Question (700 words) John Densmore, a law student and part-time musician, was seriously injured in a car
Question:
John Densmore, a law student and part-time musician, was seriously injured in a car accident. The other car's driver, Ray Manzarek, a renowned life motivation coach and a part-time musician, admitted liability. John has sought damages from Ray for injuries sustained, including a badly broken leg that required multiple surgeries.
John's solicitor, Jim Morrison, a part-time musician, has lodged a claim with Ray's CTP insurer. (Compulsory third-party (CTP) insurance is a type of insurance that all motorists in South Australia must have.) Ray's CTP insurer has requested an independent medical examination of John as part of the discovery process - the CTP insurer pays for this. A renowned physician and part-time musician, Robbie Krieger, appointed by Ray's CTP insurers, discovered a faint abnormal heart murmur. Robbie's notes indicate that this heart murmur requires further medical attention, as it may be life-threatening. He believes the heart murmur may have resulted from the car accident but cannot make a definitive conclusion.
You are the CTP insurer's solicitor and are in a difficult position. John's solicitor, Jim Morrison, has contacted you and now wants to do a deal and settle the claim. He has not requested a copy of Robbie's medical report and has said, "Yeah, man, my client John just wants his current medical bills covered - John's treating medical practitioners have said that his leg will completely heal and that he's fighting fit." In response, you were about to tell Jim about Robbie's medical examination, but Jim says, "I got to go, man. It looks like the world is going to go up in flames" and hangs up.
Shortly after your telephone conversation with Jim, Bruce Botnick, your manager at the CTP insurer, told you that he had received all of John's medical bills. Bruce advises you that all of John's medical bills will be paid to Jim's trust account and to draw up a standard deed of settlement that will protect Ray and the CTP insurer against any future claim arising from this car accident. You ask Bruce about Robbie's medical examination and John's heart murmur diagnosis. Bruce says, "This information belongs to the CTP insurer - we've paid for it. Jim wants to settle and has not asked for it, and thus it does not need to be disclosed. Draw up the deed! Let's finish this deal and move on to the next case."
What will you do in this situation and why? What are the implications of your actions?
Your answer to these two questions must have specific references and analysis of the relevant Australian Solicitor Conduct Rules. It should also reference relevant sections of the Legal Practitioners' Act SA (1981) .
please refer to all the rules relevant in the Australian Solicitor Conduct Rules and the sections of the Legal Practitioners' Act . also use cases
The law relating to lawyers' competency
Lawyers' competency in law derives from the following:
- The contract of retainer between lawyer and client (generally, it is an implied term that a contract will be performed with due skill and care - Groom v Crocker [1939] 1 KB 194, 205).
- The law of tort, specifically negligence. Here, a lawyer can be sued for breaching the duty of care owed to a client.
A lawyer's duty of care to their clients is fulfilled by always acting in their client's best interests
Banque Bruxelles Lambert Sa v Eagle Insurance Co Ltd [1997] AC 191.
- To fulfil their duty of care owed to a client, lawyers must always act in a client's best interests.
- This entails the lawyer:
- Learning the client's instructions and advising the client of all potential risks and consequences of the client's proposed course of action.
- Following the client's instructions after providing advice (even if the lawyer thinks the client's proposed course of action is inadvisable).
The scope of the retainer agreement is critical in limiting legal liability
- The retainer agreement generally determines the extent of the lawyer's duty of care to their client. Once a lawyer has fulfilled their retainer agreement, they are rarely negligent under tort law: Heydon v NRMA Ltd (2000) 51 NSWLR 1
- Hence, it's good practice to specify the client's objectives and what they want their lawyer to do in the retainer agreement. This clarifies what is in the client's best interest when a lawyer performs legal work for their client'.
A reasonable expectation of a lawyer-client relationship...
- Be wary of giving 'off the cuff' advice or posting things on the internet that could be construed as legal advice. A lawyer may owe a prospective client a duty of care when they reasonably expect to be in a lawyer-client relationship. In this circumstance, a retainer agreement can be implied by a court. (Pegrum v Fatharly (1996) 14 WAR 92).
When clients seek help in pressing circumstances
- When a client's instructions do not appear to have legal merit, or the lawyer does not have the skill or experience to handle them, the lawyer should inform them of this fact, irrespective of their demand for action.
- A demand for immediate action in urgent circumstances does not negate a lawyer's duty of care to their client. In these circumstances, a lawyer must still provide proper advice and inform the client of the potential risks arising from their proposed course of action.
- See May v Mijatovic (2002) 26 WAR 95.
Standard of Care
I am following my client's instructions after advising them about what I see are the possible consequences of their proposed course of action.
Civil Liability Act (1936) SA, 41(1):
- A professional is not negligent when acting in a manner widely accepted by members of that
profession as competent practice.
Rogers v Whitaker (1992) 175 CLE 479, 483.
- The standard of care is "that of the ordinary skilled person exercising and professing to have that special skill".
- This means that you need to possess knowledge of well-settled principles of law, relevant procedures, and court rules applicable to the client's needs.
- A gross error of judgment (as opposed to a guarantee of no mistakes or omissions) shows a lack of care: Hall v Foong (1995) 65 SASR 281, 304.
- An unfavorable outcome for a client is not per se evidence of a lack of care: Matrix Securities Ltd v Theodore Goddard (a firm) [1998] PNLR 290.
- In sum, you need to perform at a standard of a standard expected of a reasonably competent lawyer.
Examples of lawyers being negligent
- Lawyers should give competent advice concerning the strength of a client's case: Kolavo v Pitskas [2003] NSWCA 59.
- Lawyers should advise of the absence of a standard clause in a document and its implications: Amadio Pty Ltd v Henderson (1998) 81 FCR 149.
- Lawyers should inform their clients of the risks attendant to a transaction and advise against pursuing transactions that do not appear to be in the client's interests: Cockburn v GIO Finance Ltd (unreported, CA(NSW), 2 February 1996)
Can the standard of care be raised or lowered?
- It can be raised. When a lawyer is recognised as an expert in a field of practice, they are subject to a higher standard of care when working within that field. See section 40 Civil Liability Act (1936) SA. Also see Yates Property Corporation v Boland (1998) 85 FCR 84.
- It cannot be lowered. An inexperienced lawyer or a lawyer who offers free or discounted legal services is not subject to a lower standard of care.
- In urgent matters, the question is not whether the standard should be lowered. The focus is on what an ordinary lawyer does in exercising care in these circumstances. See May v Mijatovic (2002) 26 WAR 95.
The duty of competence is reflected in the ASCR.
