McLoughlin and Isaacs (1985) 1 NZLR 106 • • Defendant convicted of rape and appealed. Defence was an alibi, during trial barrister was replaced due to limitations of legal aid, prosecutor had been briefed there were witnesses for alibi. When replaced barrister cross-examined witness, he stopped going for alibi and went for complainant’s consent instead. This was contrary to his instructions. Barrister’s reason was he thought witness was unreliable and a detriment to the case. Not the court to question barrister’s decision but barrister had no right to disregard his instructions. If barrister cannot follow client’s instructions due to ethical or obligation reasons, he must inform the client to change instructions or he will be unable to act further. Applicant was deprived of a fair trial and justice has therefore been denied to him. Page 23 Hardie Boys J: • • • Ethics Week 6 Allen Hsu • New Trial ordered. R v Birks (1990) 10 NSWLR 677 NSW Court of Appeal • A charge of malicious inflicting bodily harm with intent to having sexual intercourse was contested. Charge was vaginal, oral and anal intercourse, defendant instructed barrister that no anal intercourse took place and facial injuries were result of a reflex action, there was no intent. Barrister failed to cross-examine complaint on torch and anal intercourse, leaving the defendant with honesty issues. Barrister failed to do 2 things, matter concerning the torch and alleged punching, then the counsel’s lack of objection when defendant’s credibility was questioned. Defendant was a victim of miscarriage of justice. Appeal allowed. • • • • Pawlowski v Tottrup; Re Estate of Andrew Pawlowski (no2) (SC(NSW)) 1995 Unreported • If client instructs a solicitor to bluff to the last moment to get a settlement but then to call no witnesses and to seek an adjournment there is really nothing the solicitor can do but carry out those instructions. Solicitor should not make arrangements for a witness to leave work and come to court if the solicitor has reason to suspect that that witness believes that the witness will be paid witnesses expense by the solicitor, but the solicitor knows that his or her client cannot afford to pay or is not going to proceed with the case in any event. Solicitors carrying out his or her instructions cannot be guilty of misconduct, let alone serious misconduct. • • Guilty Pleas R v Turner (1970) 1 QB 321 Court of Appeal, England • • • • Turner claims he was pressured by his barrister to plea guilty. Mr. Grey exercised such pressure, he went beyond the bounds of his duty as counsel. Made appellant felt he had no free choice in the matter. The accused having considered counsel’s advice, must have a complete freedom of choice whether to plead guilty or not guilty. New trial ordered. Children and Clients with disabilities Cockburn v GIO Finance Ltd (CA(NSW)) 1996 Unreported • Plaintiff Michael McNally was a quadriplegic from a car accident when he was 15, he was paid $1.49 million in compensation. He signed a Mortgage and a Deed of Guarantee and Indemnity in favour of GIO for his father’s business. Michael was physically dependent on his father. Prior to signing, the solicitors for GIO did not diligently carry out their duty to advise plaintiff and to make sure he was not under undue pressure from his father. Colemans were found in breach of contractual retainer and GIO was also held liable. Page 24 • • Ethics Week 6 Allen Hsu Competence and care Ethical rules Client’s approach to competence is very different to lawyers. They are interested in whether their lawyer has achieved what they, the clients, sought; the fact that he lawyer did the job with skill may be irrelevant of the client does not see he desired outcome. Standard of care The general standard of care under tort for those practising law is o exercise the care, skill or diligence which would be expected of a reasonably competent legal practitioner under similar circumstances. This standard of care is also found as an implied term under the contract of retainer; thus, a breach of the contract will invariably also result in a tort action. Lawyers may breach their fiduciary duty to clients, which can result in professional negligence. This kind of breach involves problem of conflict of interest. Standard of care 3 important problems we need to deal with, they are: • • • Does a practitioner who follows the common practice within he profession meet the standard of care, even of the practice is unsound? How can a court determine common practice within he profession? What is the standard for practitioners who are deemed to be specialists, or who hold themselves out to be specialists? Civil Liabilities Act 2002 (NSW) §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. Edward Wong Finance Co Ltd v Johnson Stokes & Master (1984) 1 AC 296 • Plaintiff is bank that granted mortgage on a building to purchaser. The defendant is a solicitor that acted for the bank the solicitors paid the vendor’s solicitor in return for the title, it was known as “Hon Kong style of completion”, the vendor’s solicitor took the money and ran. Bank sued their own lawyer. Does the practice, as operated by the respondents in the instant case, involve a foreseeable risk? If so, could that risk be avoided? If so, were the respondents negligent in failing to take the avoiding action? Questions must be asked: Ethics Week 7 Allen Hsu Page 25 Dutchess of Argyll v Beuselinck (1972) 2 Lloyd’ Rep 173 at 183 HC England • Plaintiff retained the defendant solicitor, who was also an author, to advise her in relation to the publishing of her memoirs. The solicitor was known to have considerable experience and reputation for representing publishers and writers. Duty of care is not a warranty for perfection. At best, he case against the defendant is marginal, and a marginal case does not make negligence. Megarry J: • Pegrum and Pegrum v Fatharly • Mr. Pegrum was lending money to Mr. Wilkins. Respondent was Mr. Wilkin’s solicitor and was on what appears to be a retainer. Mr. Pegrum was assumed that the respondent would prepare the legal documents neutrally. However, the respondent did not make full disclosure to Mr. Pegrum of al that he knew or suspected about the inability of Wilkins to repay a loan and the worth of securities. The respondent was found guilty of breach of duty owed to Mr. Pegrum, and responsible for any loss sustained by Mr. Pegrum in consequence of that breach. He had to pay damages to appellant. # • The High Court has held that if a duty exists in tort it does no extinguish a cause of action in contract. Griffiths v Evans (1953) 1 WLR 1424 at 1427 Court of Appeal, England • • • Griffith was severely injured while at his place of employment. His solicitor advised him in relation to workmen’s compensation, but not in relation to his common law rights. He failed in suit for negligence and then appealed. Solicitor only considered claims under Workmen’s Compensation Act and failed o consider common law damages. The final judgment from the court was the solicitor was merely following instructions because the client asked about one area of the law. Citicorp Australia Ltd v O’Brien (1996) 40 NSWLR 398 NSWCA • O’Briens contracted with Hooker Homes P/L to purchase a house. A real estate agent, Mr. Roma from Hooker Homes recommended they employ Mr. Eliades for legal advice and to arrange finance for them for the purchase. Mr. Eliades calculated O’Briens had capacity to borrow $60,000 from Citicorp. In 1984 the O’Briens defaulted, sold the property for $70,000 and mortgage was discharged by paying $70,497.87 to Citicorp. O’Briens commenced proceedings requesting: 1. That the finance agreement and mortgage be declared void; 2. An order that Eliades and Citicorp pay compensation for loss suffered; and 3. Damages for negligence, or breach of duty against Eliades, who acted for both Hooker Homes and O’Briens on the mortgage. • • Bryson J found that there was a negligent omission by Eliades of the performance of his professional duty. Mr. Eliades cross appealed. In order to make such a case in negligence, the O’Briens were bound to prove that, if Mr. Eliasdes had advised them for the reasons suggested not to go on with the contract for purchase or finance, they would have acted on that advice. They gave no such evidence and in my opinion it was not open to his Honour to infer in the absence of any such evidence that the O’Briens would have taken some course other than the course they in fact take. Mr. Eliades’ cross appeal upheld and is entitled to judgment in the proceedings. Page 26 • • • Ethics Week 7 Allen Hsu Non-client liability Hill (t/a R F Hill & Associates) v Van Erp (1997) 142 ALR 687 HCA • The appellant solicitor was instructed to prepare the intended last will of her client. The client signed the will then died about 5 months later. The respondent, who was a beneficiary under the will, lost her bequest because the will was witnessed by her husband, which made the will void under §15(1) of the Succession Act 1981 (QLD). The appellant had known the status of the witness, and thus the respondent alleged that she was negligent. Solicitor’s duty is to his client, duty does not necessarily extent to third party in tort. Client comes to solicitor to make sure their intentions effective. If a solicitor cannot carry out the intentions of his clients then the solicitor is liable. Mrs. Van Erp suffered no loss, she simply failed to obtain a benefit to which she had no legal entitlement. However, by accepting the testator’s retainer, the solicitor enters upon the task of effecting compliance with the formalities necessary to transfer property from a testator on death to an intended beneficiary; it is