PRLE

Ethics __________________________________________________________________ 3
Types of Ethical Approaches _________________________________________________ 3

Law as a profession _____________________________________________________ 4

Impact on the profession of changes in the legal landscape ______________________ 5

Admission to Practice ___________________________________________________ 6

Educational requirement ____________________________________________________ 6 Character based requirement ________________________________________________ 8 Factors relevant to Good Fame and Character ________________________________ 8 Mitigating factors __________________________________________________________ 11

Requirements for practice _______________________________________________ 12

Entitlement to practise law premised upon practising certificate __________________ 12 Practice by interstate lawyers _______________________________________________ 12 Practise by foreign lawyers _________________________________________________ 13

Applicant for Readmission ______________________________________________ 13

Curial approach ___________________________________________________________ 13 Need for evidence of redemption and rehabilitation ____________________________ 13 Weight given to finding of tribunal that ordered removal _________________________ 14 Importance of candour upon readmission _____________________________________ 14 Time elapsed between removal and readmission application ____________________ 14 Readmission subject to condition(s) __________________________________________ 14

Creation of Lawyer-Client relationship ____________________________________ 15

Retainer as a contract______________________________________________________ 15 Terms of the retainer_______________________________________________________ 15 Parties to the retainer ______________________________________________________ 16 Proof of the retainer _______________________________________________________ 16

Authority of Lawyers under the retainer ___________________________________ 17

Lawyer as agent __________________________________________________________ 17 Forms of authority _________________________________________________________ 17

Lawyers acceptance of work ____________________________________________ 19 Counsels duty to accept a brief cab rank principle ________________________ 19
Grounds upon which counsel must or may decline a brief (NSW Barrister rules) ___ 20 Acceptance of work by lawyers who practise other than solely as counsel _________ 20

Termination of Lawyer-Client Relationship ________________________________ 21

Duty to complete work Doctrine of entire contract ____________________________ 21 2- Duty to be competent ____________________________________________________ 24

Duties of confidence ___________________________________________________ 25

Confidentiality_____________________________________________________________ 25 Undue influence ___________________________________________________________ 26

Duty to promote quality and client care ___________________________________ 26 Duty to promote access to justice ________________________________________ 26
Duty tied closely to the quantum of legal costs ________________________________ 26 7- Duty to encourage settlement _____________________________________________ 27

Enforcement of duties Remedies for breach of duty _______________________ 27

Breach of duties of competence _____________________________________________ 27 Breach of the duty of loyalty ________________________________________________ 28 Breach of duty of confidence ________________________________________________ 28

Lawyers Duty to Clients in Tort __________________________________________ 29

2- Scope of the duty of care_________________________________________________ 30 4- Barristers immunity from negligence _______________________________________ 37

Lawyer-Client Conflict and Influence _____________________________________ 38

Borrowing from clients (p148) _______________________________________________ 39 Lending to Clients (page 149). ______________________________________________ 39 4- Undue Influence by lawyer over client ______________________________________ 39

Acting against former clients ____________________________________________ 40 Confidentiality _________________________________________________________ 41 Privilege ______________________________________________________________ 43 Costs Disclosure ______________________________________________________ 48 Cost agreements ______________________________________________________ 51
Formalities for costs agreements ____________________________________________ 52

Solicitors Liens ________________________________________________________ 55

2- Retaining Lien __________________________________________________________ 56 3- Particular Lien __________________________________________________________ 59

Lawyers Duty to the Court ______________________________________________ 61

Lawyer as an officer of the court _____________________________________________ 61 5- Dealing with witnesses___________________________________________________ 66 6- Communications and relationship with judge ________________________________ 68

Duties specific to prosecuting lawyers ____________________________________ 70

Duty of Family Lawyers in Cases Involving Children ________________________ 77 Disciplinary proceedings against lawyers _________________________________ 78
3- Concept Of Professional Misconduct _____________________________________ 81

Disciplinary Procedures_________________________________________________ 84 Chapter 8 Acting for Former Clients ____________________________________ 88 Trust accounts, Practice types, Liens, Undertakings ________________________ 93
2- Trust Money __________________________________________________________ 94

Conduct of Practice ____________________________________________________ 99

Lawyer Advertising ________________________________________________________ 99 Restrictions on Lawyer Advertising __________________________________________ 99 Practice Names __________________________________________________________ 101 Practice Stationary _______________________________________________________ 102 5- Lawyer Business Structures _____________________________________________ 103 6- Mediation by Lawyers __________________________________________________ 106

Types of Misconduct __________________________________________________ 107

Chapter 1 The Concept of Professional Responsibility

Ethics Ethics derives from two Greek words, ethikos which means practice and custom and ethos which refers to character. To conform to the customs and character of the community meant that you were acting ethically. The modern definition is the science of morals or rules of conduct, or values and rules of individual conduct. Ethics also includes concern for the welfare of other which combines with an inner reflection. This latter enables lawyers to develop sensitivity to what is appropriate behaviour in a given situation. At its highest level ethical behaviour consists of universal principles (e.g. do unto others as you would want others to do unto you), while in everyday practice it is modified by special circumstances frequently based on practical necessity. Many of our decisions, when it comes to dealing with ethical problems are based on our personal values and convictions. The legal profession has adopted ethical codes and / or rulings, and that there are many other sources of law, including statutes and cases, governing our professional responsibility.

Types of Ethical Approaches

Moral Approach People feel obliged to act ethically out of a sense of moral conviction. While religion and spirituality are a source for moral conviction, there are people who accept that being ethical is an end in itself, requiring no further justification or incentive. Economic Approach Focuses not on conduct as being intrinsically neither good nor bad, but rather as giving rise to costs and benefits. Ethics reflect the method used to calculate and act on those costs and benefits and if this happens to coincide with enforcement policies of the regulator then it maybe concluded that the person is behaving ethically. Deontology A focus on the intrinsic moral nature of the action and comes from morality and ethical principles. Individuals can determine right or wrong independent of consequences. The principle of Deontology draws an analogy with natural law principles, particularly Kant, who believed in universal reciprocity, that is, individuals only do things that they would be happy with, and that totally rational humans could live morally. Utilitarianism The ethical view that the right conduct is achieved when an action or result leads to the greatest good for the greatest number if people.

Law as a profession
There are three common attributes of a profession:

1- Special skill and learning

Entry to the legal profession has been and continues to be restricted to those who have fulfilled certain academic and practical requirements.

2- Public service
Street CJ in Re Foster explains public service as:
A trade or business is an occupation or calling in which the primary object is the pursuit of pecuniary gain. Honesty and honourable dealing are, of course, expected from every man, whether he be engaged in professional practice or in any other gainful occupation. But in a profession, pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to this main purpose.

3- Self regulation
The attribute of a profession that it be autonomous and independent of outside control does not stand alone, but is a result of offering a public service and requiring special skill and learning.

The legal profession has often resisted attempts at external regulation, arguing that government does not understand the dynamics of the legal process and so should not interfere with the mechanism of justice. Recent times have witnessed, to this end, the steady reduction in the regulatory function of law societies and bar associations as professional bodies, in favour of a board constituted under statue and comprised partly of lay membership. For this reason statute in NSW created the office of the Legal Services Commissionerappointed on the recommendation of the Attorney-General, being a person independent of the profession who need not be a lawyer but is familiar with the nature of the legal system and legal practice-whose function includes receiving and investigating complaints regarding the conduct of lawyers.

Impact on the profession of changes in the legal landscape

Opening up legal or quasi-legal work to non-lawyers necessarily places the profession in direct competition, but successive governments have generally considered that increased competition for legal services will promote public benefit-ostensibly in the form of lower costs-rather than undermine it.

Impact of competition law

Application of competitive conduct rules The main provisions of the Trade practices Act that affect lawyers are those dealing with anti-competitive arrangements, chiefly price fixing and third line forcing. Scales of costs are seen as a form of price fixing, being an understanding between lawyers in competition with one another as to on the acquisition of other services from a third party as a condition of supply of services, is a concern in the context of a barrister who requires a particular junior to be briefed as a condition of accepting a brief. Such a practice is now generally prohibited by the barristers rules. Direct access to counsel and more flexible business structures It is reasoned that the rules requiring lawyers to practise as sole practitioners or in partnership deny competitive advantages and the limitation of liability inherent in a corporate structure. It, coupled with the traditional rule prohibiting the sharing of receipts from legal practices. Competition in the public sector Commonwealth departments and agencies have, since 1 July 1995, been free to choose their legal service providers for a broad range of legal services, such services being previously provided by the Attorney-Generals departments or in-house lawyers in other departments. In a further initiative designed to increase efficiency and competitiveness in the public sector, in 1999 a new statutory authority, the Australian government solicitor (AGS), was established. The newly established authority was financially independent from the commonwealth ensuring it resembled a private firm in many ways. This was designed to allow private and public legal service providers to compete and reduce costs and most importantly improving quality.

Impact of changes in societal attitudes and perceptions

Consumerism and affluenza The advice or service of professionals is less respected in the public mind than in the past; professionals greater knowledge and experience in their field provides no shield against customer dissent. And consumerism carries with it the right to complain where a service does not meet the standard expected by, usually, an uninformed client. It may also translate into a more cynical view of the profession and its motives. This is not to suggest that lawyers have ever been exceedingly popular, but the evidence shows that consumerism has, amongst other things, inclined the public mind further against the profession. Two social commentators have branded contemporary consumerism affluenza, reflecting on what they view as a consumption binge grounded chiefly in credit. This is expressed in simple terms as greed. A leading American commentator, in this respect, has noted that [o]f all the traits the public dislikes in attorneys, greed is at the top of the pecking order. The standards the public exhibits thus differ from those it expects of its lawyers. Both the law and public expect lawyers to exhibit the basic ethical attributes of unselfishness and honesty, without necessarily reflecting these attributes themselves. Regulatory trend The profession is subject to considerable regulation directed at ensuring it does not behave like any other business. Aside from the copious general law requirements imposed on lawyers apart from the strict application of fiduciary proscriptions, lawyers are unique in the general laws ability to set aside cost agreements statute increasingly expects of lawyers standards of behaviour not mirrored in other service providers. No other service provider is, for example, subject to modern costs disclosure obligations or subject to a process of costs revision. These regulations and common practice are likely to result in fewer client complaints, conflicts or a reduction in client expectations. Lawyer dissatisfaction Many lawyers are dissatisfied with this choice of profession. Likely this resulted in high rates of depression, anxiety, drug use, divorce and suicide. Much of this dissatisfaction is a result of excessive workloads, pressure to attract clients and the competitive marketplace.

Chapter 2 Admission to Practice

Requirements for Admission
Educational requirement

Educational requirements are divided into two components: 1. Academic (completion of territory academic course of law in Australia) 2. Practical (PLT course)
24 Eligibility for admission

(1) A person is eligible for admission only if the person is a natural person aged 18 years or over and: (a) the person has attained: (i) approved academic qualifications, or (ii) corresponding academic qualifications, and (b) the person has satisfactorily completed: (i) approved practical legal training requirements, or (ii) corresponding practical legal training requirements.
Section 94 of the LPAR states:

A person is eligible for admission as a lawyer if he or she has satisfied: (a) the academic requirements for admission, (b) the practical training requirement for admission and (c) such test of the English language competence as the Board from time to time by resolution prescribes. Academic requirements The academic requirements involve a completion of a tertiary academic course in Australia, including the equivalent of at least 3 years full time study of law that is recognised in at least one Australian jurisdiction. Under the Legal practitioners Admission rules 2005 (LPA), r.95 states: (1) The academic requirements for admission are: (a) completion of a tertiary academic course, whether or not leading to a degree in law, which includes the equivalent of at least three years full-time study of law and which is recognised in at least one Australian jurisdiction as providing sufficient academic training for admission by the Supreme Court of that jurisdiction as a lawyer, and (b) completion of courses of study, whether as part of (a) or otherwise, which are recognised in at least one Australian jurisdiction, for the purposes of academic requirements for admission by the Supreme Court of that jurisdiction as a lawyer, as providing sufficient academic training in the following areas of knowledge: (11) Criminal Law and Procedure Torts Contracts Property both Real (including Torrens system land) and Personal Equity * Administrative Law Federal and State Constitutional Law Civil Procedure Evidence Company Law

 Professional Conduct Practical Legal Training The practical requirements for admission are the successful completion of at least one years clerkship with a lawyer, a recognised practical training course (PLT), or a combination of the two.

Character based requirement

The basic character is good fame and character. Reasons for Character based requirements Held out as fit to be entrusted by the public with their affairs and confidences The public can be confident

Responsibility for character assessment The court must be confident of an applicants good fame and character Exercise a responsibility to the public and the profession not to accredit persons as worthy of that confidence who cannot establish the right to it.

Good fame and character Fame focuses on an applicants reputation in the public arena(Tziniolis), whereas, Character involves a more objective evaluation relating to an applicants quality, judged his/her former acts and motives (Tziniolis)

Admission pursuant to the mutual recognition regime The Mutual Recognition Act 1992 (Cth), is designed to establish the legal framework for the mutual recognition by the states and territories of each others differing regulatory standards regarding goods and occupations.

Section 17(1) of the Act states:

[A] person who is [admitted] in the first state for an occupation is, by this Act, entitled after notifying the local [admission] 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 state.

Factors relevant to Good Fame and Character

The main factors that impact upon an applicants goods fame and character include:

i. Previous criminal behaviour (s 9(1)(c) of the LPA) Previous criminal convictions are clearly relevant to an applicants fame and character. Not all criminality prevents admission; it depends on the nature of the crime(s), how long ago it occurred, and if the applicant has been rehabilitated in the intervening period. Thomas v Legal Practitioners Admission Board [2005] 1 Qd R 331: the applicant committed 9 offences over 3 months involving the misappropriation of a total of $8,640 of his employers money. The court held that fraudulent misappropriation on that scale suggests present unsuitability to practise in a profession in which absolute trust must be of the essence. A court may be more inclined to overlook a prior conviction, even for dishonesty where it arose out of events occurring when the applicant was very young, and was the result of immaturity. Re Owen [2005] 2 NZLR 536: the applicant had earlier in life been convicted for numerous offences, including burglary at ages 25 and 27. However he turned over a new leaf at age 30, seeking admission at 38 the court was satisfied that his character had been reformed.

ii. Previous improper conduct in the curial process

An applicants previous behaviour in the course of litigation is relevant to her or his fame and character, especially, especially where that behaviour, had it been engages in by a practising lawyer, would have attracted disciplinary sanction. For example were an applicant made false statements or relayed false evidence, or swore false affidavits. This is inconsistent with the requirements of good fame and character for admission as a lawyer. Jackson v Legal Practitioners Admission Board [2006] NSWSC 1338: the applicant made a false statutory declaration and relayed false evidence a decade from the proceedings even though she was not convicted of any offence of these events.

iii. Previous Improper conduct in the course of a profession or employment.

An applicant that has been disciplined while practising law is directly relevant to his/her good character and fame, however practising another profession or trade may be relevant when determining whether he/she is fit and proper for admission. Re Hampton [2002] QCA 129: Former registered nurse applied for admission as a solicitor. He was charged for inappropriate behaviour with female patients however no conviction was recorded. He also showed no candour of his previous conduct when applying for admission as a lawyer. It was held that his improper conduct and failure to disclose his past raises doubt in his fitness for practise.

iv. Infirmity
It affirms the need to protect the public from an unsuitable or mentally unstable person in handling their affairs. It is relevant whether or not an applicant should be admitted.

S v Legal Practice Board of WA (2004) 29 WAR 173: It was held that if an applicant suffers depression sufficiently sever and longstanding as to potentially leas to the neglect of client affairs, it is an issue relevant to fitness.

v. Non-disclosure of prior impropriety upon admission

In making its determination as to an applicants fame and character upon admission, the court relies heavily on the advice of the relevant admission board. Admission boards do not usually engage in investigations, however rely on affidavits by lawyers, objections to admission and applicants own assertions of good fame and character. Importance of complete candour and disclosure An applicant must be candid in relation to his/her prior behaviour or experience that may impact negatively on fame and character. It refers to failure to disclose conduct that should have been disclosed can prevent admission even though the conduct was not serious enough to prevent admission. Non disclosure is the main ground for lack of good fame and character, where honesty and candour is expected when practising as a lawyer. If an applicants non disclosure was not one of secrecy but of oversight and mistake then the court may consider admission. Disclosure of criminal convictions Full disclosure must be made if an applicant has criminal convictions. Re Davis (1947) 75 CLR 409: it was discovered after 1 year after being admitted as a barrister, Davis had not revealed in his application that he had been convicted of breaking, entering and stealing when he was 21 yrs old. HCA held that this was not a fit and proper person to be a made a member of the bar and that the bar is no ordinary profession or occupation. Dishonesty so grave is incompatible with the admission to the bar. Disclosure of criminal charges Full disclosure must be made if an applicant has any criminal charges. This deals directly with the facts surrounding the charge which impacts upon an applicants fame and character. Frugtniet v Board of Examiners [2002] VSC 140: [c]harges may be laid incorrectly, and acquittals must be respected as such, but the facts which give rise to the charges may ... bear upon a persons fitness to practise. Disclosure of prior professional disciplinary proceedings Previous professional disciplinary proceedings must be disclosed. Morrisey v New South Wales Bar Association [2006] NSWSC 323: Mr Morrissey was disbarred in 2003 in state of Virginia. He applied for admission as a barrister in NSW January 2005. There was no question about his skill and experience. Question was

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raised as whether he is fit and proper person to be admitted as a legal practitioner. In Virginia he acted improperly on a personal injury claim, he failed to act properly in the service of his client. It was held that Mr Morrissey was not a fit and proper person to be admitted as a legal practitioner and that his character is marked by wilful disobedience of court orders and rules, episodes of violence and a failure to make appropriate disclosure and a lack of candour when dealing with colleagues. This was shown when Morrissey threatened to kick the defence lawyers ass. The defence lawyer said M touched his face. M also did not disclose evidence to the court, in which violate 2 disciplinary rules and his license was suspended. He returned to practice in 1994 and in 1997 he was convicted of contempt following an angry outburst to a judge. M was also found guilty of battery and assault against his contractor. The court noted...the evidence clearly establishes that M has exhibited a pattern of disrespect for the judiciary, rules of practice, and the laws of the cth. He has been repeatedly sanctioned for his misconduct. M has displayed lack of candour and dishonesty in dealings with the court and as an officer of the court. If M made a complete disclosure he may have been admitted....nothing but the full glory truth will do (R Auckland). The Morrissey judgment is a stark reminder of the need for and obligation on all members of the profession to act with integrity and honesty. This is essential for the legal profession to play its proper role in the judicial system and to retain the respect of the community it serves. Disclosure of academic misconduct Findings of misconduct, unlike criminal charges are not on the public record. Applicants therefore carry a greater onus to make full disclosure of such findings, especially where they impinge upon issues of honesty. Re OG (2007) 18 VR 164: OG and GL both received grade 0 for an assignment in law school as they did it together. Their assignments were the same, this is academic misconduct. OG was admitted as a lawyer, however when GL went to be admitted he declared some info about this academic misconduct. But he wasnt entirely truthful. OG did not when he was admitted disclose this academic misconduct. GL after not exposing the truth in the first place decides to tell the truth. GL was aware that his behaviour was an issue. It could be said that he possible was aware of competing values, but his decision was firstly not to expose the entire truth. He wanted to say a little bit about the issue and get away with it. OG says he did not know of the issue. He was however aware of the issue. He could have been unaware of the competing values but he did not implement the decision to do the right thing. OG was truck off the roles for failure to make full disclosure to Board of Examiners. Mitigating factors

1-Age at which misconduct occurred and subsequent redemption

What may influence the court in favour of the applicant in relation to admission is that the act was committed at a young age. Ex parte Leneham (1948) 77 CLR 403: In this case the applicant disclosed his dishonesty and appealed successfully to the HCA. The HCA found that since 20 years when the dishonest act occurred, since then he has led an exemplary life, including war service. He had been excused what he had done in his youth. Re B (1981) 2 NSWLR 372: Applicant had during her university days been convicted for various offense including obscene publication, trespass, damage to property and using

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obscene words. She had also published material that evidenced her defiance of the law. This alone would not have been enough to prevent her admission however right before admission she was a party to a dummy bail agreement where she pledged money of a prisoner pretending that it was her own. It was held that the question was whether a person who aspires to serve the law can be said to be fit to do so when it is demonstrated that in the zealous pursuit of political goals she will break the law.

2-External stressors at time of impropriety

That an applicants previous improperties are explainable by external and extreme stressors that are most unlikely to be replicated in legal practice may incline the court not to refuse admission. Prothonotary v Del Castillo [2001] NSWCA 75: That an applicant had been tried for murder but found not guilty. He had lied to his solicitor and the police and given a series of bad instructions. He was rejected by ACT admission board but allowed in NSW. It was held that although the conduct was inappropriate, their Honours did not see it to reveal a lack of standards because [h]is conduct stemmed from a sudden response to a wholly unforeseen calamity placing extraordinary pressures on him nearly ten years ago.

Requirements for practice

Entitlement to practise law premised upon practising certificate In addition to admission to practice, the prerequisite as a lawyer is the issue of a practising certificate. This is to distinguish an Australian lawyer from an Australian legal practitioner. This ensures that the public receive legal advice only from those who are properly qualified and fit and proper in every respect. Section 14 and 15 of the LPA states: 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. 15 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled (1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. Maximum penalty: 100 penalty units. Practice by interstate lawyers Previously, a lawyer who lacked a practising certificate issued in the jurisdiction and who engaged in the practise of law within that jurisdiction was at risk of being found to have engaged in unauthorised practise, although he or she held a practising certificate in another Australian jurisdiction. Until recently, a national practising certificate scheme has come into effect in the legal profession legislation.

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Practise by foreign lawyers The legal profession legislation other than in SA makes provision for practise within Australia of foreign lawyers, subject to registration and limitations on their scope of work. The legislation encourages the internationalisation of the legal services sector by providing a framework for the regulation of the practice of foreign law in Australia by foreign registered lawyers as a recognised aspect of legal practise in Australia. It prohibits a person without an Australian practising certificate from practising foreign law in an Australian jurisdiction unless he or she is: A registered foreign lawyer and practises foreign law in accordance with the statutory limitations; or A foreign lawyer who practises foreign law within the jurisdiction for a limited period without establishing an office or commercial legal presence in the jurisdiction.

Applicant for Readmission

Curial approach A person who has been struck off from legal practise may apply to be readmitted. Success on this application is premised on a court being satisfied on solid and substantial grounds that the applicant is fit to be granted the privileges and assume the responsibilities incident to readmission. The onus is a heavy one, as an applicant for readmission, unlike an original applicant, must displace the decision as to unfitness that led to her or his removal. Need for evidence of redemption and rehabilitation In an applicants case of readmission, there must be evidence of efforts made to reestablish her or himself, and to redeem her or his reputation before the profession and in the eyes of the public. On readmission, the court looks not only for an applicant who has expressed regret for the former misconduct but one who has understood its wrongfulness. Evatt v NSW bar association 1981: Evatt a barrister had been struck off by the HCA in 1968. This was his 3rd application for readmission. He charged brief fees beyond the recognised standards and unjustified professional fees. The respondents failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where in practice the client must depend upon the standards as well as the skill of his professional advisor. He was now regarded after 13 years fit and proper person to be readmitted to the roll. Also long delay in effecting the restoration may keep the court in query of the applicants motivation.

