LEGAL ETHICS AND THE LAW ... 11
Lawyering & Positive Professional Identities ...11
...11
Place of ethics in LAWYERING... 11
Sources ... 11
Place of ethics in LEGAL EDUCATION ... 12
Difference between ethical RULES & JUDGEMENT ...13
...14
Models for decision-making ...16
Parker & Evens 3 step approach & 4 models ... 16
9 step process of decision-making ... 17
Furlong Core competence: SIX NEW skills required of lawyers...18
SUMMARY...19
Defining the problem ...20
Role-differentiated morality ...20
Ethics & morality ...21
Legal ethics & law governing lawyers ...23
THE LEGAL PROFESSION... 23
What is profession ...23
The Social Trustee ...24
The Social Trustee Model ... 24
LPUL, ss 9 14 Unqualified legal practice ...25
The Profession VERSUS business debate ...26
Law is a profession ... 27
Lawyering is a business ... 28
Midway view ... 28
ENTRY TO THE PROFESSION ... 29
Statutory requirements for admission ...30
STEPS to admission ... 30
Legal Profession Uniform Law (NSW) LPUL ...30
Overview ...30
OBJECTIVES s 3...30
Admission to the Australian legal profession ...31
15 Objective ... 31
16-25 Admission ... 31
26-28 Appeals ... 34
29 Miscellaneous... 35
Australian legal practitioners ...35
2 Objectives ... 35
43-46 Australian practising certificates... 36
Legal Profession Uniform Admission Rules 2015...37
Overview ...37
Objective s 3 ...37
Qualifications & training required for admission ss 5-11 ...37
fit & proper person ...39
Admission procedure ...40
Common law meaning ...45
Principles ...45
Prothonotary of the Sup Ct of NSW v P [2003] NSWCA 320 ... 46
Factors relevant to good fame & character ...46
Disclosure & Candour ... 47
Morrissey v NSW Bar Association [2006] NSWSC 323 ... 47
Academic misconduct ... 50
Re OG (A Lawyer) (2007) 18 VR 164... 50
Re: Humzy-Hancock [2007] QSC 034 ... 51
Ethical principles ...53
The Scholarly Debates ... 53
The admission process ...54
What need to disclose... 55
Assessment of disclosure incidents ... 55
The trend toward MORE stringent regulation ...57
BEHAVIOURAL LEGAL ETHICS ... 57
Introduction ...57
...58
...58
Psychological phenomena that CONTRIBUTE to unethical acts ...59
Ethical Blindspots Self-serving bias...59
Slippery Slopes & Boiling Frogs ...61
Ethical Fading ...61
Ethics in Law Practice ...63
Ethical Rules & Standards ...63
The Agency Relationship ...65
... 65
Conflicts & Disclosure... 66
Acting Unethically Indirectly ... 67
Benefits of Agency Relationship ... 67
The Challenges of the Adversarial System ...68
The Tolls of Law Practice ...69
Status & Power ...69
Lawyers as Social Actors ...70
Resp ...71
Models of ethical decision-making ...73
Rest and Breakey (theoretical model) ...73
deontological AND consequentialist approach to ethical judgment... 74
Parker & Evans (practice model) ...74
QLD Law Society (practice model) ...75
Rest & Breakey The SIX Moral Processes ...76
Components of an ethics regime ...78
Enablers / Disablers ...79
Moral sensitivity ...80
OBSTUCLES ... 81
Moral Reflectiveness ...81
OBSTACLES ... 82
Moral Motives ...82
OBSTUCLES ... 83
Moral Character ...83
OBSTACLES ... 84
Moral Competence ...84
Problems & Blocking factors ... 84
...85
Problems & Blocking factors ... 85
Generic ( ) Obstacles ...85
Blockers... 86
Ambivalent ( ) Obstacles & Supports ...86
Links BETWEEN capabilities AND moral motives...87
ACCESS TO JUSTICE & THE CONTEXT OF CHANGE ... 87
The Service Obligation ...87
Sources of the Service Obligation ...87
The service ideal ... 88
Legal education standards ... 88
Legislative framework (LPUL, regulations, professional conduct rules) ... 89
Public interest concept VS Private lawyering ...89
THREE public service components ...90
Development & maintenance of legal frameworks ... 90