ASCR 4.1
- Lawyers must act in their client's best interests, be honest and courteous in all their dealings, deliver legal services competently, diligently and promptly, and avoid compromising their integrity and professional independence
ASCR 7.1
- Lawyers must provide clear and timely advice to assist their clients in understanding the relevant legal issues and making informed choices.
ACSR 7.2
- Lawyers must ordinarily inform their clients about the alternatives to litigation in dispute resolution.
ASCR 8.1
- Lawyers must follow their client's instructions (if they are lawful, proper and competent).
ASCR 13.1
- Lawyers must ordinarily complete the legal services agreed to with their client.
Immunity for "In-Court" Acts or Omissions
- Advocates are immune from actions by clients for negligence relating to their work in litigation: Giannarelli v Wraith (1988) 165 CLR 543 (the High Court applied the House of Lords decision: Rondel v Worsley [1969] 1 AC 191).
- The House of Lords subsequently revoked this immunity: Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615. New Zealand has also abolished the immunity Lai v Chamberlains [2007] 2 NZLR 7. Canada hasn't had it for over 40 years: Demarco v Ungaro [95 DLR (3d) 385.
- Even with the current position of these other common-law countries, the High Court of Australia has gone against the trend and expanded the concept. In Australia, this immunity now potentially extends to instructing solicitors: D'Orta - Ekenaike v Victorian Legal Aid (2005) 223 CLR 1.
The rationale for immunity
- In Rondel v Worsley, their Lordships relied on public policy (immunity was for the benefit of the public):
- By removing immunity, they were concerned that problems would arise if advocates faced conflicting duties to both court and their client. Instead of freely focusing on their primary duty to the court, advocates would be mindful of the possibility of liability to their clients for decisions made in court that advance the administration of justice.
- They also thought that immunity prevented collateral challenges against judicial decisions. Removing immunity would allow disaffected litigants to take legal action and relitigate arguments that a court had already determined.
- They also noted that all other participants in legal proceedings (such as judges, witnesses, jurors, etc.) have immunity. Such immunity is fundamental to the administration of justice that all participants in court proceedings are free to speak and act without the prospect of facing liability.
D'Orta - Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 - HCA opinion
- The HCA (Gleeson CJ, Gummow, Hayne, and Heyden JJ) reasoning is underpinned by a public policy rationale (also discussed in Rondel v Worsley and Giannarelli v Wraith) of preserving finality in court decision-making:
- They said removing immunity would allow for the reopening of decided cases based on the negligence of an advocate's work. This would undermine the primary purpose of the judicial system, which is the 'quelling of controversies' [32].
- Further to this, they said, 'the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances.' [45]
- From this reasoning, they concluded that 'where a legal practitioner (whether acting as an advocate or as a solicitor instructing an advocate) gives advice which leads to a decision (here the client's decision to enter a guilty plea at committal) which affects the conduct of a case in court. The practitioner cannot be sued for negligence on that account.' [91]
D'Orta - Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 - HCA dissenting opinion
Kirby J - "Against the unhistorical and unprincipled extension of immunity in the way now proposed in this case, I dissent." [326]
- After examining other professionals' liability, Kirby J questions whether advocates' immunity is the law of Australia and asks why lawyers are 'entitled to be treated in a special, protective, and unequal way?' [210]
- He notes that common-law countries worldwide do not have this immunity for advocates and that Australia is embracing a 'legal doctrine in a way rejected by virtually everywhere else.' [216]
- He deconstructs Giannarelli case and concludes that it has no clear ratio decidendi other than immunity for barristers is confined 'during the hearing of proceedings in court.' [294]
- He notes that 'those who take a broad view of work that is "intimately connected" with in-court decisions, there is virtually nothing in the practice of advocates that is not shielded by immunity."
- He also notes that fear of a flood of litigation is not supported by experience: "It does not happen in the United States, a most litigious country, where there has never been immunity from suit for ordinary attorney advocates" [328]
- Further, he notes 'the issue raised in a claim of legal professional negligence is necessarily different, in fact and law, from the issue that has been earlier litigated and determined." [333]
Atwells v Jackson Lalic (2016) 259 CLR 1 - the blurry boundary of advocates' immunity
- This case concerned settlements or compromises affected by lawyers.
- In the Atwells case, counsel allegedly provided negligent advice in settling a claim (the Atwells alleged that they were not properly advised about the settlement and suffered a loss). A consent order from the court recorded the settlement. Given that the court made an order, the lawyers relied on advocates' immunity in response to the Atwells claim.
- The Court found that advocates' immunity did not apply because there was no genuine exercise of judicial power in the case. The HCA majority found that a court consent order reflects an agreement of the parties and is not a judicial determination.
- "Once it is appreciated that the basis of the immunity is the protection of finality and certainty of judicial determinations, it can be more clearly understood that the "intimate connection" between the advocate's work and "the conduct of the case in court" must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision." [46]
Duty of Confidentiality & Legal Professional Privilege
Rationale for the duty of confidentiality
- The duty of confidentiality is justified to facilitate 'full and frank disclosure' within the lawyer-client relationship.
- A lawyer keeping client confidential information confidential is viewed as sacrosanct. It allows a client to come and seek legal advice without fear of their lawyer disclosing this communication without their permission.
- The facilitation of 'full and frank disclosure' and the absence of fear of disclosure fosters confidence in the legal system.
- See Prince Jefi Bolkiah v KpMG (a firm) [1999] 2 AC 222.
Duty of Confidentiality - Sources of Law
- Common Law
- Equity
- Australian Solicitors' Conduct Rules
'Whatever the legal foundations, it is clear that a breach of confidence is actionable by the client and would also be a breach of professional ethics which may result in disciplinary action against the practitioner.' Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404.
Australian Solicitors' Conduct Rule 9 Scope, Limits and Exception
CONFIDENTIALITY
- 9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client's engagement to any person who is not:
- 9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor's law practice; or
- 9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor's law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,
- EXCEPT as permitted in Rule 9.2.
Australian Solicitors' Conduct Rule 9.2
A solicitor may disclose information which is confidential to a client if:
- 9.2.1 the client expressly or impliedly authorises disclosure
A solicitor may disclose information which is confidential to a client if:
- 9.2.2 the practitioner is permitted or compelled by law to disclose
A solicitor may disclose information which is confidential to a client if:
- 9.2.3 the practitioner discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the practitioner's legal or ethical obligations
A solicitor may disclose information which is confidential to a client if:
- 9.2.4 the practitioner discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence
A solicitor may disclose information which is confidential to a client if:
- 9.2.5 the practitioner discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person
A solicitor may disclose information which is confidential to a client if:
- 9.2.6 the information is disclosed to the insurer of the practitioner, law practice, or associated entity
Blow a careful whistle?
