DUTIES TO THE PROFESSION

Question 1

ASCR 4, UCBR 8

Answer 1

• ASCR r4 – Other fundamental ethical duties
  › 4.1. A solicitor must also:
  …
  4.1.2 be honest and courteous in all dealings in the course of legal practice
• UCBR r8 - General
  › A barrister must not engage in conduct which is:
  (a) Dishonest or otherwise discreditable to a barrister;
  …

Question 2

THE DUTY TO FELLOW PRACTITIONERS OVERALL

Answer 2

› Duty to be professional, honest and courteous; and
› Not benefit of fellow practitioners mistake.

Question 3

THE 3 ELEMENTS OF DUTY TO FELLOW PRACTITIONERS

Answer 3

• Honest
  › ASCR 4.1.2
• Courteous
  › ASCR 4.1.2
• “to avoid offensive or provocative language”
  › Implied from the ASCR 4.1.2

Question 4

‘TO AVOID OFFENSIVE OR PROVOCATIVE LANGUAGE

Answer 4

› Implied from the ASCR 4.1.2
› New South Wales Bar Association v Jobson [2002] NSWADT 171
 Not intimidating opponent.
 Should’ve apologised. Never did despite opportunity. (mistake expected, but be prepared to apologise.
› M B Durant, ‘Views from the Bench: Civility and Advocacy’ (2001) Utah Bar Journal 35.
 Don’t take on your clients emotions. Don’t let the emotions of your case affect litigation/advocacy.

Question 5

DISCRIMINATION HARRASSMENT AND BULLYING

Answer 5

• Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339
• ASCR r42 – Anti-discrimination and harassment
  › 42.1. A solicitor must not in the course of practice, engage in conduct which constitutes:
  42.1.1 Discrimination;
  42.1.2 sexual harassment; or
  42.1.3 workplace bullying.
• UCBR r123 – Anti-discrimination and harassment
  › A barrister must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:
  (a) discrimination;
  (b) sexual harassment;
  (c) workplace bullying.

Question 6

GLS v PLP (Human Rights) [2013] VCAT 221

Answer 6

› Female graduate completing her PLT was sexually harassed by her supervisor.
› Sanctions: pay female grad $100,000, Practicing cert cancelled, DQ from applying practicing for cert for 8 months and to re-apply is had to be supported by psychological and psychiatric evidence to satisfy he was a fit and proper person. In event he was re-issued a certificate, further condition that he could not employ or supervise any female law or graduate whose employment was a pre-req to satisfy academic qualification, or admission to practice

Question 7

Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

Answer 7

› Barrister behaved inappropriately towards a colleague and assistant clerk at a dinner.
 greeted a colleague with a ‘ritualised greeting which parodied oral sex’
 told her female assistant clerk to ‘suck my dick’
 whether he placed his hand on this woman’s neck and moved her head to and from his crotch area was disputed and no affirmative findings were made
› Question of whether this conduct was carried out in the course of practise
 arguably attendance at a dinner is not part of your course of practise
› the bar rules have dealt with this grey area under rule 123, para 2.
 Conduct in connection with a barristers profession includes conduct at social functions connected with the bar and the legal profession, and interactions with a person who the barrister has or previously had a professional relationship with.
› Therefore, the dinner does fall within ‘professional conduct’ of the barrister.
› Barristers behaviour amounted to unsatisfactory professional conduct but not professional misconduct
› Orders made: only to pay counsels cost for the proceedings.
 Not counselling orders, etc.
 Not publicly reprimanded.
› Appealed. Unsuccessful.

