Cases - principles only Flashcards
Howen
breach of duty of honesty and candor to the court and “intentionally preferring his interests to that of the client”
Glissan
Honest conviction of the rightness of a lawyer’s advice does not entitle him to deprive his client of a free choice. The barrister must always, should his advice not be accepted, return his brief.
Whilst it is part of a barrister’s duty to encourage his client to settlement where he regards the case as unwinnable, long and expensive, this does not mean that counsel should, directly or indirectly, overbear his client’s will.
Chamberlain
There is sometimes a tension between a legal practitioner’s role to protect and advance his client’s interest and acting unfairly and dishonestly. Sometimes there is a fine line between when it is acceptable to take advantage of a mistake and when it is not.
Where there is a mistake that may involve the other practitioner’s client in unnecessary expense or delay the practitioner should not do or say anything to induce or foster the mistake. To do so is detrimental to the relationship characterised by courtesy and fairness that ought to exist between members of the legal profession.
That standard is not to be lowered when the opponent is unrepresented or when a solicitor/barrister is acting for himself against an unrepresented opponent.
Whilst the matter involved the personal affairs of Chamberlain, he was using his knowledge and skills as a legal practitioner and therefore the Supreme Court was correct to characterise his conduct as professional misconduct. Whilst not directly inducing the settlement, he used sharp tactics to give himself and advantage.
Standard of conduct owed to unrep litigant cannot be lower than that owed to colleague, sol took advantage of mistake for own personal and tactical advantage… he prepared and placed a trap to ensnare him”
Mullins
In a mediation scenario. negotiators anticipate a measure of honesty from each other.
Intentionally deceived by relying on report
Reprimand and fine and PM
Kelly v London Transport
- solicitors and counsel acting for legally-aided clients owe duties to court and to other side and can be made to pay other side’s costs if they fail in this; cannot claim immunity from suit which avails them only in regard to their own client
- duty is to ensure claim well-founded, not to refuse reasonable settlement offers and not incur unnecessary expenditure knowing they will be paid by legal aid
- must not run up costs with endless medical reports, and must not ask medical expert to change his report so as to favour client or conceal things that may be against him; they must not “settle” the evidence of medical experts as in Whitehouse
Clyne
- essential that the absolute privilege which members of the bar enjoy in respect of defamatory statements made in court is not abused; privilege is abused if damaging irrelevant matter is introduced, and grossly abused if counsel makes statements in opening which he cannot substantiate and which may have ruinous consequences for a person; it is not enough for counsel to think he can establish his statements out of mouth of witness for the other side
- “obviously unfair and improper in the highest degree”
- note that disbarring order is not punitive: it is made, from the public point of view, for protection of those requiring protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege
Di Suvero
- offensive or insulting behaviour in court can constitute unsatisfactory professional conduct
- public can reasonably expect barristers to accord appropriate respect to the Court, and failure to do so can be lack of “competence”
- conduct that is not contempt may still breach professional discipline
- applicable standard: barrister entitled to make known his objections concerning conduct of trial, but objection will be improper if [as here] no factual foundation for it or if expressed in a form that is bound to cause offence
McIntyre
- Rudeness in court can be miscarriage of justice, parituclarly where took place in front of jury
Punch
f a Barrister merely suspects his client is guilty or that evidence is untrue, that does not prevent him from running the case in accordance with his client’s instructions – the Barrister’s beliefs are irrelevant; but if the Barrister knows the truth, he cannot mislead the Court as to the facts; PMC.
Kneebone
it is a matter for the prosecutor to determine which witnesses are to be called in the Crown case
decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
The prosecutor should call all relevant witnesses, whether or not they advance the Crown case, unless the witness is considered unreliable or untruthful
However the Crown prosecutor must have a reasonable basis upon which to determine that the witness is unreliable before determining not to call a witness , which will require proper steps to form opinion (eg by interviewing) and it is not sufficient that the evidence of the witness merely contradicts the Crown’s case
Reardon
Obligation on the Crown to disclose all material to the defence ameliorates the imbalance of resources; Crown not to approach duty of disclosure narrowly; prosecutor must disclose all evidence that “on a sensible appraisal” is relevant : to be possibly relevant to an issue
- to possibly raise a new issue
- to hold out a real prospect of providing a lead as to such evidence
Wood
Crown is entitled to firmly & vigorously urge the Crown view & to test D’s case; but must always do so temperately & with restraint; cannot try to persuade the jury by introducing factors of prejudice & emotion; cannot pose questions which seem to reverse the onus of proof; breached duty of fairness & detachment.
Gould
Should only return a brief in “exceptional circumstances”; “barrister committed a grave act of impropriety affecting his professional character” which was “indicative of a failure either to understand or to practice the precepts of honesty & fair dealing in relation to his clients”; PMC.
Dwyer
- at common law PMC is conduct “reasonably be regarded as disgraceful or dishonourable by one’s peers”
- holding yourself out as a Barrister, particularly appearing before the Court, when not entitled to practice “undermines the system of regulation of Australian lawyers, the principal object of which is to protect the public” & “strikes at the heart of the obligation of candour”; PMC
- deceiving & misleading the council; PMC
- when considering whether to strike from the roll, question is whether “fit & proper person” at time of hearing
PMC does not always require striking off
Costigan
- court not bound by statutory definition of PMC, can apply CL standard of “disgraceful or dishonourable”
- dishonesty & reckless disregard for professional obligations vis trust money; PMC
practicing without certificate was “the antithesis of the requirements of candour & honesty expected of members of the legal profession”; demonstrated lack of qualities of “character & trust” which are the necessary attributed of a person entrusted to be a lawyer; PMC
failing to deposit moneys received from direct access clients into an account maintained in connection with his law practice was appropriate characterised as a reckless disregard of his professional obligations. Further applying the moneys to person needs was dishonest = professional