foreseeable that, if reasonable care is not exercised in performing the task, the intended beneficiary will not take the property; the solicitor fails to exercise reasonable care whereby the formalities are not complied with. I hold Mrs. Hill liable in damages to Mrs. Van Erp. I would dismiss the appeal. Proximity no longer used to determine duty of care Appeal dismissed with costs. • Brennan CJ: • • • • • Gummow J: Hilton v Noss (SC(NSW) Giles J, No 5026/94, 16 May 1995, Unreported) • • Mr. Hilton and Miss Briscoe husband and wife decided to purchase Cabarita Hotel with Mr. & Mrs. Carver in company name (Hanover). Miss Briscoe wrote 2 cheques, $250,000 for her share of deposit and $261,865.50 for stamp duty which was made out to Commissioner of Stamp Duties or bearer and crossed “not negotiable”. She gave the cheques to Mr. Carver whom in turn gave them to Mr. Noss (solicitor). On date of settlement Mr. Carver was short of funds for settlement, so he instructed Mr. Noss to use the cheque intended for stamp duty. Mr. Noss was Carver’s solicitor not Hanover’s solicitor and he followed Mr. Carver’s instructions. Mr. Noss suspected the funds were Hanover’s, he failed to call Miss Briscoe for confirmation over the funds. Mr. Noss should not have done what Mr. Carver asked without doing so; the relationship was such that the solicitors owed to the plaintiffs a duty to take care that what might have been their contribution to the purchase of the hotel was not misused for the benefit of Mr. Carver. Judgment for plaintiff in amount of $511,965.50. • • • • Development of the immunity doctrine Saif Ali v Sydney Mitchell & Co (1980) AC 198 House of Lords • Ali, the passenger and Akram, the driver, were injured in a motor vehicle accident driven by Mrs. Sugden and owned by her husband. Ethics Week 7 Allen Hsu Page 27 • Ali and Akram retained Sydney Mitchell & Co, a firm of solicitors, which instructed a barrister to advise on the matter. The firm followed barrister’s advice, and proceedings were jointly commenced by Ali and Akram against Mr. Sugden. Mr. Sugden asserted that Mrs. Sugden had not been driving as his agent, and that Akram had been negligent and should be joined as a defendant. Again advice was sought who told them to join Akram and Mrs. Sugden as defendants. However, by this time it was too late to add them as defendants, because the limitation period had expired. When action against Mr. Sugden was unsuccessful, Ali commenced proceedings for negligence against his solicitors for failing to add the other two as defendants. The solicitors, in turn, sought to join the barrister in the action, which raised the question of the barrister’s immunity to the action. Failure in this case fell well outside the immunity area A barrister’s immunity from liability for what he says and does in court is part of the general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice; judges, court officials, witnesses, parties, counsel and solicitors alike. … what a barrister does outside court in advising about litigation or settling documents for use in litigation. Without the support of those additional grounds of public interest, as I have already indicated, I can find no sufficient reason for extending the immunity to anything that a barrister does out of court. It manifestly falls outside the limited extension of the immunity. • • Lord Wilberforce: • • Lord Diplock: • • `Abolishment of the immunity doctrine in England Hall & Co v Simons (2000) 3 All ER 673 House of Lords Lord Steyn: • Cab rank rule binds barristers but not solicitor advocates. It cannot therefore account for the immunity, of solicitor advocates. It is a matter of judgment what weight should be placed on the “cab rank” rule as a justification for the immunity. In any event, the “cab rank” rule cannot justify depriving all clients of a remedy for negligence causing them grievous financial loss. Secondly, analogy of immunity enjoyed by those who participate in court proceedings … Those immunities are founded on public policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues in the case. For these reasons they prevent legal actions based on what is said in court … this has little, if anything, to do with the alleged legal policy which requires immunity from actions for negligent acts. The only argument that remains is that the fear of unfounded actions might have a megative effect on the conduct of advocates. This is a mist flimsy foundation, unsupported by empirical evidence, for the immunity. Most importantly, public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is created that the law singles out its own for protection no matter how flagrant the breach of the barrister. The world has changed since 1967. The practice of law has become more commercialized: barristers may now advertise. They may now enter into contracts for legal services with their professional clients. They are now obliged to carry insurance. On the other hand, we live in a consumerist society in which people have a much greater awareness of their rights. If they have suffered a wrong as a result of the Page 28 • • • • • • Ethics Week 7 Allen Hsu provision of negligent professional services, they expect to have the rights to claim redress. It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence. • I would rule that there is no longer any such immunity in criminal and civil cases. In doing so I am quite confidence that the legal profession does not need the immunity. Of the 4 main grounds relied upon as justifying the immunity, only one seems to me to be capable of justifying the immunity, namely that to allow an action for negligence against the advocate for his conduct in earlier litigation is necessarily going to involve the risk that different conclusions on issues decided in the first case will be reached in the later case. In the ordinary case, an action claiming that an advocate has been negligent in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Only if the conviction has been set aside will such an action be normally maintainable. In these circumstances there is no need to preserve an advocate’s immunity for his conduct of a criminal case since, in my judgment, the number of cases in which negligence actions are brought after a conviction is quashed is likely to be small and actions in which the conviction has not been quashed will be struck out as an abuse of process. Lord Browne-Wilkinson: • • Retention of the immunity doctrine in Australia D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 HCA • • • The applicant was wrongly advised and pressured to pleading guilty to rape at his committal hearing. He later changed the plea at trial and was found guilty, but on appeal the verdict was quashed. At his new trial with different lawyers he was found not guilty. He now wants to sue the original lawyers – a solicitor retained by Victoria Legal Aid and the barrister briefed in the matter. The plaintiff’s legal advisors were protected by advocate’s immunity. While considering the reasoning in Rondel v Worsley as to why immunity should be maintained, Gleeson CJ said that such considerations are “marginally relevant as to whether immunity should exist” as well as the consideration that advocates must make decisions on the run. His Honour said: … the central justification for the advocates’ immunity os the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. • The decision has reconfirmed the decision in Giannarelli v Wraith which provides immunity for advocates in matters which might otherwise amount to negligence where such advice is “intimately connected” with the conduct of the cause in court. • Ethics Week 7 Allen Hsu Page 29 Confidentiality and Privilege General Principle Rationale – Full frank disclosure Source – lawyer/client relationship: • • • Contract – generally implied term of retainer Torts Equity   • General fiduciary relationship Receive information in good faith – protect it. Was communication in confidence? For limited purpose? Objective test. Not ended by termination of retainer or death of client. Parry-Jones v Law Society [1969] 1 Ch 1 at 9 Diplock J: “What we are concerned with here is the contractual duty of confidence, generally implied though sometimes expressed between a solicitor and client” Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287 Warren J: “Broadly speaking, there are three principles. First, the relationship between a solicitor and client is one of confidence that obliges a solicitor not to disclose information obtained during the course of the relationship without the express or implied approval and consent of the client. Second, the relationship between solicitor and client is a fiduciary one imposing obligations of confidence, trust and integrity. Third, in the proper administration of justice clients are entitled to the expectation that their confidence and trust with their solicitor will be maintained. Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 Lord Millett: “It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit. Ethical duty of lawyers concerning confidentiality Solicitor rules: SR 2. Confidentiality 2.1 A practitioner must not, during, or after termination of, a retainer, disclose to any person, who is not a partner or employee of the practitioner's firm, any information, which is confidential to a client of the practitioner, and acquired by the practitioner during the currency of the retainer, unless — 2.1.1 the client authorises disclosure; 2.1.2 the practitioner is permitted or compelled by law to disclose; or Ethics Week 10 Allen Hsu Page 30 2.