Ethics, Morality and Legal Profession, Exercises of Ethics

Download Ethics, Morality and Legal Profession and more Exercises Ethics in PDF only on Docsity! Topic 1: Introduction - Ethics, Morality and the Legal Profession: What are Ethics and Morals? Regulatory framework - legislation Regulatory bodies - courts, councils, societies etc. ‘Good fame and character’ ‘Fit and proper person’ Topic 2 & 3 - Admission to Practice: - Educational requirements - Once the degree is completed - Character requirements - good fame and character & fit and proper person - Candour and full disclosure is essential - Being trustworthy and honest Full disclosure required: - Student conduct reports - colluding on assignments, academic misconduct, plagiarism, cheating close to admission - Criminal behavior - not all past criminal behavior means to deny admission, dishonesty and no willingness to change your life, failure to disclose convictions, applicant charged and acquitted - Prior improper conduct - bad behavior by a lawyer, litigant making baseless allegations, false statutory declarations - Disciplined while working in another profession - Misappropriating funds, lacking professional judgment and discretion - Mental instability, psychiatric care, alcohol addiction - Political activity - journalist and political activist, communist views - Supervision following admission - Overseas-qualified legal practitioners - Seeking readmission - Learning never ceases - Signing the roll as a Barrister - Detailed lecture notes Topic 4 & 5 - Money Matters: - Legislation and rules - Retainer - must include all elements of a contract - Where a lawyer is negligent, they may be liable in tort and contract - A lawyer cannot be held responsible in tort for issues outside the scope of a retainer - The lawyer-client relationship attracts obligation of reasonable care - Fiduciary relationship - Prohibits a lawyer or assoc from borrowing money from (rule 12 LPULASCR) - The only exception is where a lawyer or firm borrows money from a client that happens to be a financial institution - Terminating a retainer (rule 13 LPULASCR) - Where a client terminates retainer early - Where a lawyer terminates retainer early - Professional indemnity insurance (Part 4.4 LPULAA & LPUGR) - Legal practitioners fidelity fund (Part 4.5 LPULAA & LPUGR) - Statutory deposit scheme - Costs - what are costs? - Cost Agreements - Conditional Costs Agreement - what it must include - A conditional costs agreement must meet a range of requirements (s 181, 323(3)(d) LPULAA) - Where conditional costs agreement are entered in to, they usually contain an uplift fee (s 182 LPULAA) - If an uplift fee is charged (s 182(2)(b) and 182(3) LPULAA) - Disclosure Statements - what it must include - The consequence of not making full disclosure to clients (s 185(3) and 185(4) LPULAA) - Costing methods - court scales of costs, practitioner remuneration order, time billing, agreed pricing/fixed fee, conditional costs agreements, - Contingency fees - Where fees have been paid, the firm will have to refund them (s 183 LPULAA). - Bill of Costs - to be itemized summaries and provided within 21 days (s 187(3) LPULAA). - Recovering costs from the other party - Lawyer/client costs - Party costs - example of party costs on p 82 - Indemnity costs - Court disputes - Costs in Criminal proceedings - Complaints - LPA s 4.3.5(2) - specific procedure for costs disputes - refer to exam bundle for further info - includes price limits, VCAT and number of day requirements etc. - Cost assessments - LPA 3.4.38(1) & (5) - certain requirements - When a client does not pay - firm cannot proceed recovery until at least 30 days (LPULAA s 194) - Solicitors’ Lien ( rule 15 LPULASCR) - Retainer Lien - Particular Lien - personal property recovered - Trust Accounts - contains funds deposited by a firm to hold clients funds in. - Office Accounts - Contains money that belongs to the practice to run day-to-day affairs - Trust account must be distinguished from the firms office account - Authorization to receive trust money - Consequences of receiving trust money when not authorized - Trust Account obligations (LPULAA): General trust records required to be kept - Obligations relating to trust accounts under the legislation, rules and regulations - Other forms of money - “Controlled money” and “power money” - Prohibition on mixing trust money with law practice money - Deficiency - Maximum penalties for trust account deficiencies are 500 penalty units (s 148 LPULAA) - External examiners: Law practices must appoint and retain an external examiner (Part 4.2, Div. 3 LPULAA) - Investigators: may be appointed by the relevant professional body to investigate trust accounts of law practices (Part 4.2, Div. 4 LPULAA) - Irrevocable authorizes Topic 6 & 7 - Duties Owed To Clients: - Duty to be competent - A fiduciary relationship - Lawyers must exercise care, skill & diligence - Common law authorities - The requirement of disbursements to be paid regardless of the outcome of the case (s 181(6) LPUAA) - ‘No win or no fee’ arrangements for criminal & family law matters (s 181(7) LPUAA) - Storage of clients records - 7 years, until lawyer gives file to the client, until client instructs lawyer to deal with file in some other manner - this includes trust records associated with the file (rule 14.2 LPULASCR) - File relates to a minor - retained for 7 years after the person attains the age of 18 - this prevents a law firm from charging a client for the costs of storage or copying the file unless the client has agreed in writing (rule 16 LPULASCR) - Conducting other business - rule 8 LPULASCR - Conduct in relation to other lawyers - Communications - courteous in all dealings of a legal practice (rule 4.1.2 LPULASCR) - Taking over a matter from another lawyer - Selling, transferring