Ethics

Question 1

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] What are the relevant principles?

Answer 1

Advocate’s immunity does not extend to advice re: settlement

Question 2

Prothonotary v McCaffery [2004] What are the relevant principles? What are the relevant rules?

Answer 2

Deceit in holding self out as counsel inconsistent with duty of candour to court and amounted to professional misconduct Relevant rules: r 24 (barrister must not deceive or knowingly or recklessly mislead court)

Question 3

NSW Bar Association v Dwyer (2015) What are the relevant principles? What are the relevant rules?

Answer 3

Holding self out as barrister and engaging in legal practice without PC amounts to professional misconduct Knowingly misleading or deceptive conduct in dealings with Bar Council may amount to professional misconduct Relevant rules: r 24 (barrister must not deceive court)

Question 4

Re B (1981) What are the relevant principles? What are the relevant rules?

Answer 4

Barrister’s duty to court is paramount Conduct outside practice may be inconsistent with barrister’s duty of honesty and candour to court Relevant rules: r 23 (barrister has overriding duty to court), r 24 (barrister must not deceive court)

Question 5

A Solicitor v Law Society (2004) What are the relevant principles? What are the relevant sections?

Answer 5

Distinction between professional misconduct and personal misconduct Professional misconduct must be connected to professional practice, although personal conduct can demonstrate that a practitioner is not a fit and proper person to practice Even if offences do not amount to professional misconduct, failure to disclose offences may be Professional misconduct does not necessarily lead to removal from roll Relevant section: s 297 (definition of professional misconduct)

Question 6

NSW Bar Association v Costigan (2013) What are the relevant principles?

Answer 6

Professional misconduct through misuse of trust moneys paid to barrister through direct access brief Professional misconduct by practicing without practicing certificate Unsatisfactory professional conduct through failure to notify bar association of creditors’ petitions, traffic/driving offences

Question 7

NSW Bar Association v Evatt (1968) What are the relevant principles? What are the relevant rules?

Answer 7

Professional misconduct by facilitating overcharging by solicitors Lack of contrition relevant to severity of offence Relevant rules: r 35 (barrister must promote and protect client’s best interests without regard to self-interest), r 47 (barrister must not exercise undue influence on client to benefit barrister)

Question 8

NSW Bar Association v Meakes (2006) What are the relevant principles? What are the relevant sections?

Answer 8

Gross overcharging amounted to professional misconduct Relevant section: s 172 (legal costs must be fair and reasonable)

Question 9

Glissan (1990) What are the relevant principles? What are the relevant rules?

Answer 9

Pressure on client to settle should not overbear client’s will Pressure on client to settle constituted unsatisfactory professional conduct (not professional misconduct) Relevant rules: r 35 (barrister must promote and protect client’s best interests), r 36 (barrister must inform client about alternatives to fully contested adjudication), r 37 (barrister must seek to assist client to understand issues in case sufficiently to permit client to give instructions)

Question 10

di Suvero v NSW Bar Association (2001) What are the relevant principles? What are the relevant rules?

Answer 10

Insulting and offensive language in Court amounted to unsatisfactory professional conduct Relevant rules: r 8 (barrister must not engage in conduct likely to diminish public confidence in legal profession or administration of justice)

Question 11

Re Davis (1947) What are the relevant principles?

Answer 11

Failure to disclose past convictions as indicating not of good fame and character

Question 12

NSW Bar Association v Bryson (2003) (NSWADT) What are the relevant principles? What are the relevant rules?

Answer 12

Professional misconduct includes personal conduct short of that warranting removal from the roll Relevant section: s 297 (definition of professional misconduct)

Question 13

Bryson v NSW Bar Association (2003) (NSWADTAP) What are the relevant principles?

Answer 13

No power to order barrister to complete further legal education

Question 14

NSW Bar Association v Sahade (2007) What are the relevant principles? What are the relevant rules?

Answer 14

Professional misconduct in personal life: deceit in making multiple applications for shares, even though acquitted of criminal conduct Professional misconduct not warranting removal from roll Relevant section: s 297 (definition of professional misconduct)

Question 15

Prothonotary v P (2003) What are the relevant principles? What are the relevant rules?