Responsibility for the quality of justice that results from legal assistance ... 91
Access to justice... 93
The Problems of Inequitable access to justice ...93
...96
CAUSES of inequitable / inadequate access to justice ...97
Economic disadvantage ... 97
The economics of lawyering... 97
Social factors... 98
The influence of neo-liberalism ... 99
Solutions to access to justice problems ...99
Legal aid ...99
Community legal centres ... 103
Pro bono ... 104
Financial arrangements ... 106
Alternative dispute resolution ... 107
Reforms to legal education ... 108
Further innovations? ... 108
The Law Handbook... 110
Free legal assistance ... 110
Legal Information Access Centre (LIAC) ... 110
The Aboriginal Legal Service ... 110
Law Society of NSW... 110
Justice Connect... 111
Chamber service at Local Courts ... 111
NSW Trustee & Guardian ... 111
Lawyers ... 112
Choosing a lawyer ... 112
The lawyer client relationship ... 113
Fees charged by lawyers ... 114
Interpreters ... 117
NTABILITY... 119
Complaints & Discipline ... 119
Co-regulatory model ... 119
The Office of the Legal Services Commissioner (OLSC) ... 120
The complaint process ... 121
Making complaints ... 122
LPUL, ss 265-267, 272-275... 122
Types of Complaints ... 124
LPUL, ss 268, 271 ... 124
Consumer matters ... 124
LPUL, s269 ... 124
THREE special considerations apply to its determination / resolution:... 124
LPUL, s 290 Regulatory orders for Consumer matters ... 125
LPUL, ss 291-292 In relation to COST disputes ... 126
Consumer dispute may include: ... 126
Disciplinary matter ... 127
LPUL, ss 270 ... 127
LPUL, s 296 Unsatisfactory professional conduct ... 127
LPUL, s 297 Professional misconduct ... 128
LPUL, s 298 Conduct capable of constituting UPC / PM ... 129
LPUL, s 172 Legal costs MUST be fair & reasonable ... 129
LPUL, ss 135, 143, 148 Trust money & trust accounts ... 130
Dishonesty... 131
When will negligence be a disciplinary matter? ... 131
LPUL Regulatory orders & sanctions for disciplinary matters... 131
Initiation & prosecution of proceedings in designated tribunal ... 132
301 Procedure of designated tribunal ... 132
299 Regulatory orders local regulatory authority can make (UPC) ... 132
302 Regulatory orders the Tribunal can make ... 133
Difference BETWEEN striking-off AND suspension AND reprimand? ... 133
LPUL, s 303 Circumstances the Tribunal make a COST ORDER ... 134
LPUL, s 309 Prerequisites for making COMPENSATION orders ... 134
Common law ... 135
Clie ... 135
FIDELITY TO THE LAW & ACCOUNTABILITY... 136
Introduction ... 136
The meaning of the duty to the law... 136
The content of the duty ... 137
The duty of candour ... 138
ASCR r 19 duty to the court... 139
Duty of candour owned to opponents ... 140
ASCR r 22, 23 ... 140
Guilty clients ... 141
ASCR r 20 ... 141
The criminally accused ... 141
ASCR r 20.2-20.3 ... 141
Legal professional privilege ... 142
ASCR r 28 Public comment during current proceedings ... 142
The duty of Integrity & Professionalism ... 142
Avoid sharp practice & abuse process ... 142
ASCR 21 Responsible use of court process & privilege ... 143
Respect the court ... 144
Avoiding familiarity ... 145
Maintaining Civility ... 145
Independence ... 145
ASCR r 27 Solicitor as Witness ... 145
ASCR r 24 Integrity of evidence ... 146
The duty to EDUCATE the client ... 146
ASCR r 7 Communication of advice ... 147
The tension BETWEEN fundamental duties ... 147
ASCR, r 3-4 Fundamental duties of solicitors ... 147
Who OVERSEES the duty ... 148
LPUL s 264 Jurisdiction of Supreme Courts ... 148
Rules ... 148
ASCR, r 32-35 Relations with other persons ... 148
Barrister rules ... 149
r 23-25, 26 Duty to the court ... 149
r 49-25 Duty to the opponent ... 149
r 57-68 Efficient administration of justice ... 150