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Re S [1985] VR 343: an applicant was struck off for dishonesty. 20 years later the applicant applied for readmission. Kaye J held that whether the lapse of time was made out of a sense of repentance, remorse but rather self interest. His honour refused the application. Weight given to finding of tribunal that ordered removal An applicant must evidence in his/her actions that he/she addressed their failings that led to her/him being struck off. Importance of candour upon readmission A lack of candour on an application for readmission will as a result prejudice the application, especially if the lawyer was struck off for lack of candour in the first place. Time elapsed between removal and readmission application The elapsing of a very short period will usually be insufficient to substantiate rehabilitation. Even the passage of a long time does not by itself satisfy a court of rehabilitation. (Refer to Re S above). Readmission subject to condition(s) Where it elects to impose a condition or undertaking on readmission, it is usually directed at monitoring what had caused the lawyers downfall. Conditions may be set to expire at a certain date. Re Taylor [1997] 1 Qd R 533: a solicitor was readmitted on a condition that he not practice on his own account or in partnership because or earlier trust account defalcations. The court removed this condition after 5 years upon evidence that he had practised without fault.

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Lawyer-Client Relationships
Chapter 3 The Lawyer-Client Relationship

1- Creation of Lawyer-Client relationship

Retainer as a contract
Retainer is the term used to describe a contract between a lawyer and client for the provision of legal services (Wong), and so must be proved like any other contract. Without the elements of a contract, there is no retainer. Practical restrictions apply to the lawyers ability to terminate the retainer via the doctrine of entire contract. The retainer identifies the client and services expected of the lawyer. It also determines the scope of the lawyers authority in carrying out those instructions. A lawyer owes no tortuous duty to advise a client on matters outside the boundaries of the retainer. Fiduciary duties owed to the client, are temporally coincident with the duration of the retainer, as lawyers do not ordinarily owe continuing fiduciary duties of loyalty to former clients. The retainer attracts duties of confidentiality, usually via an implied term, where confidentiality of information continues even beyond termination of the retainer. If there is no retainer, the lawyer has no contractual claim to costs and disbursements from an alleged client. The retainer also determines the lawyers acts and omissions when coverage of professional indemnity insurance.

Terms of the retainer

Express terms The retainer may include both express and implied terms. Usually, express terms are documented in writing, in which case their scope is determined, like any other contract. It is usually the lawyer who drafts the retainer and It is reasoned that the lawyer should not by virtue of her/his often stronger position receive the benefit of an ambiguous expression. Implied terms Various terms are implied into the retainer as a matter of law, giving effect to the nature of the relationship. The basic implied term requires the lawyer to use her or his best endeavours to protect the clients interest and to exercise reasonable care and skill in carrying out by all proper means the clients instructions in the matters to which the retainer relates.

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Also implied are issues of confidentiality and client termination of the retainer. To note any ambiguous terms in the retainer are constructed against the lawyer ( owners-strata plan number 45205)

Parties to the retainer

Importance of identifying the client The client will retain the lawyer to perform legal services. The lawyer should make it clear of who he or she acts. In the case of joint clients, a lawyer must ensure that their authority to act represents the joint will of the clients. (Ford) Retainer agreements with Counsel The Bar has ruled that Counsel be retained by a solicitor and not directly with the client. (livesey) Had barristers been professionally entitled to accept a retainer directly from a lay client, there would have been little reason in principle to deny contractual force to the relationship so created. (NSW rule 24b)

Proof of the retainer

Proving the existence of a retainer is easiest where it is written and signed. Oral retainers As the person alleging the existence of a contract bears the onus of proof, a lawyer alleging the existence of a retainer that is not in writing must adduce evidence in the form of words and/or conduct of the parties sufficient to satisfy a court that the retainer alleged in fact existed, or that an existing retainer has been varied in a particular way. The lawyer must overcome 4 main evidential difficulties: 1. Evidence of conduct 2. Passage of time; forgetful of details and relevant events 3. Proof of an agreement; does not in itself serve to define its exact scope. 4. Lawyers word against that of the client; the court usually sides with the client. Denning LJ in Griffiths v Evans, who reasoned that the word of the client is to be preferred to the work of the solicitor because the client is ignored and the solicitor is, or should be, learned, and that a lawyer who does not take precaution of getting a written retainer has only himself to thank for being at variance with his client over it and must take the consequences. Implied retainers Retainers need not be created by express words, whether written or oral; their existence can be inferred or implied from the circumstances. (Pegrum) The alleged client may bear the onus of proving the retainer where he or she wishes to make the lawyer accountable for breaching a duty, whether legal or equitable. If the alleged client succeeds in the finding of a nonexistent retainer, the client must establish a causal link between its breach and loss the client has suffered.

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The lawyers files and diary notes, especially regarding how he or she has referred to and dealt with the claimant, may prove useful. Pegrum v Fatharly (1996) 14 WAR 92: the question was whether there was an implied retainer between the appellants and respondent. It was held that in regard to the contractual relationship between solicitor and client: the relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the 2 parties shows that the relationship of solicitor and client has in fact been established between them. Objective test is applied in determining whether an implied retainer has been created and what the terms are under that contract.

2- Authority of Lawyers under the retainer

Lawyer as agent
An agency is defined as an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties (Petersen). The lawyer-client relationship is one of an agency, whether to create legal rights and obligations for the client, affect those rights and obligations, or as only an authority to represent the client.

Forms of authority
Authority takes two main forms: 1. Actual authority 2. Ostensible authority Actual authority Actual authority has been defined as a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is determined by applying the ordinary principles of construction of contracts, including referring to express words used, and trade usages, and the course of dealings between the parties. An agent who acts within her or his actual authority binds the principal; having authorised the agent to act in a certain way, the principal cannot dispute the consequences of the agents acts within the authority. Ostensible (or apparent) authority

An agent may appear to have authority he or she lacks, but usually by virtue of being held out by the principal as authorised to act in a certain position. Where this is so, it is unfair to cast upon the third party with whom the agent is dealing the consequences of a lack of actual authority, in part because it is the principal who has, in a sense, been responsible for conveying the incorrect impression that the agent was authorised to act in the circumstances. For this reason, the law recognises the concept of ostensible (or

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apparent) authority, pursuant to which the principal is bound to the third party regarding acts within an agents ostensible authority, even if they fall outside actual authority.

Lawyers actual (express or implied) authority

The terms of the retainer usually dictate the scope of the lawyers representation, and in turn determine the scope of the lawyers authority as an agent of the client. Where a lawyer is unsure whether or not an act is within their actual authority should seek written authority from their client. The retainer also carries with it the implied authority to do all things incidental to the object of the representation. A lawyer, it is said, is the general agent of the client in all matters which may reasonably be expected to arise for decision in this cause. It would be impossible and costly to refer ever single matter to the client for instruction and consent. South Bucks District Council v Flanagan [2002] 1 WLR 2601: the English Court of appeal held that it was outside the implied authority of a solicitor, who had been retained by a local council to prosecute a breach of an enforcement notice, to agree to a withdrawal of that notice, as such an act would be an action of great significance to the [council], extending far beyond the issue of the particular breach of the notice for which the prosecution has been brought. Implied authority to incur costs and disbursements A lawyer has an implied authority to incur ordinary disbursements, such as service fees, filing fees, photocopying and the like. It is best practise of lawyers to discuss with their clients the major disbursements such as valuers fees. Briefing counsel being an important and expensive step in the litigation process, should not, except in situations of urgency, be pursued without having obtained client instructions or approval. Implied authority to receive money on a clients behalf A lawyer who acts in a transaction under which a client is to receive money from a third party may have implied authority to accept a bank cheque or cleared funds for this purpose. No general implied authority to institute proceedings The mere fact of acting as a lawyer does not of itself confer authority to institute legal proceedings on a clients behalf. No general implied authority to contract It is established that a lawyer has no general implied authority to make contracts on behalf of a client. Pianta v National Finance & Trustees Ltd (1964) CLR 146: where the vendors of land retained a solicitor to settle written terms of sale. The High court found that this impliedly authorised the solicitor to negotiate and agree with the respondents representatives as to the terms the respondent would accept, and to advise his clients as to these matters. However, it did not authorise the solicitor to contract to sell the land on his clients behalf.

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No general implied authority to receive notices Case law suggests that lawyers lack the implied authority to receive notices on behalf of clients. Implied authority to compromise The weight of authority supports the proposition that [i]n the absence of a special prohibition a solicitor has power to make a compromise with regard to the subject matter of the action, but not with regard to collateral matters. In other words, the lawyer has implied authority to compromise on such terms as he or she thinks best for client unless the client gives clear instructions restricting the solicitors authority in this regard.

Lawyers ostensible authority

Any instruction from a client that restricts the lawyers actual authority only affects third parties with notice of that restriction. If a client who has restricted the lawyers actual authority then places the lawyers in a position that usually carries with it a broader authority, the client is said to be holding out confers on the lawyer ostensible authority broader than actual authority, and so a lawyer may, in a particular case, have ostensible authority in relation to (vis-a-vis) the opposing litigant but lack actual authority in relation to (vis-a-vis) the client. Ostensible authority to act as medium of communication A client who has previously authorised lawyers to make offers and other communications on her or his behalf may be held to hold out the lawyers as her or his medium of communication. But it is unlikely that merely nominating a lawyer to act in the event that a contract is concluded holds out the lawyer as a medium in respect of communications in respect of pre-contractual negotiations. Ostensible authority to compromise The case law indicates that a lawyer retained in an action has an ostensible authority, as between the lawyer and the opposing litigant, to compromise the suit without actual proof of authority, if the compromise does not involve matter collateral to the action. A compromise exceeding the lawyers actual but ostensible authority binds the client.

3- Lawyers acceptance of work

Counsels duty to accept a brief cab rank principle

A barrister is bound to accept a brief in any court in which they practise, a duty recognised by the barristers rules in each jurisdiction. This is termed the cab rank

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principle. Brennan J explained its rationale in Giannarelli v Wraith (1988) 165 CLR 543:
it is difficult enough to ensure that justice according to law is generally available; it is unacceptable that the privileges of legal representation should be available only according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the court were dependent upon counsels predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular cases to court and the profession would become the puppet of the powerful. If the cab rank rule be in decline ... it would be the duty of the leaders of the Bar and of the professional associations to ensure its restoration in full vigour.

Barristers are professionally required to decline briefs in certain circumstances. Lawyers who practise other than solely as counsel, are not bound to accept work.

Grounds upon which counsel must or may decline a brief (NSW Barrister rules)
Independence and disinterestedness R 95 of the BR states that Counsel must decline a brief: Where counsel has information confidential to any person with different interests from those of the prospective client that may, as a real possibility, be help to the prospective clients case. Involving appearance in a contested hearing before counsels parent, sibling, spouse, child or a member of counsels household, or before a bench of which such a person is a member.

Where a barrister holds a strong personal view which is inconsistent with the subject matter is not a ground for refusal. Competence Counsel should not accept briefs outside their capacity, skill and experience. Practicality R 99 of the BR states that a barrister may decline to accept a brief on grounds including the following: Where there is doubt that the fee will be paid promptly Where he/she would not be able to dedicate much time to the matter Where the solicitor does not agree to requests by counsel, regarding appropriate attendances by the solicitor, and Where the prospective client is also the prospecting instructing solicitor, partner or employer or employee of that solicitor.

Acceptance of work by lawyers who practise other than solely as counsel

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For lawyers who practise as solicitors, the main concerns are competence and conflicting interests. Competence A solicitor should not accept a retainer unless he/she can reasonably expect to serve the client honestly, fairly, with competence and diligence, and attend to the work required with reasonable promptness. Conflicting interests That a client places trust and confidence in a solicitor regarding the matters within the scope of the retainer has led courts since the earliest times to impose upon solicitors fiduciary duties in respect of their clients.

4- Termination of Lawyer-Client Relationship

A retainer is often terminated when the lawyer completes the business for which he/she was retained.

Duty to complete work Doctrine of entire contract

A retainer has a general rule which is viewed as an entire contract where the lawyer completes the work for which he or she is retained. (cardwell)

Exceptions of the duty to complete work

R 5.1 of the SR states that a:
A practitioner must complete the work or legal service required by the practitioners retainer, unless: [a] The practitioner and the practitioners client have otherwise agreed; [b] The practitioner is discharged from the retainer by the client; or [c] The practitioner terminates the retainer for just cause, and on reasonable notice to the client.

Lawyers may withdraw from a retainer where there is a just cause when: (pg 64) The clients acts or omissions are inconsistent with continuing representation, preventing the lawyer from properly performing her or his duties, such as where the client: o Commits a breach of a written agreement regarding fees or expenses; o Refuses to pay the lawyers costs o Makes misrepresentations of the facts to the lawyer; o Insists that the lawyer commits a breach of law, or professional rules; o Gives clear instructions that he or she will retain another lawyer The client is legally aided and the grant of legal aid is withdrawn resulting in the client not being able to pay the lawyers costs Unrelated to the clients acts or omissions, the continued representation would require the lawyer to commit a breach of professional rules, such as where the course of the matter:

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Places the lawyer in a position of conflict between her or his own interest and those of the client o Likely that the lawyer will be called a witness Potential claim for negligence against the lawyer hangs contingently on the outcome of proceedings Continuing engagement in the matter causing adverse health effects upon the lawyer The client or the lawyer has died or become insane.

Impact of the entire contract doctrine on the recovery of fees

Lawyers who terminate a retainer without just cause cannot receive or claim costs for the work completed. A lawyer who terminates for just cause may entitle the lawyer to charge for completed work up to the most recent periodic interval before termination. Caldwell v Treloar (1982) 30 SASR 202, Walters J:
[S]olicitors who undertake business of a general nature, or business involving a variety of matters ... should not be held to do a single and entire thing and to be disentitled to be paid any remuneration until the whole business has been brought to finality. In matters of that kind, it would not be reasonable that solicitors should engage themselves for an indefinite time without payment... And so where there is a convenient break in the business being undertaken, the solicitors have a rights to send a bill of costs for work done up to that point, and in default of payment, they are entitled, upon reasonable notice to the client, to put an end to the retainer... and sue for their costs.

It may be preferable to include an express term in the retainer dealing with periodic payment of fees.

Duties of lawyers on termination of retainer

Where a lawyer terminates for just cause, he or she must take reasonable care to avoid foreseeable harm to the client and to cooperate with the new lawyer and hand over required documents.

Return of brief by Counsel

R 99 of the BR states that barristers are entitled to return brief and terminate retainer in the following circumstances: Where the conduct of the instructing solicitor or client prevents counsel from conducting effective representation where: o Counsels requests have been refused o Counsels advice has been rejected o Counsels fees have not been paid and remain paid after reasonable notice. Where the impartiality of counsel or the court may be called into question, such as where: o Counsel is likely to be called as witness o Counsels parents, siblings, spouse, child or member of household appear in tribunal before which counsel is to appear. Where the continued representation, impinges, as a real possibility, upon counsels duty of confidentiality to another client or a third party.

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Where a conflict of interest arises, such as where: o Counsel briefed to appear for two or more clients and becomes aware that the interests of those clients may, as a real possibility, conflict o Counsel believes on reasonable grounds that the interest of the client and those of the instructing solicitor may conflict. Where a brief accepted under a conditional fee agreement o The barrister and instructing solicitors, consider that the client has rejected a reasonable offer of compromise according to barristers advice o Refuses to pay barristers fees after clients rejection of offer o The client was informed before the barrister accepted the brief of the effect of this rule, and o The barrister has the firm view that the client has no reasonable prospect of success or of achieving a better result than the offer. Where the barrister holds two briefs that require appearance on the same day. Barrister must return brief received later in time.

Ownership of documents on termination of retainer

1. The client cannot call for documents which are the lawyers property 2. Not all documents a lawyer holds relating to the affair of the client belongs to the client 3. Even if the documents belong to a client, its delivery may be subject to payments of costs

Retention of files and documents

A lawyer must retain documents to which a client is entitled for the duration of the retainer and at least 7 years thereafter. (Rule 8.2.1 of the SR)

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Chapter 4 Duties to the Clients and their Enforcement

1- Introduction
Nature of duties to the client
Both law and professional rules use words such as . This shows that lawyers should treat their clients fairly and in good faith, giving due regard to clients position of dependence, lawyers special training and experience and the high degree of trust clients are entitled to place in lawyers. Lawyers should strive to establish and maintain the trust and confidence of their clients. These traits are directed at ensuring that lawyers do all within their power to protect client interests, and in so doing conduct each matter in the manner most advantageous to clients. A.16 of the SR states that:
A practitioner must seek to advance and protect the clients interests to the best of the practitioners skill and diligence, uninfluenced by the practitioners personal view of the client or the clients activities, not withstanding any threatened unpopul arity or criticism of the practitioner or any other person, and always in accordance with the law including these rules.

It follows that lawyers should give clients a candid opinion on any professional matter the subject of the representation, not one coated by what they believe clients wish to be told.

2- Duty to be competent
What is competence?
The law requires lawyers to use their best endeavours to complete any professional work competently and as soon as reasonably possible, and if it becomes apparent that this cannot be done within reasonable time, to inform the client immediately.

Control directed at competence

At a threshold level, lawyer competence is assured through academic and PLT. But training of this kind is no assurance of the requisite level of competence in legal practice. For this reason, the professional rules proscribe lawyers accepting work that they cannot competently perform. The latent danger in breaching this proscription may materialise in liability for breach of contract or negligence. Incidents of negligence conduct can also potentially be visited with disciplinary sanction. A lawyer to remain fit and proper for the roll must make reasonable efforts to keep up with the current developments in their field of practice. (Moulton) Continuing legal education (R 42 of the SR)

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Law societies and bar association in each jurisdiction provide CLEs for their members. CLEs is mandatory. Fulfilment of MCLE requirements is monitored through lawyers certifying their MCLE attendance on their annual application for a practising certificate. The main advantages for the CLE are increase competency, the promotion of an educational habit, enhancement of lawyers public image and thus confidence in the profession and social and professional interaction.

3- Duty of Loyalty and Trust Fiduciary duties

A Fiduciary relationship is a relationship between two persons which attracts and defines duties owed by one person to the other. A duty is fiduciary only if it is a duty of loyalty. (breen)

Lawyers as fiduciaries
It is the lawyers ability, via the retainer to affect the legal status of a client, coupled with the lawyers role as an officer of the court and clients frequent dependence on their lawyers skill and knowledge, that led courts of equity to impose onerous duties on the lawyer. From another, though related, perspective, imposing fiduciary duties on lawyers may be seen as a way of minimising the agency costs that stem from lawyers having greater information and expertise than clients.

Fiduciary duties translated to the lawyer-client relationship A lawyer must shun situation involving conflict between the lawyers personal interest and the duty of the client (Bray), and refrain from using the lawyer-client relationship in order to profit apart from a reasonable professional fee. As a lawyer ordinarily acts for multiple clients, the duty of loyalty proscribes the lawyer (or her/his firm) from concurrently acting for clients whose interest conflict.

Client consent to conflict (Harvey)

The principal qualification to the application and strictness of fiduciary duties, in both the lawyer-client relationship and other relationships that attract those duties is the consent of the principal client. As fiduciary duties are directed at protecting the clients interest in securing loyalty, it is open to the client to authorise or consent to a conflict that would otherwise substantiate a fiduciary breach (Harvey) . This authorisation or consent is premised upon a full understanding of the nature and implications of the conflict, and so at the very least is premised on the lawyer making full disclosure.

4- Duties of confidence
Confidentiality

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The duty is sourced via an implied term in the retainer which recognises an independent doctrine directed to preserving the confidentiality of information. (Comissioner of inland revenue)

Undue influence
In the lawyer client scenario the presumption of undue influence has its principal use in claim to set aside gifts or other benefits the lawyer has received from the client in addition to the lawyers reasonable professional fee.

5- Duty to promote quality and client care

Quality assurance
Statistics reveal that most claims and potential claims against professional indemnity insurance arise from either a lack of common understanding between lawyer and client, or a lack of, or failure in, office systems designed to assist lawyers and support staff to deliver high quality service and avoid oversights. Quality assurance certification may provide a means to reduce the incidence of claims and also attract a reduction in professional indemnity insurance premiums.

Client care rules communication with the client

A lack of common understanding between lawyer and client, which may in turn generate both an expectation gap and client dissatisfaction, is best addressed by clear channels of communication. Hancock v Arnold (2008) ATR 81-973: it is desirable that the prospective client be given a rough timetable as to the steps which may be required and when they are expected to occur.

6- Duty to promote access to justice

Duty tied closely to the quantum of legal costs
It is inconsistent with the role and purpose of the legal profession for it, or its members, to inhibit a persons access to justice. The cost of legal services is directly related to the scope for members of the community to access justice. Various features of the law governing lawyers costs reflect this obligation e.g. the power to set aside unreasonable and unfair cost agreements, formalities for a bill of costs, the temporal restrictions on a lawyer commencing proceedings to recover costs, and clients rights to have their costs assessed by an independent person.

Performance of pro bono public work - Desirable and necessary part of legal practice (Goldsmith)

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Doing legal work without charging a fee or only charging a fee if you win.

7- Duty to encourage settlement

In contentious work, the lawyers core responsibility is to assist in the efficient and effective resolution of disputes consistent with client interests and objectives. (Ariff) The clients interests, not the lawyers desire for confrontation or a greater fee, should determine the lawyers advice. Rule A17A of the SR provides that:
A practitioner must inform the client or the instructing practitioner about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the practitioner 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 clients best interests in relation to the litigation.

Lawyers should, where it is in their clients best interests seek to settle a dispute out of court rather than commence or continue legal proceedings.

8- Enforcement of duties Remedies for breach of duty

A legal duty takes its colour from the remedies available to secure its enforecement.

Breach of duties of competence

A breach of a lawyers duty of competence is usually remedied via a damages award, whether for breach of contract or for negligence. The main aim of a damages award is compensatory. For breaches of contract, the damages ordinarily represent the difference between the position that would have been created by full performance of the retainer and the position that has actually been created by the breach. A claim for damages in tort is directed to putting the client in the position that he or she would have been in had the tort not been committed; the question to ask is how much worse off the client is as a result of the lawyers breach of duty. Contributory negligence is a defence in tort but not in contract

Need for causation

The test for causation is not only a but for test; the lawyers breach of duty must be legally effective cause of the clients loss. Selway J in Deloitte Touche Tohmatsue v Cridlands Pty Ltd (2003) 204 ALR 281:
Assume for example, that a lawyer is retained to give advice to a prospective borrower as to the terms of a mortgage to be given to secure a loan, the lawyer negligently advises that the mortgage has a particular meaning. In reliance upon that advice the borrower uses the loan to purchase and operate a business. For reasons that have nothing to do

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with the legal advice, the business fails. Clearly enough the lawyer may be liable for any losses suffered by the borrower in relation to the mortgage. But ... the lawyer would not be liable for the losses on the losses on the failed business. True it is that but for the negligence advice those losses may not have occurred, but the effective legal cause of those business losses was not the breach of duty by the lawyer.

Breach of the duty of loyalty

Breadth of remedial scope for fiduciary breaches
Fiduciary breaches may be remedied by means of restitutionary-type relief, such as an account for profits or even a constructive trust where the lawyer has generated a profit or secured property in breach of fiduciary duty. As a alternative, fiduciary breaches open the door to equitable compensation where the breach caused the client loss which is not necessarily restricted by common law caused by a fiduciary default relation to trust monies may also be secured by a claim on the fidelity fund. The court may rescind a transaction entered into a breach of fiduciary duty, and a lawyer may be restrained from acting in breach of fiduciary duty by way of an injunction.