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony. 2.2 A practitioner's obligation to maintain the confidentiality of a client's affairs is not limited to information which might be protected by legal professional privilege, and is a duty inherent in the fiduciary relationship between the practitioner and client. Barrister Rules: BR 103 A barrister must not disclose (except as compelled by law) or use in any way in the course of practice confidential information obtained by the barrister concerning any person unless or until: (a) the information has been published; (b) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or (c) the person has consented to the barrister disclosing or using the information generally or on specific terms. BR 104 A barrister must not disclose (except as compelled by law) or use confidential information under Rule 103(c) in any way other than as permitted by the specific terms of the person's consent. BR 105 A barrister will not have breached Rules 103 and 104 simply by showing briefs to a reader or to another barrister doing work as permitted by Rule 83, so long as the barrister has reminded the reader or the other barrister of barristers' duties of confidentiality including Rules 103 and 104. BR 106 A barrister who is shown a brief as a reader or under an arrangement covered by Rule 83 is bound by the same duties of confidentiality which bind the barrister whose brief it is, including the duties imposed by Rules 103 and 104. Grounds for disclosure Besides disclosure with consent of the client there are three exceptions where a legal practitioner may disclose without client’s express permission: 1. Compliance with the law O’Reilly v Commissioner of State Bank of Victoria (1983-84) 153 CLR 1 High Court approved the view that the duty of confidence is subject to and overridden by the duty of party to comply with the law; for example, a rule of court or a court order may compel disclosure. Disclosure pursuant to the provisions of a statute would fall into this category of case. 2. Waiver. An example of this is where the lawyer seeks to defend himself against a charge, claim or complaint of professional misconduct, usually instigated by the client. Lillicrap v Nadler & Son [1993] 1 All ER 724 Dillon CJ noted it was accepted that there is an implied waiver of the client’s right to privilege where the client brings proceedings for professional negligence against solicitor. He also agrres that a client who sues a solicitor and invites the court to adjudicate the dispute thereby waives privilege and confidence to the extent necessary to enable the court to adjudicate fully and fairly. Similarly, a disclosure by a practitioner for the purpose of seeking advice on an ethical matter or the assistance of another practitioner would not amount to a breach of confidence McKaskell v Benseman [1989] 3 NZLR 75. 3. Protection of others from physical or financial harm. Example would include knowledge that the client intends to commit a crime or a fraud. In these Ethics Week 10 Allen Hsu Page 31 circumstances, there is authority for the view that release of the information would not amount to a breach of confidence. It has been held that the name and, perhaps, the address of the client do not generally attract the privilege unless they are more than collateral to the relationship: • • • • • Cook v Leonard [1954] VLR 591 Southern Cross Commodities P/L (in liq) v Crinis [1984] VR 697 RE Cathcart (1870) 5 LR Ch App 703 Rosenberg v Jaine [1983] NZLR 1 R v Bell (1980) 146 CLR 141 In Z v New South Wales Crime Commission [2007] HCA 7 (28 February 2007) the High Court considered whether the communication of a client’s name or their contact details was a privileged communication. The appeal was dismissed by the majority on the grounds that 18B(4) of the New South Wales Crime Commission Act 1985 (NSW) required legal practitioners to furnish such information to the commission: Gleeson CJ: As a general rule, a requirement that a lawyer disclose the identity of a client will not necessitate disclosure of a confidential communication. There are, however, exceptional circumstances in which there is such a connection between a confidential communication and a retainer that disclosure by a lawyer of the identity of a client will disclose that confidential communication. Kirby and Callinan JJ: In light of the peculiar circumstances of his [the legal practitioner’s] retainer and its dominant purposes in this case, legal professional privilege attached to disclose of his client’s name and address … However, allowing this to be the case, §18B(4) of [the Act] presents an insuperable obstacle to the maintenance of the privilege. Legal professional privilege prevails over an obligation to produce the documents on subpoena unless the privilege is excluded or cut down by some statutory provision. § Trade Practices Commission v Sterling (1979) 36 FLR 244 Federal Court • • Lockhart J sets out the various classes of documents which attract legal professional privilege Legal professional privilege extends to various classes of document including the following: a) Any communication between a party and his professional legal adviser of it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; not withstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications Ethics Week 10 Allen Hsu Page 32 which are themselves privileged, or containing a record of those communications, or relate to information sought by the client’s legal adviser to enable him to advise the client or to conduct litigation on his behalf. e) Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party’s solicitor; or, even without any such request, or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. Exceptions to Confidentiality Client authorizes (SR 2.1.1) • • • Client consent – inferred for other lawyers in firm, or outside (brief counsel) E.g. Compliance with law – disclose case transactions over $10,000 (Financial Transaction Reports Act 1988 (Cth)) E.g. Compliance with law - 603 LPA 04 – lawyer must comply with a requirement to answer a question or to produce information or a document, in relation to disciplinary proceedings despite any duty of confidentiality. Permitted or compelled by law (SR 2.1.2) § Disclosure in circs – law would probably compel disclosure, despite client’s claim of legal professional privilege (LPP) and for sole purpose of avoiding probable commission OR concealment of a felony (SR 2.1.3) SR 34 – Client’s intention to disobey court order A.34. A practitioner whose client informs the practitioner that the client intends to disobey a court's order must: (a) advise the client against that course and warn the client of its dangers; (b) not advise the client how to carry out or conceal that course; but (c) not inform the court or the opponent of the client's intention unless: (i) the client has authorised the practitioner to do so beforehand; or (ii) the practitioner believes on reasonable grounds that the client's conduct constitutes a threat to any person's safety. Consequences of unauthorized disclosure • • • • Misconduct complaint Breach of contract Negligence Equity – breach of confidence Ethics Week 10 Allen Hsu Page 33 Difference between confidentiality and privilege • • • Confidential Information (CI) depends on contractual or equitable or professional duty owed to clients Legal Professional Privilege (LPP) depends on public policy CI is wider than LPP (LPP is a subset of CI) Dominant Purpose Test Until the case of Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, Australian law had adopted the “sole purpose test” as the basis for deciding which lawyer-client communications should be protected by the privilege: Grant v Downs (1976) 135 CLR 674. In that case, the majority (Stephen, Mason and Murphy JJ) put the test in terms of documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. In the same case, Barwick CJ at 676-7 proposed a broader test so as to include material brought into existence for the dominant purpose of obtaining legal advice. The “dominant purpose test” was also reflected in the provisions of the Evidence Act 1995 (Cth and NSW). Evidence Act 1995 (Cth and NSW) §118 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. §119 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. Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67 High Court of Australia • • Question of whether dominant or sole purpose test was reconsidered by HCA. In 1996, the plaintiff (Esso) commenced proceedings in the Federal Court, appealing against amended assessments of income tax for the five years prior to 1993. General orders for discovery were made in October 1996. In June 1997, the plaintiff filed and served a list of documents verified by affidavit. Privilege was claimed in respect of 577 documents. It was accepted that some of the documents had been brought into existence for the sole purpose of giving or receiving legal advice. • Ethics Week 10 Allen Hsu Page 34 • Plaintiff contended that “their disclosure would result in disclosure of a confidential communication made between [the plaintiff] and a lawyer for the dominant purpose of the lawyer … providing legal advice to [the plaintiff]” Foster J in Federal Court declared correct test for claiming legal professional privilege is the ‘sole purpose’ test as formulated in Grant v Downs. Appellant appealed to Full Court of the Federal Court. Full Court upheld Foster J’s decision. Plaintiff successfully appealed to High Court seeking declaration:  Gleeson CJ, Gaudron and Gummow JJ: … whatever test is adopted must be capable of being applied in practice with reasonable certainty and without undue delay and expense in resolving disputed claims … dominant purpose test was sufficient to defeat the claims for privilege in Grant v Downs, and Waugh … Reason why Barwick