Answer 15

Conviction for serious offence not sufficient for striking out Distinction between fame and good character: fame is reputation, character is actual nature Order striking off roll should only be made if lawyer is permanently unfit to practice Question of present fitness, not fitness at past time Relevant section: s 297 (definition of professional misconduct)

Question 16

Ziems v Prothonotary (1957) What are the relevant principles?

Answer 16

‘Fit and proper’ person test Court can look into circumstances underlying conviction; conviction is not of itself dispositive Striking off is protective, not punitive

Question 17

NSW Bar Association v Cummins (2001) What are the relevant principles? What are the relevant sections?

Answer 17

Professional misconduct through longstanding failure to pay taxes Conduct outside practice may in some circumstances amount to professional misconduct Relevant sections: ss 297 (definition of professional misconduct), 298 (examples of forms of professional misconduct)

Question 18

NSW Bar Association v Murphy (2002) What are the relevant principles? What are the relevant sections?

Answer 18

Distinction between decision to issue practicing certificate and decision whether to remove from the roll Bankruptcy and tax liabilities not sufficient to warrant removal from roll Relevant sections: ss 297 (definition of professional misconduct), 298 (examples of forms of professional misconduct)

Question 19

Legal Services Commissioner v Mullins (2006) What are the relevant principles? What are the relevant rules?

Answer 19

Obligations of candour in mediation Breach of obligations of candour amounted to professional misconduct Relevant rules: r 49 (barrister must not knowingly make false or misleading statement to opponent)

Question 20

NSW Bar Association v Howen (2008) What are the relevant principles? What are the relevant rules?

Answer 20

Professional misconduct through breach of duty of honesty and candour Professional misconduct through barrister’s preference of own interests over those of client Relevant rules: r 24 (barrister must not deceive court), r 25 (barrister must correct any misleading statement to court), r 35 (barrister must promote and protect best interests of client without regard to own interest)

Question 21

NSW Bar Association v Punch (2008) What are the relevant principles? What are the relevant rules?

Answer 21

Professional misconduct through running affirmative case of alibi known by barrister to be untrue Relevant rules: r 80 (barrister cannot run affirmative case inconsistent with confession)

Question 22

Evatt (1992) What are the relevant principles? What are the relevant rules?

Answer 22

Practitioner’s disclosure of privileged, confidential information amounted to professional misconduct Contrition and extenuating circumstances relevant to penalty Relevant rules: rr 114-115 (barrister must not disclose confidential information)

Question 23

Hunter v R (1999) What are the relevant principles? What are the relevant rules?

Answer 23

Incompetence of counsel resulted in miscarriage of justice Defence counsel failed to advise on separate representation, possible sentence, right to silence Defence counsel made submissions inconsistent with substance of case (or reflecting 1A’s account but not 2A’s) Obligations of defence counsel Relevant rules: r 4 (barristers must maintain high standards of professional conduct)

Question 24

R v McIntyre (2000) What are the relevant principles? What are the relevant rules?

Answer 24

Incompetence of counsel through rudeness to bench and expression of personal views Incompetence of counsel jeopardised jury trust in defence counsel Incompetence of counsel resulted in miscarriage of justice Relevant rules: r 4 (barristers must maintain high standards of professional conduct), r 8 (barrister must not engage in conduct likely to diminish public confidence in legal profession or administration of justice)

Question 25

Chamberlain v ACT Law Society (1993) What are the relevant principles? What are the relevant rules?

Answer 25

Practitioners should not induce or foster mistakes Practitioners should draw opponents’ attention to mistakes, except where it would prejudice their own client Relevant rules: r 49 (barrister must not knowingly make false or misleading statement to opponent in relation to case)

Question 26

Kaye v Woods (No 2) (2016) What are the relevant principles? What are the relevant sections and rules?