r 69-75 Integrity of evidence ... 151
ETHICS OF THE LAWYER-CLIENT RELATIONSHIP ... 152
The Standard Conception For & Against ... 152
Ordinary & Professional Moralities ... 152
The Standard Conception ... 156
Traditional Justifications for Standard Conception AND Moral Critiques ... 158
Client Autonomy... 158
Partiality to Clients AND Value of Dignity ... 162
... 165
Philosophical Legal Ethics: An Affectionate History ... 167
The 1st wave legal ethics AS a problem of Moral Philosophy ... 167
The Critique of Neutral Partisanship ... 168
Defenders of a Standard Conception ... 169
The 2nd wave FROM moral TO political philosophy ... 172
... 172
The Lawyer AS Advisor ... 174
Professionalism & Legal Ethics ... 174
2ND Wave response to moralistic challenge ... 175
The 3rd wave ... 176
REPRESENTING & ADVISING CLIENT ... 178
Interviewing listening & questioning ... 178
Preliminary matters of an interview ... 178
... 178
Meeting greeting introducing ... 178
The THREE-stage processes of interviewing ... 180
1st stage Listening ... 180
2nd stage Questioning ... 183
Ethical dangers in interviewing ... 187
Independence ... 187
Reluctance ... 187
Deception & Dishonesty ... 187
Unreasonable instructions... 188
The importance of good communication ... 188
Client satisfaction ... 188
Avoiding law society complaint ... 188
LPUL... 189
ss 116-118 Community legal services ... 189
... 189
Definition & Principle ... 189
... 191
Preliminary assessment ... 191
Clinical consultation / Formal evaluation ... 193
Final legal judgement ... 195
Substitute decision-maker ... 195
Mental capacity TESTS... 195
Decision-specific test for mental capacity ... 195
Mental Capacity to give instructions ... 196
Mental capacity to manage affairs... 197
Testamentary capacity ... 197
Mental capacity to make a power of attorney ... 197
Scott v Scott [2012] NSWSC 1541 at [199] ... 198
Re K (1988) 1 Ch 310 at 316 ... 198
Mental capacity to consent to medical treatment ... 198
Mental capacity to make health-related privacy decisions... 199
Mental capacity to consent to marriage ... 199
Babich & Sokur and Anor [2007] FamCA 236 ... 199
Capacity worksheet for lawyers ... 199
Techniques to enhance client mental capacity... 201
Engendering client trust & confidence ... 202
Accommodating sensory changes ... 202
Accommodating cognitive impairments ... 203
Gradual counselling... 204
Solicitor & barrister RULE ... 205
ASCR... 205
r 7-8 Relations with clients ... 205
21 Responsible use of court process & privilege ... 206
9 Confidentiality ... 207
Barrister Rules ... 207
r 17 Cab-rank principle ... 207
r 35-38 Duty to the client ... 207
r 39-40 Criminal pleas ... 208
42-48 Independence ... 208
r 101-112 Briefs ... 209
MONEY MATTERS ... 209
Legal fees & access to justice ... 209
Type of complains about fees & cost ... 209
Overcharging ... 210
Trust money... 210
Client misunderstandings & disillusion ... 211
... 212
Access to justice... 213
Ethical problems & Types of billing ... 214
... 214
Item remuneration ... 215
Time-based billing ... 216
Ethical disadvantages of time-based billing ... 216
Time-based billing & law firm ... 218
Fees & cost in litigation ... 218
Fixed costs in certain matters ... 218
Party-to-party costs ... 219
Ethical disadvantages ... 220
Cost agreement ... 220
LPUL, ss179-180 Costs agreements ... 221
Condition & Uplift fees ... 221
LPUL, s 181 Conditional costs agreements ... 221
Contingent / proportional fee ... 222
LPUL, ss 183, 185(4) Contingency fees are prohibited ... 222
Uplift fee ... 223
LPUL, s 182 uplift fees ... 223
Ethical disadvantages of condition & uplift fees ... 223
Fair & reasonable charging ... 225
LPUL, ss 169, 172-173 Objectives & Legal costs generally ... 225
Cost disclosure... 226
LPUL, ss 174, 177-178 Costs disclosure... 227
Interview skills regarding costs ... 228
... 229
Billing ... 229
LPUL, ss 186-192 Billing ... 230
Cost assessment ... 231
LPUL, ss 199-200 Costs assessment ... 232
Reform? ... 233
Alternative billing method ... 233
Court control of the costs process ... 233
Value billing / modified fix fees ... 234
Cases ... 234
Institutional pressures & Deception... 234
Law Society (NSW) v Foreman (1994) 34 NSWLR 408 ... 234
Grossly over- ... 244
Legal Services Commissioner v Keddie [2012] NSWADT 106 ... 244
Scroope v LSC [2013] NSWCA 178 ... 249
ETHICS IMPLEMENTATION (GIVING VOICE TO VALUE) ... 251
Giving Voice to Values ... 252
Teaching legal ethics ... 252
behavioural ethics ... 253
Giving Voice to Values ... 256
GVV in postgraduate legal education ... 258
What can we do?... 259
Improving Individual Ethics ... 260
CLIENT LOYALTY & TRUST ... 263
Legal professional privilege... 263
Client legal privilege AND litigation privilege ... 263
Limitation of Legal professional privilege ... 265
LPUL, s 38 Privileges of practitioners... 266
Evidence Act 1995 (Cth), ss 118-119 circumstances where evidence is NOT adduced ... 266
ASCR, r 30-31 Others error & Inadvertent disclosure ... 267
Case law ... 267
Inadvertent disclosure & Waiver of privilege ... 267
ERA v Armstrong [2013] HCA 46 ... 267
Confidentiality ... 271
Rational for confidentiality ... 271
Obligation of confidentiality ... 272
Exception to confidentiality ... 275
ASCR, r 9 Confidentiality ... 275
Barristers Rule, r 114-118 Confidentiality & conflicts ... 277
CIVILITY COURTESY LAW FIRM CULTURE ... 278
Civility & Courtesy ... 278
Meaning of Civility ... 279
Specific Behaviours ... 280
The cause of decline in civility ... 281
The need for Reform ... 282
USA experience ... 282
... 284
Complaints & Discipline proceedings ... 284
Incivility VS Freedom of expression ... 286
SOURCES Expectation of civility & courtesy ... 286
Social Networking ... 287
Sex Discrimination ... 288
Hickie v Hunt and Hunt... 290
OTHER CASES ... 291
Requirement to work full time = indirect sex discrimination ... 291
The significance of Hickie case ... 292
The future after Hickie ... 293
Lesson for Employers ... 293
Employees Employer ... 293
Positive Examples ... 294
Enhance Organizational Ethical Culture ... 296
Discuss & Model Ethical Behavior ... 296
Educate About Ethics ... 298
Encourage Learning From Mistakes ... 298
Protect Attorneys From Cognitive Temporal - Financial Stresses... 299
Structure Rewards to Encourage Ethical Behavior ... 299
Encourage Ethical Reporting ... 300
Monitor Ethics... 302
Law & Rules ... 303
ASCR... 303
rr 4-5, 18, 32, 34, 42 ... 303
Barrister Rule ... 304
rr 4, 123 ... 304
LPUL... 304
ss 34-37, 40-41 ... 304
CONFLICTING LOYALTIES ... 305
Proscription against lawyer-client conflict ... 305
Scope of the proscription ... 306
CIRCUMSTANCES for issues of duty-interest conflict ... 306
Informed client consent ... 307
Transaction / Dealing with clients ... 308
Dealing with non-current clients ... 309
Proscription against concurrent conflicts ... 310
Scope of proscription ... 310
Application to contentious & non-contentious matter ... 311
Application BEYOND individual lawyer ... 311
Related / unrelated matters ... 311
Scope of Chinese wall ... 312
Concurrent conflicts in non-contentious work ... 312
EXAMPLES giving rise to conflicts... 312
Proscription against successive conflicts... 313
Scope for disqualification extension to the FIRM ... 315
Role of Chinese wall ... 315
Liabilities for acting in conflicts ... 317
Rules ... 318
ASCR 10-12 ... 318
10 Conflicts concerning former clients... 318
11 Conflict of duties concerning current clients ... 318
11A Short-term legal assistance services ... 319
12 ... 319
Barristers Rules 119-122 ... 320
NSW law society information barrier Guidelines ... 321
Information Barrier Guideline ... 322
Grounds for intervention... 328
Rebuttable presumption of imputed knowledge ... 329
TEST for an information barrier ... 330
... 331
Commercial realism other factors to consider ... 332
Applicability of information barriers ... 332
Cases ... 333
Information barrier ... 333
Prince Jefri Bolkiah v KPMG [1998] UKHL 52 ... 333
ETHICS OF NEGOTIATION & ADR... 337
Negotiation ... 337
Focus on INTERESTS NOT Positions ... 337
Identifying interests ... 339
Talking about interests ... 342
How to negotiate ethically ... 345
Law & Cases ... 345
Competition and Consumer Act 2010 (Cth) sch 2 s 18 ... 345
ASCR rr 7, 22, 30, 34 ... 346
Deceptive conduct & PM ... 346
Legal Services Commissioner v Mullins [2006] LPT 012 ... 346
MEDIATION & CORPORATE ETHICS ... 348
Corporate lawyers & ethics ... 348
Impact of corporate client ... 349
Decision-making biases -making ... 349
The power of rationalisation to resolve cognitive dissonance ... 350
Gorilla exceptions & Ethically apathetic corporate lawyer ... 350
Compare debates & approaches ... 351
... 351
Legal ethics written down... 353
Methodology... 354
Responses on legal ethics & ethical hypothetical scenarios ... 355
The ethical lawyer ... 355
Ethical dilemmas in transactional work ... 356
Hypothetical ethical scenarios ... 357
The environmental pollution dilemma ... 357
The job losses dilemma ... 358
The ethics of client actions ... 359
Gorilla exceptions ... 360
... 361
Ethical infrastructures in large law firms ... 362
The ethical environment of large law firms ... 363
Conclusion ... 364
Definition of in-house counsel ... 366
The duties of in-house counsel ... 367
Ethical Challenges for in-house counsel ... 369
The Special Position of in-house counsel ... 371
Legal professional privilege... 373
Privilege claims by in-house counsel ... 373
Common Law & Statutory Rules ... 373
DIFFICULTIES with in-house counsel claiming privilege ... 375
ELEMENT 1: Legal advice must be given by qualified lawyer ... 376
ELEMENT 2: The legal adviser must be acting in his/her capacity as an independent professional legal adviser ... 376
ELEMENT 3: The advice must have been given in circumstances of confidence AND retained on a confidential basis ... 379
ALRC recommendations dealings with federal bodies ... 380
CONCLUSION ... 381
The Mediator as Moral Witness ... 382
Dilemma for mediators ... 384
Techniques for mediators ... 384
CASE study ... 386
CRIMINAL & FAMILY ETHICS ... 387
Ethics in criminal justice ... 387
The criminal trial defences ... 389
Managing pleas of guilty & NOT guilty ... 389
Defending the guilty client ... 389
Silence permitted ... 390
ASCR r 19 NOT mislead court & correct misleading ... 390
ASCR r 20.1 client MUST authorise to disclose lies to court ... 390
Acting for client who confess guilt & plea guilty ... 392
ASCR r 20.2 ... 392
BR, r 80 ... 392
Tactics of criminal defence that raise ethical issues... 393
Silencing the client ... 393
Tactics in running a defence ... 394
Independence & integrity of advocates ... 395
ASCR r 17 Independence ... 396
The prosecution ... 396
Lacked values-based scrutiny ... 396
ASCR r 29 ... 396
Balanced prosecution process ... 398
from local criminal trial to global justice ... 398
Global ethics & criminal justice ... 398
Duty of family lawyering in cases involving children ... 401
Circumstances where interest of child are paramount ... 401
Lawyers as mediators in family law proceedings ... 402
... 402
FAMILY LAW ACT 1975 (Cth), s 68LA Role of independent children's lawyer ... 403
ACCOUNTABILITY & CIVIL LITIGATION ... 404
Competence ... 404
The meaning of competence ... 405
NARROW view ... 405
BROAD view ... 405
Competence in CONTEXT ... 409
Competence in ADR process ... 409
Competence & Specialisation ... 409
Remedies & Sanctions for incompetence ... 410
Vicarious liability... 411
Disciplinary actions ... 411
Strict duty duty of loyalty & undue influence ... 413
Negligence / Breach of Contract ... 414
Duty of care ... 414
Standard of Care ... 417
Civil Liability Act 2002 (NSW) s 5O ... 418
... 419
Causes of incompetence & Strategies to improve competence ... 422
Civil dispute resolution & Excessive adversarialism ... 423
The adversarial imperative & excessive adversarialism ... 424
Responsible lawyering ... 425
Overarching obligations in civil litigation ... 426
Civil Procedure Act 2005 (NSW) ss 56-63, 99 ... 426
Honesty misleading the court ... 431
Fairness ... 431
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 165 ALR 169 ... 431
NO reasonable prospects of success ... 432
Legal Profession Uniform Law Application Act 2014 (NSW), ss 62, sch 2 ... 432
FUTURE OF LEGAL ETHICS ... 434
Requirements when using Automated System ... 434
Ethical risks associated with law in the digital age ... 434
-component Model ... 436
Using AI Ethically In Legal Practice... 439
Apply the FCM to AI context ... 440
Component I: Awareness ... 440
Component II: Judgement ... 442
Component III: Decision-making ... 443
Component IV: Action & Achievement... 445
Conclusion ... 449
2021 Annual Profile of Solicitors in NSW ... 450
Solicitors at October 2021 ... 450
2021 Highlights & trend... 451
LEGAL ETHICS AND THE LAW
W B Wendel, Ethics and Law: an introduction (CUP, 2014), chp 1File
LAWYERING & POSITIVE PROFESSIONAL IDENTITIES
P168
Importance of ethics
Issue of ethics is fundamental to the notion of lawyering AND deployment of positive professional legal identity the ethics of lawyering has TWO quite distinct components
o the rules about ethical professional conduct
o the capacity of individual lawyers to make ethical judgements professional rules of conduct
These ethical rules are in effect
o codes of professional behaviour for lawyers o minimum standards of what is acceptable
o protocols that define what lawyers should do in certain circumstances
o statements of how moral professional dilemmas can be tackled consistently AND with a commonly accepted level of integrity
P 169
which (alone with conduct rules & common law) regulate a o they act as a guide to ensure right conduct in the daily practice of law
Place of ethics in LAWYERING
it goes without saying that lawyers are expected to act ethically at all times BECAUSE
o lawyers occupy a critical & sensitive place in the functioning of society governed by the rule of law lawyers own their highest ethical duty to the court AND must be fit and proper person to hold that office
the way lawyers conduct themselves directly impact on public confidence in the profession AND (more broadly) in the administration of justice
Sources
nterrelated sources Extrinsic sources:
o E.g.,
Australian Solicitor Conduct Rules (ASCR) Legal Profession Acts in each state & territory Intrinsic sources:
o Include personal values & principles of
- Honesty - Courtesy - Loyalty - Competence
That legal profession regards as representation of best standards of ethical, professional practice Common law:
o Stated most often in disciplinary hearings
E.g., Queensland legal services commission discipline register
In NSW, the practice of law and regulation of the legal profession are governed by the Uniform Law it consists of:
Acts: Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 Regs: Legal Profession Uniform Regulations 2015
Legal Profession Uniform Law Application Regulation 2015 Rules: Legal Profession Uniform General Rules 2015
Admission Rules 2015
Law Australian Solicitors' Conduct Rules 2015 Legal Practice (Solicitors) Rules 2015
Continuing Professional Development (Solicitors) Rules 2015
Place of ethics in LEGAL EDUCATION P170
Study of legal ethics involve examination of:
o The arrangement made by society for the delivery of legal services
In particular of the legal profession its structure role responsibilities (Macro legal ethics) o The role & responsibilities of individual lawyers
in the provision of legal services together with the ethical implication of those rules (Macro legal ethics) o The wider social context especially the philosophical economic sociological context
in which lawyers work with a view to identifying AND (if possible) resolving the ethical difficulty which face professional lawyers so to enable them to view legal practice as morally defensible therefore personally satisfying p171
threshold learning outcomes (TLOs) Ethics are mentioned in:
o TLO1 Knowledge
need to understanding of a coherent body of knowledge that include - (c) the principles & values of justice AND of ethical practice in
o TLO2 Ethics & professional responsibility graduate of bachelor of law will demonstrate:
(a) understanding of approaches to ethical decision-making
(b) ability to recognise & reflect upon & developing ability to respond to ethical issues likely to arise in professional context
(c) ability to recognise & reflect upon the professional responsibilities of lawyers in promoting justice AND services to the community
(d) developing ability to exercise professional judgement P172-173
TLO2
P
o Include:
Application of knowledge skills processional values
- to serve the interest of clients justice the profession public good
o judgement in action in the sense that skilful practice means involvement in situation that are necessarily indeterminate from the point of view of formal knowledge
THUS, professional practice depends on judgement in order to yield an outcome that can further the prof intended purpose
- Exercise of professional judgement include Understanding of the consequences of professional decision
o Professional code of conduct will support & help inform the developing ability of a graduate to exercise professional judgement
Difference between ethical RULES & JUDGEMENT
P176
Ethics CANNOT be reduced to RULES
o ethics are NOT what the lawyers knows he/she should do RATHER, ethics are what the lawyer does
o ethics are NOT learnt as lived o ethics are
the hallmark of a profession
imposing obligations more exacting (strict) than any imposed by law incapable of adequate enforcement by legal process
o IF ethics were reduced merely to rules a spiritless compliance would soon be replaced by skilful evasion P177-178
EXAMPLES of ethical dilemmas Rachael
o There are prescribed requirements for sworn material to be legally valid (affidavit material i.e., bible) No one would ever know but lawyer would forever know the material was not properly sworn - Thus, find bible felt he/she had done the right thing
o Phone bills wish she had called the vulnerable woman every day to reassure her but NO justifiable reason to call in terms of the matter itself so no calls
Wish had spoken with the partner about her dilemma and what she wants to do
If face same situation again use personal mobile to call the client NOT during firm time / using firm resources James
o Finding a plagiarism require Extra work
If glossed over such plagiarism making a subjective decision as to what constituted cheating and what did not Anna
o Plagiarism
Still alert the journal editors to the issue p179
NOTE:
Ethics is about analysis & decision-making o What should you do?
o How ought you to behave?
o At the figurative ethical fork in the road which direction should you take?
Ethics RULES of lawyering will help only so far in the process of working out what to do in a challenging ethical situation o Ambivalence IF you care which way you are going with your legal career
INSTEAD, need a very clear personal commitment to taking the right path AND skills to process ethical problems
& apply rules in a way that will bring a justifiable answer
Often there is more than one possible answer to ethical dilemma answer SCENARIOS
Client told that they intend to assault someone, and you believed them what should you do?
General rule duty of confidentiality between solicitor & client this situation is an EXCEPTION o may disclose confidential client information IF do so for the purpose of:
ASCR Rule 9.2.5: preventing imminent serious physical harm to client / another ASCR Rule 9.2.4: avoiding the probable commission of a serious criminal offence o WHILE ASCR allows you to act they do NOT require you to act
o Appropriate decision-making in this sort of situation MUST ensure the threat is a credible one (matter of judgement) Can & should seek advice in ethical situation when you are unsure
- E.g., advice of senior colleague / call the ethics help line (through law society) Client wants to give you a gift can you accept?
o depends on:
Nature of the gift
Whether continue to represent the client o If your retainer has ended small gift is acceptable
Gift should be modest
NOT be money / voucher / would bring your independence into question
o IF NOT modest is of great value disproportionate to the work been done should be returned with note of thanks &
explanation that could NOT accept such a gift o Always preserve your independence
Client confessed that they are guilty BUT want to plead NOT guilty what should you do?
ASCR Rule 20 Delinquent or guilty clients
o 20.2: in criminal proceeding client confesses guilt BUT maintains plea of NOT guilty a solicitor may:
20.2.1: cease to act IF enough time for another solicitor to take over the case properly before the hearing AND client does NOT insist on solicitor continuing to appear for the client
o where solicitor continue to act for client:
MUST NOT
- 20.2.2: falsely suggest that some other person committed the offence charged, - 20.2.3: set up an affirmative case inconsistent with the confession,
20.2.4: must ensure that the prosecution is put to proof on its case, may argue that
- 20.2.5: the evidence as a whole does not prove that the client is guilty of the offence charged, - 20.2.6: for some reason of law the client is not guilty of the offence charged,
- 20.2.7: for another reason not prohibited by Rule 20.2.2 / 20.2.3 the client should not be convicted of the offence charged, and
o 20.2.8: must NOT continue to act If the client insists on giving evidence denying guilt / requires the making of a statement asserting the innocence.
Trying to take instructions from client BUT they seem vague & incoherent in a way that they are communicating with you should you proceed?
General rule: client MUST have necessary mental capacity to give instructions if NOT have such capacity CANNOT ethically act on their instruction
o ASCR Rule 8: MUST be proper & competent for a lawyer to follow them
A person is presumed to have capacity BUT IF have reason to doubt the competence / capacity get a medical assessment BECAUSE
o Can be in to have confirmation of their capacity
E.g., in the event of any later challenge to the validity of your legal work for client OR efficacy of your instruction Police asking for information about a client WITHOUT search warrant / subpoena should you give it to them?
General rule: must maintain confidentiality of your professional relationship with client AND legal professional privilege o Should NOT disclose any confidential / privileged information to police even informally
UNLESS have to give requested information OR there is an applicable exception
Running out of storage space & managing partner tells to start charging client for storage of their documents is this ethical?
ASCR Rule 16: solicitor MUST NOT charge for
o storage of documents / files / other property on behalf of client/former clients of solicitor/law practice/predecessor in practice OR
o retrieval (take back) from storage of those documents / files / other property UNLESS client/former client agreed in writing to such charge being made
