Ethics Flashcards
Attwells v Jackson Lalic Lawyers
Advocates immunity from suit
does not apply to settlement agreement between litigation parties as insufficiently connected with advocate’s work in courtroom to fall within principle
lawyer could not rely on immunity from suit as complete answer to negligence proceedings against him
Kelly v London Transport Executive
expert report
Council of NSW Bar Association v Costigan
barrister improper use of trust funds, failure to notify Bar Association of ‘automatic’ show cause events, failed to provide statement explaining why still fit and proper person to hold PC
conduct reasonably regarded as disgraceful or dishonourable by his peers (Allinson test). Not regarded as person of good fame and character for purpose of admission, both because nature of conduct in misleading courts and engaging in legal practice and holding himself out as barrister when did not have a PC
not a fit and proper person to remain on Roll of legal practitioners
Wood v R
prosecutor’s conduct effectively reversed onus of proof - by putting 50 questions to jury and inviting them to consider whether AP had given satisfactory answers (judge had refused these questions be provided in writing, so P used in closing address)
conduct (in combination with other grounds) so significant as to occasion miscarriage of justice
Gilham v R
Miscarriage of justice occassioned by way Crown conducted case:
*knife demonstration improper and likely to inflame and bias court against accused
*failure to call expert witness who would have refuted other expert evidence constituted miscarriage (duty of prosecutor to put fairly and truthfully all relevant evidence, not only evidence that supports Crown’s case theory - BR 83)
R v Reardon [No 2]
duty of disclosure of Crown should not be approached narrowly
P must disclose material documents which can reasonably be seen to be relevant or possibily relevant to issue in case
duty does not extend to disclosing material only relevant to credibility of defence W
no miscarriage occurred because Reardon had not lost a real chance of acquittal by reason of non-disclosure
NSW Bar Association v Punch
AP confessed to barrister was present at scene of break and enter
Barrister filed evidence that accused was at home. Also had 5 witnesses say accused was at home.
Barrister knew likely accused was present at scene.
Bar Rule 79, 80 (also dishonest and misleading provisions as well)
Guilty of professional misconduct
Kelly v London Transport Executive
Legal practitioners are not immune from suit from other party if they have failed in their obligations to the court and the opponent (immunity from suit only protects against own client)
Barrister asked for doctor to amend expert report
claim was largely bogus due to alcoholism of client
settlement offers made and legal team advised against settlement
involved incurring useless costs by opponent
client on legal aid - greater duty when on legal aid not to misuse and encourage acceptance of settlement offer
Re James Lindsay Glissan
Barrister bringing improper pressure on client
client solicitor - barrister did not think case winnable and applying pressure to settle. When discovered outcome of disciplinary proceedings indicated could not let client in witness box as his credibility had been destroyed.
Whilst honest in conviction, option available to barrister if advice not being taken was to return the brief r105(g)
determination to settle should not overbear client’s will (Barrister has not personal interest in outcome)
Unsatisfactory professional conduct