- Parker and Evans 'suggest that lawyers should be permitted to blow the whistle - with care and consideration - where they have information about clients or other lawyers using legal services to subvert the administration of justice.' (2023, p. 126)
- Whistle-blowing should be the last step to prevent substantial injustice.
- What is the wrongdoing?
- What are the alternatives options to prevent the wrongdoing?
- If there are no alternatives:
- What information needs to be disclosed to prevent the wrongdoing?
- What is the appropriate forum for disclosure?
Preserving client confidentiality in the 21st century
- Lawyers must make reasonable efforts to prevent the inadvertent or unauthorised disclosure or access to client confidential information.
- Lawyers should obtain informed client consent when their information is stored in the 'cloud.'
- All legal email communication should be labelled 'confidential and privileged' and should be 'destroyed if received by mistake.'
- Lawyers should be careful about where they speak on their mobile phone and know the phones transmission be intercepted.
- Using social media in legal practice presents dangers. Clients should be advised not to use social media when they are litigating or about to litigate. Once the information is in the public domain, it is outside the scope of confidentiality.
Legal Professional Privilege
- At common law, legal professional privilege ... protects confidential communications between a lawyer and their client from compulsory production in the context of court and similar proceedings.
- Australian Law Reform Commission
The duty of confidentiality and legal professional privilege are not the same thing.
- The concepts certainly overlap - both are concerned with secrecy.
- The duty of confidentiality arises through the nature of the client/solicitor relationship.
- Legal professional privilege arises through the nature of the client/solicitor communication.
The rationale for legal professional privilege
- The reason why privilege is extended to confidential communications made by a client to [their] solicitor and not to confidential communications made, e.g. by a patient to a doctor, a penitent to a priest, or a customer to a banker, is that the view has been taken that in the first-mentioned case the public interest requires that the private obligation of confidentiality be fulfilled... It is necessary for the proper conduct of litigation ... and it is equally necessary that a lawyer be placed in full possession of the fact to enable ... proper advice and representation. Baker v Campbell (1983) 153 CLR 52.
The 'privilege' is given to a client, not to their lawyer.
- Legal professional privilege protects the secrecy of:
- legal advice; and
- communication relating to existing or anticipated litigation.
Communication that is subject to legal professional privilege
- And, if privilege attaches to that communication, it will capture notes, memorandums and any other document that are sought by that client's solicitor to facilitate legal advice and assistance.
- When the 'dominant purpose' for the communication between the client and lawyer is to obtain legal advice or assistance in current, pending or anticipated litigation, privilege will attach to that communication.
Legal professional privilege is delicate balancing act
The search is for a test which strikes an appropriate balance between two competing considerations: the public policy reflected in the privilege itself, and the public policy that, in the administration of justice and investigative procedures, there should be unfettered access to relevant information. Additionally, whatever test is adopted must be capable of being applied in practice with reasonable certainty and without undue delay and expense in resolving disputed claims.
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49.
Communication that is not subject to legal professional privilege
- Statute
- Waiver
- Improper or illegal purpose
DUTY OF LOYALTY - WHAT IS IT?
- Duty of loyalty is about the lawyer always acting in good faith and honourably when advancing their clients' interests.
- Not being in a position where personal benefit can be generated from a client.
- Not being in a position where the lawyer's attention is divided by multiple clients with conflicting interests
- All clients are entitled to a lawyer's undivided attention, knowledge and skill.
- All clients are entitled to know when the lawyer's attention, knowledge and skill is potentially impaired or divided by another interest.
DUTY OF LOYALTY - WHERE DOES IT COME FROM?
- The lawyer-client relationship is a fiduciary one.
- The client places their trust and confidence in their lawyer.
- Equity imposes duties and obligations on a person who is given trust and confidence to prevent abuse.
DUTY OF LOYALTY - WHAT DOES THE GENERAL LAW (AND AUSTRALIAN SOLICTORS' CONDUCT RULES) SAY?
- Avoid any conflict of interest BETWEEN THE LAWYER"S PERSONAL INTEREST AND THEIR CLIENT (ASCR 12)
- AVOID ANY CONFLICT OF INTEREST BETWEEN THE LAWYER'S CLIENTS (ASCR 10, 11A, 12)
AUSTRALIAN SOLICITORS' CONDUCT RULE 12: CONFLICT CONCERNING A SOLICITOR'S OWN INTERESTS
12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.
AUSTRALIAN SOLICITORS' CONDUCT RULE 12: CONFLICT CONCERNING A SOLICITOR'S OWN INTERESTS
A legal practitioner must not do anything:
(a) calculated to dispose a client or a third party to confer on the practitioner, either
directly or indirectly, any benefit in excess of the practitioner's fair and reasonable
remuneration for legal services provided to the client, or
(b) that the practitioner knows, or ought reasonably to anticipate, is likely to induce the
client or third party to confer such a benefit and is not reasonably incidental to the
performance of the retainer.
Example of lawyer/client conflict
- What the client wants may adversely affect the lawyer's personal interest because it may affect their associate's interest.
- In this example, loyalty can be divided between the lawyer's client and the lawyer's wife.
- As such, the lawyer must provide full disclosure of the conflict (or division of loyalty) to their client.
Example of lawyer/client conflict
- A lawyer cannot personally benefit from their client more than fair and reasonable remuneration under the retainer agreement.
- It must be disclosed to the client if the lawyer can derive any benefit from the client in addition to what they would receive under the retainer agreement.
Undue Influence
- When a person is in a relationship with another where that person places trust in that other, and that other can exert control, influence or some other form of superiority over that person, the law can presume the presence of undue influence.
ASCR 12.3
A legal practitioner must not borrow any money, nor assist an associate to borrow money, from:
...
12.3.1 a client of the practitioner or of the practitioner's law practice;
...
UNLESS the client is:
...
(iv) an associate of the practitioner and the practitioner is able to discharge the onus of proving that a full written disclosure was made to the client and that the client's interests are protected in the circumstances, whether by
legal representation or otherwise.
AUSTRALIAN SOLICITORS' CONDUCT RULE 11.1
A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule.
AUSTRALIAN SOLICITORS' CONDUCT RULE 11.2
If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients' interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3. and 11.4
Australian Solicitors' Conduct Rule 11.5
If a legal practitioner or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the practitioner or law practice may only continue to act for one of those clients (or for two or more of those clients between whom there is no conflict) ...