CJ preferred that test was that they were unable to accept, as either necessary or desirable, the apparent absoluteness and rigidity of a sole purpose test. The dominant purpose test should be preferred. It strikes a just balance, it suffices to rule out claims of the kind considered in Grant v Downs and Waugh, and it brings the common law of Australia into conformity with other common law jurisdictions. • • • • McHugh J in dissent says that by using the dominant purpose test Firstly, it would extend the area of privilege with the result that a party to litigation, and the court would have less access to relevant material. Secondly, it would impose a test that is not easy of application and which seems inconsistent with the rationale of legal profession privilege.8 Baker v Compbell (1983) 153 CLR 52 HCA • Deane J “The principle underlying professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential information” Dawson J “… legal professional privilege attaches … to communications made for the purpose of giving or receiving advice or for use in existing or anticipated litigation … The privilege cannot operate to put beyond the reach of the law, documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation.” Esso case came after this case, Esso is the authority. • • Restrictions on the privilege The common law has recognised a number of circumstances where legal professional privilege will not apply. It should also be noted that statutory provisions in the Evidence Act 1995 (Cth) provide for the adducing of evidence which might otherwise be protected by privilege. These include: • • • • Loss of privilege generally: §121; Loss of privilege by consent: §122; §123; Loss of privilege in the case of joint clients: §124; Page 35 Loss of privilege in criminal proceedings: Ethics Week 10 Allen Hsu • • Loss of privilege due to misconduct: §125; Loss of privilege in terms of related communications and documents: §126 Waiver The test for waiver of legal professional privilege at common law was enunciated by the High Court in Mann v Carnell (1999) 201 CLR 1 by the majority: Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Waiver is giving up of the right to maintain the privilege. It may be express or intentional, or imputed or implied by the circumstances; for example, by conduct: MAM Mortgages Ltd v Cameron Bros (No 2) [2001] 1 Qd r 47 per Wilson J at 47. In Hooker Corp Ltd v Darling Harbour Authority (1987) 9 NSWLR 538, Rogers J noted: A litigant may waive privilege directly through intentionally disclosing protected material. The conduct which, from time to time, has entailed this result has been the use by the privilege holder of some part of the privilege document. In such circumstances, fairness may require that privilege should be held to have been waived in respect of the entirety of the document. In Goldberg v Ng (1995) 185 CLR 83, the High Court by 3-2 majority (Deanne, Dawson and Gaudron JJ; Toohey and Gummow JJ dissenting) held that, while a socitor’s documents were initially protected by legal professional privilege, that protection was lost (in respect of equity proceedings brought against the solicitor by former clients) by imputed waiver of the privilege. Imputed waiver arose because the solicitor voluntarily produced the documents to the Law Society for the purpose of answering a complaint made against him. Goldberg was referred to by Young J in AWB Ltd v Honourable Terence Rhoderic Hudson Cole [2006] FCA 1234 at [143]-[146]. Goldberg and Goldberg v Ng Hango Holdings Pty Ltd and Ng (1995) 185 CLR 83 HCA • Ngs were clients of Goldberg and paid $100,100 to Goldberg whom later were unable to account for the monies. Mrs. Goldberg said the monies were to purchase diamond bracelet. Ng sought proceedings against Goldberg on 2 fronts in court and to the law society. Ng then sought to suppress documents claiming confidentiality. However, there was implied waiver when accusations were brought to Law Society, as Goldberg had to submit documents pertaining to details between Ngs and Goldberg. High Court from waiver was in place and Goldberg did not breach any confidentiality. • • • Ethics Week 10 Allen Hsu Page 36 Conflict of interest Clark v Barter (1989) NSW ConvR 55-483 It is well settled that a solicitor has a fiduciary duty to his client. That duty carries with it two presently relevant responsibilities. The first is the obligation to avoid any conflict between his duty to his client and his own interest – he must not make a profit, or secure a benefit, at his client’s expense. The second arises when he endeavours to serve two masters and requires … full disclosure to both. In Newman v Phillips Fox (1999) 21 WAR 309 Steytler J said justification for court’s intervention by the Court was based on 3 grounds: 1. For the purpose of confidential information; 2. Restraint from a breach of fiduciary duties in the context of a conflict of interest; 3. To control the conduct of solicitors as officers of the Court and to ensure the administration of justice is not brought into disrepute. There are four broad areas where potential conflict of interest may occur. • • • • Acting for both parties Conflict of interest of the lawyer and client Where lawyer is a potential witness Solicitor opposing a former client Acting for more than one party SR 9 9. Acting for more than one party 9.1 For the purposes of Rules 9.2 and 9.3 — "proceedings or transaction" mean any action or claim at law or in equity, or any dealing between parties, which may affect, create, or be related to, any legal or equitable right or entitlement or interest in property of any kind. "party" includes each one of the persons or corporations who, or which, is jointly a party to any proceedings or transaction. "practitioner" includes a practitioner's partner or employee and a practitioner's firm. 9.2 A practitioner who intends to accept instructions from more than one party to any proceedings or transaction must be satisfied, before accepting a retainer to act, that each of the parties is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner: (a) may be, thereby, prevented from — (i) disclosing to each party all information, relevant to the proceedings or transaction, within the practitioner's knowledge, or, (ii) giving advice to one party which is contrary to the interests of another; and (b) will cease to act for all parties if the practitioner would, otherwise, be obliged to act in a manner contrary to the interests of one or more of them. 9.3 If a practitioner, who is acting for more than one party to any proceedings or transaction, determines that the practitioner cannot continue to act for all of the parties without acting in a Ethics Week 11 Allen Hsu Page 37 manner contrary to the interests of one or more of them, the practitioner must thereupon cease to act for all parties. Moddy v Cox [1917] 2 Ch 71 Scrutton LJ: It may be that a solicitor who tries to act for both parties puts himself in a position that he must be liable to one or the other whatever he does … [It] would be his fault for missing himself with the transaction in which he has two entirely inconsistent interests and solicitors who try to act for both vendors and purchasers must appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relations puts upon them. Blackwell v Barroile P/L (1994) 51 FCR 347 A firm is in no better position than a sole practitioner if it purports to act for separate clients whose interest are in contention. If I purports to continue to act for both clients by imposing a qualification on the duties of partnership it thereby denies the respective clients the services the clients have sought from the firm, namely the delivery of such professional skill and advice as the partnership is able to provide. The lawyer, the client and vested interests Conflict can arise in situations where solicitors borrow from a client or have business dealings with a client and fail to make adequate disclosure to the client, or fail to arrange for the client to receive independent advice. The fact that the client suffers no loss is irrelevant to the question of whether, in these circumstances, there has been misconduct on the part of the lawyer. SR 10 10. Avoiding a conflict between a client's and a practitioner's own interest 10.1 A practitioner must not, in any dealings with a client — 10.1.1 allow the interests of the practitioner or an associate of the practitioner to conflict with those of the client; 10.1.2 exercise any undue influence intended to dispose the client to benefit the practitioner in excess of the practitioner's fair remuneration for the legal services provided to the client; 10.2 A practitioner must not accept instructions to act for a person in any proceedings or transaction affecting or related to any legal or equitable right or entitlement or interest in property, or continue to act for a person engaged in such proceedings or transaction when the practitioner is, or becomes, aware that the person's interest in the proceedings or transaction is, or would be, in conflict with the practitioner's own interest or the interest of an associate. SR 11 11. Receiving a benefit under a will or other instrument 11.1 A practitioner who receives instructions from a person to draw a Will appointing the practitioner an Executor must inform that person in writing before the client signs the Will — 11.1.1 of any entitlement of the practitioner or of a practitioner who is the attorney of the nominated executor to claim commission; 11.1.2 of the inclusion in the Will of any provision entitling the practitioner or of a practitioner who is the attorney of the nominated executor, or the practitioner's firm, to charge professional fees in relation to the administration of the Estate, and; 11.1.3 if the practitioner has an entitlement to claim commission, that the person could appoint as Executor a person who might make no claim for commission. Ethics Week 11 Allen Hsu Page 38 11.2 A practitioner who receives instructions from a person to — 11.2.1 draw a will under which the practitioner or an associate will, or may, receive a substantial benefit other than any proper entitlement to commission (if the practitioner is also to be appointed executor) and the reasonable professional fees of the practitioner or the practitioner's firm; or 11.2.2 draws any other instrument under which the practitioner or an associate will, or may, receive a substantial benefit in addition to the practitioner's reasonable remuneration, including that payable under a conditional costs agreement, must decline to act on those instructions and offer to refer the person, for advice, to another practitioner who is not an associate of the practitioner, unless the person instructing the practitioner is either: 11.2.3 a member of the practitioner's immediate family; or 11.2.4 a practitioner, or a member of the immediate family of a practitioner, who is a partner, employer, or employee, of the practitioner. 