Breach of duty of confidence

Remedies for breach of confidence
Where sourced in contract or in equity, a threatened breach of confidence may be prevented by an injunction. For information that has already been illegitimately disclosed, if the duty is contractual, the cause of action is for breach of contract and the relevant remedy is damages. Suing in equity may generate liability for or an account of profits. equitable compensation

Remedies for undue influence

Where the presumption of undue influence arises in the context of a lawyer-client transaction, and the lawyer is unable to rebut it, the client ordinarily may elect to rescind the transaction. As an equitable cause of action, there remains in the courts flexibility in moulding relief, including the award of compensation or the giving of allowances.

Incompetence as a basis of setting aside a conviction or judgement

A lawyers lack of competence can generate implications beyond civil liability to the client. In some, albeit limited, circumstances it can form the foundation for setting aside a conviction or judgement on the ground that it has prompted a miscarriage of justice. Although potentially available outside the criminal law environment, the jurisdiction is most commonly sought to set aside a conviction. Hence it is not limited to instances of incompetence because its focus is not on the lawyers incompetence per se but on whether or not there has been a miscarriage of justice as a result of a lawyers conduct. TKWJ v R (2002) 212 CLR 124: defence counsel had planned to call evidence of good character, but upon discovering that the prosecution intended to call evidence to counter this, chose not to do so. The High court held that the failure to call the evidence led to no

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miscarriage of justice because the decision was, in Gleesons CJs words, understandable, not self evidently unreasonable, or inexplicable and the kind of tactical decision routinely made by trial counsel, by which their clients are bound.

Lawyers Duty to Clients in Tort

1- Introduction
Relationship between contractual and tortuous liability [5.05]
A lawyer who is negligent is concurrently liable in tort and contract, and may also be liable in tort independently of an action in contract. A contractual duty to take reasonable care is implied in law and does not restrict reliance solely on a tortuous claim of action (Astley v Austrust 1999) Hawkins v Clayton (1988) 164 clr 539: tortuous duty of care that prima facie transcends that contained in the express or implied terms of the retainer. Implied terms in contract are part of consideration a promisor gives for a promisees agreement to pay for the promisor services. (Astley v Austrust 1999) the tortuous liability arises aside from consideration, and not necessarily pursuant to the will of the parties.

Liability in tort
A lawyer is not liable in tort to a client in respect of events outside the scope of the retainer Need to inquire into: The scope of the lawyers duty of care Necessary to ascertain whether or not, in acting as he or she did, the lawyer met the requisite standard of care, the treatment of which follows.

The forgoing is qualified by barristerial immunity (DOrta Ekenaike v Victoria Legal Aid 2005): which protects lawyers from liability for negligence relating to work sufficient connected with in court work in conducting litigation.

Liability under statute for misleading or deceptive conduct

S 42 Fair Trading Act 1987 (NSW): lawyers liable for breaching the statutory proscription against misleading or deceptive conduct. S 4(1) Fair Trading Act 1987 NSW: defines trade or commerce to include any business or professional activity, lawyers exposure to statutory liability vis-a-vis their clients may not be so constrained.

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Examples of lawyers being misleading or deceptive : in giving advice on prospects of success, making a specific representation of fact, expressing opinions about the advantages and drawbacks of proposed courses of action (Kowalczuk v Accom Finance Pty LTd 2008).

Identifying the clients interests

The lawyer must, subject to the paramount duty to the administration of justice, follow the client instructions, having informed the client of the risks and drawbacks of the proposed course of conduct (Samper v Hade 1889) It is the client who dictates the objectives of the representation and consequently what are her or his best interests- an approach consistent with Banque Bruxelles Lambert SA v Eagle Star Insurance 1997 A lawyer, who accurately explains the position to the client, is nevertheless instructed to proceed with a particular course of action, is not responsible in law for loss the client suffer by reason of that conduct (Dew v Rcihardson 1999) Client may adopt unreasonable or unrealistic objectives therefore necessary to specific in the retainer agreement the objectives of the representation=this provides lawyer with a guide as the clients expectations and interests and a guard against clients unjustifiably perceive that their interests have not been protected.

2- Scope of the duty of care

Modifying the scope of the duty via the retainer
Scope of the lawyers duty is prescribed by the scope of the retainer and the scope of duty can be restricted by the retainer Hawkins v Clayton 1988 if a lawyer wants to restrict the scope of the retainer, especially where the client may expect the lawyer to advise on a broader basis, make full and clear disclosure of the limits of the duty, and counsel the client to secure advise from another person outside those limits (Cote v Rancourt 2004); through express provision in the retainer (Ibrahim v Pham 2005) Possible for lawyers to expand the terms on the retainer, thus the scope of duty of care.

liability in tort outside the scope of the retainer

Hawkins v Clayton 1988: tortuous duty of care may requires a lawyer to take positive steps beyond the specifically agreed professional task or functions where necessary to Avoid a real and foreseeable risk of economic loss being sustained by the client.

Impact on the circumstances in which advice is given or sought

Advice given or sought in urgent circumstances

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Urgency or time pressure surrounding the circumstances in which the lawyers advice is sought can influence the scope of duty of care. Its impact relates mainly to the qualifying advice supplied, and properly apprising the client of the risks attached to the intended course (May v Mijatovic 2002):solicitor was negligent not for his mistake in following the client instructions, but in not advising the client of the ricks of loss from that course. Preliminary advice supplied on a single occasion Fortune v Bevan [2001] QCA 378: court construed the parameters of the retainer restrictedly because the inquiry was in the nature of a preliminary consultation, which did not convert into a general retainer but terminated once the inquirer left the office after paying $20.

Impact on the nature of the transaction or dealing

Transaction or dealing in unusual terms or characteristics Lawyer must bring to the clients attention any unusually terms for obligations and liabilities, the scope of the duty depends on the clients experience, the nature of the lawyer client relationship and the risk of which the client may be exposed (Austrust Pty Ltd v Astley 1993) Failure to warn of absence of standard clause Lawyer may be liable in negligence for failing to advise clients to the absence of a standard clause in a document, and its implications, as occurred in Amadio Pty Ltd v Henderson 1998. Fully informed of the risk If the client is fully informed of the risks attendant on a transaction, and does not lack capacity, the lawyer has fulfilled their duty and may act in the transaction (Cousins v Cousins 1990)

Disclosure of information relevant to the representation

Scope of the duty of disclosure and prospects for liability Tort-wise, the duty of care requires a lawyer to reveal to the client all material information within her or his possession relating to the clients affairs (McKaskell v Benseman 1989). This includes keeping the client information of the progress of representation- a duty reflected by statute entitling clients to progress reports (s 318 LPA NSW); and requiring lawyers to notify a client of substantial changes to anything included in the statutory disclosure requirements ( s 316 LPA NSW) Prospect of tortious liability is most likely where the failure to disclose information deprives a client of knowledge that impacts on the clients decision making (McKaskell v Benseman 1989) Client consent to non-disclosure

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There is no duty to disclose information to a client who has given informed consent to the non disclosure of particular information, or where the disclosure would be in breach of the law or court order. IF in the course of investigating title, a solicitor discovers facts which a reasonable competent solicitor would realise might have a material bearing on the valuation of the lenders security or some other ingredient of the lending decision, then it is his duty to point it out (Mortgage Express Ltd v Bowerman & Partners 1996) Potential conflict also when lawyer receive information (confidential)from a third party that is relevant to the representations of his client.

Can the duty of care including giving financial advice?

General principals- no duty to provide financial advice A lawyer whose retainer does not impose a duty to give commercial advice or advice as to the financial prudence of a transaction, will not be negligent in failing to do so (Orszulak v Hoy 1989) Financial advice and professional indemnity insurance cover Financial advice falls outside the terms of the lawyers professional indemnity insurance cover, and so negligent financial advice may generate personal liability in the lawyer for resultant loss (Solicitors Liability Committe v Gray 1997): court viewed property scheme conducted by solicitors as the actions of businesspersons rather than solicitors, and so the loss fell outside the policy. Giving of financial advice where contemplated by the retainer Courts will automatically presume against the giving of financial advice by lawyers except where it is clear (Janesland Holdings Pty Ltd v Cimon 2000) in certain situations it may be negligent of a solicitor not to ensure that his client has good financial advice, particularly when the client is at a disadvantage with respect to other parties to the transaction, and where the results are potentially disastrous to the client (Tarzia v National Australia Bank 1995) SR r 45.6.1 NSW: requires a solicitor engaged to give a proposed signatory that will be a borrower or guarantor advice of those matters that the solicitor in exercising the professional skill and judgements called for in the circumstances of the particular case considers appropriate. In so advising , the lawyer should not simply parrot the requirements of the rules, but frame their inquiries by reference to the particular circumstances facing the client (Accom Finance Pty Ltd v Mars 2007). This requires advice to a borrow that is stated in: R 45.6.2 NSW. If the client in a guarantor , the solicitor must advise the guarantor that: r 45.4.3 nsw. In giving this advice, the solicitor must advise the client they a solicitor does not posses any qualification to give financial advice and that any questions should be directed to accountant (r 45.6.4 NSW)

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R 45.8, schs 4-4C, r 45.7, schs 1-3, r 45.8, sch 5. Giving of financial advice required by the nature of the client When a client in full command of their faculties and is aware of their actions, seeks a lawyers assistances in carrying out a transaction, the lawyer is arguable under no legal duty to go beyond those instructions by proffering unsought advice on the wisdom of the transaction (Nikolic v Nikolic 2002) Different if there is disability that prevents full appreciation of drawbacks Southern Law Society v Westbrook 1910 Although a lawyer may not be legally liable for not advising the financial wisdom of a transaction, to merely fulfil legal duties is not always good client service and acre (Reader v Molesworths Bright Clegg 2007)

Can the giving of other advice come within the retainer ?

Aside from giving legal, financial or business advice when it comes within the terms of the retainer, lawyers owe no legal duty to furnish any other form of advice to their clients (Cousins v Cousins 1990) Some lawyers should raise awareness and discuss morals etc.

3- Standard of care
Relevant standard
Standard at general law and under statute [5.135] at general law, the relevant standard of care is that of the ordinary skilled person exercising and professing to have that special skill (Rogers v Whitaker 1992) a lawyer is not negligent merely for committing an error of judgement unless that error is gross (Hall v Foong 1995) Civil liability Legislation impacted on the relevant standard of care, it espouses the Bolam test(bolam v Friern Hospital Management Committee 1957): test focuses on action within the parameters of accepted professional opinion. Peer professional opinion need not to be universally accepted (s 5o CLA(4)) CIVIL LIABILITY ACT 2002 - SECT 50 50 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. Knowledge of the law and procedure

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The standard of care dictates that a lawyer is expected to possess the knowledge held by the reasonably competent lawyer of well settled principals of law (Re Farmer 1997), and the relevant procedure (Ashby v Russel 1997), and rules of court (Re Moore 1997), applicable to the clients needs, and will be negligent for failing to apply that knowledge. Standard not informed by extraordinary foresight A lawyer is not bound to exercise extraordinary foresight, learning or vigilance (Jennings v Zilahi- Kiss 1972) Lawyer doesnt need to advice as to how the law might develop in an area of the steps a client could take to address future developments. Heydon v NRMA Ltd (2000) 51 NSWLR 1: Malcom AJA: Heydon was not negligent or in breach of his duty of care in the advice he gave in December 1993 or that he failed to give in 1994, and the findings against him he was negligent should be set aside. When advice was given, nothing within the existing legal principal would have led a competent and skilled lawyer to foresee or warn against the possibility of the HC substantially changing the relevant legal principle. There is a role for foresight in the relevant standard of care, only extraordinary foresight goes beyond the legal expectation. Standard not informed by hindsight (perception, observation) The court does not allow hindsight to imply itself into its reasoning in cases of alleged negligent, such that hindsight should generally be avoided when determining liability (Hall v Foong 1995)

Raising of the standard of care?

Lawyers who posses special accreditation, or otherwise advertise an area of special expertise may come within a high standard (Yates Property Corporation v Boland 1998) In Yates, the court called for a higher standard of care, not only for lawyers who profess specialist expertise, but also for those who posses such expertise. In Heydon v NRMA ltd 2000, notes that for lawyers professing to have special skill in a particular area of the law, the standard of care is that of the ordinary skilled person exercising or professing to have that special skill.- endorsing the concept of a variable standard of care.

Reducing the standard of care

Against public policy to lower standards, standards are not reduced because a lawyer is without a fee(Chancliff Holdings Pty v Bell 1999) for a reduced fee(Edwards v Anderson 2009), or in a legal aid matter (Cousins v Cousins 1990). Impact of urgency

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May v Mijatovis 2002: J Hasluck suggested that the standard of care can depend on the urgency of the situation, taking account of time constraints in determining what a lawyer exercising reasonable care and skill could be expected to do. . Reliance on advice of counsel Solicitor is not negligent if counsels advice proves to be wrong (Heydon v NRMA 2000). A solicitor with expertise in the area of law cannot on rely on counsel to the same degree as a solicitor who lacks that specialist experience (Yates Property Corporation v Boland 1998) Where the advice of the counsel is clearly wrong, that the solicitor is not a specialist in the area, or that the counsel is well known (fame) in this field, is no justification for the solicitors failure to independently asses it (Wakim v McNally2002) Exclusions and disclaimer of liability Retainer cannot exempt lawyers for defaults in performing their professional responsibilities- reasons listed Attempts to exclude lawyers liability by way of a term in the retainer have consequently met with judicial dislike (Wilkinson v Feldworth Financial Services 1998). It was held that the clause was intended to protect the firm only in so far it was carrying out correctly its obligations under the agreement in the event of loss, it was not directed to where the firm ignored its obligations under the subscription agreement. Appropriate way to guard against liability for failure to meet the standard is to restrict the scope of the retainer, and thus a duty of care, in the first instance, by an express term in the retainer.

Relevance of expert evidence and professional rules

This can assist in determining the factual questions of compliance with professional standards, by reference to current acceptable practice, although it is for the court, not the expert, to present a conclusion involving the application of the legal standard or text (Heydon V NRMA)

Standard of care in settlement advice

Curial reticence to find negligence in settlement advice Public policy favours the settlement of disputes, and curial willingness to second guess lawyers advice on settlements may motivate lawyers to advise against settlement (Dew v Richardson 1999) As settlement advice by its very nature involves an elements of the unknown, it is difficult to underestimate the value of certainty provided by a settlements as opposed to the continuing risks of litigation through to judgement (Kelley v Corston 1998)

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Courts inquires into whether the advice was within the range, that in the circumstances, could reasonably and properly be given (Luke v Wansbroughs 2003). Client still needs to surmount issues of causation and prove they would of acted differently. Circumstances where advice as to strength of case can attract liability A solicitor is liable in negligence for committing a fundamental error (Hodgins v Lapthorn 2006), or making a misstatement of fact. Seamez (Australia) Pty Ltd v McLaughlin 1999: found the following considerations that led the clients to settle constituted a breach of duty by the solicitor: Statements that client couldnt win- when there solicitors believed there was a good chance of winning Statements for applications of adjournments would be unsuccessfuladjournments would likely be granted Statements that both counsels had withdrawn- only one did Incorrect statement that a threatened injunction would prevent the clients from continuing business.

Failure to give competent advice as to the strength of the clients case also attracts liability in negligence (kolavo v Pitsikas 2003)

Failure to meet with a client

Arisen mostly in case law where the lawyer represents joint clients, but meet with one only client. A risk scenario is when the lawyer entrusts the client the task to either explain the transaction to another client or to secure the latter execution of a relevant document pertaining to it, especially if the former has an interest potentially adverse to the latter. (Graham v Hall 2006) Need to ascertain and confirm identity assumes especial importance where part of the lawyers role involves attesting and certifying the signatures of the clients Khan v Khan 2008

Dangers of supplying unqualified advice

A lawyer should be wary of bold and confident assurances to the client. The danger here is the giving of unqualified advice on a matter to be determined by a third party such as a court or jury, over which the lawyer lacks control (Hall v Foung 1995)

Standard of care in a specialised area- tax advice

All lawyers must exhibits a basic level of competence in even specialist areas of law- tax advice. The standard is that of a lawyer practising in a particular field of law. The solicitors in Hurlingham Estate v Wile & Partners 196 practised in the field of conveyancing and commercial law, some tax knowledge could be rightly expected.

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A solicitor practising in another filed of law- one not related to taxation law or any other specialist area- may not be expected to posses the same level of tax knowledge (Bell v Vahexi Pty Ltd) Lawyers who lack specialist expertise to counsel clients to seek specialist advice (Snopkowski v Jones 2008)

4- Barristers immunity from negligence

Background
Giannareli v Wraith 1988: HC recognised and applied the principals that barristers are immune from actions by client for professional negligence relating to their work in conducting litigation. Arthur JS Hall & Co (a firm) v Simons 2002: revoked the immunity DOrta-Ekenaike v Victoria Legal Aid 2005: upheld and arguably extended the scope of the immunity, endorsed Giannaerili Case Arguments from both sides to allow it become appropriate in modern Australian society.

Justifications for the immunity

The immunity ostensibly protects the public interest in the due administration of justice, it is not aimed at benefiting counsel but rests on public policy (Reez v Sinclair 1974)

Scope of the immunity

Immunity limited to negligence Counsels immunity applies to negligent acts and omissions (an intentional torts that come within the in court maker), and to a concurrent claim in contract emanating from the same conduct (Leerdam v Noori (2009) It provides no immunity for a fiduciary breach (Abrielf v Rothman 2004) or a contempt finding. In court compared to out of court work CJ Mason in Giannareli v Wraith 1988 saw a scope for the immunity to extend to work done out of court which leads to decisions affecting the conduct of the case in courtapproached endorsed in DOrta Whether the immunity applies depends on its connection to in court work Immunity does not extend to cases involving a failure to advise the availability of possible actions against third parties (Saif Ali v Sydney Mitchell & Co 1980), a failure to advise commencing proceedings in a particular jurisdiction (Macrae v Stevens 1996) in applying for an injunction at short notice on the clients instruction but without cause(May v Mijatovic 2002), or to advice by counsel on the prospects of the case of an appeal (Boland v Yates Property Corp 1999)

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Settlement of an action during its progress in court, it appears clear, can be regarded as work sufficiently connected with the conduct of the litigation to attracts the immunity (Dolellan v Watson 1990) Counsel who gave wrong advice as to the likely quantum for settlement was held liable for negligence in Hodgins v Cantrill 1997 .

Chapter 6 Lawyer-Client Conflict and Influence

SR 10: 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;

1- Proscription against lawyer-client conflict Rationale for the proscription

Basic fiduciary principle, which applies to the lawyer-client relationship, dictates that lawyers must give undivided loyalty to their clients, without being distracted by other interests including personal interests. A lawyers duty is to not make an unauthorised profit out of the lawyer-client relationship. There is the issue of public appearances; the public perception that lawyers can use their privileged position to their own advantage lowers not only the public respect for the profession but public confidence in the legal system.

Duty of barristers to advise as to instructing solicitors conflict

As a further precautionary measure against conflict, R 114 of the BR require a barrister who believes on reasonable grounds that a clients interests may conflict with those of an instructing solicitor to advise the latter of this belief, preferably in writing and, if the instructing solicitor does not agree to advise the client of the barristers belief, seek to so advise the client in the presence of the solicitor.

Consequences of conflict
Lawyer to decline the retainer unless the client gives fully informed consent to the lawyer acting (spector) this consent must be fully informed to the client, and it is the courts position to establish whether the consent is fully informed (Maguire) A prudent lawyer will insist a client to go and get independent legal advice on the conflict of interest ( RE Fabricius)

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2- Dealings with Clients

General Proscription
A Lawyer who deals with a client other than for the purposes of the retainer may find themselves in a position of conflict between interest and duty. Law Society of NSW v Harvey [1976]: Lawyer should take all reasonable steps positively to avoid dealing directly, or indirectly, with his client. Professional Conduct and Practise Rules 1995 (NSW) r10.1.1, 10.2

Lawyers may deal with clients provided he has (OReily) Full candour and disclosed to the client Taken steps to ensure that the client has given a fully informed consent to the dealing

Borrowing from clients (p148)

Professional rules NSW r 12.1 Australian jurisdictions prohibit a lawyer from borrowing money from a client. No prohibition exists on borrowing money from clients that are financial institutions. NSW law also allows for lawyers to borrow money from clients who are immediate family members (NSW r. 12) although it should be assumed that any less duty of disclosure applies to transactions of this kind.

Lending to Clients (page 149).

A lawyer, or an entity with which the lawyer is associated, who wishes to lend money to a client must have scrupulously in order to allay any appearance of the impropriety, requiring the lawyer, at a minimum, to (OReilly) - Disclose the lawyers interest fully snd candidly to the client in writing - Advise the facilitate the provision of independent advice in more than a perfunctory way, and - Advise on, and facilitate access to, alternative sources of funds, particularly where these may be to the clients advantage. Buying from or selling to a client
A solicitor proposing to buy/sell property from a client is under a duty to cause the client to seek independent advice (Long Staff v Birtles [2002]). There are two reasons: 1. Lawyers fiduciary duty prevents them from profiting from information derived by the fiduciary positions (Boardman v Phipps [1974]). 2. Lawyers position may lead the client to accept the terms and conditions of the transaction as suggested by the lawyer.

4- Undue Influence by lawyer over client

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Presumption of undue influence

Lawyers are presumed to have undue influence in that they are trusted and confided in by their clients making it natural to presume that out of trust and confidence grows influence (Goldsworthy v Brickeli [1987]). Strength of presumption varies on nature of the client (Johnson v Buttress (1936)). Revised professional conduct and practice rules 1995 (nsw) r10.1.2

Application to gifts from client to lawyer

Lawyers should refrain from gifts on the basis that a gift may appear to be the product of the lawyers influence (Re Coomber [1911]). Rule 11.2.2 of the SR confirm that the solicitor 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.

5- Lawyer-Client Sexual Relations (page 160)

Intimate relations between lawyer and client may interfere with lawyers objectivity and independence in the conduct of the case. Legal Practitioners Conduct Board v Morel (2004) 88 SASR 401: a lawyer in her criminal law practice formed personal relationships with imprisoned clients on three separate occasions. These relationships were found to have adversely impacted upon her representation of at least one of those clients. It has been recommended in NSW to avoid lawyer-client sexual relations. It shouldnt be assumed that power dependency of client-lawyer sexual relationships works in favour of the lawyer.

Acting against former clients

In the context of former client conflicts most of the curial focus is on protecting the misuse of information confidential to the former client (Revised Professional Conduct and Practise Rules 1995 (NSW) r3)
A lawyer is able to be restrained from acting for a new client against a former client if (Astill) A reasonable observer

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Aware of the relevant facts Would think that there is a real, as opposed to a theoretical, possibility that confidential information given to the lawyer by the former client Might be used by the lawyer to advance the interest of a new client to the detriment of the former client.

Confidentiality and Privilege

Chapter 10 Confidentiality
Justified as a vehicle to encourage full and frank disclosure between client and lawyer. General law- sourced from a combo of contract law and equity, stemming from the relationships between lawyer and client. Duty is replicated by the terms of the professional rules in each jurisdiction. Rule 2 of the SR States: 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 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.

1- Scope of duty
When sourced in contract
It is the wording of relevant term that prescribes its scope.

When sourced in equity

Protection comes with information capable of meeting the legal test of confidentiality; Whether the info is public knowledge, and whether its communication was for a limited purpose.

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Duration and priority of duty

Not finished at the termination of retainer/death of client, nor is it reduced by duty owed to another client.

Compared to legal profession privilege

Distinct from duty of confidentiality. Privilege doesnt depend on contractual/equitable/professional duty owed, rather on public policy. Communications protected by confidentiality are more extensive than those that are priviledged. (Minter v Priest [1930]). Privileged info is protected from compulsory disclosure unless ousted by statute.