Answer 26

Privilege waived in respect of documents through solicitor misconduct (as actions sufficient to prompt civil penalty) Relevant sections and rules: EA s 125, BR r 49 (barrister must not knowingly make false or misleading statement to opponent)

Question 27

Clyne v NSW Bar Association (1960) What are the relevant principles? What are the relevant rules?

Answer 27

Abuse (via unsubstantiated attacks) of barristers’ privilege to address court amounted to professional misconduct Relevant rules: r 61 (barrister can only make allegations under privilege reasonably justified by material, appropriate for robust advancement of case on merits and where not made principally to harass or embarrass), r 65 (obligations where alleging criminality, fraud or other serious misconduct)

Question 28

Kelly v London Transport Executive (1982) What are the relevant principles? What are the relevant rules?

Answer 28

Obligations not to interfere with expert evidence Liability of solicitors for personal costs where claim unsubstantiated Relevant rules: r 70 (must not encourage witness to give evidence different from evidence which witness believes to be true)

Question 29

Gilham v R (2012) What are the relevant principles? What are the relevant rules?

Answer 29

Defendant previously acquitted must be afforded full benefit of prior acquittal Relevant rules: r 84 (prosecutor must not press case for conviction beyond full and firm presentation of case)

Question 30

Wood v R (2012) What are the relevant principles? What are the relevant rules?

Answer 30

Conduct of crown prosecutor caused trial to miscarry, occasioning miscarriage of justice Questions put by Crown to jury reversed onus of proof Relevant rules: r 84 (prosecutor must not press case for conviction beyond full and firm presentation of case), r 85 (prosecutor must not seek to inflame or bias court against accused)

Question 31

R v Reardon (No 2) (2004) What are the relevant principles? What are the relevant rules?

Answer 31

Crown’s duty of disclosure Duty of Crown to disclose ‘material’ documents Relevant rules: r 87 (prosecutor’s duty to disclose relevant material to opponent), r 88 (prosecutor’s duties to consider withdrawal of charge if non-disclosure)

Question 32

R v Kneebone (1999) What are the relevant principles? What are the relevant rules?

Answer 32

Responsibility of Crown to call material witnesses Relevant rules: r 89 (prosecutor’s duty to call material witnesses), r 90 (prosecutor’s duty of disclosure if not calling witnesses)

Question 33

Re Glenn Gould (1997) What are the relevant principles? What are the relevant rules?

Answer 33

Obligations in returning briefs in circumstances of clash of dates Acceptance of briefs in circumstances where apparent prior commitments amounted to professional misconduct Relevant rules: r 104 (barrister must not accept brief to appear on day when barrister already committed if barrister would not be able to appear in other brief), r 110 (barrister who wishes to return brief must do so in enough time to give another lawyer properly opportunity to take over case)

Question 34

R v Kneebone (1999) 47 NSWLR 450

Relevant to: Ethics and duties of prosecutor

Principles:

Facts:

Finding:

Answer 34

R v Kneebone (1999) 47 NSWLR 450

Relevant to:

Principles:

• The crown prosecutor is responsible for calling witnesses considering:
  a) truthfulness or credible
  b) interests of justice should be subject to cross-examination

Facts: sexual assualt where mother alleged to have witnesses. Prosecutor refused to call the witness because her evidence may have been unreliable

Finding:

• Miscarriage of justice because prosecution did ascertain unreliablility of witness.
• Where a prosecutor does not call a witness must show a miscarriage

Question 35

R v Apostilides (1984) 15 A Crim R 88

Relevant to:

Principles:

Facts:

Finding:

Answer 35

R v Apostilides (1984) 15 A Crim R 88

Relevant to: Ethics and duties of prosecutor

Principles: Rules as to the calling of witnesses and role of a judge

Facts: prosecutor did not call two witnesses where they did not believe in the credibility of the witnesses. They provided no reasons. Judge commented on the failure to call witness disadvantaged the defendants

Finding: Prosecutor alone bears the responsibility of calling witnesses
Judge can ask but not decide if it was correct
Judge may comment on the failure to call a witness
Judge should rarely if ever call a witness

Relevant to: Duties of a prosecutor