11.3 For the benefit of this rule: "substantial benefit" means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit. SR 12 12. Practitioner and client - Borrowing transactions 12.1 A practitioner must not borrow any money, nor assist an associate to borrow any money from a person — 12.1.1 who is currently a client of the practitioner, or the practitioner's firm; 12.1.2 for whom the practitioner or practitioner's firm has provided legal services, and who has indicated continuing reliance upon the advice of the practitioner, or practitioner's firm in relation to the investment of money; or 12.1.3 who has sought from the practitioner, or the practitioner's firm, advice in respect of the investment of any money, or the management of the person's financial affairs. 12.2 This Clause does not prevent a practitioner, or an associate of a practitioner borrowing from a client, which is a corporation or institution described in the Schedule to this Rule, or which may be declared by the Council of the Law Society to be exempt from this Rule. 12.3 A practitioner must not maintain a private finance company and invite, directly or indirectly, the deposit of money with the company on the basis of a representation that – 12.3.1 the money is repayable at call, or on short notice, if that is not assured when the money is deposited; or 12.3.2 that the deposit of the money is, or will be, secured, unless the money is specifically secured by an instrument identifying the lender, the amount deposited, and the security. 12.4 A practitioner must not borrow any money, or permit or assist an associate to borrow any money, from a private finance company which is operated or controlled by the practitioner or the associate of the practitioner. 12.5 A practitioner must not cause or permit a private finance company to pay to any depositors of money to the company a rate of interest on their deposits which is less than the rate charged by the company to borrowers. SR 37 37.Conducting another business 37.1 A practitioner who engages in the conduct of another business concurrently, but not directly in association, with the conduct of the practitioner's legal practice must ensure that the other business is not of such a nature that the practitioner's involvement in it would be Ethics Week 11 Allen Hsu Page 39 likely to impair, or conflict with, the practitioner's duties to clients in the conduct of the practice, and the practitioner must — 37.1.1 maintain separate and independent files, records and accounts in respect of the legal practice, and the other business; 37.1.2 disclose to any client of the practitioner, who, in the course of dealing with the practitioner, deals with the other business, the practitioner's financial or other interest in that business; and 37.1.3 cease to act for the client if the practitioner's independent service of the client's interest is reasonably likely to be affected by the practitioner's interest in the other business. 37.2 A practitioner will be deemed to be engaged in the conduct of another business where the practitioner, or an associate: 37.2.1 is entitled, at law or in equity, to an interest in the assets of the business which is significant or of relatively substantial value; 37.2.2 exercises any material control over the conduct and operation of the business; or 37.2.3 has an entitlement to a share of the income of the business which is substantial, having regard to the total income which is derived from it. Law Society of New South Wales v Harvey (1976) 2 NSWLR 15 • • Defendant, a solicitor who was also a director and shareholder in 3 companies in the business of property investment. Over period of years, clients of the defendant lent money to these companies at suggestion of the defendant. Defendant did not fully disclose extent of his involvement and in some cases did not disclose at all. Projects were risky, his clients were quite inexperienced in matters of business or investment, and so placed heavy reliance on defendant. The defendant did not advise any of his clients to seek independent advice before dealing with him. To disclose less than all that is material may positively mislead. Thus for a solicitor merely to disclose that he has an interest, without identifying the interest, may serve only to mislead the client into an enhanced confidence, that the solicitor will be in a position better to protect the client’s interest. A solicitor who constantly promotes dealings with various clients clearly misuses his position, and puts it beyond his capacity to observe his primary duty to his clients. A solicitor is a professional advisor, not a business consultant. If a solicitor does occasionally act in the role of a loanbroker, he will need to take special care to ensure that the relationship of confidence does not cloud the client’s judgment. The client must not be encouraged to assume that the solicitor has necessarily any special expertise in the commercial, as distinct from the legal concomitants, of the transaction under consideration. Extending over some years, the defendant, deliberately and for his own benefit, caused the affairs of his clients to be intermingled with his affairs and that, while supposedly acting for them he grossly preferred his own interests to those of his client’s. He used his position as solicitor to channel the money of his clients for use as the risk money in his own ventures, into which he put very little, and which involved substantial speculations in land. He recklessly disregarded the need to protect his clients’ property, by failing to provide adequate securities. Defendant concedes he failed in his duty to his clients, he contends that it was “inadvertent” and “innocent”. Both claims were rejected. Deliberately treating his Page 40 • Street CJ: • • • • • • Ethics Week 11 Allen Hsu clients’ moneys as providing reservoir for cheap risk moneys which otherwise might not have been obtainable for his ventures, in doing so he knowingly and recklessly abandoned his duty to his clients so far as observance of it might have resulted in the interruption of the flow of money required for his purposes. • • To have disclosed the truth to his clients or to have them seek independent advice could only have halted or slowed the supply of money. Struck off the roll, shall not be employed as solicitor. The Lawyer as a Witness A lawyer who is likely to be a witness in legal proceedings will have a conflict of interest with his role as a legal adviser. SR 19 19. Practitioner a material witness in client's case A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court. BR 87 87. A barrister must refuse a brief or instructions to appear before a court if: (c) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case; (d) the brief is to appear on an appeal and the barrister was a witness in the case at first instance; Corporate Systems Publishing Pty Ltd v Lingard [2004] WASC 24 Jenkins J: The court will also intervene to prevent a solicitor from acting for a party in proceedings in which the solicitor has an interest. Such an interest exists where a solicitor is aware that he or she may be called as a material witness in the proceedings. Opposing a former client To overcome the possibility of compromising the confidences of the former client, firms have used mechanisms such as quarantining of the former client’s information. These mechanisms are sometimes referred to as “Chinese walls” SR 3 3. Acting against a former client Consistently with the duty which a practitioner has to preserve the confidentiality of a client's affairs, a practitioner must not accept a retainer to act for another person in any action or proceedings against, or in opposition to, the interest of a person — (a) for whom the practitioner or the firm, of which the practitioner was a partner, has acted previously; (b) from whom the practitioner or the practitioner's firm has thereby acquired information confidential to that person and material to the action or proceedings; and that person might reasonably conclude that there is a real possibility the information will be used to the person's detriment. Ethics Week 11 Allen Hsu Page 41 Rakusen v Ellis Munday & Clarke [1912] 1 Ch 831 • Small firm of solicitors with 2 partners and appears they were running separate practice but under the same roof with exclusive services of some clerks. The partner does not know other’s clients. Plaintiff consulted one partner then terminated the retainer. Opposite side consulted the other partner who was unaware plaintiff had consulted the other partner. Judge granted an injunction to restrain solicitor from acting. Court of Appeal found that there was no risk of disclosure of confidential information and discharged the injunction. Case is authority for two propositions:   There is no absolute rule of law in England that a solicitor may not act in litigation against a former client; That the solicitor may be restrained from acting if such a restriction is necessary to avoid a significant risk of the disclosure or misuse of confidential information belonging to the former client. • • • • Court do not intervene unless “reasonable possibility of real mischief” Prince Jeffri Bolkiah v KPMG [1999] • • Accountant provided litigation support to former client – could they undertake work for another client with interest adverse to former client? Lord Millet: to restrain former solicitor from acting for another client: i. ii. • • Solicitor has confidential information release of which former client not consented & That information may be relevant to new matter in which interest of other client may be adverse to former client’s case. Court intervene unless satisfied no risk of disclosure or misuse of confidential information – must be real, not fanciful or theoretical but need not be substantial. Once (i) and (ii) are established, the burden shifts to defendant to prove no risk (Chinese walls don’t work here, we’re in Australia). Here, KPMG did not discharge burden. Tests • Depends upon the existence of the contract of retainer that was made in the first place, than upon the existence of confidences disclosed and meriting protection against misuse (McVeigh v Linen House Pty Ltd [1999] 3 VR 394 Batt JA referring to Phillips J in Holdsworth v MT & Associates Pty Ltd (Unreported, Supreme Court of Victoria, 1994)) Adopting a stricter test: Price Jefri Bolkiah v KPMG [1999] 2 AC 222 Lord Millett: Court should intervene unless it is satisfied that there is no risk of disclosure. Risk must be a real one, and not merely fanciful or theoretical. It need not be substantial. In my view, no solicitor should, without consent of former client, accept instruction unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest. In Australia, a more liberal test based on the “real risk of prejudice or mischief” was applied by Lee J in Fruehauf Finance Corp Pty Ltd v Feez Ruthming [1991] 1 Qd R 558. “real and sensible possibility of misuse of confidential information”  D & J Constructions P/L v Head (t/a Clayton Utz) (1987) 9 NSWLR 118 per Bryson J Page 42 • • • Ethics Week 11 Allen Hsu   •   • • Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357 per Ipp J Carindale Country Club Estate P/V v Astill (1993) 42 FCR 307 Mills v Day Dawn Block Gold Mining P/L (1882) 1 QLJ 62 Wan v McDonald (1992) 33 FCR 491 “stricter prohibition approach” based on the “possibility of an unwitting disclosure” Australian decisions that favour the stricter test of Prince Jefri Bolkiah v KPMG Pradhan v Eastside Day Surgery P/L [1999] SASC (FC) 256: Full Court held that the principles stated by Lord Millett should be applied. Newman as trustee for the estates of Littlejohn v Phillips Fox (1999) 21 WAR 309: Steytler J adopted a similar view. No real risk of disclosure test World Medical Manufacturing Corp v Phillips Ormonde and Fitzpatrick Lawyers (a firm) [2000] VSC 196: Gillard J suggested that, when a court is determining whether lawyer should be able to act against a former client, the following should be asked: 1. Is the former supplier of services regardless of profession, in possession of information provided by the former client which is confidential and which the former client has not consented to disclosure? 2. Is or may the information be relevant to the new matter in which the interest of the other client is or may be adverse to his own? 3. If the answers to the first two issues are yes, then is there a risk which is real and not merely fanciful nor theoretical that there will be disclosure? 4. If there is that risk then the evidential burden which is heavy, rests upon the provider of the services to establish that there is no risk of disclosure and this may be established in exceptional cases by the provision of “Chinese wall” but this is rarely of sufficient protection 5. Should a permanent injunction be granted? Australian cases that have adopted this test: • • • Zalfen v Gates [2006] WASC 296 per Newnes M Pott v Jones Mitchell [2004] QSC 48 McMurdo J Styles v O’Brien [2007] TASSC 13 per Holt M Following this case, Warren J in Spincode P/L v Look Software P/L [2001] VSC 287 also applied the “no real risk of disclosure” test. Injunction to stop lawyer or firm from acting for a plaintiff in earlier matters: • • Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath P/L [1995] 1 VR 446 Spincode P/L v Look Software P/L [2001] VSC 287 Chinese Walls Normally involve some combination of: • • • Physical separation of departments in firm Educational program Procedures Page 43 Ethics Week 11 Allen Hsu • • Monitoring compliance sanctions Ethics Week 11 Allen Hsu Page 44 The Adversary System Adversarial system – a mode of dispute resolution in which the competing claims of parties to a dispute are presented, usually by legal representatives who have no interest in the outcome of the dispute, to an impartial and disinterested third party with the power to impose an authoritative determination. Some tribunals are required to place as little emphasis on the adversarial approach as possible. Inquisitorial system – A mode of dispute resolution in which the judge may assume responsibility for determining how the competing claims of the parties are presented by their legal representatives. The inquisitorial system is much more prevalent in European courts (in the “civil law system) than in those which follow the Anglo-Australian (“common law”) tradition, which is usually described as adversarial. However, some quasi-judicial and administrative tribunals take an inquisitorial approach. In broad terms, adversarial system of conducting proceedings refer to a system in which the parties, not the judge, have the responsibility for defining the issues in dispute and for carrying the dispute forward. The adversary system further exposes itself to criticism when there is an imbalance between the skills and/or resources of one side or the other (Judge in Search of Justice (1987) University of New South Wales Law Journal 93, p95 Mr Justice Rogers) Whitehorn v R (1983) 152 CLR 657 at 682, Dawson J: A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. When a party’s case is deficient, the ordinary consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. Rules/Role of Advocacy • • • • • • • • • Duty to client (BR 16 – 17) (SR 23.A16 – 17B) Disinterestedness (BR 18 - 20) (SR 23. A 18 – 20) Frankness in court (BR 21 – 31) (SR 23. A 21 -31A) Delinquent or guilty clients (BR 32 – 40) (SR A32 34) Efficient administration of justice (BR 41 – 42A, SR 23.A15 -17B)) Integrity of evidence (43 – 50) (SR 23. A 43 – 50) Duty to opponent (51 – 58) (SR 23. A51 -58) Integrity of hearings (59 - 61) (SR 23. A61) Prosecutor’s duties (62 - 72) (SR 23. A 62 – 72) Duty of candour & frankness (13.16-13.18) Frankness in court Barristers Rules 21-31 Solicitor Rules 21-31 Duty to opponent Barrister Rules 51-58 Solicitor Rules 23 A.51 – A53 Ethics Week 13 Allen Hsu Page 45 Interference with witnesses/Integrity of evidence: No coaching BR 43 A barrister must not suggest or condone another person suggesting in any way to any prospective witness (including a party of the client) the content of any particular evidence which the witness should give at any stage in the proceedings. BR 44 • • General admonition to tell the truth, or Questioning/testing in conference the version of evidence to be given by prospective witness (including drawing witness’s attention to inconsistencies or difficulties with evidence); but No coaching nor encourage witness to give evidence different from evidence the witness believes to be true. • BR 54 A barrister must not deal directly with the opponent's client unless: (a) the opponent has previously consented; (b) the barrister believes on reasonable grounds that: (i) the circumstances are so urgent as to require the barrister to do so; and (ii) the dealing would not be unfair to the opponent's client; or (c) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom. BR 55 A barrister must not confer with or deal directly with the party opposed to the client unless: (a) the party, not being indemnified by an insurance company which is actively engaged in contesting the proceedings, is unrepresented and has signified willingness to that course; or (b) the party, being indemnified by an insurance company which is actively engaged in contesting the proceedings, is otherwise unrepresented and the barrister: (i) has no reasonable grounds to believe that any statements made by the party to the barrister may harm the party's interests under the insurance policy; or (ii) has reasonable grounds for the belief referred to in (i) but has clearly informed the party beforehand of that possibility; or (c) the party, being indemnified by an insurance company which is actively engaged in contesting the proceedings, is personally represented but not in the case and the barrister: (i) has notified the party's representative of the barrister's intention to do so; and (ii) has allowed enough time for the party to be advised by the party's representative. Prosecutor’s duties Barrister Rules 62-72 • BR 62 • • Fairly assist court arrive at truth Seek impartiality to have whole of relevant evidence placed intelligibly before court Page 46 Impartiality, must not “strive for conviction at all costs” – attain justice Rule 62-65 Prosecutor must: Ethics Week 13 Allen Hsu • BR 63 • BR 64 • BR 65 • Assist court with adequate submissions of law to enable law properly to be applied to facts Not press for conviction beyond full & firm presentation of case. Not seek to inflame/bias court Not argue any proposition of fact/law which P does not believe on reasonable grounds to be   Capable of contributing to finding of guilt & To carry weight BR 66 – Disclosure Prosecutor must as soon as practicable disclose all material (including names & means of finding prospective witnesses in connexion with material) relevant to guilt or innocence of accused (available to P or of which P becomes aware which could constitute evidence) Unless: a) Disclosure would seriously threaten integrity of admin of justice in those proceedings or safety of any person; and b) P reasonably believe threat could not be avoided by conditional disclosure (e.g. undertaking by opponent not to disclose material to opponent’s client or other person). BR 66A – Non disclosure (if not disclosed under Rule 66) P must consider whether: a) Defence of accused could suffer by reason of such non-disclosure; b) Charge against accused to which material is relevant should be withdrawn; and c) Accused should be faced only with a lesser charge to which material would not be so relevant. BR 66B Must call all witnesses: a) whose testimony is admissible and necessary for the presentation of the whole picture; b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; c) whose testimony or statements were used in the course of any committal proceedings; d) from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless: e) the opponent consents to the prosecutor not calling a particular witness; f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that: h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and Ethics Week 13 Allen Hsu Page 47 i) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision. BR 67 67. A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly: (a) inform the opponent if the prosecutor intends to use the material; and (b) make available to the opponent a copy of the material if it is in documentary form. BR 68 A prosecutor must not confer with or interview any of the accused except in the presence of the accused's representative. BR 69 A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor. BR 70 A prosecutor who has informed the court of matters within Rule 69, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court. BR 71 Prosecutor’s duties regarding sentencing. Defence Counsel • • No obligation to assist prosecution Entitled to assume a purely adversarial role towards the prosecution – based on:   The facts of the prosecutorial burden; and Defendant’s right to silence Delinquent or guilty clients Barrister rules 32 – 34 Solicitor Rules 23A32 – A34 The role of the judge Huang v University of New South Wales (No 3) (2006) FCA 626 Rares J: In Obacelo P/L v Taveraft P/L (1986) Wilcox J expressed that in a civil action, a trial judge has power to call a witness, even over the opposition of a party, but that discretion to take such a course should be exercised sparingly and with great care. Our system of justice involves, fundamentally, an adversarial process in which the court acts as an independent umpire, applying the law to its view of the facts elicited in evidence chosen and adduced by the parties, not the court. Ethics Week 13 Allen Hsu Page 48 Discipline The power to discipline lawyers is vested in the inherent power of the courts and by statute in the professional associations. They are: • • • • • A body, commissioner or ombudsman to receive the initial complaints and institute investigations; A committee to recommend dismissal of the complaint, minor sanctions or referral to a tribunal for more serious matters; A commissioner or ombudsman or a professional association’s council to dismiss the complaint, impose minor sanctions or refer the matter to a tribunal; A tribunal to deal with serious matters; and The right of appeal from the tribunal’s decision to the Supreme Court. Inherent power of the courts §590 Jurisdiction of Supreme Court The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Chapter, and extend to: (a) local legal practitioners, and (b) interstate legal practitioners engaged in legal practice in this jurisdiction. Myers v Elman (1940) AC 282 House of Lords Lord Wright: • Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such nature as to tend to defeat justice in the very cause in which he is engaged professionally. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. • Appeal Panel of the Legal Services Division of the Administrative Decisions Tribunal (NSW) upheld the decision of the tribunal below. It found that a barrister who uses abusive language that is disrespectful towards the judge and opposing counsel can still be found guilty of “unsatisfactory professional conduct” without being held in contempt. Statutory categories of misconduct Legal Profession Act 2004 (NSW) §496 Unsatisfactory professional conduct For the purposes of this Act: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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 Australian legal practitioner. §497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: Ethics Week 14 Allen Hsu Page 49 (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. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. §498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) 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, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. Common law categories of misconduct RE Veron; Ex parte Law Society of New South Wales (1966) 84 WN (NSW) (pt 1) 136 NSW Court of Appeal Herron CJ, Sugerman and McLelland JA: • When application is made to the Court to strike a solicitor off the roll for professional misconduct, the question for the Court is whether, having regard to the circumstances brought before it, it is any longer justified in holding out the solicitor in question as a Ethics Week 14 Allen Hsu Page 50 fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor. Kennedy v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 Rich J: • • A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law; it is enough that it amounted to grave impropriety affecting the solicitor’s professional character, and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his or her clients or the public. His fitness to continue on the roll must be judged by his conduct and his conduct must be judged by the rules and standards of his profession; his unfitness appeared when he did what solicitors of good repute and competency would consider disgraceful or dishonourable. Dixon J: • Serious and less serious misconduct Clyne v New South Wales Bar Association (1960) 104 CLR 186 HCA • • Rules of conduct can be divided into two classes One class are mainly conventional in character. (Breach of these written rules is less serious, as they regulate the conduct of members of the profession in their relations with one another; for example, advertising and retainer rules. The court says a breach of these rules would warrant disbarment only if it were shown to be “part of a deliberate and persistent system of conduct” Other class is fundamental. They are, for most part not to be found in writing … because they rest on nothing more and nothing less than a generally accepted standard of common decency and common fairness. • Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605 HCA • • • • Smith, barrister had been found to have lied to magistrate on a conflict of interest case. Court of Appeal had made a decision that his name be struck from roll of barristers. There is a difference between the rejection of a person’s evidence and a finding that he deliberately lied. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in present case, a rejection of the appellant’s evidence in the Court of Appeal led to a finding that he lied in Penrith Local Court. On other occasions, other evidence may be such a nature or of such weight that, in combination with rejection of some particular evidence, it will justify a finding more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence. • Inquisitorial aspects – candour and cooperation Malfanti v Legal Profession Disciplinary Tribunal • • Malfanti had been a solicitor for 26 years without any complaints. Complaints were: Ethics Week 14 Allen Hsu Page 51     • • • • • Deliberately misled his clients, the Law Society, the investigator and Hunt & Hunt over the purchase of shares; There were discrepancies in his trust account; He had intermingled hus funds with those of his clients; He had failed to obtain adequate security from one client for moneys loaned by the solicitor on behalf of other clients. This was a complaint alleged failure to repay a loan made to Malfanti by a Mr. Kabbara, it was money given to Malfanti to purchase shares. Mr. Kabbara gave evidence denying ever existed a solicitor-client relationship. There were no solicitor-client relationship that existed, Malfanti did not breach duty to client. As soon as Malfanti realized a debit in his trust account, he sought to have it rectified immediately without delay. Complaint dismissed. Complaints Complaints can be made to Office of Legal Services Commissioner (OLSC) • • • Receives complaints about NSW solicitors & barristers Co-regulate the profession with the Law Society of NSW and the NSW Bar Association – share responsibility for investigating complaints and education. 2 broad categories:       Consumer disputes capable of resolution by mediation Issues of professional misconduct or unsatisfactory professional conduct – investigation & may result in disciplinary OLSC 08-09 annual report: 2,851 written complaints. Of these, 1,724 = consumer disputes, 1,127 = investigations. OLSC dealt with 75.3% of all complaints received, balance referred to Law Society or Bar Association 9,122 calls on inquiry line Range of disciplinary outcomes – if OLSC is satisfied that there is a reasonable likelihood of a finding of professional misconduct – must prosecute in ADT. Phone inquiries to OLSC 08-09 • • • • • • Family law (18.9%) Civil law matters (11.7%) Conveyancing & probate/wills matters (11.6%) Most calls about solicitors (94.3%) Most calls from clients (66.9%) Most common issues raised by callers – communication breakdowns (20.6%) & costs disputes (17.5%) Unsatisfactory Professional Conduct OLSC can deal summarily with matters where the likely finding is one of unsatisfactory professional conduct rather than professional misconduct. OLSC may impose: • A caution; Page 52 Ethics Week 14 Allen Hsu • • • A reprimand; A compensation order; A practising certificate condition. Legal Professional Act 2004 (NSW) Chapter 4 • • • • • • • • • • Complaint in writing by any person (§504) to OLSC (§505) OLSC notify complainant of receipt of complaint (§504) Generally no later than 3 years after conduct (§506) Initial assessment (dismiss if frivolous) may require further information. Notify legal practitioner & seek submission (§508) Summary dismissal (§511) Refer complaint to Council of Law Society or Bar (§513) Refer consumer dispute (§515) to mediation (§§514-524) Investigation (§§525 – 536) Decision (§§537 – 542) (from summary dismissal/reprimand (§540) to immediate suspension (§548) to initiating proceeding in Legal Services Division of Council decision (§§543 – 547) Tribunal makes order it thinks fir (§662) An appeal lies to Supreme Court against a decision of the ADT (§729A) • • Legal Services Division (LSD) of Administrative Decisions Tribunal (ADT) • Hears applications for disciplinary orders from Law Society, Bar Council or OLSC. Practitioners may apply for review of disciplinary orders made by Law Society or Bar Council under the (lower tier) disciplinary powers vested in them by LPA. LSD may make various orders (s 562) including fines ( up to $10,000 for UPC, $75,000 for PM) Right of appeal direct to the Court of Appeal. Grounds of appeal are unconfined. Annual Report 08 - 09: LSD - 38 decisions • • • • Examples of ADT decisions in 2010 Law Society v Martin Practitioner falsely witnessed the execution of documents. OLSC referred to Council of Law Society to investigate – referred to ADT – Reprimanded, $6,000 fine Law Society v Gillroy Failure to pay employees' superannuation contributions, Group Tax & GST - Public reprimand, costs, undertakings: (a) Practice Management course (b)Ethics course, (c) Senior Solicitors Program (& 1 yr’s mentoring) Law Society v Wall Breach of trust account requirements – misappropriation – failure to account – instrument of consent - professional misconduct: Public reprimand & not permitted to hold unrestricted principal practising certificate (or become solicitor/director of any incorporated legal practice) for 3 years. (Thereafter any application for full practicing certificate to be accompanied by report from a psychiatrist/ clinical psychologist, certifying medical and psychiatric fitness to practise in such capacity. Ethics Week 14 Allen Hsu Page 53 Penalties, procedures and overcharging Imposition of penalties for professional misconduct or a lesser misconduct appears to have three main objectives: 1. To protect the public from corrupt or incompetent practitioners; 2. To protect the image and standing of the legal profession; and 3. To rehabilitate the practitioner. Some possible penalties • • • • • • • Strike a practitioner’s name off the Supreme Court roll; Impose a fine (upto $75,000; see §562(7) Legal Professional Act 2004 (2004) Cancel or suspend a practicing certificate (and impose related conditions as to reapplication); Impose conditions on a practitioner’s practicing certificate (e.g., supervision or trust account inspection and/or continuing legal education); Reprimand the practitioner; Order compensation to be paid to the aggrieved client (e.g., NSW under §571: up to $25,000) Order payment or part payment of costs The Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 NSW Court of Appeal Ethics Week 14 Allen Hsu Page 54 Veghelyi v the Law Society of New South Wales (1995 Unreported SC(NSW) Full Court) • Appellant was found guilty of professional misconduct by the tribunal and struck off the roll. The main charges were those of gross overcharging and appropriating moneys for professional costs for which he had no authority To be recognised that whether costs are fair and reasonable will depend upon – or at least be affected by – facts such as the size of the solicitor’s firm, the resources employed or available to be employed by it, the value which the lawyers place upon their skill and expertise, and the urgency of the client’s requirements. What is fair and reasonable for a large firm may be, in the ordinary case, grossly excessive for a sole practitioner. Appellant had charged $215,810. When asked to deliver a bill in taxable form he delivered a second bill totaling $347,496. On the second bill he charged $49,000 for the preparation of the bill in taxable form. Case of gross overcharging. Upheld findings of the tribunal. Mahoney JA: • • Priestley JA: • • In the matter of Saeed Asif Mirza (SC(SA), Full Court, 1996, Unreported) • • • • • Applicant was struck off the roll for administering an improper oath to his client. He used a dictionary instead of bible. Appellant was guilty of unprofessional conduct. It found he prevaricated and lied. He left South Australia for Pakistan whilst hearing was in progress, thus avoiding having to answer the allegations against him. He tried to explain due to his location (in remote Pakistan), his health and employment he was unable to return to answer allegations against him. Court found he knew or had the opportunity of discovering that he had been struck off the roll but he allowed the matter to remain dormant for 4 years. The application for readmission should be dismissed. Conduct outside professional practice Ziems v Prothonatary of the Supreme Court of New South Wales (1957) 97 CLR 279 HCA • • Ziems, a barrister, was found guilty of involuntary manslaughter and sentenced to 2 years goal. He had killed a motorcyclist while driving under the influence of alcohol. The court held that it was incongruous and impossible that the status of a barrister should be held by a person serving a sentence for such an offence, and ordered Ziems to be struck off the roll. A barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man’s general behaviour or inherent qualities. It is not a conviction of premeditated crime. It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connection with nor significance for any professional function. Page 55 Kitto J: • • • • Ethics Week 14 Allen Hsu • Such a conviction is not inconsistent with the previous possession of a deservedly high reputation and, if the assumption character and conduct satisfying its requirements, I cannot think that, when he has undergone the punishment imposed upon him for the one deplorable lapse of which he has been found guilty, any real difficulty will be felt, by his fellow barristers or by judges, in meeting with him and cooperating with him in the life and work of the Bar. Somerville v The Law Society of the Northern Territory (1995) 119 FLR 22 Full Supreme Court • Somerville applied for credit in excess of $500 and did not disclose that he was an undischarged bankrupt. As a consequence he was sentenced to 9 months’ imprisonment. Sentence was suspended upon the applicant entering into a recognisance in the sum of $2,000 to be of good behaviour for two years. During trial it was found the appellant made a false statement, knowing it to be false. The false statement found to have been made, and the circumstances in which it was made, demonstrate, in my view, a want of the probity to be expected from a legal practitioner. The misconduct in business dealings revealed in this case is more relevant to the question of fitness for practise than the manslaughter conviction considered in Ziems. • • • Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77 NSW Court of Appeal • Pangallo, a solicitor was convicted of bribing a public officer and sentenced to 6 months’ goal. The Prothonotary sought a declaration that Pangallo was guilty of professional misconduct and be struck off the roll. Pangallo resisted the orders sought, on the basis that he was not guilty of the offence and that he had only pleaded guilty to obviate the risk of custodial order. Firstly, by Pangallo pleading guilty and confirmed by Supreme Court judged in Court of Criminal Appeal then only to have the same judges in Court of Appeal to say that Pangallo was wrongly convicted hence innocent. This is absurd! Secondly, bribing an officer will lose public’s confidence as well as the court’s. Pangallo was removed from the roll • • • • A solicitor v Council of the Law Society of New South Wales (2004) HCA 1 HCA • • • • • Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. It is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. Personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. The molestation of children, the nature of the trust, and the circumstances of breach, were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous. No further sanctions required, order for removal from Roll be set aside. • Ethics Week 14 Allen Hsu Page 56