Question 1 (35 marks)

Panorama Solicitors (Panorama) operate a small two partner practice in Bathurst, a regional city in New South Wales. The two partners are Denise and Aaron. Panorama provide a generalist service to the local community, with an emphasis on rural property law, wills and estates and minor criminal matters. Denise deals with most of the property matters. Aaron deals with the wills and criminal matters. Panorama also employs a junior solicitor, Jacqueline and two paralegals, Blake and Timothy.

Robert, a local Aboriginal man from Bathurst, has been charged with murder.The murder was alleged to have occurred because of a fight in a park outside the King of the Mountain pub in nearby Kelso. The deceased, Bill, died because of a single stab wound through his (Bill's) left hand side chest. Robert was apprehended at his home by police, after they received a call from a witness to the murder, Peter, Robert's brother. Robert was in his pyjamas when apprehended and peacefully taken into custody. Robert made no statement to police and was denied bail.A day later, Robert was refused bail by a Local Court Magistrate, and a month later pleaded guilty to the murder, at which point he was remanded into custody at Bathurst Correctional Centre to await sentencing.Robert, who had been granted legal aid, reached out to Panorama because he had a family friend recommend the firm.

Panorama sent Jacqueline, its recently admitted junior solicitor to meet and obtain instructions from Robert. Jacqueline is a 25-year-old, Caucasian woman, who grew up in the central west region of New South Wales. Panorama sent Jacqueline, as she was interested in developing the criminal law side of the practice and because Aaron was on leave.

Jacqueline attended the Bathurst Correctional Centre and was joined by Robert in an interview room. The following discussion took place:

Jacqueline: Hi Robert, I'm Jacqueline from Panorama Solicitors. Thank you for retaining our services. Here is a costs disclosure form and costs agreement. Please sign it now and we can get started.

Robert: [did not say anything and slowly reached for the pen and signed the documents]

Jacqueline: Thanks Robert. Now, the police have sent through the brief of evidence. I've got some questions about that. I see you pleaded guilty at the committal hearing - although you were not represented there... So that I can work on your plea in mitigation I need to know some background materials about you. So, let's get started. OK, the police say that you have made no admissions to them. Is that correct?

Robert: [slowly] Sorry?

Jacqueline: You haven't confessed to them.

Robert: Yeah.

Jacqueline: And you pleaded guilty at the committal?

Robert: The committal?

Jacqueline: Before the magistrate.

Robert: Yeah.

Jacqueline: What happened that night.

Robert: [stayed silent]

Jacqueline: [after waiting for 30 seconds] Robert, I need you to tell me what happened so that I can help you. If you do not tell me then my representation of you will be ineffective.

Robert: [stayed silent]

Jacqueline: Robert, the police say your brother, what's his name ... [shuffling through notes] ... Peter. Peter, called them and said you stabbed Bill.

Robert: Yep.

Jacqueline: So, what happened.

Robert: [stayed silent]

Jacqueline: Did you know Peter was going to call the police?

Robert: Yeah.

Jacqueline: Robert, I really need an idea of what happened. The police say they found Bill in the park. There was no knife. The cctv footage from the King of the Mountain does not show you there that night.

Robert: [stayed silent]

Jacqueline: Ok, let's confirm some background then. You are 43 years old, and you work as a cleaner/caretaker at the Aeschylus Boarding School in Forest Grove, north of Kelso. You are married and have three children.

Robert: [stayed silent]

Jacqueline: Can you tell me anything about yourself? Do you have an health problems? Do you have a mental health issue? Any addictions?

Robert: [stayed silent]

Jacqueline: Is there anyone I could talk to about you? A doctor? Your employer? Anyone?

Robert: [stayed silent]

Jacqueline: [after another 30 second wait] Look, I'll let you think about this. Here is my card. Give me a call when you want to chat.

Jacqueline returned to Panorama and advised the remaining partner that she had a signed costs agreement but had obtained few instructions. Over the next six months, Robert provided no further instructions to Panorama, save for a teleconference with Garvey, a Sydney barrister instructed by Jacqueline. When questioned about the lack of evidence against him, Robert told Garvey: "I did it. That's it. Make sure the court knows it."

Panorama were approached by a journalist from the Bathurst Bugle for a comment about the murder of Bill. Denise, in Aaron's absence, agreed to an interview. The interview included the following dialogue:

Journalist: The murder of Bill in a public park has shocked our community. Is there a concern about law and order in Bathurst?

Denise: I think that the death of Bill is a tragic and isolated matter and we should not draw incorrect conclusions from it.

Journalist: Robert is pretty well known around town. What do you make of him?

Denise: I have not met Robert.

Journalist: But your firm is representing him, how can you not know about him?

Denise: One of our solicitors is representing him. I have not met him.

Journalist: I have heard that Robert likes to hit the booze. Is that what caused this crime?

Denise: I cannot comment on that.

Journalist: Do you think the court will send Robert to gaol for life?

Denise: That is a matter for the judge to decide in due course.

Journalist: You're representing an admitted murderer. What have you got to say to Bill's family?

Denise: Panorama Solicitors sends its condolences to the family of Bill, but we have an obligation to represent Robert according to law.