2- Limits and exceptions to the duty

The duty of confidentiality, notwithstanding the way it is sometimes expressed, is by no means absolute. Client interests sustaining the confidentiality do not always coincide with the interests of third parties. The need to prioritise those interests exerts pressure to restrict the scope of confidentiality, and in some contexts may justify the disclosure of confidential communications, though in a limited form and to a limited audience. Below are commonly cited exceptions to the duty of confidence, ordered from the least controversial to the most ethically challenging.

Client authorisation
Client can authorise the lawyer to disclosure what otherwise comes under the mantle of confidentiality. Consent does not need to be expressed. It can be inferred from the nature and terms of the retainer. Such authority covers the lawyer, their firm and employees. It can be legitimate for a lawyer to disclose info to a lawyer outside the firm on the disclosure info to a lawyer outside the firm on the basis of receiving views/advice from another lawyer.

Disclosure compelled by law

Confidentiality can be ousted by statute.

Fulfilling privacy obligations

Confidentiality is directed to info conveyed in confidence that isnt readily available to the public. Privacy addresses the issue of personal info and whether or not that info is publicly available.

Disclosure ostensibly to support lawyers own interests

A lawyer can disclose confidential information in reasonably seeking to establish/collect the fee in respect of the retainer. A client who starts proceedings against a lawyer for breach of duty, is treated as having waived their right to confidentiality in relation to matters they put in issue by pursuing the claim. (Benecke v NAB Ltd 1993). Disclosure of info that is not confidential

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Duty of Care is designed to protect the client and encourage the client to make full disclosure. Neither of these purposes are threatened by a disclosure of info already in publc domain. However, sometimes info in a public domain isnt fully accurate. If a lawyer comments/correct the facts on the public domain, this can be seen to be unauthorised disclosure. Also, a lawyers knowledge of the issue is likely to be more extensive than on a public domain. Professional rules prohibit a lawyer from informing the court of a clients intention to break a court orders unless in doing so the lawyer unreasonably believes that a person might be in danger. Rule 108 of the BR states: A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until: (a) 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 (b) the person has consented to the barrister disclosing or using the information generally or on specific terms.

Chapter 11 Privilege
1- Nature of the privilege
Certain communications are privilege from disclosure whether in judicial/non judicial proceedings legal professional privilege. This type of privilege belongs to the clients (Baker v Campbell) so only the client can waive it.

Advice and litigation privilege

Privileged communication can be confidential communications between solicitor and client made for the purpose of advice or for use in existing or anticipated litigation. (OReilly v Commissioners of State of Bank of Vic (1983).

Rationale for the privilege

Both forms of privilege and grounded in public policy, directed at creating trust and candour in lawyer-client relationships (Bullivant v Attorney General (VIC) 1901. Privilege doesnt rest on a contractual duty created by the retainer. (Comm of Inland Revenue v West Walker 1954). This means that a client cant extent the area that has privilege cover by contract. This privilege also doesnt protect communications direct against public interest (R v Bell 1980).

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Privilege under the uniform evidence law

The uniform evidence legislation was made to form the basis for uniform state and territory evidence laws. S118 of the Evidence Act 1995 defines the parameters of advice privilege and s119 defines parameters of litigation privilege (pg 247-8). S 118: 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. S 119: 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. The main restriction of those laws is that they only apply to the adducing of evidence. Mann v Carnell (2000) 201 CLR 1: their Honours rejected views expressed by lower courts that the uniform evidence law principles should be applied derivatively to ancillary processes, or at least should impact upon the exercise of relevant discretions under rules of court regulating those processes.

Fulfilling the onus of proof

Communications between lawyer and client regarding the retainer are considered to be prima facie privileged by courts. Once a person claiming privilege can establish this, the onus in placed on the person disputing the claim to privilege (Aust Hosp Care v Daggan (no2) 1999). The onus is concerned with substance, not form. To label a document as privileged isnt enough to justify it. (Boase v Seven network Operations Ltd 2005).

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2- Purpose of the communication

Privilege does not extend to all communications arising out of the lawyer-client relationship. Only communications made for the dominant purpose of securing legal advice or for use in existing or reasonably anticipated litigation can possibly be privileged. Communications for the purpose of furthering fraud are excluded from the privilege.

Dominant purpose test

Only communications made for the purpose of advice or for use in anticipated litigation come within the privilege. Grant v Downs (1976) 135 CLR 674, in order to be privileged, a communication must have been made for the sole purpose of legal advice/contemplated litigation. To broaden the availability of the privilege, the uniform evidence law provides that its enough that the communications have been made for the dominant purpose of legal advice/contemplated litigation. This obviously created conflict, which has resolved in 1999 by Australia Resources Ltd v Federal Commissioner of Taxation, which favoured the uniform evidence law approach. The term dominant indicates the most influential purpose. (Federal Commissioner of Taxation v Spotless Services Ltd 1996). When a document contains severable material which has a different dominant purpose, that part of the document isnt privileged. Esso Australia Resources Ltd V Federal commissioner of Taxation (1991) 201 CLR 49: the majority saw the main drawback of the sole purpose test as its extraordinary narrowness, and that the only way to avoid the extreme consequences of this narrowness was not to take the test literally, in which case the test lost its supposed virtue of clarity. The sole purpose test has, in the view of Callinan J, not proved more convenient, less productive of controversy or production of some higher order of justice. Yet it appears that what most influenced the majority, together with the advantage of assimilating common law and statutory purpose tests, was that the dominant purpose test reflects the law in other common law jurisdictions.

Litigation privilege- Communication for the purpose of anticipated litigation

Must be reasonably anticipated. Difficulty determining what reasonably anticipated is exactly. Australian competition and consumer commission v Aust Safeway Stores Pty Ltd (1998) anticipated proceedings involves the notion that there is a reasonable probability/likelihood that proceedings will be commenced. Mitsubishi Electric Aust Pty Ltd v Victoria workcover Authority (2002) litigation had to be more than a mere possibility but it didnt have to be more likely than not.

3- Communications Covered by the Privilege

Concept of a communication (page 256)

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Communications doesnt only cover documents. It covers notes, drafts, charts, diagrams, photograph spreadsheets etc prepared by a client who is communicating confidential information to their lawyer. Privileged communications can be orally, mechanically, electronically or video recorded (Rosenberg v Jaine 1983) Copies of privileged documents are privileged (Cole v Elders Finance and investment Co Ltd 1993) The status of copies of non privileged documents provided to a lawyer for aforementioned purposes is privileged as the privileged status of the copy of a document doesnt confer the same status as the original Commissioner, Aust, Federal Police v Propend Finance pty Ltd 1997. Attachments of non privileged documents to privileged ones does not make them privileged. Identity of a client isnt ordinarily privileged. Procedural fairness dictates that a litigant is entitled to know the identity of their opponent. (R v Bell 1980). Privilege status of communication of address of clients Ex Parte Campbell (1870). Solicitors knowledge of his clients residence simply as a consequence of professional business, is not, on that ground above a matter which can be privileged status. Privilege wont attach simply because the client has asked for the address to remain confidential (R v Bell 1980). Trust account records document the movement of moneys in accounts of a lawyer. They are not communications for the purpose of obtaining legal advice and therefore fall outside privilege (Re Ontario Securities Commission 1983). (page 257) A detailed bill of costs is generally privileged because it contains a history of the nature and order of legal work carried out (Chant v Brown 1852). The less detailed a bill, the less likely the success of a claim to privilege.

Privilege limited to confidential communications

The context in which a document comes into existence and its proposed use are what make it confidential. Confidentiality can be inferred from the circumstances of the case. In regards to video footage, there is debate whether it can have privilege status. J-Corp Pty Ltd v Australian Builders Labourers Federal Union of Workers (WA) 1992. Videotapes werent privilege despite their purpose because they werent taken in circumstances to which any confidentiality attached. French J held that videotapes of the plaintiffs work site brought into existence for the sole purpose of possible litigation were not privileged because [t]hey were not taken in circumstances to which any confidentiality attached. A similar ruling in Palace Gallery Pty Ltd v Police [2008] SASC 305: involving surveillance footage seized by Police after an incident outside the plaintiffs premises.

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This was different from the ruling in Boyes v Collins (2000): the video was taken at the instruction of the respondents lawyer, with the intention of being kept confidential for use in evidence at trial. Documents in their final form intended to be used for transaction between parties arent privileged because their consent is no longer confidential (Dalleagles Pty Ltd v Australian Securities Commission 1991).

Privilege limited to communications within a lawyer-client professional relationship (page 260)

Except for a statutory exception, s120 of Evidence Act 1995 NSW, which related to evidence presented with objection to an unrepresented party, communications must be made in the context of a professional relationship between a competent/independent lawyer and their client (Cook v Leonard 1954). The communication must have been made to or by the lawyer in their professional capacity (Trade Practices Commission v Sterling 1979). Clients pressure to tailor advice threatens independence of the role of the lawyer and the value of their advice. Advice supplied by a lawyer who is not independent of the client falls outside the privilege policy. The courts saw that refusing to recognise foreign lawyers advice privilege would undermine rationale of privilege (Kennedy v Wallace 2004).

Extension of privilege to Communications with/from 3rd parties

In Pratt Holdings the issue was whether privilege attached to a briefing paper prepared by an accounting firm at the direction of the client, and returned to the client who then gave it to the solicitor for the purpose of obtaining legal advice. Finn J, with whose views Stone and Merkel JJ concurred, focused not on the nature of the third partys legal relationship with the client, but on the function the third party performed for the client. The privilege attached if that function was to enable the client to make the communication necessary to obtain legal advice is required, because the third party had been so implicated in the communication made by the client to its legal advisor as to brings its work product within the rationale of legal advice privilege. Legal professional privilege extends to any communications made through the agents of the lawyer (Trade Practices Commission v Sterling 1979). Privilege also applies to statements a lawyer takes from witnesses for either of the two required purposes needed for privilege whether by or against the client (Sanko Steamship co ltd v Sumitomo Australia Ltd 1992).

4- Who is entitled to claim Privilege? (page 267)

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The client (or the lawyer on the clients behalf)

Client is entitled to claim privilege. Lawyer who claims privilege on the clients behalf because the lawyer is best positioned to determine what communications are covered by privilege.

5- Privilege claims in non-judicial proceedings

General Rule
Claims for Legal professional privilege arent restricted to judicial proceedings without some legislative privilege applies in respect to all forms of compulsory disclosure. Baker v Campbell (1983) 153 CLR 52: denied the privilege in non judicial proceedings as the privilege would deny access to highly relevant and important information at the cost if imposing on unqualified persons the burden of deciding difficult questions of privilege.

Illustration application of privilege in response to search warrants

Judges believe that execution of a warrant should be carried out reasonably so to cause minimal inconvenience/embarrassment. This requires allowing the person in possession of the documents a reasonable opportunity to claim privilege. Law Council of Australia and AFP have prohibited police officials identified as potentially within the warrant unless a lawyer has the opportunity to claim privilege. When a lawyer (for the person against whom the warrant was issued) does not claim privilege, despite being given the reasonable opportunity to do so, the police conducting the search can legitimately claim that no documents are privileged.

Costs Disclosure and Costs Agreements

1-Costs disclosure requirements
Lawyers are required to disclose to (prospective) clients, in writing in a way that they can understand, the way in which the lawyer will charge and an indication of their likely costs exposure. A costs disclosure statement should ideally be separate from the retainer or costs agreement, to avoid the impression that every aspect of the statement has legal force and also because costs disclosure may need to be made before the retainer or cost agreement, and includes reference to the clients right to negotiate a costs agreement.

Disclosure requirement
What must be disclosed?

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Under s 309 of the LPA, a law practice must disclose to the client the following matters: The basis on which legal costs are calculated (s 309(1)(a)); The clients right to (s 309(1)(b)); o Negotiated the costs agreement; o Receive a bill; o Request an itemised bill after a lump-sum bill; o Be notified under s 316 of any substantial change. An estimate of legal costs if practical or a range of estimates with an explanation of variables effecting the cost (s 309 (1)(c)); Details of the intervals of billing (s 309(1)(d)); Rate of interest on overdue bills (s 309(1)(e)); If litigious, the range of costs that may be recovered if successful and the range of costs that they may be liable for if unsuccessful (s309(1)(f)); Right to progress reports under s 317 (s 309 (1)(g)); Who to contact to discuss legal costs (s 309(1)(h)); Avenues to dispute costs, including time limits (s309(1)(i)); The relevant law as to costs (s309(1)(l)). Another disclosure requirement pursuant to s 310 is that:
(1) If a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in s309(1)(a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosure to the client under s 309.

The above requirements must be fulfilled in writing and in clear plain language. This reference of clear plain language aims to prevent disclosure in terms that may be difficult to understand by the lay client/person. Where the client does not understand English, the written disclosure be expressed in a language the client understands. If a client is a person whose understanding of English is inadequate and the written disclosure in English, arrangements should be made for the information to be conveyed orally in a language the client understands. The challenge in disclosing costs estimates What may prove most challenging in costs disclosure is supplying prospective) clients with an estimate of the total costs and in litigious matters,, an estimate of the range of costs that may be recovered if the client succeeds, and that the client may be ordered to pay if unsuccessful. Casey v Quabba [2005] QSC 356: held that a statement that it is estimated the possible range of fees and costs recoverable will be between nil and $250,000 (approximately) was not be genuine attempt to inform the client as required by the [legislation], and so did not meet the disclosure requirements. When and whom must the disclosure be made? The disclosure requirements must be met before the lawyer is retained to provide legal services concerned, and where this is not reasonably practicable, as soon as practicable after being retained (s 311). Disclosure to another law practice must, however, be made before the other law practice is retained except in urgent circumstances, in which case it may be made orally before the law practice is retained and confirmed in writing as soon

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as practicable afterwards. Costs disclosure is directed to the (prospective) client, which is defined to include a person to or for whom legal services are provided (s4(1)). The legislation, however, also requires disclosure to any associated third party payer for the client, to the extent that the details or matters disclosed are relevant to that person and relate to costs payable by that person in respect of legal services supplied to the client. A person is a third party if he or she is under a legal obligation to pay any of the costs in question and has already paid all or part of those costs. He or she is an associated third party payer if the legal obligation is owed to the law practice. S315 of LPA disclosure to client must be expressed in clear plain language, and may be in a language other than English if the client is more familiar with that language. If client cant read, can be conveyed orally. When need disclosure not be made? Disclosure is not required if: Total legal costs are less than $750 (s 312 (1)(a)); The client has received a disclosure from the practice in the last 12 months (s 312 (1)(b)(i)); The client has agreed in writing to waive the disclosure (s 312 (1)(b)(ii)); The law practice decides on reasonable grounds that having regard to previous disclosures, further disclosures are not warranted (s 312 (1)(b)(iii)); The client is (s 312 (1)(c)): o A law practice or Australian legal practitioner; o Public company or large proprietary company within the meaning of the corporations act; o A financial services licensee within the meaning in the corporations Act o A liquidator, administrator or receiver; o A partnership carrying on professional services with more than 20 partners; o A proprietary company for the purpose of a joint venture, where any of the shareholders is a person who disclosure is not required; o An unincorporated association where one or more members are of a type that do not require disclosure and one or more members are of a type that requires disclosure, and all members have indicated that they waive their right to disclosure; o A minister of the Crown; The legal costs have been agreed through a tender process (s 312 (1)(d)); The client will not be required to pay costs (s 312 (1)(e)). Consequences of failing to fulfil disclosure requirements Section 317 of the LPA, prescribes multiple consequences arising out of a failure to fulfil the costs disclosure requirement, namely: The client need not to pay the costs, and the lawyer cannot maintain proceedings for their recovery, unless these costs have been taxed or assessed; On taxation or costs assessment, the amount of costs the lawyer may recover may be reduced by an amount proportionate the seriousness of the failure to disclose;

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A client who has entered a costs agreement with the lawyer may, in addition to applying for the assessment of the costs, apply for the costs agreement to be set aside; Possible proceedings for unsatisfactory professional conduct or professional misconduct.

Other disclosure obligations

Disclosure prior to settlement S 313 of the LPA requires a law practice that negotiates the settlement of a litigious matter on behalf of a client to disclose to the client, before the settlement is executed, a reasonable estimate of the amount of legal costs payable by the client if the matter is settled, and a reasonable estimate of any contributions towards those costs likely to be received from another party. Disclosure of availability of legal aid R 6A of the LPR add that lawyers who have accepted instructions to act for an accused who is to stand trial for crime, subject to obtaining a grant of legal aid, must assist that person to apply for the grant as soon as practicable after receiving instructions, and not later than 30 days before the commencement of the trial.

Disclosure of commission be lawyer-executors A lawyer who receives instructions from a person to draft a will appointing the lawyer an executor must, under R 11.1 of the SR, inform that person in writing, where the lawyer has an entitlement to claim commission, that he or she could appoint as executor someone who might make no claim for commission.

2- Cost agreements
A lawyer is not prohibited from contracting with a client regarding the amount and manner of payment of the lawyers costs. The gradual abolition of fee scales as between lawyer and client, coupled with costs disclosure obligations, have combined to make popular the use of agreements of this kind (costs agreements). S 322(1) of the LPA recognises and regulates the practice of lawyers effecting costs agreements with their clients.

Construing a costs agreement

A cost agreement can form part of the retainer, or be an agreement separate from it; either way, it is a contract, and so must meet both the general law requirements of a contract and any formality requirements imposed by statute. S 326 of the LPA makes explicit that a costs agreement is enforced in the same way as any other contract.

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PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456: Debelle AJ found the absence of true agreement in a case involving a backdated costs agreement not signed by the client or accepted by other conduct. The evidence revealed that the parties had not agreed on the hourly rate chargeable under the alleged agreement, which was obviously a fundamental term of a costs agreement. The courts approach to construing costs agreements, like for other contracts, is to seek to give effect to the parties intentions. The logic being that a lawyer should in drafting the agreement take care to express its terms to clearly identify her or his entitlements. In any event prudent lawyers will ensure that terms of costs agreements are sufficiently clear, thus avoiding an expectation gap, and preserving the claim to be paid under the agreement. Baker Johnson Lawyers v Jorgensen [2002] QDC 205, where a claim was settled for an amount inclusive of costs, which amount was less than the costs and disbursements incurred by the plaintiffs solicitors. The solicitor had taken the case on a no win no fee basis, but had not defined in the costs agreement what was meant by win. The court refused the solicitors claim to recover the shortfall from the plaintiff, reasoning that an outcome could not be viewed as a win from a plaintiffs perspective unless he or she actually recovers something.

Effect of costs agreement

As a contract, a costs agreement stipulates the lawyers entitlement to recover costs, limiting to the costs specified in, and calculated according to, the agreement in respect of the matter or proceeding.

Formalities for costs agreements

Writing S 322(2) of the LPA states that costs agreements be in writing. Statute declares costs agreements that do not meet the writing formalities to be void. But the absence of a written costs agreement does not deny a lawyer any claim for costs; the lawyer can seek to recover costs on a quantum meruit basis, to be quantified by taxation or assessment if necessary. Such claim is not based upon contract, but on the grounds of avoiding the client being unjustly enriched by the lawyers services. Signature S 322(3) if the LPA states that the costs agreement can be accepted by conduct other than writing. There is no requirement, therefore, that a costs agreement be signed by the client. It remains good practice, in any case, to secure a client signature to a costs agreement, as this reduces the prospect for an allegation that the client has not agreed to its terms.

Costs recovery where costs agreement is unenforceable or void

Any costs payable under a non-complying agreement are nonetheless recoverable by the lawyer, to be quantified under an applicable scale or practitioner remuneration order,

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or otherwise according to the fair and reasonable value of services provided. However S 327(3) of the LPA precludes the recovery or retention of an amount exceeding the amount the lawyer would have been entitled to recover had the costs agreement not been void. It also precludes the recovery or retention of any fees charged under an illegitimate uplift fee agreement or a percentage fee agreement. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2006] VSC 28: a costs agreement stipulated that the solicitors would charge a discount hourly rate of $66, as compared to the $400 normal hourly rate, but the normal rate would be charged if the client was successful in the litigation. Byrne J construed this as an uplift fee agreement and, as the uplift of $400 over $66 well exceeded the statutory 25% limit, deprived the solicitor of costs. His honours decision was reversed by the Victorian Court of Appeal, which instead viewed the agreement as an ordinary conditional costs agreement, whereupon the normal rate was the fee payable in the event of a successful outcome.

3- Contingent Fee Costs Agreements

Definition
A contingency fee arrangement is an agreement pursuant to which the payment of a lawyers fee is contingent on a specified event, usually the success of the litigation. There are 3 types of contingent fee arrangements: 1. Speculative (conditional): a lawyer takes her or his usual fee only in the event that the action is successful. 2. Uplift (success): entitles a lawyer to receive, in addition to her or his usual fee, an agreed flat amount or percentage uplift of usual fee. 3. Percentage: a lawyer receives as fees an amount calculated as a percentage of the amount secured.

Advantages and Drawbacks

The main advantage claimed for contingency fee arrangements is access to justice, principally for plaintiffs in civil actions pursuing meritorious monetary claims who otherwise could not afford legal representation. The contingent fee arrangement acts as an incentive for the lawyer to make an early assessment of the clients prospects of success, and to vigorously and innovatively pursue a case that has reasonable or strong prospects of success. The flip side is that contingency fee arrangements act as a disincentive to pursuing unmeritorious or vexatious proceedings. Perhaps more concerning is that the conflict of interest inherent in a contingency fee, namely, the lawyers interest to settle at a time that maximises her or his fee, may not be consistent with the clients interests. The scope for conflict is heightened in the case of percentage fees which encourage lawyers to settle as early as possible in the proceedings in order to generate the greatest fee for the least work. Thus lawyers may pressure clients to accept potentially disadvantageous settlements, and guard their interest by inserting in the costs agreement an entitlement to specified fees if clients reject a fair and reasonable settlement offer. Attached to this is the fear that the purchase of a share in litigation is a temptation to engage in misconduct in the pursuit of a successful outcome. Another concern is that uplift and percentage fee agreements may result in a lawyer fee unrelated to the value of the legal services performed.

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Contingency fees at general law

At general law the torts of maintenance and champerty upset the legality of certain contingency fee agreements. Maintenance involves the procurement, by direct or indirect financial assistance, of another person to institute or carry on or defend civil proceedings, without lawful justification. Champerty is a form of maintenance in which a share of the proceeds of the litigation is stipulated as the consideration for the assistance given. The tort of champerty reflects the public interest in seeing that vuln erable litigants are protected from opportunistic exploitation. Accordingly, percentage fee agreements are champertous, as are uplift fee agreements to the extent that they can be viewed as being in substance a share of the proceeds of judgement. Although the torts of maintenance and champerty have been abolished in NSW, however does not prevent a contract from being contrary to public policy or otherwise illegal on the grounds of champerty. Yet against the backdrop of the High Courts decision in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 which upheld the legitimacy public policy wise of litigation funding agreements under which the funder receives a share of the proceeds of the litigation; the scope for champerty to impugn costs agreements is now correspondingly reduced. Re Robb (1996) 134 FLR 294: the solicitors acted for plaintiffs on a no win no fee basis in personal injury litigation. Being out of pocket for fees and disbursements until the successful resolution of a clients claim meant that, in the words of the court, the solicitors had a substantial personal interest in the successful outcome of their clients cases and in the moneys that thereby became payable to the clients. Hence, there was conflict between their interests and the interests of the clients in being properly advised in relation to settlements and the profit costs and disbursements. This conflict obscured the solicitors perceptions of their fiduciary duties, leading them to treat settlement moneys as their own rather than on trust for their clients.