Australian Solicitors' Conduct Rule 11.3
Where a legal practitioner or law practice seeks to act in the circumstances specified in Rule 11.2, the practitioner or law practice may, subject always to each practitioner discharging their duty to act in the best interests of their client, only act if each client:
- 11.3.1 is aware that the practitioner or law practice is also acting for another client; and
- 11.3.2 has given informed consent to the practitioner or law practice so acting.
Australian Solicitors' Conduct Rule 11.4
In addition to Rule 11.3, where a legal practitioner or a law practice acts for two or more clients in the same or related matters and the practitioner or law practice is in, or comes into, possession of information which is confidential to one client (the first client) which might reasonably be concluded to be material to the other client's or clients' matter and detrimental to the interests of the first client if disclosed, the practitioner and the practitioner's law practice
AUSTRALIAN SOLICITORS' CONDUCT RULE 10
10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2.
10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter
UNLESS:
10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or
10.2.2 an effective information barrier has been established.
A lawyer's relationship with former clients and taking on a new client
- Lawyers and law firms are not obliged to help former clients; they only must protect their former client's confidentiality.
- Lawyers and law firms cannot take on a former client if there's an actual conflict with an existing client.
- When a lawyer has knowledge or access to knowledge about a former client's confidential information, they cannot act for a new client who wants to take action against them - they can't be loyal to the new client and keep their former client's confidentiality.
STOPPING A LAWYER OR A LAW FIRM FROM ACTING FOR A NEW CLIENT
- Breaching duty of loyalty
- Misuse of confidential information
- Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222.
- Administration of justice
- Grimwade v Meagher [1995] VicRp 28.
The Law vs Brooking J in Spincode Pty Ltd v Look Software Pty Ltd [2001] 4 VR 501
- The duty of loyalty ends with the termination of the retainer agreement.
- The exception? Do solicitors owe an ongoing equitable duty of loyalty that goes beyond protecting client confidential information?
- Read Dealer Support Services Pty Ltd v Motor Traders Association of Australia Ltd (2014) 228 FCR 252.
INFORMATION BARRIERS- Lord Millett's principles from Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222.
- Physical separation of the legal departments within the firm
- An educational programme about the importance of protecting confidential information
- Strict procedures when the wall is crossed
- Compliance officers to ensure effectiveness of the wall
- Discipline for those who breach the wall.
Administration of justice
- Ensuring the proper administration of justice vs Protecting the right of an individual to chose their lawyer
- Grimwade v Meagher [1995] VicRp 28.
Lawyers' Ethics and Society: Duties to the Court in Criminal Context
Prosecutors:
- Responsible lawyering
- Protecting the justice system on behalf of the client (the state)
Defence Lawyers:
- Adversarial advocates
- Zealous focus on the client (the accused)
The Prosecutors' Role
- The Law:
- Prosecutors' must ensure a fair trial: Whitehorn v The Queen (1983) 152 CLR 657, 663-4.
- Australian Solicitors' Conduct Rule 29
- The Role:
- Represent the State
- Conduct themselves with fairness and impartiality
- Seek the truth through adherence to legal procedures and standards
- Expectations from:
- The accused
- The court
- The community
ASCR 29 Prosecutors' duties
- 29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
- 29.2 A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case.
- 29.3 A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
Prosecutors' Duty of Disclosure
- ASCR 29.4: Disclosure requirements
- Prosecutors must disclose all material relevant to the guilt or innocence of the accused
- Includes prospective witnesses and means of finding them
- Importance of the duty of disclosure:
- Critical for ensuring a fair trial for the accused
- Essential when evidence impacts credibility of prosecution witnesses or reliability of exculpatory evidence
- Prosecutors' responsibilities:
- Disclose all evidence that could reasonably be considered credible and potentially important to the accused's case
- Enable the accused to know and test all the State's evidence for a fair trial
ASCR 29.5 & 29.6: Timing and Limits of Disclosure
- Rule 29.5: Disclosure timing
- Disclosure must be made "as soon as practicable"
- Prosecutors cannot withhold evidence that must be disclosed
- Rule 29.5: Limits of disclosure
- General rule: disclose all relevant evidence
- Exception: when there are reasonable grounds to believe that full disclosure would seriously threaten the integrity of the administration of justice or the safety of any person
- Rule 29.6: Consequences of limited disclosure
- Consider withdrawing the charge against the accused or recommending a lesser charge
- Undisclosed evidence must be irrelevant to the lesser charge
ASCR 29.7: Calling Witnesses in a Fair and Impartial Manner
- Rule 29.7: Calling all witnesses
- Prosecutors must call all witnesses whose testimony is admissible and necessary for presenting all relevant circumstances
- Cannot pick and choose witnesses to achieve an advantage for the State
- Call witnesses even if their testimony might undermine the aim of achieving a conviction
- Exceptions to the rule:
- The accused or their lawyer consents to not calling a witness
- The prosecutor informs the accused that they are not going to call the witness and provides the reason why
- The accused or their lawyer can decide how to respond to the prosecutor's decision not to call a witness
Rules 29.8, 29.9, 29.10, and 29.11: Reinforcing Fairness and Impartiality
- Rule 29.8: Unlawfully or improperly obtained material
- If a prosecutor has reasonable grounds to believe that material may have been unlawfully or improperly obtained, they must promptly inform the opponent and make the material available
- Rule 29.9: Interactions with the accused
- Prosecutors are prohibited from conferring or interviewing any accused except in the presence of the accused's legal representative
- Rule 29.10: Submissions supported by evidence
- Prosecutors cannot tell the court or the accused that they have evidence supporting their case unless they actually have it
- No "scare tactics" or theatrics allowed
- Rule 29.11: Loss of supporting evidence
- If evidence supporting their submissions is lost, prosecutors must immediately inform the accused or their lawyer and the court
29.12: Prosecutors' Responsibility in Sentencing
- Rule 29.12: Prosecutors' duties during sentencing
- Correct any error made by the opponent in an address on sentence
- Inform the court of any relevant authority or legislation on the appropriate sentence
- Assist the court in avoiding appealable errors on the issue of sentence
- May submit that a custodial or non-custodial sentence is appropriate
- This rule is unique to Prosecutors:
- The requirement to correct errors made by the defence lawyer in a sentence is exclusive to prosecutors
- ASCR 19.3 and 22.3: Lawyers do not have to correct opponents' errors
Rule 29.13: Counsel Assisting Inquisitorial Bodies
Behave
- like prosecutors when performing duties in court
- Follow
- ASCR 29.1, 29.3, and 29.4
- Emphasise
- fairness and impartiality, avoid theatrics
The Defence Lawyer's Role
- Defence lawyer's role:
- Challenge the prosecutor's case to ensure there is truly no doubt their client has breached every element of a particular law
- Ensure the prosecutor's case is rigorously tested to guarantee the accused receives a fair trial
Ethical Dilemmas for Defence Lawyers
- Confessing or delinquent: Client says that they have committed the crime but doesn't want to plead guilty
- Plea of convenience: Client may or may not have committed the crime but wants to plead guilty (could be innocent but unwilling to fight the case)
ASCR 20.1 Dealing with Lies, Falsification, and Suppression
- The situation:
- A client or witness lies to the court
- A document is falsified, or someone is asked to falsify it
- Material evidence is suppressed, or someone is asked to suppress it
- What lawyers must do:
- Advise the client to inform the court about the lie, falsification, or suppression
- Refuse to continue with the case unless the client agrees to disclose the issue to the court
- Client confidentiality (ASCR 9):
- Don't reveal the lie to the court; respect client confidentiality
- Exceptions under R9.2 may apply in certain situations
ASCR 20.2 and the Confessing Client
- Options for lawyers:
- Stop representing the client if there's enough time for another lawyer to step in before the hearing, and the client doesn't insist on continuing with you.