or closing a law firm (rule 6 LPULASCR) - Communicating with another lawyer’s client (rule 33 LPULASCR) Topic 11 - Complaints & Disputes: - Regulatory body’s role - Two categories of complaints: 1. Civil/ consumer complaints (cost disputes and financial loss); and 2. Professional conduct - Legal Profession Uniform Law Application Act 2014 - Handling complaints - Complaint about money - costs disputes and financial loss (s 291 LPULAA) - Minor breaches - Disciplinary investigation - Unqualified legal practice (s 10 LPULAA) - External interventions - Suspension or cancellation of practicing certificates - Removing the lawyer’s name from the Supreme Court roll - Criminal prosecution - Conduct that warrants investigation (s 298 LPULAA) - see table in exam bundle of examples - Unsatisfactory professional conduct (s 296 LPULAA) - Professional misconduct (s 297 LPULAA) - Common law positions - Dishonest and fraudulent conduct - Failure to supervise - False statements to a court - Trust Account breaches - Engaging in legal practice without authorization - Not competent in a particular area of law - Abuse of process - Forging a signature - Failure to lodge taxation returns - Corruption - Offences not directly related to professional conduct - Baseless prosecution - Misleading the court - Mediation - Insulting and offensive language - Gross overcharging - Why discipline? - Maintaining candour Admissions - Rules and case law - Legal Profession Uniform Law - Admission Rules 2015 - Educational requirements - rule 5 - the degree must include the 11 ‘Priestley’ subjects: criminal, tort, contract, land & property, equity & trust, administrative, constitutional, civil procedure, evidence, company law & legal ethics. Once the degree is completed - rule 6 - applicants must either undertake supervised legal training in a workplace or enroll in a practical legal course before applying for admission. Applicants must prove to the admission board that they are suitable to become legal practitioners - rule 10 Character requirements - ‘fit and proper’ and of ‘good fame and character’ - An applicant may prove to be fit in one of these requirements but not in the other (Victorian Lawyers RPA Ltd v X (2001)). à refer to loose sheet and rule 10 for what needs to be shown. Candour and full disclosure are essential - Re Evatt (1987) - It is not for an applicant to decide what is or is not relevant to place before the Court on the question of whether that person is fit and proper to be admitted into practice. The applicant’s duty is to place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practice. Being trustworthy and honest - Frugtiniet v Board of Examiners [2002] - p 34 textbook - applicants must have personal qualities of character necessary to discharge the important responsibilities of being a barrister or solicitor. There must be a commitment to honesty, candour and frankness. A person failed to account for money but later went on to be respected and achieved good work - Ex Parte Lenehan (1948). Student conduct reports - Required applicants to obtain from any tertiary institution and any PLT provider attended by them a student conduct report that outlines any disciplinary action. Lack of candour - collude on an assignment in a non-law course - Re OG (a Lawyer) (2007) - OG’s admission was revoked because OG and GL’s disclosures were inconsistent. Allegations of plagiarism - Law Society of Tasmania v Richardson [2003] - Sought advice from his father (senior counsel) on whether to disclose his allegations of plagiarism. His father said not to so he didn’t. Richardson’s admission was denied. A court later overturned this though. Money Matters - Rules and case law - Legal Profession Uniform Law Application Act 2014 (Vic) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 Legal Profession Uniform General Rules 2015 Retainer - A retainer is a contract between a lawyer and a client for the provision of legal services. Must include all elements of a contract - evidence in writing, orally or inferred. It must have terms that express the contractual rights and obligations of both parties. Where a lawyer is negligent, they may be concurrently liable in tort and contract - Astley v Austrust Ltd (1999). A lawyer generally cannot be held responsible in tort for issues outside the scope of a retainer - Curnuck v Nitsheke [2001] where a lawyer was held liable in tort when acting within the retainer. The lawyer-client relationship attracts an obligation of reasonable care under the law of tort - A lawyer’s duty to exercise reasonable care and skill when advising clients - the standard is that which is reasonably expected of practitioners - Heydon v NRMA Ltd (2000). The relationship between a lawyer and a client is a fiduciary one A person in a fiduciary relationship cannot profit from the relationship without the informed consent of the beneficiary. They must exercise the care, skill and diligence expected of a reasonably competent legal practitioner under similar circumstances. This is an implied term under the contract of restraint: Hospital Products Ltd v United States Surgical Corporation (1984). The fiduciary duty owed during the period of the retainer comes to an end once the retainer is released. Where there is no evidence of a retainer, there can be not claim by the lawyer to costs and disbursements. Legislation imposes strict obligations on layers to provide clients with written retainer agreements, known as costs agreements and disclosure statements. Duties Owed To Courts - Rules and case law - Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 Upon admission to practice, a lawyer becomes an officer of the court. The duty a lawyer owes to the court is paramount and overused all other duties. Lawyers interact with the court in a variety of ways: - Preparing and filing