Statutory regulation of contingency fees

In line with the concerns expressed over percentage fee agreements, statute generally prohibits agreements of this kind. On the other hand, flowing on from judicial statements endorsing the validity of speculative fee agreements, there is not legal prohibition on speculative fee agreements in any jurisdiction, although statute regulates their operation. The uncertain status at law of uplift fee agreements has prompted their statutory validation, subject to controls and limitations.

Jurisdictions
S 323(1) of the LPA entitles a lawyer to make a costs agreement under which the payment of some of all of the lawyers costs in conditional on the successful outcome of the matter to which those costs relate. The agreement must set out the circumstances constituting the successful outcome of the matter, be in writing in clear plain language, signed by the client, and must contain (S 323(3)(c)-(e)): A statement that the client has been informed of the right to seek independent legal advice before entering into the agreement; and

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A cooling off period of not less than five clear business days during which the client, by written notice, may terminate the agreement (S 323(5)).

Solicitors Liens
1- General Principles
A lawyer can secure costs from a client before actually taking any steps in performing the retainer. This is most commonly done through requesting moneys in advance, from the client, which are held in trust until the services are performed.

Two Forms of Solicitors Lien

The concept of a lien recognises a right to resist a demand for the payment of money or the performance of an obligation until some counter obligation is paid or performed John D Hope & Co v Glendinning [1911]. There are two forms of lien that can arise in a lawyer-client relationship; retaining and particular. A retaining lien gives the solicitor a right to hold on to their clients documents until their costs have been paid. A particular lien also serves the purpose of providing some sort of security for the solicitors payments, but covers any personal property recovered or preserved for the client by the solicitors in litigation Each lien is based on a legally enforceable claim to costs. There is scope for a barrister to claim lien.

Policy Underlying Liens

The basic policy of a solicitors right to a lien is that it is not just the client who should get the benefit of the solicitors work without paying for it. Retaining lien addresses this issue in the way that it restricts the clients ability to proceed with litigation. There is a more modern justification of particular liens in that they reflect two fundamental rights that all citizens have; the right to access of the courts and the right to legal representation. This idea is justified in a way which suggests that without such protection for costs of their services, lawyers will refuse to provide work for a person if they believe that they will not pay.

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2- Retaining Lien
Lien is Possessory and General
Retaining lien is also seen to be the general or possessory lien. It is seen to be a general lien because it extends to all costs owed by the client to the solicitor. It is also a possessory lien because the solicitor actually has possession of the items that are retained documents. The retaining lien is a protective right for a solicitor

What Items Come Within the Lien?

A retaining lien can be claimed over any items that are the property of the client which the solicitor came into possession during the course of the retainer, and in their capacity as a solicitor There are three important limitations on the scope of this lien; (1) the lien doesnt extent to property which is owned by a third party; (2) the lien doesnt extend to items that were received or held outside of a solicitor-client relationship and (3) the lien doesnt extend to chattels or money advanced for a particular purpose In regards to (2) the item being claimed under a retaining lien has to have been, at the time of demand, given within a solicitor-client relationship with that client Re Wright (1984). In addition to this, no lien can arise over items that werent received in the capacity of a solicitor in the matter Ex Parte Fuller (1881). In regards to (3) when money or chattels are advanced to a solicitor for a particular purpose, thereby making the solicitor a trustee of them, a lien cannot attach unless they are allowed to remain within the lawyers possession for general purposes, as consented by the client (express or implied) illustrated in Stumore v Campbell & Co [1892]. Does the retaining lien extend to money in a trust account? In the past there has been conflicting views on whether this should be allowed, however, the issue is now addressed by the legal profession legislation which now entitles a law practice to exercise a retaining lien over trust money held in a general (or controlled money) trust account for the amount of costs reasonably due and owing by that person to the practice NSW s 261(1)(a) (1) A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person: (a) exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice,

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What Costs Can the Lien Secure?

The lien covers the solicitors taxable costs, charges and expenses incurred by him as solicitor for his client (Re Long [1929]) and for which the client is personally liable (Bolster v McCallum (1966)).

Operation of Lien Where a Client Changes Solicitor

Issues over a retaining lien often arise when there is a change in solicitor. Lawyer discharged by client When a client discharges a lawyer for reasons other than misconduct, it is acceptable behaviour if the solicitor retains the documents in question until their costs to date are paid, or arrangements have been made to secure the solicitors entitlement to costs Robins v Goldingham (1872). The reason behind this is that the interest of the client receiving their paper is not more important than the unfairness against the solicitor if they have to give up their lien in circumstances where the client has discharged them, for no justifiable reason, and has sought the service of another firm Rafferty v Time 200 West Pty Ltd (No 3) (2009). The professional rules also reflect this R 8.3. The rules also add that if the client has terminated the retainer, the solicitor can keep possession of the items until their costs are paid, or their payment is successfully secured - R 29.3. R 8.3 Upon completion or termination of a practitioner's retainer, a practitioner must, when requested so to do by the practitioner's client, give to the client, or another person authorised by the client, any documents related to the retainer to which the client is entitled, unless 8.3.1 the practitioner has completed the retainer; or 8.3.2 the client has terminated the practitioner's retainer; or 8.3.3 the practitioner has terminated the retainer for just cause and on reasonable notice; and the practitioner claims a lien over the documents for costs due to the practitioner by the client. R 29.3 If the client has terminated the first practitioner's retainer, the first practitioner may retain possession of the documents until the practitioner's costs are paid, or their payment to the practitioner is satisfactorily secured. The clients intention to discharge the solicitor must be clear, so that the solicitor can claim lien. This is necessary because the client cannot be denied the benefit of legal services. Lawyer discharges the client

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The general principle in these types of situations is that the solicitor is required to hand over the files to the new solicitor, who holds it subject to the former solicitors lien Griffiths v Griffiths (1843). This doesnt mean that the lien expires, because the old solicitor hands over the files upon receiving adequate security for the unpaid costs provided that the new solicitor holds the documents subject to the old solicitors lien and that they enter into an agreement with the client and the former solicitor to procure payment of the latter upon completion of the proceedings. (R 29.4 r 29.4.1). R 29.4 If the first practitioner has terminated the retainer and the client's documents are essential to the defence or prosecution of proceedings which are continuing before a Court, the practitioner must surrender possession of the documents to the client, upon the terms prescribed in Rule 8.4.2 or to the second practitioner, if so directed by the client, and, provided that the second practitioner 29.4.1 holds the documents subject to the first practitioner's lien, if that is practicable, and ensures the first practitioner's costs are satisfactorily secured; or Differentiating discharge by client from discharge by solicitor This issue is determined through a close analysis of the circumstances of the case and the actions of the parties Ismail v Richards Butler (a firm) [1996].

Ouster and Loss of Lien (page 355)

Lien ousted by the court NSW legal profession rules allow the court to order for the delivery of any documents in the solicitors possession NSW s 728(1)(b). Lien ousted by statute or rules Retaining liens can be ousted by statute. Consistent with the policy behind the lien, courts usually construe the statutory provision in a narrow approach, so to minimise the occurrence of ousting of the liens. But when the relevant statute clearly ousts a lien, the court will have no choice but to give effect to it. Ouster of lien in disciplinary proceedings As part of the disciplinary proceedings where the charge against the solicitor is substantiated, the order usually does require the solicitor to waive their retaining lien. This is applicable in most jurisdictions NSW s571 (2)(b). S 571 Compensation orders (2) A compensation order consists of one or more of the following: (b) an order discharging a lien possessed by the practitioner in respect of a specified document or class of documents,

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Exclusion of lien by agreement or conduct (including by waiver) A retaining lien can be excluded by agreement or by conclusion from the parties conduct and course of dealing. A solicitor can lose the lien by abandoning or waiving it. An example of this is if the solicitor sends a letter to their client saying that all outstanding accounts have been paid. Such a letter will waive the solicitors lien. The most common way that a solicitor can waive their lien is if they take another security from the client and express an intention that they want to use it in substitution of the lien. This doesnt prevent a solicitor who takes a security inconsistent with retaining the lien from taking steps to preserve the lien however, this must be done expressly. This point is expressed in Re Morris [1908]. Once the lien is waived, the solicitor cant retrieve it. A fresh agreement needs to be created between a solicitor and client can reinstate the lien. Lien lost when clashes with third party interests A solicitors right to lien is only enforceable against persons who have no higher right than the client. If the items are subject to a third party who has a higher claim over them than the client, then the lien is subject to the interests of those third parties AttorneyGeneral v Trueman (1843). The solicitor cant hold the documents free of that encumbrance. A solicitor cant set up a lien against a person who has a higher right than the client because it is considered as unfair if the lien is put against a third party because it embarrasses them, and the solicitor isnt entitled to do so. Expiry of lien by payment of bill The lien expires when the solicitors legitimate demands of the client regarding payments have been met.

3- Particular Lien
Nature and Operation of Particular Lien A solicitor in entitled to a lien on a fund of a judgement recovered by his work for the costs of recovery or those that were immediately incidental Re Meter Cabs Ltd [1911]. The lien extends to property or fund recovered. Its described as particular because it doesnt extend to protect the costs the solicitor has incurred in relation to work unrelated to litigation.

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Circumstances where a particular lien is valuable The particular lien is valuable because a solicitor acquires no common law interest in a clients right to reserve the money or property from a judgement. Also, it is very common that the solicitors do not have possession of that money or property. Lien functions via an equitable interest enforced by a court A solicitor has the right to ask for the courts intervention for his protection, when, having obtained judgement for his client, he finds there is a probability of the client depriving him of his costs Mercer v Graves (1872). Probability in this sense doesnt mean that it has to be shown to be more probable than not, rather that it is no more than a significant risk that has to be shown Ex Parte Patience (1940). The absence of a formal costs agreement does not oust the availability of a particular lien. Courts intervention and its terms are discretionary In many cases where the lien is asserted, the proceeds of the litigation are in the hands of a third party North West Construction Co Pty Ltd v Audori Pty Ltd (1994). The court order in such a case is directed at the judgement debtor to pay the solicitor their costs ascertained by taxation. The debtor is then restrained from paying, and the client from receiving, the money without accounting to the solicitor for his or her hands. The position is different when the money is available to the solicitor. Subject to the statutory requirements on the recovery of costs, the solicitor can retain the amount of the costs and pay the rest of the balance to the client. If the costs exceed the amount, it is then applied to those said costs.

Competing Claims to Particular Lien Timing of the Lien

As with the retaining lien, the particular lien derives from the client. Therefore, it stands no higher than the clients rights. This also means that the lien is limited by whatever rights may be exercised against the client; its also subject to whatever equities exist between the client and other parties that are interested in the fund or property Halvanon Insurance Co Ltd v Central Reinsurance Corp [1988]. The court does consider, in each scenario, the equity of the situation. It is still important to determine the time which the solicitors equitable rights under a particular lien. There is special significance for when the client wishes to assign the proceeds of a judgement to a third party, or in the occasion of the clients insolvency.

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Unless the solicitor can show that their entitlement pre-dates the insolvency, their lien will lose priority to the claims of the relevant insolvency administrator. Re H & W Wallace Ltd (in liq) [1994] 1 NZLR 235: Thomas J held the particular lien arises when the solicitors undertake the work for the client in the course of litigation. The equitable interest, whether pursued or not, exists from that time. What the client may or may not subsequently do in seeking to deprive the solicitors of their costs makes no difference to the effect of that interest. Nor can it inhibit the right of the solicitors to seek the courts intervention to protect that pre-existing interest. The timing of the particular lien is also important if the solicitor has stopped practising, whether this is because of disciplinary sanction or because they have retired.

Lien Claimed By a Former Solicitor

A solicitor is not denied a lien because they have stopped acting for a client prior to the recovery of the judgement or compromise. For the lien to be granted though, the former lawyer must prove that there was a link between the money or property recovered with the work they have completed. The money recovered must be at least in part, as a result of the work that the former solicitor has put in towards the case.

Ouster of Lien by Statute

Statute can oust the particular lien when the clear words indicate that this is the drafters intention.

Lawyers Duty to the Court

1- Context
Lawyer as an officer of the court
The lawyers duty to the court is paramount this point is reflected in barristers rules across most jurisdictions (the administration of justice is best served by reserving the practise of law to those who owe their paramount duty to the administration of justice r:1) If there is a conflict between duty to client and duty to court, the latter prevails Rondel v Worsley [1969] 1 AC 191 at 227 The trust that the court has in lawyers results in a corresponding duty to diligently observe any undertakings given to the court, and also, to avoid unnecessary expense and wasting of the courts time.

Enforcing the duty to the court

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What needs to be considered when the court is deciding whether the court will stop a lawyer from representing a certain party is whether a reasonably informed person would find it to be against the administration of justice to allow the representation to continue Kallinicos v Hunt (2005) 64 NSWLR 561 at 76. The jurisdiction includes the power to sanction a lawyer who has breached the duty owed to the court. A lawyers words or actions that obstruct the administration of justice or disregard the courts authority in some way can result in punishment for contempt Ex Parte Bellanto [1963] NSWR 1556 at 1564. Misleading the court can also have consequences for the actual trial process. In regards to criminal matters, it can lead to a miscarriage of justice, which might provide reasoning for the conviction to be quashed and have a retrial. When a misleading statement or omission has caused a judgement to be deceptively obtained, the court can, in extreme circumstances, set the judgement of a civil case aside Meek v Fleming [1961] 2 QB 366 at 379 when a part deliberately misleads the court in a material matter and that deception probably tipped the scale in his favour (or might reasonably be considered to do so) it would be wrong to allow him to retain judgement that has been reached unfairly.

2- Independence
The integrity of the judicial process is weakened if the lawyer lacks the objectivity and independence which their professional responsibilities and obligations to the court requires of them Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 at 590

Independence in presentation of the case

A lawyer is obliged, both under their duty to the court and the client to put forward any argument that might reasonably be opened to the client Queensland Law Society Inc v Stevens (1996) 17 Qld Lawyer Reps 27 at 30. Giannarelli V Wraith (1988) 165 CLR 543 at 566 It is the barristers duty to exercise an independent judgement in the conduct and management of a case, taking into account, not only his clients success, but also the best way to achieve a speedy and efficient administration of justice. Lawyers shouldnt allow clients to take over litigation, thereby weakening their own independent judgement. The relevant principals are reiterated in the professional rules across most jurisdiction LCA rr: A18-A20 (pg 373 of TB) A.18. A practitioner must not act as the mere mouthpiece of the client or of the instructing practitioner and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client's and the instructing practitioner's desires where practicable.

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A.19. A practitioner will not have breached the practitioner's duty to the client, and will not have failed to give appropriate consideration to the client's or the instructing practitioner's desires, simply by choosing, contrary to those desires, to exercise the forensic judgments called for during the case so as to: (a) confine any hearing to those issues which the practitioner believes to be the real issues; (b) present the client's case as quickly and simply as may be consistent with its robust advancement; or (c) inform the court of any persuasive authority against the client's case. A.20. A practitioner must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner's personal opinion on the merits of that evidence or issue.

3- Candour in the presentation of the law

Lawyers must not mislead the court in regards to the law, but must do what they can to ensure that the law is applied correctly to the case. Lawyers must not misrepresent the law to a court or tribunal.

Duty to assist the court in the applicable law and procedure

Lawyers have to be aware of the relevant legal principals and the requirements of applicable rules of court Kennedy v McGeechan [1978] 1 NSWLR 314 - and be adequately prepared in their submissions. Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325 at 194 it is appropriate for a party to provide as much assistance as it can to the trial judge in determining that issue. It is essential for lawyers who hold themselves out to be competent to practise in a certain field to bring and keep themselves up to date with recent authority in that field. Copeland v Smith [2000] 1 WLR 1371 highlights that a lawyer who knows that the presiding judge is unfamiliar with the law or procedure in a particular case should draw the judges attention to all relevant matters.

Duty not to withhold relevant law

Lawyers must not withhold authorities that may go against their client, but must inform the judge of the said authority - Rondel v Worsley [1969] 1 AC 191 at 227-228. The professional rules require that lawyers inform the court of any of the following if they have reasonable grounds to believe to be directly in point against their clients case LCA NSW r A25, any binding authority, any authority decided by the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court, any authority on the same or materially similar legislation as that in question in the case and any applicable legislation. This obligation exists for the whole time up until the final judgement is given LCA NSW r A27. Lawyers will not have breached the duty to the

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client by informing the court of any persuasive authority against the clients case LCA NSW r A19(c). Equivalent BR from R 31.

False documents
A lawyer must not knowingly submit a false document to the court Rajasooria v Disciplinary Committee [1955] 1 WLR 405 at 413. This also covers the lawyer being a party to an affidavit that contains any dishonest or misleading statement Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at 60 Lawyers should not knowingly make false allegations of fact in pleadings. Again, if a lawyer discovers, after making a factual allegation, that the allegation is false, there is case authority that the lawyer will mislead the court if they fail to disclose the true position - Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at 60.

Half-truths
Lawyers must avoid making statements or taking actions that are half truths, or somehow leave the court with an incorrect impression Re Thom (1918) 18 SR (NSW) 70 at 7475; a practitioner might present a statement of fact which, although might not be able to be classed as directly untrue, still presents a body of information that is misleading, and conceals the true state of facts Main case of half truths Meek v Fleming [1961] QB 366 (relevant facts: plaintiff claimed damages for assault against the defendant, then chief inspector of police force. Between the date of the writ being lodged and the trial, the defendant was demoted to station sergeant after being found guilty by the police disciplinary board of being a party to deception of a court in another matter. His counsel chose not to disclose the demotion to the court. However, the opposing side and the judge consistently addressed the defendant as inspector or chief inspector and nothing was done to correct them.) The fact that the defendants advisers were prepared to act as they did, showed the great importance which they attached to the facts concealed - Meek v Fleming [1961] QB 366 at 377. The judge and jury were misled in an important matter the defendants credibility - Meek v Fleming [1961] QB 366 at 379.

Client perjury
The professional rules require a lawyer who, at any time before the judgement has been delivered, has been informed by a client that someone has lied in a material particular to the court, or falsified a tendered document, must advise the client that the court should

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be informed of the lie or the falsification and request authority to inform the court LCA NSW rr 21. The lawyer must not inform the court without said authority, and if not granted, they must withdraw from the case.

Clients intention to disobey court order

A lawyer obviously must not advise a client, or a third party, to disobey a court order, or encourage the client to do so. If a lawyers client discloses to them of their intention to disobey a court order, the lawyer must advise against that course, and warn of the dangers, and not advise the client how to carry out the said intention LCA NSW r A34. The lawyer must not inform the court or the opponent of the intention, unless previously authorised by the client, or if the lawyer believes, reasonably, that the clients actions might be a threat to any persons safety.

17.1 If a practitioner is: 17.1.1 aware that a client is withholding information required by an order or rule of a court, with the intention of misleading the court; or 17.1.2 informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular; and the client will not make the relevant information available, or allow the practitioner to correct the false evidence; the practitioner must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the court, give notice of the practitioner's withdrawal from the proceedings. 21. If a practitioner's client admits to the practitioner, during or after any proceedings, while judgment is reserved, that the client has given materially false evidence or tendered a false or misleading document in the proceedings, the practitioner must 21.1 advise the client that the Court should be informed of the false evidence, and request the client's authority to inform the Court and correct the record; and 21.2 if the client refuses to provide that authority, withdraw from the proceedings immediately, and terminate the retainer. 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

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(ii) the practitioner believes on reasonable grounds that the client's conduct constitutes a threat to any person's safety. (BR80). Equivalent BR @ rule 48 50.

Duty to not illegitimately destroy or remove documents

Lawyers are not allowed to be a party to the illegal destruction or removal of documents. If a client informs their lawyer of their intention to do so, the lawyer must advise the client not to do so. This duty is addressed by cll 177(1) and 177(2) of the Legal Profession Regulation 2005 (NSW) (rule on page 387 of TB). Contravening the rules is seen to be professional misconduct. (177(4)) Rule 177 of the LPR: (1) An Australian legal practitioner must not give advice to a client to the effect that a document should be destroyed, or should be moved from the place at which it is kept or from the person who has possession or control of it, if the practitioner is aware that: (a) it is likely that legal proceedings will be commenced in relation to which the document may be required, and (b) following the advice will result in the document being unavailable or unusable for the purposes of those proceedings. (2) An Australian legal practitioner must not destroy a document or move it from the place at which it is kept or from the person who has possession or control of it, or aid or abet a person in the destruction of a document or in moving it from the place at which it is kept or from the person who has possession or control of it, if legal practitioner is aware that: (a) it is likely that legal proceedings will be commenced in relation to which the document may be required, and (b) the destruction or moving of the document will result in the document being unavailable or unusable for the purposes of those proceedings.

5- Dealing with witnesses

No conferring with witnesses together
As a general rule, a lawyer shouldnt confer with more than one witness at a time, about any issue the lawyer believes to be relevant at a hearing, and could be affected by, or might affect evidence given by any of those witnesses LCA NSW r A46. A.46. A practitioner must not confer with, or condone another practitioner conferring with, more than one lay witness (including a party or client) at the same time, about any issue: (a)as to which there are reasonable grounds for the practitioner to believe it may be contentious at a hearing; or (b)which could be affected by, or may affect, evidence to be given by any of those witnesses.

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A.47. A practitioner will not have breached Rule A.46 by conferring with, or condoning another practitioner conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise. BR 70. Day v Perisher Blue Pty Ltd (2005) NSWLR 731 at 50 its regarded as proper practice for legal practitioners to take proofs of evidence from witnesses separately and to encourage these witnesses not to discuss their evidence with each other, and especially not with other potential witnesses.

No coaching of witnesses
There is no circumstance or situation that will arise which will make it alright for a lawyer to advise or suggest to a witness that false evidence should be given LCA NSW r A47. This also covers the duty to not coach a witness or encourage the witness to give evidence different from what they believe to be the truth, and suggesting answers to questions that might be asked. This, however, doesnt prohibit a lawyer from expressing a caution to tell the truth or questioning and testing the evidence a prospective witness plans to give this includes drawing to the witnesss attention inconsistencies or difficulties with it LCA NSW r A44. A.44. A practitioner will not have breached Rule A.43 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness's attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true. It is not unethical for a lawyer to persuade that a witnesss initial version of a certain fact situation isnt completely true or accurate Resolution Trust Corporation v Bright (1993) 6 F 3d 336 at 341. The lawyers professional responsibility to a client states that they must prepare the witness for the type and manner of questioning, and should not put a witness on stand without knowing in advance how they will respond to important questions R v Chapman (1958) 26 WWR 385 at 393. Level of preparation is influenced by the experience of the witness R v Noble (2000) 117 A Crim R 541 at 19. R v Momodou [2005] 2 All ER 571 at 61 witness training for criminal trials is prohibited.

A.43. A practitioner must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings. BR 68: also refer to 69.

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A barrister must not: (a) advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or (b) coach a witness by advising what answers the witness should give to questions which might be asked. No communication in cross-examination
The professional rules in most jurisdictions prohibit a lawyer from conferring with any witness that they have called on any matter related to the proceedings while that witness is under cross-examination LCA NSW r A48. and BR 72. R v Shepherd: this aims to prevent the coaching or coaxing of a witness or its appearance, and its breach has the capacity to cause a miscarriage of justice. There is a limitation to this in exceptional circumstances, where the lawyer has informed the cross-examiner of their intention to do so, if the lawyer believes on reasonable grounds that special circumstances require such a conference, if the lawyer has informed the cross-examiner before hand of their intention to do so, and if the lawyer otherwise does inform the cross-examiner as soon as possible.

6- Communications and relationship with judge

To preserve integrity, a lawyer must not, in the presence of any of the parties or other lawyers, deal with a court in a way of familiarity that may reasonably give them impression that they carry special favour with the court LCA NSW r 61. A.61. A practitioner must not in the presence of any of the parties or practitioners deal with a court, or deal with any practitioner appearing before the practitioner when the practitioner is a referee, arbitrator or mediator, on terms of informal personal familiarity which may reasonably give the appearance that the practitioner has special favour with the court or towards the practitioner. (BR 44) A.56. A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connexion with current proceedings unless: (a) the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or (b) the opponent has consented beforehand to the practitioner dealing with the court (BR 53) in a specific manner notified to the opponent by the practitioner.When there is consent from the opposition, the lawyer must not raise any matters with the court other than those subject to the consent, and should immediately inform the opponent of what was said between the lawyer and the court LCA NSW rr A57. A.57. A practitioner must promptly tell the opponent what passes between the practitioner and a court in a communication referred to in Rule A.56. (BR54).

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It is obvious that a lawyer should avoid conduct that might give the impression to a reasonable observer that they are able to communicate information about the proceeding to the judge other than in the presence of all other appearing parties or their legal reps. A lawyer should not appear before a court in a matter where, due to the relationship between themselves and the court, the administration of justice may appear to be biased. This is reflected in the barristers rules that require counsel to decline a brief if they appear before their parents, sibling, spouse, child, or a member of their household. (BR 95(j)).

7- Public disclosures and media communications

Restrictions on communications that take place out of court (i.e. media) address to seek balance in three interests: the interest of the public and the media in accessing facts and opinions about litigations, the interest of litigants in placing a legal dispute before the public, and the interest of the public and opposing parties in ensuring that the process of adjudication isnt distorted by statements presented by the media. It has been assumed that the administration of justice is better served if lawyers are seen but not heard in public, rather than allowing lawyers to use the media to sway the public opinion. Rules allow a lawyer to answer unsolicited questions from journalists concerning a matter where there is no possibility of a jury ever hearing the case or of any re-trial of the case before a jury, provided that LCA NSW r 19.1.2 (BR 76) - the answers are limited to information regarding the identity of the parties, the nature of the issues in the case, the evidence, the status and the nature of the orders made; the answers are accurate and do not provide unnecessary description and the answers dont express the lawyers opinion on the matter.

8- Abuses of process
Duty to exercise independent professional judgment (Tuckiar) Duty not to make unsubstantiated allegations or suggestions (Rondel) Duty not to litigate so as to harass or embarrass (Randall)

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Duty to use subpoenas responsibly (Dewley) Duty to avoid unduly increasing time and cost of proceedings (Saragas) Duty not to pursue hopeless cases (A159 of 2002) In New South Wales, statute prescribes disciplinary and costs consequences for lawyers who pursue civil claims lacking reasonable prospects of success (Legal Profession Act 2004 Pt 3.2 Div 10)

Duties specific to prosecuting lawyers

1- Prosecuting Counse
BR 80:

A barrister whose client informs the barrister that the client intends to disobey a courts 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 clients intention unless (i) the client has authorised the barrister to do so beforehand; or (ii) the barrister believes on reasonable grounds that the clients conduct constitutes a threat to any persons safety.

The basic duty of fairness and impartiality

Critical distinction between prosecutors duty of fairness and impartiality Whitehorn v R (1983) 152 CLR 657: Prosecuting counsel in a criminal trial represents the state. The court is entitled to expect that he will act with fairness and detachment and always with the objectives of establishing the whole truth Professional rules fairness requires prosecutors to fairly assist the court to arrive at the truth and impartiality is to seek, impartially, the whole of the relevant evidence placed before the court NSW r A62 (BR 82)

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Two main reasons for prosecutors duty of fairness and impartiality. 1. There is no conflict between the prosecutors duty to the court and the client, the state. 2. The prosecutors status gives a certain level of integrity and fairness. Prosecutor should avoid, when they can, giving public comments regarding the case. Prosecution Guidelines issues by the NSW of the Director of Public Prosecutions regarding media state that: its not appropriate to discuss the likely result of proceedings or the prospect of appellate proceedings being instituted... it is not appropriate to comment to the media on the correctness or any determination of a court. R v MG (2007) 69 NSWLR 20: a prosecutor is entitled to draw attention to the sufferings of the victims of the crime. However, there does still need to be a detachment from the prosecutor regarding the case.

Impact on attitude of prosecutor

The law expects prosecutors to adopt a certain attitude towards carrying out their function. This attitude should be consistent with a duty to assist the court in reaching the purpose for criminal prosecutions; to make sure that justice is done. This means that prosecutors have a duty to not struggle for a conviction or be betrayed by feelings of professional rivalry. Professional rules dictate that a prosecutions case for conviction must not go beyond a fair and whole representation of the case. A.63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case. (BR 83). Case law adds to this by stating that prosecutors should avoid the use of tactical manoeuvres to secure a conviction and they should also not seek to take advantage from a procedural error made by the defence counsel (R v Moore (1995)). Language BR84: A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. BR85: A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt also to carry weight. Need for detachment and self-control A requirement of fulfilling the duty is professional detachment and self-control. Prosecutors must avoid giving their own reaction to the evidence led on behalf of the accused. The point is also reiterated in the professional rules in most jurisdictions NSW r A20

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A.20. A practitioner must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner's personal opinion on the merits of that evidence or issue. (BR 43). A prosecutor shouldnt prosecute a case in which they are likely to be called as a witness because this might undermine the professional detachment and the appearance of impartiality. Importance of not inflaming bias against the accused Fairness states that a prosecutor must not bias the court against the accused. In certain types of criminal prosecution, the jury might already have certain prejudices against the accused. In such situations, the prosecutors must be particularly vigilant to not do or say anything that appeals to the prejudice or sympathy of the jury de Jesus v R (1986). Importance of avoiding unduly emotive language A prosecutor must not conduct proceedings with unduly emotive language; that is, with language that is calculated not to enlighten, but to ignite R v Munroe (1995). McCullough v R [1982] Tas R 43: Crown counsel in a murder case emphasised the sanctity of life and the horrible nature of the crime of murder, characterising the accused as a despicable and disgusting man who felt no remorse and who was prepared to kill another person might swat a fly or flick out a match. He compared the accused to the Yorkshire Ripper with the implied suggestion that he was the sort of person who, were he not restrained, might not be responsible for having half the community wiped out. The court held that a real risk of the jury being improperly influenced by those remarks could not be excluded, and so quashed the conviction. Just because the language chosen by a prosecutor is strong or emotive will not always be a breach of duty of fairness, especially if its proportionate to and supported by the evidence put forward. R v Deriz (1999) 109 A Crim R 329: where the prosecutor described the defendants conduct as barbarous, involving sexual atrocities and hostages, the court found no justification to allow an appeal against conviction on this ground. The prosecution case, according to the court, was entirely supported by the evidence it led, and so these descriptions were, given the evidence, not inappropriate. Therefore, the fairness criterion isnt based on prejudice or emotion, but rather, at undue prejudice or emotion. What needs to be considered is the degree of the emotive language.

Prosecutors duty of disclosure

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The prosecutors duty of disclosure owes its origin to the elementary right of every defendant to a fair trial. What informs the duty is that an accused must have adequate notice of the case against her or him.

Calling of witnesses by prosecutors

General rule (BR88) Richardson v R (1974) 131 CLR 116: when considering what witnesses to call upon, the prosecutor needs to consider numerous factors; whether the evidence is essential to the Crowns case, whether the evidence is credible and truthful and whether it is in the interest of the administration of justice that the witness is subject to cross-examination. Although it is the prosecutors discretion that is used to determine what witnesses to call upon, the discretion must not be exercised to obtain an unfair advantage for the prosecution. The evidence presented by the witness should be relevant and credible and shouldnt be sought to hide any weaknesses of the prosecutions case R v Deriz (1999) A.66B. A prosecutor must call as part of the prosecution's case 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; and (d) from whom statements have been obtained in the preparation or conduct of the prosecution's case; unless: (BR88) (See below) Distinguishing witnesses that must be called from those that need not be called A refusal to call a witness will only be justified if the interest of justice overrides. This is reflected in the professional rules, which indicate that the prosecutor owes no duty to call witnesses that the opponent consents to not being called. A witness whose testimony is unreliable by reason of that witness, as reasonably believed by the prosecutor, does not need to be called. A prosecutor is not allowed to omit from calling a witness or from deeming them to be unreliable simply because the evidence they provide does not coincide with the prosecutors theory or argument throughout the case. A66B: Unless: (e) the opponent consents to the prosecutor not calling a particular witness;

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(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 unreliable by reason of the witness being in the camp of the accused; (BR 88) Calling of witnesses by the court A trial judge may call on a person to give evidence. However, the jurisdiction is limited Richardson v R (1974): this exercise should be rare and infrequent because all too often the trial judge lacks knowledge and information about the witnesses. A prosecutors refusal to call the witness, even if the judge believes the reason to be insufficient, does not constitute grounds to exercise this jurisdiction. A66A: (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

2- Criminal Defence Lawyers

The criminal defence lawyers duty is to protect the client as much as possible from being convicted.

Guilt of the accused

Once they have accepted a brief, a defence lawyer is bound by duty, to defend the accused regardless of any belief or opinion they may have formed in reference to the guilt or innocence of the accused. Where the accused clearly confesses guilt A lawyer can still represent a client who has confessed to them that they are guilty of the crime, even if that client chooses to plead not guilty. A.33. A practitioner retained to appear in criminal proceedings whose client confesses guilt to the practitioner but maintains a plea of not guilty: (a) may cease to act, if there is enough time for another practitioner to take over the case properly before the hearing, and the client does not insist on the practitioner continuing to appear for the client; (b) in cases where the practitioner continues to act for the client:

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(i) must not falsely suggest that some other person committed the offence charged; (ii) must not set up an affirmative case inconsistent with the confession; but (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; (iv) may argue that for some reason of law the client is not guilty of the offence charged; or (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged. BR79: A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty: (a) should, subject to the client accepting the constraints set out in sub-rules (b) to (h) but not otherwise, continue to act in the clients defence; (b) must not falsely suggest that some other person committed the offence charged; (c) must not set up an affirmative case inconsistent with the confession; (d) must ensure that the prosecution is put to proof of its case; (e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; (f) may argue that for some reason of law the client is not guilty of the offence charged; (g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged; and (h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the clients innocence. In Tuckiar v R (1934) 52 CLR 335: the power was exercised in favour of what was described as a completely uncivilised aboriginal native charged with the murder of a police constable in the Northern Territory. The appellant was convicted. After the conviction his counsel announced in open court that his client had admitted that evidence of a confession given by him of the murder was correct. The verdict was set aside for other reasons. The statement by counsel in open court was of such damning prejudice to the fairness of any retrial that a verdict of acquittal was substituted. As can be seen the facts were extraordinary. When the client is legally aided, the conditions upon which that aid was granted might require the lawyer to report to the person in charge of the administration of legal aid about the accuseds guilt, in which case further legal aid will be declined. Confession of guilt along with a not guilty plea does have an impact on the lawyers duty to not mislead the court. The lawyer cant falsely suggest that another person committed the crime, call upon evidence which might provide the accused with an alibi at the time of the crime or allow the accused to deny the truth of the prosecutions case in any respect inconsistent with the confession. Rule 20 of SR: 20.1 If a practitioner's client, who is the accused or defendant in criminal proceedings, admits to the practitioner before the commencement of, or during, the proceedings,

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that the client is guilty of the offence charged, the practitioner must not, whether acting as instructing practitioner or advocate 20.1.1 put a defence case which is inconsistent with the client's confession; 20.1.2 falsely claim or suggest that another person committed the offence; or 20.1.3 continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client's innocence. 20.2 A practitioner may continue to act for a client who elects to plead "not guilty" after admitting guilt to the practitioner, and in that event, the practitioner must ensure that the prosecution is put to proof of its case, and the practitioner may argue that the evidence is insufficient to justify a conviction or that the prosecution has otherwise failed to establish the commission of the offence by the client. Denial of guilt but plea of guilty This situation also raises ethical issues. Although the lawyer is not prohibited from acting for the accused in such a situation, they do need to find out the reasons as to why the client has made this decision, so to make sure that it is not for irrational reasons. The client must also be advised of the strength of the prosecutors case, prospects of acquittal and be fully informed of the consequences of a guilty plea. This advice should be supplied in writing.

Meissner v R 1995any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he/she is charged. A plea as a result of intimidation has not been made freely or voluntarily and proceedings are rendered abortive, whether or not it ever becomes aware of the impropriety. Duty to opponent

BR 48: A barrister must not knowingly make a false statement to an opponent in relation
to the case (including its compromise). BR 50: A barrister will not have made a false statement to an opponent simply by failing to correct an error on any matter stated to the barrister by the opponent.

Disclosure of prior convictions

Defence counsel owes no duty to disclose to the court material conflicting the clients interests even if the prosecution is not aware of this. The only way this can be done is if the client has consented to the defence counsel, allowing the disclosure to occur. Counsel should also not correct any information given by prosecution if its disclosure or correction would be to the clients detriment. However, counsel also must not mislead the court in believing that there are no previous convictions if they do in fact have some, nor should they ask a prosecution witness whether there are any previous convictions in hope of receiving a negative answer.

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Advice on plea and giving evidence

The client has the sole right to decide whether they want to plead guilty or not, and whether they want to give evidence or not. This freedom comes with the condition that the client must be making an informed decision, which means that their lawyer must inform them of all the relevant factors of the case. A.17B. A practitioner must (unless circumstances warrant otherwise in the practitioner'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. Erroneous advice given by counsel in regards to the effect of a guilty plea can provide grounds for an appeal based on a miscarriage of justice, although this is unlikely in the case where the evidence suggests that the decision to plead guilty was made voluntarily and freely.

3- Duty of Family Lawyers in Cases Involving Children

Circumstances where interests of child are paramount
Statute requires that in family law litigation that involves parenting, location and recovery matters, the interests of any children must be of paramount consideration Family Law Act 1975 (Cth) ss60CA, 67L, 67V. Family Courts will not make a divorce order unless it is satisfied that arrangements have been made for the welfare of the children. Clarkson v Clarkson (1972) Interests of the parties take second place. Regard for the interests of the child is the determining factor. The lawyer must always remain aware that the childs interests come before those of his client. The primary issue here is the extent to which the interests of the child upset the doctrines of confidentiality and partisanship. There is a serious issue when a client fighting for custody of a child admits to their lawyer that they have in fact abused their child previously. The duty to suppress is justified in three main ways: the lawyer cant make submissions to the court or lead evidence inconsistent with the clients admission, second, the professional rules allow a lawyer to disclose confidential information for the sole purpose of avoiding the commission or concealment of a serious criminal offence and third, statute in NSW says that voluntary disclosure of concerns or submissions regarding neglect or abuse towards children may advantage lawyers. A lawyer who allows their own subjective judgement to impact the assessment of the interest of the child does risk imposing their own views on the client. Where the interests of the child are not served, the court can admit evidence otherwise excluded on the grounds of privilege in aid of settlement.

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The paramount interests of the child should influence how the case is argued, and how the lawyer advises their client.

Lawyers as mediators in family law proceedings

Lawyers who act as mediators in family law proceedings must take into account the interests of the child while conducting such mediations. When its necessary to protect the interests of the child, the court can order for an independent childrens lawyer to represent the child. This independent lawyer is to form an independent view based on available evidence, and to act in the best interest of the child. However, this does not mean that the lawyer can take direct orders from the child who expresses certain wishes, if those wishes are in conflict with the actual interest of the child; they are not the childs legal representative. This also means that the lawyer can disclose any information they believe relevant to the court, even if such a disclosure is against the wishes of the child. Some duties of an independent child representative are: the act impartially, they ensure that views expressed by the child are put forward to the court, to try their hardest to minimise the trauma and to facilitate an agreed resolution of matters.

Disciplinary proceedings against lawyers

Main aim is protective Main purpose of disciplinary proceedings is protective chiefly, to protect members of the public from misconduct by lawyers Southern Law Society v Westbrook (1910) Closely linked with this purpose is the aim to protect the reputation of the profession considered to be more important than the fortunes of any individual member of the profession. Relationship between protection and punishment Because the main purpose of disciplinary proceedings is protection, and that they are not of a criminal proceedings nature, their object cannot be seen to be as something to hand out punishments. However, it is hard to separate the two. The reason for punishment or

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the prospect of punishment is to discourage lawyers from engaging on conduct that threatens the public interest Law Society of NSW v Foreman (1994). Impact of protective aim on procedure Civil standard of proof applies (on the balance of probabilities). This is because the aim behind the proceedings is to protect the public. Also, unlike in a criminal matter, the lawyer must cooperate reasonably. Behaviour inconsistent with this can impact on the outcome of the proceedings. Impact of protective aim on need to comprehensively consider misconduct The idea of the protective aspect of such proceedings means that the court has to investigate every aspect of misconduct that arises, not just the ones the lawyer is prepared to admit it. There are two reasons for this: the lawyers conduct is a matter of public concern and matters that might constitute as misconduct should be addressed on the basis that they could be relevant to any future application for readmission Law Society of NSW v Seymour (1982)

Proof in Disciplinary Proceedings

The onus of proving the misconduct lies with the party thats alleging its supposed occurrence. This is usually the relevant professional body or other complainant that has the standing to do so.

Procedural Fairness in Disciplinary Proceedings

There is a high standard of procedural fairness because the bodies and tribunals do exercise adjudicative functions Conduct of investigation Natural justice requires that the allegations put against the lawyer should be clear and precise, when informing the lawyer of the allegations, prior to the hearing. The lawyer must be given a reasonable opportunity to be heard and lead evidence regarding the matter Smith v NSW Bar Association (1992). Conduct of disciplinary hearings In most jurisdictions it is said that hearings before the relevant body or tribunal must be done in public, unless the body or tribunal believes that its not in the interest of justice.

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This reflects the idea that transparency and public exposure in cases involving a profession are required by public policy are a means of maintaining public confidence Law Society of Tasmania v LH [2003]. Bias of decision-maker The test for bias is whether there is a reasonable apprehension on the part of a fairminded and informed member of the public of a lack of impartiality in the decision-maker or adjudicator Newfoundland Telephone Co v Board of Commissioners of Public Utilities [1992].

Costs of Disciplinary Proceedings

The profession shouldnt have to bear costs of proceedings correctly brought for the protection of the public NSW Bar Association v Thomas (No2) [2007]. Statute in some jurisdictions premises a costs order in favour of the lawyer in special circumstances (NSW s566(3)) and envisages that costs may be ordered against a lawyer if the basis of the proceedings came about because of a failure to co-operate with the relevant body, or for any other reason that an order is warranted NSW s566(2). Section 566 Costs: (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. (2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that: (a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or (b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or (c) there is some other reason warranting the making of an order in the particular circumstances. (3) The Tribunal may make orders requiring payment of an Australian legal practitioners costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The

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Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subsection.

Publicising Disciplinary Action

Statutory provisions have resulted in the publicising of disciplinary action (everywhere except in South Australia). It requires professional bodies to publicise disciplinary action taken against a lawyer, and to keep a register of that action available for public inspection NSW s577.

2- Concept Of Professional Misconduct

(Last chapter has types of misconduct) Misconduct as Defined at Common Law
At common law professional misconduct is defined as behaviour by a lawyer that would reasonably be regarded as disgraceful or dishonourable by his or her professional brethren of good repute and competency. Known as the Allison test (Allison v General Council of Medical Education & Registration [1894]). The Allison test isnt limited in its scope to behaviour that occurs in the course of a lawyers practice; it can include conduct in a lawyers personal life.

Misconduct as Defined Under Statute

The common law of professional misconduct is supplemented by various definitions of misconduct in the legal profession legislation in each jurisdiction. The intention is not to exhaust or limit the common law definitions, but rather to provide legislative direction as to the behaviour that merits misconduct. Model Laws implemented are uniform, everywhere except South Australia; they distinguish professional misconduct from unsatisfactory professional conduct. UPC is defined to include a lawyers conduct that happens in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer NSW s496. Professional misconduct includes unsatisfactory professional conduct where it involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and conduct where or not happening in connection with the practice of law that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice NSW s497. Section 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:

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(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.

4- Disciplinary Orders
The appropriate form of disciplinary order depends on the seriousness or gravity of misconduct, which is determined by the potential impact of the conduct. There are lots of orders available to disciplinary tribunals and courts.

Striking Off
This is the most serious form of sanction. The gravity of a lawyers misconduct means that nothing short of removal from practice can properly protect the public and preserve the reputation of the profession. Striking off is not limited to cases of misconduct.

Suspension

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Suspension is suited in cases where a lawyer has fallen below the high standards to be expected, but not in a way that suggests that he lacks qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner Re a Practitioner (1984). An order of suspension is usually given on the basis that after the termination of the period of suspension, the lawyer will no longer be unfit to practice Law Society of NSW v McNamara (1980). The main difference between suspension and striking off is the element of certainty. A lawyer who has been suspended has the right to expect to be able to practice after the end of his suspension period, whereas there is no certainty for a lawyer who has been stricken off, that his application for readmission will positively come through Re a Practitioner (1984).

Reprimand
A reprimand is a form of discipline confined to breaches of professional standards that are not so substantial to merit suspension or striking off Southern Law Society v Westbrook (1910).

5- Factors That Impact On Disciplinary Orders

Frequency of misconduct and prior misconduct findings (Nicholson) Lawyer's age and professional experience (Chamberlain) Lawyer's attitude (Kerin) Lawyer's (lack of) appreciation of wrongdoing (Westbrook) Testimonials and opinions by third parties (Re Robb) Medical condition or addiction (Wakeling) Pressure and stressors (Murphy)

- Loss suffered by others as a result of misconduct (Starky) Loss already suffered by lawyer as a result of misconduct (Re Maidment)

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Disciplinary Procedures
There are similarities between the jurisdictions in regards to disciplinary procedures. Basically, the first stage involves lodging a complaint with a regulatory body, followed by the actual investigation and then a process for making disciplinary orders. The main disciplinary body is usually a tribunal.

Complaints Any person may make a written complaint concerning the professional conduct of a lawyer to the Legal Services Commissioner (the 'Commissioner') (Legal Profession Act 2004 (NSW) ss 503-505) The Commissioner's main functions in the disciplinary process are to receive and investigate complaints regarding the conduct of lawyers, as well as review the decisions of the Law Society Council or Bar Council (s 688(1) of the Legal Profession Act 2004 (NSW)) He or she may summarily dismiss a complaint that is frivolous, vexatious, misconceived, lacking in substance or insufficiently particularised (s 511(1)(b) of the Legal Profession Act 2004 (NSW))

A complaint made more than three years after the conduct in question cannot be dealt with unless a determination is made that it is fair and just to deal with it having regard to the delay and the reasons for it, or it involves an allegation of professional misconduct and it is in the public interest to deal with it (s 506 of the Legal Profession Act 2004 (NSW))

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1- Bringing Misconduct To The Attention Of The Relevant Body

Reporting by Courts
Most disciplinary proceedings arise out of client complaints. Courts can also play a role, because they cant overlook issues of misconduct that arise in the course of matters before them, but these issues must also be drawn to the attention of the relevant bodies e.g. Spector v Ageda [1973].

Reporting of Lawyers
There is scope for lawyers to report other lawyers misconduct. Practitioners have a professional obligation to do so Legal Practitioners Complaints Committee v Fleming [2006]. Despite this, there is still limited recognition of this obligation by the legal profession legislation.

Professional Responsibility Regarding Inquiries from Regulatory Body

There is a professional obligation on lawyers to promptly respond to any inquiry of the relevant regulatory body. Lawyers are obliged to assist an inquiry into their own professional conduct; a duty to cooperate reasonably in the process Johns v Law Society of NSW [1982]. The duty to assist the court doesnt mean that the lawyer has to regard their own interests Re Veron (1966).

2- New South Wales

Complaints Any person can make a complaint concerning the professional conduct of a lawyer to the Legal Services Commissioner (Commissioner). The Commissioners main functions in the disciplinary process are to receive and investigate complaints regarding the conduct of lawyers. They also review decisions of the Law Society Council or Bar Council. A complaint made more than three years after the conduct in question cannot be dealt with unless a determination is made that its fair and just to deal with it, having regarded the delay and the reasons for it, or if it involves an allegation of professional misconduct and it is in the public interest to deal with it NSW s506.

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Investigation by Commissioner or a Council The commissioner can investigate a complaint or he can take over a councils investigation. As an alternative, they can refer a complaint to mediation, or to the appropriate council for investigation NSW s513 (1), (2). The Commissioner must monitor the investigation and can give instructions about the conduct if its in the public interest to do so NSW ss529, 530. Reasonable likelihood of finding unsatisfactory professional conduct or professional misconduct If the Commissioner or council believes that there is a reasonable likelihood that the lawyer will be found guilty, disciplinary proceedings must be instituted in the Administrative Decisions Tribunal. This involves an attempt to predict the outcome of a hearing in the tribunal. Reasonable likelihood of unsatisfactory professional conduct finding When the Commissioner or council has the view that the lawyer is reasonably likely to be found guilty for unsatisfactory professional conduct but not professional misconduct, the lawyer can be reprimanded or the complaint can be dismissed if the lawyer usually is diligent. But the Commissioner or council can still order the lawyer to pay compensation to anyone who has suffered as a result of their unsatisfactory professional conduct NSW s540(2). No reasonable likelihood of misconduct finding If the Commissioner or council is satisfied that there is no reasonable likelihood that the lawyer will be found guilty, they can dismiss the complaint NSW ss511(1)(b), 539 (1)(a). Mediation Consumer disputes Either the Commissioner or council can refer a consumer dispute to mediation NSW s515(2). The phrase is seen to be a dispute about the conduct of a lawyer to the extent that it doesnt involve an issue of unsatisf actory professional conduct or professional misconduct NSW s514. Costs dispute A client who is given a bill of costs may refer a costs dispute about that bill if the amount is less than $10,000 (to the Commissioner or council for mediation) and there has been no application made for the assessment of any part of the bill NSW s336 (1).

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A costs dispute is defined as a dispute between a client and a legal practitioner concerning a bill of costs; this can include a dispute over an amount claimed to be payable under a costs agreement NSW s335. Review of Council Decision When the council decides to dismiss a complaint, to reprimand the lawyer or to omit from allegations, the complainant can apply to the Commissioner for a review of the decision NSW s543(1). Administrative Decisions Tribunal The tribunal has to conduct a hearing into any complaint in proceedings put before it by the Commissioner or council NSW ss551(1), 553. Appeals From the Tribunal A decision of the tribunal can be appealed to the Supreme Court by way of rehearing NSW s729A(1), (2).

Steps in the Complaint Process a. b. c. d. e. f. g. h. i. j. Complaint in writing by any person (s504) OLSC notify complainant of receipt of complaint (504) Initial assessment (dismiss if frivolous) may require further into. Notify legal practitioner (LP) (508) Refer consumer dispute (515) to mediation. Summary Dismissal (511) Investigation (524) OLSC may refer to Law Soc or Bar Assoc for investigation (527) LP makes submissions (509) Decision (537)(from summary dismissal/reprimand (540) to immediate suspension (548) to initiating proceedings in ADT (551). k. Tribunal makes order it thinks fit (662).

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Clean the rest of this shit up

Chapter 8 Acting for Former Clients

SR 3: 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.

Context
Comparing current and former client conflicts
A lawyer may owe duties to both an existing and a former client whose interests conflict (successive conflict). Lawyers do not follow continuing duties of loyalty to former clients, however what continues is confidentiality. This duty does not dissolve once the retainer ends, as information does not lose its confidentiality just because the relationship in which it was communicated has since come to an end.

Circumstances where former client conflict issues arise

The law prevents a lawyer from acting even though the conflict by passing on the retainer to another lawyer within the same firm. This conflict is referred to as tainted. Firms may place cross checks and distribute a list of new clients before a lawyer enters a case to ensure the firm does not breach its duty of confidentiality.

Interest that impact on decision to disqualify

Determining whether a court should disqualify a lawyer from acting a against a former client involves the balancing of various competing interests. The former client will, for this purpose, focus on her or his interests in maintaining the confidentiality of information and support this by reference to the matter of appearances. The current client may cite the importance of client choice of legal representative and the potentially adverse consequences of disqualification for the efficient resolution of the dispute.

Former clients interest in preserving confidentiality

As a motion to disqualify is put by a former client, it is no surprise that the main inquiry

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relates to the persons interests. Prince Jefri Boljiah v KPMG (a firm) [1992] 2 AC 222
The courts jurisdiction cannot be based on any conflict of interest, real or perceived, for there in none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.

The former client must identify information that may be prejudice to him or her. Yet there remains suggestions in the case law that lawyer may be disqualified from acting against a former client even lacking proof of a danger of misuse of confidential information.

Current clients interest in choice of legal representative and speedy course of action
The client has a right to choose legal representation. It is described in Moffat v Wetstein (1996) 135 DLR 298 as fundamental to the adversarial process, so that a court will not deprive a litigant of this choice without a compelling reason. There may be prejudice to the current client in disqualification where it may raise delay, inconvenience, expense, wastage of resources, time. It is reasoned that it unlikely to disqualify at a late stage in the proceedings.

Threshold for judicial intervention

The relevant inquiry
The general law The main inquiry focuses on the need to preserve the confidentiality of information communicated in the course of a retainer. Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112: Drummond J:
[A] solicitor is liable to be restrained from acting for a new client against a former client if a reasonable observer, aware of all the relevant facts, would think that there is a real, as opposed to a theoretical possibility that confidential information given to the solicitor by the former client might be used by the solicitor to advance the interests of a new client to the detriment of the old client.

Relevant confidential information can be defined as information: Originally communicated in confidence That remains confidential and may reasonably be considered remembered or capble, on the memory being triggered or being recalled and Relevant to the subject matter of the subsequent proposed retainer. The relevant law prohibits a lawyer accepting an engagement to act for another person in any matter against or in opposition to, the interest of a former client: For whom the lawyer has acted previously and has thereby acquired information confidential to the former client and material to the matter and

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If the former client might reasonably conclude that there is a real possibility the information will be used to the former clients detriment.

Rule 95 of the barrister rules also require barristers to refuse a brief if he or she has information confidential to a person other than the prospective client, which may as a real possibility be helpful to the case but to which the person is entitled to the confidentiality has not consented to being used in the case.

Dissecting the relevant inquiry the the real possibility

Possibility It is the possibility not the probability, of misuse of confidential information that attracts the jurisdiction to disqualify. Prince Jefri Bolkiah V KPMG: Lord Millet- to set the threshold at the level of probability imposes an unfair burden on a former client, exposes him to a potential and avoidable risk to which he has not consented, and fails to give him a sufficient assurance that his confidence will be respected. It is easier to establish that misuse of confidential information is possible, as opposed to more probable than not. Real possibility Not every possibility of misuse of confidential information merits disqualification, only those possibilities that are real. The nature of a real possibility, though incapable of precise definition is referred to as significant possibility, real prospect, real or appreciable risk or real and sensible possibility. Sent v John Fairfax Publication Pty Ltd [2002] VSC 429: Nettle J: disqualify counsel on a matter 14 years earlier for acting against a former client in a related matter even tough counsel deposed to no recollection of the advice.

Dissecting the relevant inquiry reasonable observer aware of all the relevant facts
The court must assess whether a reasonable observer aware of all the relevant facts would perceive a real possibility of misuse of confidential information. The reasonable observer requirement is a means of factoring in the public interest and safeguarding the appearance of justice.

Dissecting the relevant inquiry to the detriment of the former client

Courts main inquiry is whether the retainers are closely related. May be used to the former clients prejudice.

Dissecting the relevant inquiry the onus of proving misuse of confidential information
Orthodox approach the person who asserts must prove The onus is beared by the person brings the case to light. In former client conflict, the former client bears the onus to prove on the balance of probabilities that the lawyer has received

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confidential information may be used to his or her detriment.

Scope for Disqualification where no prior lawyer-client relationship

Duty sourced from previous social or familial relationship
A previous social or familial connection between the lawyer and the applicant may involve communication of confidential information, and so may attract a duty of confidentiality sufficient to substantiate grounds to disqualify the lawyer from acting against the applicant. But merely because a person has know a lawyer socially does not itself justify restricting the lawyer acting against that person, except where the relationship carries a reasonable expectation, fostered or at least not dissuaded by the lawyer, that certain communications remain confidential. Waxman v Waxman (1997) 150 DLR 370: a party discussed bitterly contested litigation with a solicitor on a social occasion, giving no indication of an expectation of confidence or any intention to engage the solicitor. The solicitor was subsequently retained as counsel for the other side. Lane J reasoned that the risks associated with loose talk should be borne by the talker, not by the hearer.

Scope for disqualification extension to the firm

Disqualification of lawyers lacking relevant confidential information
An issue is whether such disqualification extends to the firm generally, namely to those lawyers in the firm not possessed of the information. There is then the migratory lawyer situation where the applicant is a client of a firm that employed a lawyer now at the firm acting against the applicant.

Role of Chinese walls

The mega firm with its many lawyers spread between departments, offices, states and even nations has arguably undermined the basis for the presumption of imputed knowledge to all partners of the firm. When coupled with greater lawyer specialisation, this reduces the likelihood that lawyers will obtain confidential information from other departments of the firm. A Chinese wall may involve a combination of the following organisational elements: The physical separation of the various departments in order to insulate them from each other An educational program, normally recurring, to emphasise the importance of not improperly or inadvertently divulging confidential information Strict and carefully defined procedures for dealing with a situation where it is considered that the wall should be crossed and the maintaining of proper records where this occurs Monitoring by compliance officers of the effectiveness of the wall; and Disciplinary sanctions where there has been a breach of the wall.

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2007] NSWSC 350:

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it is not part of everyday legal practice for a lawyer to have his or her knowledge from a case quarantined from another lawyer within the same section of the firm, is the observation of an Australian judge, adding that quarantining of such knowledge is a somewhat ethereal concept that is not second nature to a lawyer and when it is permitted it needs very special care. Migratory Lawyers Koch Shipping Inc v Richards Butler [2002] Lloyds Rep PN 604: a lawyer P, who had acted for a client in arbitration, joining the defendant firm that acted against that client in the arbitration. The firm immediately took the following steps to erect a Chinese wall: An undertaking from P and the persons acting against the claimant not to disclose confidential information to each other An undertaking from P no to communicate with the case handlers or to talk to anyone about the arbitration and Locating P and the case handlers on different floors though in the same building

These measures were sufficient in allowing the firm to act against it. Migratory non lawyer staff It is necessary to screen non lawyer staff such as paralegals and even secretarial staff who have been exposed to the matter in their previous employ.

Disqualification applications as abuses or process

Application to disqualify as a litigation tactic
Marriage of McGillivray and Mitchell (1998) 23 Fam LR 238: the husband sought to disqualify his wifes lawyer in a divorce proceeding on the ground that the lawyer had acted for the husband in a divorce ten years earlier. The lawyer instructed by the wife in November 1996, and appeared for the wife in interlocutory proceedings several times between February and August 1997. Only in August 1997 did the husband object to the lawyers continuing representation to the wife. The Full Family Court rejected the application of confidential information.

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Trust accounts, Practice types, Liens, Undertakings

Chapter 9 Duty to Account
Also refer to Part 8 of the LPR for Rules on Trusts

1- The Basic Obligation

Lawyers often receive money to be held for on behalf of a client. If moneys are entrusted to an agent to be held for the benefit of another person, the agent becomes a trustee of those moneys. Statute across all jurisdictions does reflect the general law. It requires lawyers to deposit any money received for or on behalf of any person into a trust account with some financial institution. The money should be held exclusively for that person. The lawyers own money held in relation to the practice is held in an office account. Section 253 of the LPA: (1) A law practice that receives trust money to which this Part applies must maintain a general trust account in this jurisdiction. (2) A law practice that is required to maintain a general trust account in this jurisdiction must establish and maintain the account in accordance with the regulations. Section 254: 1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless: (a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or (b) the money is controlled money, or (c) the money is transit money, or (d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person. Traditionally, barristers dont receive or handle money on behalf of clients. This is reflected in the barristers rules which do prohibit barristers from holding, investing or disbursing any funds for any other person in their professional work. However, the increasing scope for direct client access to the bar has led to a change in NSW. Statute now permits barristers receiving moneys as costs in advance. S 252 of the LPA, A barrister is not, in the course of practising as a barrister, to receive trust money.

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2- Trust Money
The concept of trust money under the legal profession legislation
As defined by the Model Laws trust accounting provisions, trust money is money received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person. This includes: controlled money trust money received or held by a law practice in respect of which it has a written direction to deposit in an account. This money must be deposited in the specified account, transit money money a law practice receives subject to instructions to pay or deliver it to a third party, other than an associate of the practice. (Details of each are found under s 256, 243, 257) The term trust moneys encompasses a broader concept than that which applies at general law. Under statute, when money is deposited into an account by a lawyer for or on behalf of another person, that lawyer becomes trustee.

Money involved in financial services or investments not trust money

Money entrusted to or held by a law practice in connection with a financial services is provided by the practice in circumstances where the practise is required to hold an Australian financial services licence covering its provision, is expressly excluded from the broad definition of trust moneys. Section 244(1): (1) Money that is entrusted to or held by a law practice for or in connection with: (a) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether or not such a licence is held at any relevant time), or (b) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time), is not trust money for the purposes of this Act. Money that was been held by a law practice for or in connection with a managed investment scheme, or mortgage financing it has undertaken is also expressly excluded. S 244(2): Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with: (a) a managed investment scheme, or (b) mortgage financing, undertaken by the practice is not trust money for the purposes of this Act.

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Money received for costs as trust money

Money received from a client for costs that have already been incurred does not need to be treated as trust money, but can be deposited directly into the lawyers office account. S246(4): (4) Money received for costs not trust money Money received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person for the payment of costs due to the practice (including costs that have been awarded by a court, tribunal or other body that has power to award costs), is not trust money for the purposes of this Act.

3- Accounting for Trust Money

Duties related to accounting
Lawyers who hold trust money are required to maintain an accurate, accessible and ordered account of that money. Records to be kept The legal profession regulations prescribe the form of the accounts and types of documents that need to be maintained. These requirements aim to ensure that the lawyers financial transactions through a trust account are identified and isolated. There are not to be taken as the measure of the lawyers fiduciary obligations in equity, to the client. S 264: Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice. (2) The law practice must keep the trust records: (a) in accordance with the regulations, and (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and (d) for a period determined in accordance with the regulations.

Duty to give account on request A trustee must give an account or records of the people who are interested in the account when it is appropriately demanded. No mixing of trust moneys with non-trust moneys

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At general law, a trustee has a duty not to mix her or his own property with the trust property. This principle is also reflected by statute in each jurisdiction. S 260 Intermixing money: (1) A law practice must not, otherwise than as permitted by subsection (2), mix trust money with other money. (2) A law practice is permitted to mix trust money with other money to the extent only that is authorised by the Law Society Council and in accordance with any conditions imposed by the Law Society Council in relation to the authorisation. Trust account not to be overdrawn No justification exists for a trust account to be in debit. Statute renders a lawyer who, without reasonable excuse, causes a deficiency in any trust account, or fails to pay or deliver any trust money, guilty of an offence. S 262 Deficiency in trust account: (1) An Australian legal practitioner is guilty of an offence if he or she, without reasonable excuse, causes: (a) a deficiency in any trust account or trust ledger account, or (b) a failure to pay or deliver any trust money. Duty to report defalcations A lawyer who believes on reasonable grounds that there is an irregularity in connection with the receipt to notify the appropriate authority in writing. Breaching this can result in a penalty against the lawyer. S 263 Reporting certain irregularities and suspected irregularities (1) As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practices trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts concernedthe corresponding authority.

Cahill v Law Society of NSW (1988) 13 NSWLR 1: the NSWCA held that a lawyer who allowed transactions to be carried out in which clients adopted fictitious names, designed to effect fraudulent purpose of which the lawyer was aware, was guilty of professional misconduct.

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Prohibition on use or withdrawal of trust money without authority

Lawyers must avoid treating trust money as their own property or as money for their own benefit (direct or indirect). Basic requirement dictates that they can only deal with the money under the authority of the person to whom the money belongs. Statute forbids a law practice from withdrawing trust money other than by the form of a cheque or by electronic funds. This applies despite the fact that a person might have authorised the lawyer to do so. (S 255-257 of the LPA). Prohibits cash withdrawals, atm withdrawals or transfer and telephone banking. Must withdraw by cheque or EFT. (S 255A(1) and (2), S 256(1) and (2)). Withdrawal of trust money in payment of professional costs Withdrawal of trust money in satisfaction of costs is premised on the lawyer following a set procedure. These regulations usually entitle a law practice to withdraw trust money for costs where it has rendered a bill to the client and the client has not objected within seven days, or they have objected but they havent applied for a costs review within sixty days. When a lawyer is entitled to withdraw trust moneys, the proper course is to separate what becomes the lawyers money from the trust moneys by withdrawing the amount from the trust account and paying it into the lawyers office account.

Trust money not available to satisfy lawyer or third party debt

Trust moneys are not available for the payment of debts of the lawyer, nor are they liable to be attached for the purpose of satisfying a judgement against the lawyer. (S259)

4- Verification of Trusts Accounts

The legislation and rules in each jurisdiction provide for an external independent monitoring of a lawyers trust accounts.

External Examiners and Investigators

Statute requires lawyers to engage an external examiner, usually once a year, to examine their records in respect of trust money NSW s274(1). S 274 Trust records to be externally examined; (1) A law practice must at least once in each financial year have its trust records externally examined by an external examiner appointed in accordance with the regulations. An external examiner must report trusting account breaches or irregularities to the requisite body, which can then investigate the matter NSW ss277, 278, 673.

Confidentiality and Privilege in Trust Account Verification 97

When the external examiner has the right to access trust records and documents, the lawyer must comply regardless of any duty of confidentiality to the client. But to protect the client, the examiner is not allowed to make unauthorised disclosure NSW s278(2), (3)

6- Failure to Account
Claims Against the Fidelity Fund
Statute entitles a person who has suffered a financial loss by reason of a lawyers trust account defalcation to make a claim against a guarantee or fidelity fund for compensation of the loss NSW Pt 3.4. What triggers this is a default from the practice. A default is a failure of the law practice to pay or deliver trust money or trust property received in the course of legal practice or fraudulent dealing with trust money received, if the failure arises from a dishonest act or omission NSW s419

Other Consequences of Failure to Account

The possible consequences of a breach of trust accounting requirements include professional disciplinary action and action by the client for compensation directly against the lawyer for breach of trust or even negligence. Lawyers who destroy or convert trust money to their own use may also be subject to criminal penalties under the general criminal law legislation or under the legal profession legislation, which prescribes penalties for failure to comply with accounting obligations. R v Cole (1974) Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations. The solicitor stands in a particular position. R v Smith (2000) 114 A Crim R 8 not only does the client or person of fraud suffer, but the integrity of the profession is called into question and the courts must impose sentences which are calculated to ensure that no solicitor will be left in doubt as to the serious consequences that will follow from such conduct. S250 of the LPA: an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practices obligation also discharges the corresponding obligation imposed on the principals.

Chapter 13 Employed (In-House) Lawyers

Rule 4 of the SR.
Rule 4: A practitioner, who is employed by a corporation (not being a solicitor corporation or an incorporated legal practice) or by any other person who is not a practitioner, must not, despite any contrary direction from the practitioner's employer, act as a practitioner in the

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performance of any legal work or service in breach of any of the provisions of the Legal Profession Act 2004 or these Rules.

Chapter 20 Conduct of Practice

1- Solicitation Of Business By Lawyers
Lawyer Advertising
The traditional view on advertisements of legal services and practices was that it portrays the profession as a mere business, thereby cheapening its image. In recent time, however, there has been a relaxation on advertisement; it has been noted, judicially, that simply to advertise for business, to endeavour to attract customers by advertisement, is an accepted part of ordinary professional life Judge v Chiropractors Board of South Australia (2004). Statute and professional rules in all jurisdictions allow lawyers to advertise for their services NSW s 84(1). Section 84 Advertising (1) A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 85.

There are still certain restrictions on advertising

Restrictions on Lawyer Advertising

False, misleading or deceptive advertising (page 441) Advertisements have to be consistent with the maintenance of professional standards. An advertisement is seen to be misleading or deceptive if it has material misrepresentation of fact, omits a fact necessary to make a statement that is not misleading when considered as a whole, or might create an unjustified expectation. There is a specific focus of criticism on advertisement of fees. If a lawyer wants to advertise an indication of the total costs, they should be aware of the frequent difficulties in attempting to accurately predict a legal cost. When fees are being advertised, a lawyer should disclose the possibilities of other additional charges that may add to the total costs of the service. Misleading or deceptive conduct isnt strictly limited to fees either. It can include any other promotional activities advertised by the lawyer.

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Section 84 of the LPA (2) However, an advertisement must not be of a kind that is or that might reasonably be regarded as: (a) false, misleading or deceptive, or (b) in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation. (3) A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention. Vulgar or sensational advertising Professional rules in some jurisdictions prohibit advertising that is vulgar, sensational or in some way of such a nature that it is likely to bring a lawyer, the profession or the legal system into disgrace. Comparisons and testimonials An advertisement which reflects or comments on any way on the service provided by another competitor has a chance of being considered to be unprofessional conduct - Judge v Chiropractors Board of South Australia (2004). Testimonials or endorsements must be used carefully, especially in regards to those that are scripted, because the customer may believe that they are true and therefore place faith in them. Advertisement of specialty or expertise There is no set prohibition on lawyers advertising themselves as specialists in one or more field of practice. Lawyers do, however, have to be able to back up such claims. Lawyers who claim to be specialists are subject to a stricter standard of care in tort for the work they do within the claimed field. Both in NSW and Victoria, a lawyer must not hold themselves out to be a specialist unless they are accredited under an accreditation scheme NSW s 86(1) Section 86 Specialisation (1) A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor: (a) has appropriate expertise and experience, or (b) is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council.

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Representations of prior success or results in a matter Advertising of past success rates does lead to an implication that clients in future cases will have the same chances of success. Therefore, advertisements such as these are likely to be seen as misleading or deceptive. In addition to this, advertising that a matter can be completed in a certain amount of time can raise false expectations if it is not made clear that this cannot be achieved unless the matter is concluded by settlement or compromise. Restrictions on advertising in relation to personal and work injury matters Lawyers in NSW are prohibited from putting out an advertisement that includes any reference to personal injury, any circumstance in which personal injury might occur and a personal injury legal service, under the Legal Profession Regulation 2005 (NSW) cl 24(1). Also look at 25 and 34 of the LPR. The breaking of these prohibitions is considered to be professional misconduct.

2- Practice Names, Stationary And Premises

Practice Names
Practice names must be consistent with requirements of professional standing. They must not mislead in regards to the nature of the firm, bring shame upon the profession or be unfair to other lawyers and the public. Principles dictate that the appropriateness of advertising impacts the legitimacy of practice names. At the most basic level, the business name has to indicate that the business going on is a legal practice. A sole practitioner shouldnt add words that imply that he has partners in the firm (such as associates) unless he employs at least one lawyer who currently holds a practicing certificate (e.g. Medina County Bar Association v Grieselhuber (1997)). Similar to this, words such as law centre or legal clinic can lead to the impression that the practice is a government legal aid agency, and therefore should be avoided (NSW r 41.3). Rule 41 41.1 A practitioner must place, in legible form on any letterhead of the practitioner's practice, the name under which the practitioner practises; the address of the practitioner's principal place of practice; the practitioner's telephone number, and, if appropriate, any Document Exchange number and facsimile transmission number, and the practitioner must, in any written communications with clients or other parties, identify the author by name. 41.2 A practitioner must not conduct the practitioner's practice solely, or in association with another service provider, under a business name which might reasonably be expected to

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mislead or deceive a person, seeking the provision of legal or associated services, as to the nature and identity of the provider, or as to the nature and quality of the services offered. 41.3 A practitioner must not, in connection with the practitioner's practice, display on the premises at which the practice is conducted, or on any stationery or other material distributed by the practitioner to clients or potential clients, a business name, title or description of the practitioner's practice which: 41.3.1 includes the words "legal centre", unless the practitioner is conducting or engaged in the operation of, a Community Legal Centre; or 41.3.2 includes words which might reasonably infer that the entity to which they relate is a Government or quasi Government body. 41.3.3 includes the name of a disqualified person. Practice Stationary The firms stationary and any other publications are also not allowed to be misleading or deceptive in regards to the firms structure or status of any person named within the publication. Further to this, professional rules usually prohibit a lawyer from allowing the lawyers business name or stationary to be used by a debt collection agent in a way that is likely to mislead the public Rule 35. The specific requirements require a lawyer who receives instructions from a debt collector to act for a client creditor to make sure that the lawyers relationship to that agent is fully disclosed, that any information that is required to be disclosed to the client under any relevant legislation is done so, that the lawyer maintains direct control of any proceedings on behalf of the client and that any money recovered on behalf of the client is accounted for by the lawyer. Rule 35. Section 15 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled (1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. Maximum penalty: 100 penalty units. (2) A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre. Maximum penalty: 100 penalty units. (3) Subsections (1) and (2) do not apply to a representation or advertisement about being entitled to engage in legal practice of a kind referred to in section 14 (2) (Prohibition on engaging in legal practice when not entitled) by a person so entitled. (4) A reference in this section to a person: (a) representing or advertising that the person is entitled to engage in legal practice, or

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(b) representing or advertising that a body corporate is entitled to engage in legal practice, includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice. Rule 35 of the SR: A practitioner must not allow the practitioner's business name or stationery to be used by a debt collection, or mercantile, agent in a manner that is likely to mislead the public, and a practitioner who receives, from a debt collection or mercantile agent, instructions to act for a client creditor, must ensure that 35.1 the practitioner's relationship to the agent is fully disclosed to the client; 35.2 the information required to be disclosed to the client by any relevant legislation and these Rules is communicated to the client; 35.3 the practitioner maintains direct control and supervision of any proceedings on behalf of the client; and 35.4 that any money recovered on behalf of the client is accounted for by the practitioner. Sharing Premises There are concerns that arise in regards to a lawyer sharing premises with non-lawyers. First, it may endanger the privilege or confidentiality of any lawyer-client communications. Second, it might cause confusion for the clients as to whom they are dealing with and thirdly, the person with whom the lawyer is sharing might be conducting a business which is incompatible with that of the legal one. Based on this, NSW professional rules require that the lawyer or the firm maintains the clients files separately and safely away from the other shared occupants NSW r 43.

5- Lawyer Business Structures

Traditional Business Structures The traditional form of business structure for solicitors is through a partnership, except in the cases of a sole practitioner. Barristers are usually prohibited from operating as a partnership or an employee, but they have to practice as a sole practitioner (R 16 of the BR) First step towards incorporation of legal practices The legal profession legislation in five Australian jurisdictions allows lawyers to incorporate their practices, but this form of incorporation is different from the usual corporate incorporation Legal Practitioners (Incorporation) Act 1987 NSW pt 10A. It required that the sole object to be the practice of law, that its directors be people who hold practising certificates and all voting shares and that the company and its directors carry unlimited liability.

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Move towards full incorporation and multi-disciplinary partnerships Trade Practices Commission in 1994 recommended that law firms should be permitted to incorporate so to limit the liability of equity holders for negligence to the extent to which each equity holder would not be jointly liable for the negligence of the other equity holders. An influencing factor in this was the desire of lawyers to limit vicarious liability for the wrongs of their partners.

Multi-Disciplinary Partnerships
Justifications for and benefits of MDPs Legal profession legislation in all jurisdictions except South Australia define a MDP as a partnership between one or more Australian legal practitioner and one or more other persons who are not Australian legal practitioners, where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services NSW s 165(1). Benefits of MDPs include the potential to increase market share and also protects current existing market shares. Concerns underscoring MDPs (page 457) The main concerns regarding MDPs can be classified into four groups governance; which focuses on how the existing regulation of lawyers will apply to non-lawyer members of MDPs, independence; how the independence of the legal advice will be maintained because of possible outside interests of the lawyer, confidentiality and conflicts of interest. Regulation of MDPs The aforementioned legislation imposes on each legal practitioner partner responsibility for the management of legal services provided by the partnership (NSW s168(1)) and further to this, they are required to implement and maintain appropriate management services (NSW s 168(2)). Section 168 General obligations of legal practitioner partners (1) Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for the management of the legal services provided in this jurisdiction by the partnership. (2) Each legal practitioner partner must ensure that appropriate management systems are implemented and maintained to enable the provision of legal services by the multidisciplinary partnership: (a) in accordance with the professional obligations of Australian legal practitioners and the other obligations imposed by this Act, the regulations or the legal profession rules, and (b) so that the professional obligations of legal practitioner partners and employees who are Australian legal practitioners are not affected by other partners and

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employees of the partnership. The legislation also lifts the prohibition on the sharing of receipts with non-lawyers NSW ss 170(b), (d),177(1).

Section 170 Actions of partner who is not an Australian legal practitioner A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act, the regulations or the legal profession rules merely because of any of the following: (b) the partner receives any fee, gain or reward for business of the partnership that is the business of an Australian legal practitioner, Section 177 Sharing of receipts, revenue or other income (1) Nothing in this Act, the regulations or the legal profession rules prevents a legal practitioner partner, or an Australian legal practitioner who is an employee of a multidisciplinary partnership, from sharing receipts, revenue or other income arising from the provision of legal services by the partner or practitioner with a partner or partners who are not Australian legal practitioners.
MDPs pursuant to incorporation An MDP can be established in the same way that an incorporated legal practice can.

Incorporated Legal Practices

Under the Corporations Act 2001 (cth) an ILP can provide any other service except a managed investment scheme within Ch5C of the act. Therefore, the practice is able to engage in activities other than legal work through a single business structure. To accommodate for this, the prohibition on receipt sharing has been removed. There are still controls and restrictions on ILPs an ILP must have at least one lawyerdirector who holds an unrestricted practising certificate (NSW s140(1)) and who is responsible for the management of the legal services it provides (NSW s140(2)). Section 140 Incorporated legal practice must have legal practitioner director (1) An incorporated legal practice is required to have at least one legal practitioner director. (2) Each legal practitioner director of an incorporated legal practice is, for the purposes of this Act only, responsible for the management of the legal services provided in this jurisdiction by the incorporated legal practice. The main advantages are that they provide greater flexibility for distribution of profits and the transferring of interests in the company, and the ability to raise equity capital. Section 143 Obligations and privileges of practitioners who are officers or employees (1) An Australian legal practitioner who provides legal services on behalf of an incorporated

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legal practice in the capacity of an officer or employee of the practice: (a) is not excused from compliance with professional obligations as an Australian legal practitioner, or any obligations as an Australian legal practitioner under any law, and (b) does not lose the professional privileges of an Australian legal practitioner.

6- Mediation by Lawyers
Increasing popularity of alternative dispute resolution has prompted some lawyers to promote themselves as mediators. In response to this, the Law Society of NSW has provided guidelines for lawyers who wish to do so. The Law Society of NSW defines mediation as a voluntary process in which a mediator independent of the disputants facilitates negotiation of their own solution to their dispute by assisting them to isolate the issues in dispute, to develop options for their resolution and to reach an agreement which accommodates the interests and needs of all disputants.

Characteristics of Mediation and Mediators

Courts do have the power to order mediation of a dispute. The function of the mediator is to give legal advice or to direct the parties decision based on their interpretation of the applicable law. The role of mediators requires impartiality and neutrality. A lawyer who believes that a disputant misunderstand their role as mediator, must explain the difference between a lawyers role and a third party neutral mediator. The idea of neutrality requires that a mediator not proceed with mediation where the mediator or disputant believes that their background, personal experiences or relationships may prejudice the mediators performance or detract from their impartiality.

Mediator Accreditation
The roles of mediators are sometimes contrasted to those commonly shown or expected in lawyers. This includes impartiality and neutrality. Professional bodies in some jurisdictions require lawyers to meet set prerequisites prior to holding themselves out as mediators (NSW paras 3.1 3.3 (full details on pg 461 footnote 174)). The guideline is set by the Law Society of NSW Guidelines for Solicitors who Act as Mediators.

Lawyer Skills Useful in Mediation

There are certain skills that a lawyer possesses that will be useful in successful mediation; analytical and problem-solving skills.

Agreement to Mediate

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Before an agreement is reached to mediate, a lawyer-mediator should define and describe to the disputants the process of mediation so that they can understand the differences between mediation and other available methods of alternative dispute resolution. The disputants need to be informed of their rights to receive independent legal advice or other professional advice at any time during the mediation process - NSW para 4.9. Any agreement should be in writing and contain terms that the disputants agree that the mediation is to be conducted.

Termination of Mediation
If the mediation results in a full agreement, the mediator should talk to the parties about the processes that are taken to formalise and implement the agreements reached NSW para 8. .

Chapter 25 Types of Misconduct

1- Misconduct In The Course Of Practice
Misleading a Court or Tribunal
The proper administration of justice necessitates that courts and tribunals be able to rely on what a lawyer says and does. Lawyers have taken advantage of this by deliberately deceiving a court or tribunal, thereby committing professional misconduct and is usually struck off Re Sawley (1894). Misconduct wont be found if the misleading of the court is completely innocent lacking dishonesty or recklessness. When a lawyer knowingly misleads the court, there is no defence to the charge of professional misconduct that the deception was only brief. The same principles apply to misleading the court through a false document. Allowing a client to swear on a false affidavit knowing that it had wrong information is also professional misconduct e.g. Minister for Justice & Attorney-General v Brown (1993). Attorney-General v Bax [1999] the spectacle of a solicitor falsely asserting a date for the execution of an instrument... conveys a very poor image of the honesty and integrity of solicitors and so tends to bring the whole profession and its standards into disrepute.

Misleading a Professional Body

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Corresponding with the professional body in a way that misleads that body may be seen to be misconduct Veghelyi v Council of the Law Society of NSW (1989). There have been cases where lawyers have been struck off for misleading an investigator even though the misconduct being investigated would not have on its own, been serious enough to cause a striking off order. Law Society of NSW v McNamara (1980) a lawyer delayed a clients case and lied to the client about its progress and also gave misleading replies to the Law Society enquiries and persisted with deception to the Solicitors Statutory Committee. It was ruled that the attempts to mislead the Law Society and the Committee that lead to the NSW court of Appeal to strike off the lawyer from the role.

Disrespect to the Court or its Authority

A court can punish a lawyer who has shown disrespect to the court for contempt of court. Legal Services Commissioner v Turley[2008] the solicitor was reprimanded for using grossly offensive language in court proceedings and adopting an intimidatory approach to a judicial officer. Disrespect to the court can generate disciplinary consequences where it occurs during the course of the disciplinary proceedings.

Trust Accounting Irregularities

A fraudulent misappropriation of trust money is professional misconduct (as well as a crime) and does usually justify an order striking off a lawyer - Re a Barrister & Solicitor (1979). This is more clearly the case when it occurs persistently over a period of time. The seriousness of such an offense stems from the fact that the misuse of trust funds impact not only on the individual client, but on the public confidence in the profession Re a Practitioner (1982). Statute requires that a lawyer who suspects another lawyer who believes on reasonable grounds that another lawyer has dealt with trust money fraudulently, to report that to the relevant regulatory body NSW s263(2). Technical breaches of trust account requirements that involve no element of dishonesty may not justify suspension or barment Re a Practitioner of the Supreme Court [1940].

Lawyer-Client Conflict
Lawyers who personally transact with clients without ensuring that the clients receive independent advice breach fiduciary duty may be guilty of misconduct. Classic case Law Society of NSW v Harvey [1976].

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Client-Client Conflict
Acting for two or more clients whose interests conflict represents a breach of fiduciary duty with a liability to compensate a client who has suffered a loss as a result. Zaico v Law Institute of Victoria (1995) breach of fiduciary duty doesnt necessarily amount to professional misconduct, but it is correct to say that in most cases a breach of the prime duty a solicitor owes to his client will also be an act of professional misconduct Disciplinary consequences, usually reprimand or fine can also arise out of former client conflicts, where the courts main concern is protecting a former clients confidential information

Breach of Client Confidentiality

Unauthorised disclosure of information derived in the course of a retainer can generate professional disciplinary consequences e.g. Legal Services Commissioner v Scott [2009]. This is all the more when the disclosure is directed at benefiting the lawyer, including publicity or is made to benefit a person with an opposing interest to the former client to whom the duty is owed Legal Practitioners Complaints Committee v Walton [2006].

Overcharging
Charging grossly excessive costs by a lawyer is professional misconduct Re Veron (1966). So is the charging of costs or disbursements when there are none properly chargeable Baker v Legal Services Commissioner (No 2) [2006]. The relevant question is whether the lawyer has charged fees grossly exceeding those that would be charged by lawyers of good repute and competency. It shouldnt be assumed that a single proven instance will prevent from a finding of professional misconduct, although it is unlikely to result in striking off or suspension. It is a question of degree and frequency. Relevant factors include the amount of the costs, the novelty of the case, the experience of the lawyer, the quality of the work, the amount of time spent, the responsibility involved, the amount or value of the subject and any costs agreement entered into DAlessandro v Legal Practitioners Complaints Committee (1995). The Council of the Law Society of NSW v Foreman (1994): A dispute arose between a family law solicitor and her client with respect to costs, as to whether the solicitor provided and the client signed an authority to charge legal costs other than scale costs. The solicitor altered an internal time sheet to show (falsely) that a costs agreement had been provided to the client. The false time sheet was included in an affidavit of discovery and produced to legal practitioners and the Family Court. An admission and confession was made only when the solicitor was confronted with the evidence. The Legal Profession Disciplinary Tribunal found the charges of professional misconduct made out and fined the solicitor $20,000. On

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appeal to the Court of Appeal, by way of a new hearing under s 164 of the Legal Profession Act 1987. It was held that the name of the solicitor should be removed from the roll of practising solicitors on the basis that other practitioners, could not trust her concerning undertakings and assurance. Impact of costs allowable on taxation or assessment A determination of overcharging doesnt necessarily require a tribunal or court to reply on or conduct a taxation or assessment of costs because the search is to see whether or not there is a gross overcharge, not just an unreasonable fee which wouldnt be allowed on taxation De Padro v Legal Partitioners Complaints Committee (2000). Impact of costs agreement That a properly made costs agreement commits the client to fees greatly in excess of scale fees is not alone evidence of misconduct. An agreement may not have been reasonable, but it might not have been so unreasonable that it can be said to be grossly excessive Re Law Society of the Australian Capital Territory & Roche (2002). Just because there might have been a costs agreement in place, doesnt prevent misconduct from being ruled against the lawyer DAlessandro & DAngelo v Cooper (1995). If a lawyer is acting on a no win no fee basis is a relevant factor because there is a rish that the action might involve years of work and not succeed, meaning that the lawyer might not be able to recover his own fees and, depending on the terms of the retainer, might still be liable for disbursements. This makes is reasonable for lawyers who accept this kind of retainer to charge a substantially higher rate than what otherwise would be the case Council of the Queensland Law Society Inc v Roche [2004]. But in this case too fees well off the reasonable charge can trigger disciplinary action.

Delay or Neglect
Disciplinary-wise, the concern is not only about whether its an isolated instance of neglect or delay, but on whether it was sustained or gross e.g. Legal Services Commissioner v Veneris [2002].

Failure to Properly Supervise

Serious omissions to supervise employees or be vigilant to the activities of partners may amount to professional misconduct. Reported cases highlight the importance of supervision and vigilance particularly over trust funds. Law Society of NSW v Foreman(1991) not all failures to supervise amount to professional misconduct, but that the solicitors gross failure to concern himself with the clerks activities amount to professional misconduct. The following observations were made: it is ordinarily

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the duty of the solicitor responsible for him to satisfy himself that the clerk is aware of the principles involved and has a proper appreciation of what they involve. Where fiduciary obligations and conflicts of interest are apt to be involved, he should take appropriate steps to ensure that there is no apparent breach of them. The lawyers duty to be vigilant in supervision is heightened when they are aware of the factors that might indicate to a reasonable person that a greater level of supervision is needed. Re Mayes [1974] we totally reject the argument that a solicitor who is in partnership can, without being guilty of professional misconduct, simply leave the management of their joint trust account to his partner after he has reason to be apprehensive as to his misuse of it.

2- Misconduct Outside Practice

Relevance of a Criminal Conviction
A criminal conviction for conduct that is inconsistent with the integrity expected of members of the legal profession may be prima facie evidence of misconduct. NSW Bar Association v Sahade [2005] deceitfulness is a character flaw that is thought by most legal practitioners as well as other not to be confined in separate compartments of ones life. Re a Practitioner (1997) a lawyer was convicted of 4 serious offenses of making improper use of his position as chairman of a company to gain himself an advantage and to cause detriment to the company was struck off the role, because the court was influenced by the fact that these offences were committed over a long period of time. Convictions other than for dishonesty may attract disciplinary consequences where their seriousness indicates a lawyers lack of fundamental respect for the law. The legal professional legislation everywhere but South Australia addresses this issue by branding conduct in respect of which the lawyer has been convicted of a serious offence, a tax offence, or an offence involving dishonesty as capable of being unsatisfactory professional conduct or professional misconduct NSW s498(1). When a conviction stems from an offence unrelated to the practice of law and whether or not it should generate disciplinary proceedings is determined by the extent to which the lawyers conduct underlying the conviction can be isolated from their status as a lawyer. Because of this, a disciplinary tribunal can inquire into the evidence underlying the conviction to determine whether the lawyer remains fit to practice and whether there should be any terms or conditions to this Re a Solicitor (1952).

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Ziems v Prothonotary of the Supreme Court of NSW (1957) the appellant barrister had been convicted on motor manslaughter. The judge noted that although the conviction was for a serious offence, the reason behind it wasnt one that goes towards the propriety of continuing to be a member of the profession.

Convictions for Sex Offences

Outside convictions for a sex offence, there is little scope for sexual misconduct translating into disciplinary consequences this is because of issues of proof, and also because the conduct is not illegal. A possible exception to this is sex with a client. Certain sex offences are particularly suggestive to the undermining of trusts that people are entitled to place in practicing lawyers. Child sex offences are an example of this. Law Society of South Australia v Rodda (2002) solicitor had pleaded guilty to two counts of indecent assault of a minor. The court found that despite the fact that the lawyer was upfront about the offenses, it would affect his capacity to act as a lawyer and reflect poorly on the profession if he was permitted to remain a member of it. A particular concern was that the offences would lead other lawyers to not readily place trust and confidence in him and would also undermine the trust and respect that clients and vulnerable persons could place in him. As a general principle, a conviction for a serious sex offence dictate that the lawyer is unfit to practice, but this doesnt remove the responsibility for the tribunal to closely analyse the facts of the prior conviction. A Solicitor v The Law Society of NSW (2004) the court allowed the solicitors appeal against being struck off for his conviction on four counts of aggravated indecent assault on two young daughters of his partner. One of the convictions, however, was quashed on appeal. The solicitor showed forthcoming in the convictions that stood against him, however, failed to disclose information about the quashed conviction. It was the fact that he omitted this disclosure was what led to the finding of the professional misconduct against the appellant, not the actual offences themselves.

Drug Related Convictions

Convictions of drug trafficking arent usually seen to be consistent with fitness to practice law and so will ordinarily generate a striking off order. Re a Practitioner [2004] a lawyer imprisoned for 7 years for being knowingly concerned in the importation of narcotics, and the possession of and trafficking drugs of dependence, failed to disclose for 2 of the counts was put under disciplinary proceedings both for the seriousness of the offences and the failure to fully disclose of them. Although there is no place in the profession for drug addicts, a conviction that stems from personal use might attract a more lenient disciplinary response depending on the circumstances and on the prospects of rehabilitation.

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Prothonotary of the Supreme Court of NSW v P [2003] the solicitor had been convicted of importing a small quantity of cocaine to feed her addiction. The court ordered against the solicitors removal from the roll because the offence was unrelated to the practice of law. Her addiction had not impacted on her professional duties and had not resulted in harm to her clients or other people. This was coupled with the fact that there was evidence of rehabilitation. The disciplinary response will be more severe when the drug addiction is manifested in dishonest or reckless behaviour in client matters o in criminal behaviour.

Conviction for Stalking

The disciplinary response for stalking rests heavily on its duration and severity. Legal Practitioners Complaints Committee v Tomlinson [2006] the respondent solicitor pleaded guilty to stalking his ex girlfriend. It occurred over 4 months and there was damage caused to her property by him. The nature of his behaviour and his lack of interest in seeking help was justification, in the courts eyes, indicative of his incapacity to practice as a legal practitioner.

Conviction for Other Offences

Minor offences can generate a declaration of unfitness when the lawyer, in attempt to hide them, displays dishonest conduct. Legal Practitioner Complaints Committee v Palumbo [2005] the lawyer ran a red light tired to get his nephew to take responsibility for this. However, this was uncovered. In addition to this, his plea of guilty of possession of cocaine for his personal use led to the conclusion that he was unfit to practice.

Lawyers Tax Indiscretions

Tax offences Attempts to argue that civil failures to pay out tax fall outside the disciplinary net for being unrelated to the practice of law have been rejected NSW Bar Association v Cummins (2001). A statutory initiative to address this issue is found in the professional legislation (except in South Australia) is to brand conduct in respect of which there is a conviction for a tax offence as capable of being unsatisfactory professional conduct or professional misconduct NSW s498(1)(c).

Making Misleading Statements to a Court or Tribunal Other Than as a Lawyer

For a lawyer to knowingly give false evidence even outside the course of legal practice is treated severely in a disciplinary forum. The concern is that misleading the court in a

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personal capacity displays a lack of integrity that may directly translate to dishonesty in a professional environment. Barristers Board v Young [2001] the notion of a barrister deliberately giving fast evidence under oath is utterly repugnant to the essence of what goes to make up a barristers fitness to practise. The lawyers duty of candour is not diminished when the lawyer acts on a personal capacity. The position is different if the statements are made because of a mistake or oversight. Law Society of Tasmania v R (a Practitioner) [2006] the judge was influenced by a finding that the respondent had no motivation to deliberately give a false answer, and that the events to which the answer related occurred 2 years ago.

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