- Keep representing the client, but do not mislead the court.
- A confessing client who pleads not guilty:
- CAN argue that the evidence doesn't prove guilt, and there's a legal reason they're not guilty.
- CANNOT falsely accuse someone else or present a case contradicting their confession.
- Lawyers are restricted in what they can do:
- Nothing can be said that contravenes the client's confession, as this would be misleading or lying to the court.
- The defence is restricted to the prosecution's evidence and not establishing each element of the offence.
ASCR 20.3 and the Disobedient Client
- Rule 20.3 covers situations where a client informs their lawyer of their intention to disobey a court order.
- In this situation, a lawyer must:
- Advise against it and warn about the risks.
- Lawyers cannot conceal wrongdoing!
- Must respect client confidentiality, unless there is an exception under ASCR 9.2 that allows for breaching confidentiality.
The Plea of Convenience
- A plea of convenience occurs when a not guilty person wants to plead guilty for various reasons, such as avoiding worry, expense, inconvenience, or to protect family or friends.
- Lawyers are not ethically prohibited from representing a client in these circumstances; it is not considered misleading the court. See Meissner v R (1995) 184 CLR 132: justice is done when a person makes a free and
- The lawyer's role in such cases is crucial:
- The lawyer must carefully explore the client's decision and ensure they act in their best interests and make a fully informed choice.
- The lawyer should advise the client on the strength of the case, and the prospects of acquittal, and outline in detail every conceivable consequence of the decision.
- The lawyer should provide their advice in writing and obtain signed instructions from the client to ensure transparency and protection for both parties.
Navigating Ethical Boundaries in Cross-Examination
- In criminal cases, defence lawyers take on an adversarial advocate approach to represent their clients effectively. However, defence lawyers' role and pursuit of justice can be problematic when it comes to harming others in the defence of a client.
- This issue is most acute when a lawyer is cross-examining a vulnerable witnesses. ASCR provide guidance on this matter in rules 21.2, 21.8, and 21.9.
- Reasonably justified
ASCR 21 Boundaries in Cross-Examination
Rule 21.2: Ensure allegations are:
- Appropriate for advancing client's case
- Not made to harass or embarrass a person
Assessing legitimacy:
- Relevance of past incident to witness's credibility
- Impact on current case
- Lawyer's intentions and purpose
Balancing act:
- Advance client's case through legitimate means
- Maintain duties as an officer of the court
- Consider specific circumstances of each case
ASCR 21.8 - Vulnerable Witnesses
Appropriate conduct with vulnerable witnesses
- Avoid misleading, confusing, annoying, harassing, intimidating, offensive, oppressive, humiliating, or repetitive questions
- Exercise restraint and consider the witness's vulnerability
ASCR 21.9: Exceptions to ASCR 21.8
- Rule 21.9
- Challenging truthfulness, consistency, or accuracy of a statement is allowed.
- Questions about offensive, distasteful, or private matters are permissible if relevant.
- Ethical Implications:
- Legitimate strategy to advance client's case vs. harassment of vulnerable witnesses.
- The possible ground of appeal if the judge improperly intervenes in the defence lawyer's questioning of a witness.
- Prosecutors need to maintain fairness and impartiality.
- Potential Solution:
- Complainants having their own lawyer in certain cases (e.g., sexual assault).
- Clarifies the role of the prosecutor as representing the state, not the alleged victim.
CIVIL LAWYERING - LAWYERS' DUTIES TO THE COURT
CIVIL LAWYERING VS CRIMINAL LAWYERING
- In both civil and criminal realms, litigants operate within an adversarial system, where lawyers aim to promote their clients' best interests in pursuit of justice. However, the civil realm has long sought alternative dispute resolution methods to reduce the adversarial nature of the justice-seeking process.
- Parker and Evans four ethical lawyering approaches - Adversarial Advocacy (AA), Responsible Lawyer (RL), Moral Activism (MA), and Ethics of Care (EoC) - can come into play, depending on the lawyer's approach to resolving civil disputes.
- The role of a lawyer in civil cases is not as clearly defined as it is in criminal law. This role complexity in a civil lawyer can potentially make it easier to encounter unethical situations, not necessarily in terms of wilfully breaching the conduct rules or relevant laws, but in misjudging their application.
DUTY TO THE CLIENT VS DUTY TO THE COURT
DON'T FORGET ASCR 3, 4.1.4 & 17
- Every counsel has a duty to ...[their} client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which ... [they] think will help ... [their] client's case. But, as an officer of the court concerned in the administration of justice, ... [they] have an overriding duty to the court, to the standards of ... [their] profession, and to the public, which may and often does lead to a conflict with their client's wishes or with what they client thinks are [their] personal interests. Counsel must not mislead the court." (Rondel v Worsley [1969] 1 AC 191, 227).
- Focus on real issues and robust advancement of the case
- Inform the court of persuasive authority against client's case
Client's Wishes vs Lawyer's Professional Judgment
- ASCR 17: Lawyers must use judgment, not just repeat client's wishes:
- ASCR 19.6: Lawyers must inform the court of law
- All relevant cases and legislation must be disclosed to the court
- Disclosure must be made even if it is unfavourable to a client's case
- Challenges in Practice:
- Giving unwelcome advice to clients
- Balancing client's wishes and stronger arguments
- Maintaining lawyer-client relationship while upholding professional obligations
ASCR 19 - Duty to the Court vs ASCR 9 - Client Confidentiality
- R 19.1: Solicitors must not deceive or knowingly or recklessly mislead the court. Honesty and integrity in all representations is not negotiable.