documents; - Gathering and presenting evidence; - Briefing and/ or instructing a barrister; - Appearing as an advocate; and - Liaising with judges’ associates and other court staff. Paramount duty- A lawyer’s duty to a client will sometimes conflict with the duty the lawyer owes to the court. A client may instruct a lawyer to further their case in a particular way, but where there is a conflict with the duty owed to the court, the lawyer must disregard the client’s instructions. In Giannarelli & Shuckles v Wraith (1988), Mason CJ said ‘The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary’. Rule 3 - Paramount Duty - Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 Court etiquette- To be effective in any courtroom, a lawyer must be familiar with the way in which each court that they appear before operates. A lawyer must be courteous in all dealings and have an understanding of the manners and customs of the court that they appear before. Court etiquette demonstrates respect for the court, the profession and the administration of justice. The essential elements of court etiquette that must be observed are: - Wearing appropriate attire: where robing is not required, it is expected that men wear a jacket and tie when appearing before a court. Women are expected to wear business attire and to maintain a degree of modesty. Some members of the judiciary have been critical in recent times of lawyers appearing before them in unsuitable attire. - Being prepared: in any appearance, a lawyer must be prepared to run their matter. A lawyer should know the material they are presenting and have knowledge of court procedure. Assaulting another practitioner in the courtroom is likely to be fined - Trevor J McLean Using hostile language in correspondence with the opposing party in a professional negligence claim - Legal Services Commissioner v Peter Arnold Murrell Taking over a matter from another lawyer - The rules prescribe what must occur when one lawyer’s engagement is terminated prior to the matter being completed and the client instructs another lawyer to take over the matter. The procedure is usually when the lawyer received in writing from the client that they want their file transferred to another lawyer. Where the fees are not paid for the first lawyer, the first lawyer is entitled to hold on to the file and claim a lien over it until all fees are paid. Selling, transferring or closing a law firm Whether selling, transferring or closing a law firm, there are a number of issues to consider: - Advising clients; - Current work in progress; - Ceasing to hold material; - Closed files; - Acting as an executor; - Being a lawyer on the record; - Being the donee of a power of attorney; - The trust account; - The office account; - Advising the Law society - The practicing certificate - Professional indemnity insurance; and - Staffing. à Rule 6 - Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 Communicating with another lawyer’s client - There is a prohibition on communicating with another lawyer’s client (“the other party”). This prohibition exists to prevent a lawyer from obtaining damaging admissions or access to privileged information or undermining the other party’s confidence in their lawyer. In Victoria, an exception will arise where: - The other lawyer has previously consented; - The lawyer believes on reasonable grounds that the circumstances are urgent and the dealing would not be unfair to the other lawyer’s client. Regulatory bodies’ role The role of the relevant regulatory body is to investigate breaches of the Act, regulations and professional conduct rules that are brought to its attention by a consumer of a law practice, another lawyer, a Law Society and/ or a judicial officer (‘the complainant’). The regulatory body may also investigate the conduct of a lawyer even where no complaint has been received, where there is a belief that a lawyer’s conduct may be unsatisfactory professional conduct or professional misconduct (known as ‘own motion investigation’). There are two categories of complaints that the regulatory bodies deal with: 1. Civil/ consumer complaints (costs disputes and financial loss); and 2. Professional conduct. Note - only a client of a lawyer usually makes civil complaints. Legal Profession Uniform Law Application Act 2014 - Chapter 5 Requirements: - Complaint must be in writing - Complaint about costs and conduct must be made within 3 years. However, the Commissioner has discretion to accept complaints after 3 years if it is just and fair to do so or, where the complaint relates to professional misconduct, if it is in the interests of the public - Consumer disputes (delays, costs, poor communication, rudeness, liens) may be referred to mediation, and/or the regulatory body may investigate the complaint further and make a determination of the consumer matter. Handling complaints Upon receiving a complaint, a regulatory body may take the following action: - Review the complaint and inform the complainant that it will either investigate or dismiss the complaint; - Deal with the complaint itself or delegate its investigative role to another body, such as a Law Society; - Contact the lawyer about whom the complaint has been made to bring to his/her attention the nature of the complaint; - Request a response from the lawyer; - Commence disciplinary action where the lawyer fails to respond; - Where a response is received, the regulatory body may decide to: > dismiss the complaint and inform the complainant; or > if it is a complaint about money, institute dispute resolution; or > if it is a complaint that relates to a minor breach of professional conduct, recommend that the lawyer undertake education and counseling to address the issue; or - Where the complaint relates to a more serious breach, the regulatory body may: