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Ethics Law and Justice > Admission regulation and discipline > Flashcards

Admission regulation and discipline Flashcards

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1
Q

What is the oath of office?

A
  • affirmation of their promises as a laywer
  • they will truly and honestly conduct themselves as a legal practitoner and faithfully serve the adminstrtaion of the laws
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2
Q

List the key differences between a barrister and solicitor

A

Barrister:
- senior profession
- rarely interact with the client
- draft legal documents and provide advice
- they can be senior counsel or queen’s counsel (silks)
- role in court
Solicitor:
- have a direct relationship with the client and advising them
- more of a background role in conductign research

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3
Q

Values needed to be a good lawyer 5

A

o Ethics of excellence
o Ethic of integrity
o Respect for the legal system and rule of law
o Respect for other lawyers
o Commitment to accountability

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4
Q

What is the difference between professional misconduct and unsatisfactory professional conduct? provide e.g.s

A
  • misconduct is much more serious
  • professional misconduct can involve something unrelated to the profession like the commission of a serious crime but anything related to unsatisfactory professional conduct is related only to the profession
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5
Q

Why does the fit and proper test exist?

A
  • reputation of the profession and protection of the public
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6
Q

List some of the matters the board considers under rule 10 of the Legal Profession Uniform Admission Rules 2015 to determine if someone is fit and proper

A
  • student conduct report
  • current fame and character
  • whether they’ve been found guilt of an offence: the nature of the offence, how long ago it occurred and age of the person at the time
  • police report (this includes spent offences which limits the disclosure of the crime but here of course it must be disclosed)
  • sufficient knowledge of written and spoken English
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7
Q

Where do complaints of a lawyer most often go to and what is the process of resolving them? 7

A
  • Office of the Legal Services Commissioner (OLSC)
  • independent statutory body that deals with complaints under the uniform law
  • anyone can complain who has concerns about a lawyers conduct
  • prelimenary assessment to determine if the complaint is capable of resolution or the conduct could result in disciplinary action
  • acknowledgment letter sent
  • mediation for consumer matters
  • 50% of cases are finished within 3 months but others can take longer
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8
Q

List the ways a laywer can be disciplined and where this is found in the law 4

A
  • fines up to $25,000
  • orders to undertake further professional education
  • imposing conditions on the lawyer’s practising certificate
  • the lawyer be removed/struck off from the roll of lawyers
  • apolgy to the respondent
  • section 299 of the Legal Profession Uniform Law (NSW) no 16a of 2014 which states the designated local regulatory authority has authority to issue the cautions or actions
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9
Q

What is unsatisfactory professional conduct and where is it found?

A

conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer
- section 296 Legal Profession Uniform Law (NSW) No 16a of 2014

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10
Q

What is professional misconduct and where is it found?

A

a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
s 297 Legal Profession Uniform Law (NSW) No 16a of 2014

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11
Q

What type of conduct is usually complained about? 3

A
  • consumer matters - delays, costs, communication issues, release of client’s documents or property, issues with the trust funds
  • unsatisfactory professional conduct - threatninig or abusive behaviour, breaches of confidentiality, non-disclosure of costs
  • professional misconduct - gross overchargings, misleading advice, misappropriation of trust money, conflicts of interest
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12
Q

Explain a lawyer’s ongoing obligation for self-disclosure

A
  • This can come into play at the renewal of a certificate, are they still fit and proper to practise, they have to apply annually to renew the certificate
  • the onus is on the lawyer to bring up instances that may not consititute them as fit and proper, this is part of their professional responsibility in being honest, candour and transparent
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13
Q

What is the common law test for professional misconduct?

A
  • Allinson v General Council of Meidcal Education and Registration (1894) 1 GB 750 –> something done by a lawyer ‘which would be reasonably regarded as disgraceful or dishonourable by … professional brethren of good repute and competency.’
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14
Q

List examples of professional misconduct 5

A
  • gross negligence
  • overcharging
  • conflicts of interest
  • acting contrary to client’s instructions
  • misleading the court
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15
Q

List examples of unsatisfactory professional conduct 6

A
  • threatening or abusive behaviour
  • poor advice and representation
  • serious delay
  • non-disclosure of costs
  • minor breach of solicitors conduct or practice rules
  • minor breach of confidentiality
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16
Q

Explain the case of Ziems v Prothonotary of the Supreme Court of NSW 1957 97 CLR 279

A
  • a barrister had been drinking at a hotel when some men started to sexual harras a woman and he intervened to which he was brutally bashed, he then drove home and hit a motorbike to which that driver later died
  • by being convicted of a serious criminal offence, in this case drink driving, it was enquired whether this was professional misconduct and thus whether he should be struck off from the roll of lawyers
  • it was taken to the high court and then determined that the conviction carried no relevance to his professional ability, he was still deemed fit and proper to practice
  • this case really brought into question whether personal misconduct constitutes professional misconduct
17
Q

role of the nsw bar association 3

A
  • Run bar practice course and ethical guidance scheme and mentoring program
  • Assist in matters of professional discipline
  • Resolve complaints
18
Q

role of the supreme court 1

A
  • provides an appeal mechanism to cases where someone is deemed not fit and proper
19
Q

role of the NSW Civil and Administrative Tribunal (NCAT) 3

A
  • Resolves disputes and issues enforceable orders
  • Hear cases about the misconduct or unsatisfactory conduct
  • Reviews determinations made by the bar council or law society
  • orders made by ncat are legally binding and enforceable
20
Q

role of the Office of the Legal Services Commissioner (OLSC) 5

A
  • Main body of where people make complaints to
  • Investigate complaints
  • Reduce complaints about lawyers
  • Promote professionalism
  • the commissioner has the authority to impose penalties
21
Q

role of the NSW Law Society 4

A
  • Enforce professional standards
  • License solicitors to practice
  • Investigate complaints and administer discipline
  • Confidential guidance to solicitors about the uniform law
22
Q

Explain Re Davis 1947 75 CLR 409

A
  • FACTS: admitted as a lawyer but then he was disbarred the following year for failing to disclose that in 1935 he had pleaded guilty to a charge of breaking, entering and stealing
  • was not admitted and then eventually 30 years later he was
  • he committed a serious offence and failed to disclose it - this is not acceptable especially considering there is a higher standard imposed on lawyers to be honest, transparent and forthcoming
23
Q

Explain Prothonotary v P [2003] NSWCA 320

A

o Solicitor pleaded guilty to importing a trafficable quantity of cocaine and served a sentence of imprisonment
o Prothonotary of the Supreme Court of NSW applied to have her removed form the roll of legal practitioners on the grounds her conviction constituted professional misconduct, court found she had been drug free for 5 years and the solicitor wasn’t a risk to the public
- rule 10 that prescribes the requirements to be considered fit and proper includes that they must be of current good fame and character - suggests that they can change

Ethics Law and Justice (10 decks)

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