- R 19.2: Solicitors must to correct any misleading statements made to the court.
- R 20: False client instructions/evidence provided to the court:
- Encourage client to correct the error
- Withdraw from the case if the client refuses
- R 9: Confidentiality remains protected, no disclosure without client's consent
ASCR 19.3: Duty to Client vs Duty to Court vs Professional Reputation
- R. 19.3 No responsibility to correct opponents' factual errors
- Must promote the client's best interests
- Restrictions:
- R 30.1 - No unfair advantage based on unsupported facts or law
- R 19.6 - Positive obligation to inform the court about the law
- Is it worth it?:
- You should ordinarily seek client's instructions to correct the error
ASCR 19.4 & 19.5 vs ASCR 9 & Professional Legal Privilege
- Complete disclosure required in ex parte applications
- Full disclosure of all relevant factual and legal matters when opponent is absent
- Legal professional privilege
- Solicitor must seek waiver and inform court when complete disclosure cannot be provided
Justice vs Efficiency & Practicality
- R 19.6: Inform the court of binding authority/legislation against the client's case
- Ensures the court has the necessary information for an informed decision
- R 19.8: Duty continues after trial, before the judgment
- Ensures the court has the necessary information for an informed decision
- Exception: Opponent withdraws the case or consents to final judgment
- Ensures that justice is efficient and practical
Legally correct decisions vs tactical advantage
- R 19.11: Inform the court of misapprehension on order effect
- Responsibility to correct mistakes promptly when court orders are being made.
- R 19.12: Alert opponent and court of mistaken concession
- Ensure correct understanding of evidence, case law, and legislation in a civil trial.
An unexpected detour back to criminal law
- R 19.9 & R 19.10: Exceptions to the duty to inform the court
- Prohibitions:
- Taking advantage of prosecution's lack of knowledge of client's previous convictions
- Asking about previous convictions if prosecution unaware
- R 19.9 & R 19.10: Exceptions to the duty to inform the court
- Prohibitions:
- Taking advantage of prosecution's lack of knowledge of client's previous convictions
- Asking about previous convictions if prosecution unaware
- R 21.1: Invoking the court's coercive powers must:
- have a reasonable justification
- be appropriate for the robust advancement of a case
- not be for harassment or embarrassment
- not for a collateral advantage outside of court
- White Industries v Flower & Hart (1998) 156 ALR 169:
- law firm's client could not afford to pay his creditors
- client alleged fraud on the part of the creditors without sufficient evidence
- allegation of fraud had an ulterior purpose: delay and frustrate client's creditors
- costs awarded against law firm
ASCR 21: Ensuring Allegations & Suggestions are Justified and Appropriate
Determining what is reasonable, appropriate, and proper vs client demands and the robust advancement of their case
- R 21.2: Solicitors making suggestions or allegations under privilege must ensure they:
- have reasonable justification; are appropriate for the robust advancement of a case; and are not for harassment or embarrassment.
- R 21.3: Solicitors must only allege matters of fact when:
- there is a proper basis supported by available factual material.
- R 21.4: Solicitors must only make allegations of criminality, fraud, or serious misconduct when:
- there is a proper basis provided by available material; and
- client's informed consent is given after they understand seriousness and potential consequences.
Moral Dimensions of Lawyering: The Ellis Case and the Importance of Ethics in Legal Practice
- Foley argues that morality cannot be separated from law and lawyering - lawyers should scrutinise the moral dimensions of legal strategies with clients
- Does consideration of morality ensure that lawyers fulfil their paramount obligation to administer justice and act in their client's best interests?
- The Ellis Case:
- The Catholic Church's legal strategy: litigate and forcefully defend allegations of child abuse
- Mr. McCann's response in a Royal Commission into child abuse when asked about the morality of this strategy: I act on instructions
THE ELLIS CASE - THE BACKGROUND
- Mr Ellis was abused when he was an alter boy in his local parish between the 1970s and 1980s
- Through the Church's formal internal dispute resolution forum, "Towards Healing", the Church accepted that Mr Ellis was abused. The Church made settlement offers, which Mr Ellis rejected.
- Mr Ellis commenced legal action seeking compensation for abuse. The first law firm advised that negotiation with Mr Ellis was the best course of action. The second law firm had another approach...
A Combative Approach is taken in the Ellis Case - is this ethical?
- Mr Ellis's claim was past the limitation date (his claim was statute barred; he needed to commence legal action before he turned 21 and he was 37).
- To argue about whether Mr Ellis's 'out of time' claim should be accepted, the issue of whether he was abused needed to be in dispute. The Church instructed the lawyer that they were not accepting that abuse occurred (notwithstanding the internal investigation).
- Mr Ellis was fiercely cross examined about whether the abuse occurred for four days. The Court on the balance on probabilities found that the abuse did not occur. Mr Ellis's claim failed.
I act on instructions
ASCR 8.1 A solicitor must follow a client's lawful, proper and competent instructions.
Balancing Legal Obligations and Ethical Boundaries: Navigating Rules 4, 9, 19, and
21 in the Ellis Case
- Rule 4.1.2 - Solicitor's honesty and potential disclosure of Church's internal findings
- Restricted by Rule 9: Cannot disclose confidential client information without permission
- Rule 19 - Solicitor must not deceive or knowingly or recklessly mislead the court
- Solicitor followed the client's instructions and used legally permissible arguments
- Rule 21 - Ensuring allegations or suggestions are reasonably justified and not made to harass or embarrass
- Aggressive cross-examination of Mr Ellis questioned prior conduct and credibility
- Mr McCann's concession: "On reflection, this probably should not have occurred"
- Royal Commission's stance:
- Mr McCann's conduct was consistent with the client's instructions to vigorously defend the case
The Intersection of Law, Morality, and Ethics: Questioning the Moral Implications of Legal Actions
- "In a legal sense, we always acted honestly, and I believe in a legal sense there was nothing done that was improper ... But from my point of view, from a Christian point of view, leaving aside the legal dimension, I don't think we dealt fairly with Mr Ellis."
- Church's response highlights the difference between legal and moral perspectives
- Tony Foley's argument: Law and lawyering should not be devoid of morality
- The debate: Should lawyering be strictly bound by legal principles or also guided by moral considerations?
LAWYERS' PROFESSIONAL DUTIES OWED TO OTHER LAWYERS AND THIRD PARTIES
Civility and Courtesy in ASCR Rules & General Law
- ASCR 4.1.2: honesty and courtesy
- ASCR 5: dishonest and disreputable
- "Lawyers who act discourteously or bicker with one another are unlikely to give the requisite assistance to the court" Beevis v Dawson [1957] 1 QB 195, 201.