Journalist: What was Robert's motive?

Denise: I cannot comment on that.

Journalist: What has Robert asked you to do?

Denise: Panorama will follow Robert's instructions and make submissions on sentence at the forthcoming hearing.

Three months later, at the sentencing hearing, Jacqueline met with Robert in the court room cells, immediately prior to the hearing. Jacqueline was accompanied by Blake, a Panorama paralegal, and young Wiradjuri man. When Robert met Blake they had a conversation (in Jacqueline's presence) as follows:

Blake: Uncle! I didn't know I would be involved in your case until yesterday. How are you?

Robert: Good. Good. They're treating me ok. How are you?

Blake: Good, yeah. What's going on here? It's a serious matter were heading into upstairs.

Robert: Yeah, I know.

Blake: I can't imagine you getting mad at anyone, what happened?

Robert: [looking at Jacqueline] She good?

Blake: Yes, of course. She's one of us Uncle.

Robert: Hmmm ...

Blake: Seriously, what's going on?

Robert: [stayed silent]

Blake: Uncle, you have to tell me. This is bad business we're heading into.

Robert: [after one minute]: I'm still guilty ok?

Blake: Sure, but I don't understand...

Robert: Tiffany [Robert's 19-year-old daughter] was at the pub and Bill was doing his usual thing...

Blake: Trying to get back with her?

Robert: Yeah... he followed her outside and pulled her into the park.

Blake: ...

Robert: And he started, you know, trying it on...

Blake: ...

Robert: And Tiff said no ...

Blake: ...

Robert ... and he wouldn't stop.

Blake: ...

Robert: ...

Blake: Uncle, did you see this?

Robert: ... No. Tiff was getting beat up again and had enough. She had a knife in her pocket and hit him once.

Blake: Tiffany did?

Robert: Yeah.

Blake: ...

Robert: She ends up on my door. Covered in blood and crying. Her mum and me cleaned her up and sent her to bed. I was watching the footy with Uncle Pete. ... Pete took the knife and threw it into the Macquarie [River]. I told him to lag on me when he done it.

Blake: We need to sort this out Uncle.

Robert: Nah, Tiff has a future. You don't say nothing. [looking at Jacqueline] And you too.

Shortly after this they were all summoned to the court for the sentencing hearing. Jacqueline did not advise Garvey of the conversation Blake had with Robert in the cells.

Maddy, the prosecutor from the Office of the Director of Public Prosecutions, outlined the evidence and noted Robert's early plea, she stated:

Your Honour, s 19A [Crimes Act 1900 (NSW)] provides that "a person who commits the crime of murder is liable to imprisonment for life." I have no further submissions.

After this, Garvey rose to speak in mitigation. Part of Garvey's address included the following:

... Robert has pleaded guilty at the first opportunity. He has not deviated from his plea and not provided the police, prosecution or prison authorities with any problems. Robert has been an exemplary prisoner. Robert is adamant that he take responsibility for his actions. I tender a statement by his brother Peter, who states, and I quote:

"My brother is a good man. He's always stayed out of trouble with the cops before now. And the kids and teachers at the school love him. He might have had a couple of drinks that night - I don't know what happened - but he lost his mind and did a bad thing. We're all sorry for the young fellow's death. Robert has always been there for his family and friends. So, I hope your worship will be kind to him and not send him away for too long. He really will be missed."

Robert was sentenced to 20 years in gaol.

Aaron, who had taken leave from Panorama prior to Robert being charged, had been dealing with personal and financial issues associated with his divorce and property settlement from his former wife.At one point during this period, Aaron, who had a gambling addiction, was served with a creditor's petition under s 43 of the Bankruptcy Act 1966 (Cth). Aaron, was able to sell his car and avoid going bankrupt. Aaron did not tell Denise or anyone else about his addiction or potential bankruptcy, as he did not want to look weak nor cause the firm's reputation to suffer. Upon his return to work a few months later, Aaron took on a large workload to take his mind off his personal issues. On one occasion, when representing a client in a negotiation, Aaron stated to the opponent:

My client has had financial problems up until this point. But I guarantee that he is now in a position to pay his debts.

Subsequently, Aaron's client did not pay their debt. The opposing client sought payment of the debt from Aaron personally on the basis that Aaron 'guaranteed' the payment. Aaron denied any personal liability and said that he had merely been emphasising that his client had advised him that [at the time of the negotiation] his client was, or would be, capable of repaying the debt.

Consider the problem above and discuss all potential or actual professional responsibility and legal ethics issues that arise from it, and any ramifications that may flow from those issues or potential issues. Your advice should make explicit reference to relevant statute and common law.

In providing your answer, you should limit your considerations to the law of legal ethics and professional responsibility (as covered in this subject) and not some broader analysis of the criminal law and procedure, evidence law or other areas of law that might be applicable. You should assume that all the events in this problem occur in New South Wales and that relevant jurisdictional law applies.

Question 2 (10 marks)

How does a lawyer's duty to the court, to the law and to clients appear to conflict, or in practice, conflict, with each other? How is a lawyer supposed to resolve any such conflict or apparent conflict?

In your answer, provide explicit reference to common law, statutory authorities and secondary materials.