Question 8

UNFOUNDED ALLEGATIONS

Answer 8

• ASCR r32 – Unfounded allegations
  › 32.1 A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct of professional misconduct unless the allegation is made bona fide, and the solicitor believes on reasonable grounds that available material by which the allegation could be support provides a proper basis for it.
• UCBR r65
  › A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
  (a) Available material by which the allegation could be supported provides a proper basis for it, and…

Question 9

COMMUNICATIONS REPRESENTATIONS AND NEGOTIATIONS

Answer 9

• ASCR r22 – Communication with opponents
  › 22.1. A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise)
• UCBR r49 – Duty to the opponent
  › A barrister must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise)

Question 10

Does a lawyer have a duty to be honest and candid during negotiations with the other party, when that party is legally represented?

Answer 10

• Legal Services Commissioner v Mullins [2006] LPT 12.
  › A barrister was disciplined for misleading conduct.
   in the course of a mediation the barrister acted for the applicant, a quadriplegic seeking damages from their insurer.
   the tribunal found that is barrister had intentionally deceived the insurers barrister and legal representatives as he failed to disclose that his client had recently been diagnosed with cancer and this diagnosis drastically reduced his life expectancy and as a result the formula to be used to calculate his insurance pay out.
  › Reprimand: tribunal fined the barrister the equivalent of the fees he charged for the matter
   specifically calculated to ensure that the barrister did not profit from his misconduct.
  › Duty to be honest at all stages.

Question 11

Another Solicitor or other person’s error

Answer 11

• Not taking advantage of a learned friends honest error.
  › Give them the opportunity to correct
• ASCR r30 – Another solicitor or other person’s error
  › 30.1. A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact.
• UCBR r…
  › not corresponding case rule. But case law.

Question 12

Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148.

Answer 12

› duty to not assist a fool v duty to not take advantage of another’s honest mistake.
› Para 166: the lawyer obtained an advantage by more than mere silence. He deliberately set in train the events and documents which lead to the entry of the consent judgement. He knew the deputy commissioner had made a large mistaken and took unfair advantage of it for his own benefit.
› Don’t lead or entice/provoke the fool in the wrong direction.

Question 13

DUTY TO OTHER PERSONS

Answer 13

› 34.1 A solicitor must not in any action or communication associated with representing a client –
34.1.1 make any statement to another person –
i. Which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client,
ii. Which misleads or intimidates the other person.
34.1.2 threaten the institution of criminal or disciplinary complain against the other person if a civil liability to the solicitor’s client is not satisfied, or
34.1.3 use tactics that go beyond the legitimate advocacy and which are primarily designed to embarrass or frustrate another person.

Question 14

DEALINGS WITH OTHERS

Answer 14

› Legal Services Complaints Committee v Amsden [2014] WASAT 57
- Do not threaten or insult or annoy
› Legal Services Commissioner v Lynch [2015] VCAT 722
- Do not blackmail or go beyond your role
› Legal Practitioners Complaints Committee v Sing [2007] 2 Qd R 158 at [30] per de Jersey CJ

Question 15

DEALING WITH REPRESENTED LITIGANTS

Answer 15

• The no contact rule.
  › Do not contact a represented litigant.
• Clarify the scope of the retainer with the lawyer.
• If speaking to a client and discover they are represented. Can only ask for lawyers contact details. No further information.

Question 16

ASCR 33

Answer 16

Communication with another solicitor’s client:
› 33.1 In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless:
33.1.1 the other practitioner has previously consented,
33.1.2 the solicitor believes on reasonable grounds that –
(i) The circumstances are so urgent as to require the solicitor to do so, and
(ii) The communication would not be unfair to the opponent’s client,
33.1.3 the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, or
33.1.4 there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with the communication.

Question 17

SELF REPRESENTED LITIGATANTS

Answer 17

• Do not give legal advice.
  › Not in client’s interest
  › Creates conflict of interest (may disclose information to you they shouldn’t have).
  › However, can tell them why they should settle (fine line, but obvi this is trying to assist your own client).
  › Can help them with procedural matters.
   Not fill out forms for them but tell them what forms to complete.
• Still be honest, courteous… just like with other professionals.
  › Context may be different though as an ordinary person may respond differently to certain statements etc.

Question 18

DEALING WITH THIRD PARTIES

Answer 18

• i.e. doctors, accountants.
• Rules: (outlined in ASCR – 34).
  › Not discourteous provocative or offensive
  › must also be frank and clear
  › must be appropriate for the audience your communicating with
  › must also clearly convey to that third party that you were not there lawyer.
   Need to expressly put this in writing.
   Watkins t/as Watkins Tapsell v De Varda [2003] NSWCA 242.
• Lawyer liable in a tort claim with a third party that they hadn’t actually retained as their client.

Question 19

WHAT IS AN UNDERTAKING

Answer 19

› a solemn promise as an officer of the court you undertake or solemnly swear to do something.
› For a lawyer this could be a promise to the court that documents will be filed and served by a certain date or a promise to the court that you will provide the judges associate with a cleanly typed version of the hastily scribbled out orders arrived to by consent on the doorsteps of the court house.

Question 20

WHAT MAKES AN UNDERTAKING ENFORCEABLE

Answer 20

› Signing under the word ‘undertaking’.
› Should be able to rely on the words ‘I undertake…’
 But, to be enforceable undertaking needs to be
* Clear and unambiguous
* Capable of performance at time made
* (and if made by a professional) given by a lawyer in their professional capacity.

Question 21

UNDERTAKING PROVISIONS UNDER ASCR/UCBR

Answer 21

• ASCR - 6
• UCBR – 121

Question 22

Legal Services Commissioner v Sapountzis (Legal Practice) [2010] VCAT 1124

Answer 22

› Defined an undertaking @ [17]:
 A personal promise and a mechanism where practical courses of action can be taken based upon the reliance by one legal practitioner upon the undertaking of another that the contents of that undertaking will be observed.
 If there was not such a requirement there would be a breakdown in what is a very important mechanism employed by members of the legal profession. The breach of an undertaking strikes at the heart of our system.

Question 23

Udall v Capri Lighting Ltd [1987] 3 All ER 262

Answer 23

› never give an undertaking unless you have the capacity to keep it.
 If its reliant on someone doing something else, do not give it (you dont have the control to give it.
› 269, “ failure to implement a solicitors undertaking is prima facie to be regarded as misconduct on his or her part and this is so even if he has been guilty of dishonourable conduct. However, exceptionally the solicitor may be able to give an explanation for his failure to honour his undertaking which may enable the court to say that there’s been no misconduct in the particular case”.

Question 24

Marsden v Marsden [1972] Fam280

Answer 24

› Can give an undertaking on behalf of your client,
 Need to specifically inform the court it is not an undertaking from you.
 Must also have express instructions from client to give the undertaking.
* these instructions must be in writing.
› [282] “an undertaking given through a practitioner by a client will only be enforced against the client if the practitioner held instructions to do so”
 and the only way we can prove had instructions is by having them in writing.
› Make it very clear it is not a personal undertaking.

Question 25

ASCR 6

Answer 25

› 6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
› 6.2 A solicitor must not seek from another solicitor, or that solicitor’s employee, associate or agent, undertakings in respect of a matter, that would require the co-operation of a third party who is not party to the undertaking.

Question 26

CONSEQUENCES OF FAILING TO COMPLY WITH AN UNDERTAKING

Answer 26

• The court in their inherent jurisdiction, to control and discipline the lawyer they can order:
  › the enforcement of the undertaking or
  › make orders for compensation to be paid to a person who suffered a loss is result of the lawyers failure
• other consequences include:
  › may amount to unsatisfactory conduct or professional misconduct
  › the lawyer may be reprimanded
  › have their practising certificate suspended or cancelled
  › the lawyer may be fined and or have cost orders made against them
  › a complaint about the lawyer may be lodged with the relevant body by the person who received the undertaking
  › a contractual liability may arise in relation to undertakings given to third parties
  › a statutory or tortious liability may rise if an undertaking given to a third party was false misleading or misleading
  › lawyers reputation may be ruined