- Key readings:
- Dal Pont, Ch. 21
- Equal Opportunity Report on Harassment in the legal profession
- Australian Law Council's ASCR 42 discussion paper.
Civility & Courtesy in Legal Communication
- Lawyers' language should be reasoned, dispassionate and without invective: Towers v Atkins (No 2) [2015] 3537, [59].
- Offensive and disparaging language is unprofessional and will likely lead to disciplinary sanctions: Legal Professional Complaints Committee v in de Braekt (2012) 80 SR (WA) 134.
Exceptions & Boundaries in Civility and Offensive Language - What's the boundary between incivility and legitimately promoting a client's case?
- Lander v Council of the Law Society of the ACT (2009) 231 FLR 399
- Depends on the circumstances; politeness in advocacy can be challenging
- Offensive language may be unavoidable (e.g., fraud or misconduct accusations)
- Honesty is the guiding value:
- Legal foundation required for offensive language use
- Unprofessional conduct in inevitable when honesty is disregarded
Balancing Honesty, Civility, and Courtesy in Legal Practice
- Uphold the values of honesty, civility, and courtesy where possible; reliance on honesty alone will not suffice.
- For example, ambiguity in ASCR 22 - do you need correct an error in negotiation?
- Legal Services Commissioner v Mullins [2006] LPT 12 and Legal Practitioners Complaints Committee v Fleming (2006) 48 SR (WA) 29 highlight potential consequences of an honest but literal interpretation of this rule.
- In seeking to negotiate, the lawyer relinquishes their adversarial role in favour of a negotiating role. Honesty, fairness, and integrity are crucial, and a certain level of trust between lawyers and their clients is essential: Legal Practitioners Complaints Committee v Fleming (2006) 48 SR (WA) 29, [75] - [77].
Fostering Trust in Legal Practice
- Avoid exploiting accidentally received privileged material (Great Atlantic Insurance Co v Home Insurance [1981] 1 WLR 528, 538-39)
- Make misconduct allegations only when genuine and based on reasonable grounds ASCR 32
- Don't record conversations without permission Surveillance Devices Act 2016 (SA)
- Seek permission before discussing with a client's previous lawyer
- Refrain from threatening legal costs orders without merit
- Provide notice to a lawyer before initiating legal proceedings
Fostering Trust and Avoiding Exploitation
- Avoid exploiting peer's mistakes (by relying on ASCR 19.3)
- Short-lived, minor victories harm long-term trust
- Do not foster or induce a mistake (ASCR 30)
- This may result in disciplinary action
- Chamberlin case: fostering/inducing mistakes is unprofessional
- Fostered and induced mistakes are misrepresentations (and thus potentially a breach of ASCR 21 & 22)
Professionalism in Communication
- Civility, courtesy, and honesty apply to everyone (ASCR 7, 34)
- Be clear, fair, and respectful in all communications
- Avoid:
- Exaggerated claims or misleading statements
- Threats and intimidation
- Tactics designed to embarrass or frustrate others
- Exploiting vulnerable individuals
- Protecting the administration of justice when communicating with the media (ASCR 28)
- Do not publish prejudicial material during proceedings
Communication with Represented and Unrepresented Individuals
- ASCR 33: Communicating with another practitioner's client
- Direct communication is allowed only when:
- The lawyer gives consent
- Urgent circumstances
- To determine whether the client is represented
- No response from the lawyer within a reasonable time
- Direct communication is allowed only when:
- ASCR 34: Communicating with unrepresented litigants
- Act with courtesy and fairness
- Avoid giving legal advice: Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116
- Do not take advantage of their situation
Harassment in the Legal Profession & Rule 42
- Not unique to South Australia
- Grim statistics:
- Victoria: 57% experienced sexual harassment in the last 5 years
- South Australia: 42% experienced sexual harassment in the profession
- Underreporting and consequences:
- 75% did not report harassment (Victoria and South Australia)
- 20% faced adverse consequences after reporting (e.g., loss of position)
Drivers of Harassment and Recommendations from the Commissioner's Report
- Drivers of sexual harassment in the legal profession:
- Strict hierarchical structure
- Homogenous, male-dominated culture
- Conservative norms and gender inequality
- Unchecked abuse of power
- Recommendations for cultural change:
- Legislative and regulatory change: prevent sexual harassment and promote reporting
- Educational initiatives: raise awareness and increase understanding
- Sexual harassment policy and process development: drive cultural and organisational change
Amendment to ASCR Rule 42
- Original R 42: "in the course of practice"
- Limited scope for addressing harassment outside of legal practice settings
- R 42 Amendment:
- Covers situations where sexual harassment is connected to the practice of law
- Impact:
- Better response to sexual harassment complaints
- Increased accountability for lawyers engaging in harassment
The Regulatory Gap in the original ASCR 42
- Harassment outside the course of practice is not covered by the original R 42
- Harassment may not be severe enough to meet the R 5 threshold: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
- Reformulating R 42 to ensure consistent treatment of harassment, irrespective of whether it occurred in the course of legal practice
Reformulated Rule 42 and its Objectives
- R 42:
- A solicitor must not, in the course of, or in connection with, legal practice, engage in conduct which constitutes: discrimination; sexual harassment; any other form of unlawful harassment; or workplace bullying.
- Objectives:
- Express the profession's collective view that discrimination and harassment (particularly sexual harassment) are unacceptable conduct in any situation connected to the practice of law.
- Remove doubts about whether discrimination and harassment by legal practitioners can be appropriately dealt with as unsatisfactory professional conduct or professional misconduct. This would clarify the application of disciplinary measures and make it easier for regulators to address these issues consistently.
- Provide better alignment within the ASCR, especially with the interaction between R 5 and R 42. This alignment promotes consistency and helps to ensure that all relevant cases of harassment can be addressed, regardless of the setting in which they occur.
Regulation of the Legal Profession
- The Legal Profession's reputation depends, in large part, on the maintenance and enforcement of high standards of conduct by its members
- Regulation of the Legal Profession covers all aspects of legal practice and is implemented by various institutions so as to ensure that this objective is met.
- See the Legal Practitioners Act 1981 (SA) ("LPA") and
- The Professional Conduct Rules
- the Law Society of South Australia Australian Solicitors' Conduct Rules
- the South Australian Bar Association Inc. Barristers' Conduct Rules.
Regulation of the Legal Profession
Regulation involves:
- The Admission (entry into the profession) of practitioners
- The identification of standards of conduct enshrined in codes of conduct
- The issuing of practising certificates / control of membership
- Identification of specialised areas of practice
- Supervision of trust accounts & insurance
- Transparency & access to justice
- Complaints procedures
- Discipline of members including the removal of their right to practise
Legal Professional Standards
- Standards of legal professional conduct are found in:
- The Common Law and Statute
- Codes of Conduct
- Personal values
- A breach of the standards refers to a level of conduct that is regarded as unacceptable so far as the profession or the Court is concerned.
- Legal professional standards fulfil 3 main requirements:
- The standards enshrined in the professional conduct rules inform disciplinary proceedings
- They provide a guide to lawyers on issues of professional responsibility
- They serve as 'public relations' document assuring the general public how seriously lawyers take their responsibilities
National Legal Associations
Law Council of Australia
- Formed in1933 as a Federation of all State Law Societies and Bar Associations, the Law Council of Australia "exists to represent the legal profession at the national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law.
- The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world."
National Legal Associations
The Australian Bar Association.
"The Australian Bar Association is the peak body representing nearly 6000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all. "
Institutions regulating the profession in SA
There are various bodies in South Australia which fall loosely under the term "regulatory authority" of the legal profession.
- The Supreme Court*
- The Legal Practitioners Education and Admissions Council (LPEAC)
- The Board of Examiners
- The Law Society of South Australia
- Legal Practitioners' Registry
- The South Australian Bar Association
- The Legal Profession Conduct Commissioner*
- The Legal Practitioners Disciplinary Tribunal*
The Legal Practitioners Education and Admission Council (LPEAC)
- Established by Part 2A Division 1 of the of Legal Practitioners Act 1981.
- Functions are set out in S14C of the Legal Practitioners Act 1981.
- Composition
- The Chief Justice (Chair)
- The Attorney-General
- 3 judges (of the Supreme Court or Federal Court)
- The Deans of each of the Law Schools
- Presiding member of the Board of Examiners
- A law student nominated in a manner determined by the Chief Justice and appointed by the Chief Justice
- A legal practitioner appointed by the Attorney-General,
- 4 legal practitioners appointed by The Law Society (at least one of whom, at the time of appointment, is practicing predominantly as a barrister).
The Legal Practitioners Education and Admissions Council (LPEAC)
- Mandatory continuing professional development (MCPD) requires practitioners are to complete 10 units of MCPD activity per year.
- An MCPD activity is an activity dedicated to professional development and is not merely engaging in legal practice. Generally, it is a matter for each legal practitioner to choose the subject matter of each activity undertaken, as long as it qualifies as an
- MCPD activity.
- Failure to comply with the MCPD conditions is a breach of a condition of a lawyer's practising certificate.
- Continued failure to comply with the MCPD requirements may be constitute unsatisfactory professional conduct or professional misconduct (depending on the nature and circumstances of the breaches) under the LPA.
The Legal Practitioners Education and Admissions Council (LPEAC)
- LPEAC - Other functions include:
- Participate in the development of uniform national admission and standards of practice.
- Review legal education and training courses and post-admission experience;
- Perform any other functions assigned to LPEAC by the LPA.
The Board of Examiners
- The Board has the functions and powers conferred on it under the Legal Practitioners Act 1981 (Part 2A, Sections 14I - 14L) or by LPEAC.
- These functions include the consideration and determination of whether a person has satisfied the requirements for admission to practice.
- The Board consists of 15 members appointed by the Chief Justice of whom—
(a) one must be a Master of the Supreme Court (Presiding Member); and
(b) two must be persons nominated by the Attorney- General; and
(c) 12 must be legal practitioners.
- The Board examines all applications for admission, and reports to the Supreme Court whether each applicant is eligible for admission and is a "fit and proper person".
- It also examines applications for renewal of practising certificates.
- See: LPEAC Rules 7.6(a), 8 & 9.
- It may request a teaching institution for a written statement as to whether or not the applicant has been guilty of any dishonest conduct or other conduct relevant to the determination of the question whether the applicant is a fit and proper person to be admitted as a legal practitioner.
- A body corporate established by Part 2 of Legal Practitioners Act 1981, Ss 7- 14.
The Law Society of South Australia
- The Society is managed by a Council and has the right of audience in any court, in any matter affecting its interests.
- The Society provides professional services, resources and support to its members and the legal profession in general.
- It also undertakes community education, the offering of continuing legal education programmes and engages in activities designed to improve access to justice.
- It administers the Litigation Assistance Fund
The Law Society of South Australia
- The Society has a right of audience before the courts in relation to any matter concerning the Society's affairs and in respect of any case where a person is seeking admission.
- The Society also maintains a database of practitioners and, by delegation of the Supreme Court, runs the Legal Practitioners Registry which issues practising certificates.
- It has a representative role as the voice of lawyers in SA.
- It is not obligatory to be a member.
- An association of independent barristers.
The South Australian Bar Association
- Responsible for the registration and regulation of its members and for the maintenance of professional standards and discipline within the Bar.
- The Bar Council has the power to reprimand, suspend or expel a member or otherwise act as set out in the Barristers' Rules.
- The Professional Responsibility Committee has the power to make rulings, conduct investigations, promote the resolution of disputes, prosecute complaints and otherwise act as set out in the Barristers' Rules.
- See sabar.org.au
Public interest in the Regulation of the legal profession
- The public interest in the regulation of the profession is not measured purely in economic terms or the cost of legal services to consumers.
- The legal profession is concerned with the administration of justice and so there is a public interest in how the profession is regulated and the extent to which it promotes this ideal.
- Peace, order, stability and security depend upon the Rule of law, which in turn depends on a system of courts and a political/social commitment to the administration of justice.
- Courts depend on the assistance of legal practitioners in fulfilling their obligations as Officers of the Court. Evaluation of the degree and form of regulation of the profession requires an assessment of values that cannot therefore be measured purely in economic terms.
Public interest in the discipline of the legal profession
- The legal profession has yielded to calls for a mix of independent, self and co-regulation.
- In South Australia we have an independent Legal Profession Conduct Commissioner with further review (co-regulation) by the Legal Practitioners' Disciplinary Tribunal.
- However the final decision-maker in relation to the conduct of members of the legal profession remains the Supreme Court.
- This means that serious complaints about lawyers are handled (mostly) by lawyers and/or judges.
- Is this self-serving and a conflict of interest?
Personal Financial Planning
ISBN: 978-1305636613
14th edition
Authors: Randy Billingsley, Lawrence J. Gitman, Michael D. Joehnk