Ethics Flashcards
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] What are the relevant principles?
Advocate’s immunity does not extend to advice re: settlement
Prothonotary v McCaffery [2004] What are the relevant principles? What are the relevant rules?
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)
NSW Bar Association v Dwyer (2015) What are the relevant principles? What are the relevant rules?
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)
Re B (1981) What are the relevant principles? What are the relevant rules?
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)
A Solicitor v Law Society (2004) What are the relevant principles? What are the relevant sections?
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)
NSW Bar Association v Costigan (2013) What are the relevant principles?
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
NSW Bar Association v Evatt (1968) What are the relevant principles? What are the relevant rules?
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)
NSW Bar Association v Meakes (2006) What are the relevant principles? What are the relevant sections?
Gross overcharging amounted to professional misconduct Relevant section: s 172 (legal costs must be fair and reasonable)
Glissan (1990) What are the relevant principles? What are the relevant rules?
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)
di Suvero v NSW Bar Association (2001) What are the relevant principles? What are the relevant rules?
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)
Re Davis (1947) What are the relevant principles?
Failure to disclose past convictions as indicating not of good fame and character
NSW Bar Association v Bryson (2003) (NSWADT) What are the relevant principles? What are the relevant rules?
Professional misconduct includes personal conduct short of that warranting removal from the roll Relevant section: s 297 (definition of professional misconduct)
Bryson v NSW Bar Association (2003) (NSWADTAP) What are the relevant principles?
No power to order barrister to complete further legal education
NSW Bar Association v Sahade (2007) What are the relevant principles? What are the relevant rules?
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)
Prothonotary v P (2003) What are the relevant principles? What are the relevant rules?
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)
Ziems v Prothonotary (1957) What are the relevant principles?
‘Fit and proper’ person test Court can look into circumstances underlying conviction; conviction is not of itself dispositive Striking off is protective, not punitive
NSW Bar Association v Cummins (2001) What are the relevant principles? What are the relevant sections?
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)
NSW Bar Association v Murphy (2002) What are the relevant principles? What are the relevant sections?
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)
Legal Services Commissioner v Mullins (2006) What are the relevant principles? What are the relevant rules?
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)
NSW Bar Association v Howen (2008) What are the relevant principles? What are the relevant rules?
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)
NSW Bar Association v Punch (2008) What are the relevant principles? What are the relevant rules?
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)
Evatt (1992) What are the relevant principles? What are the relevant rules?
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)
Hunter v R (1999) What are the relevant principles? What are the relevant rules?
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)
R v McIntyre (2000) What are the relevant principles? What are the relevant rules?
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)
Chamberlain v ACT Law Society (1993) What are the relevant principles? What are the relevant rules?
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)
Kaye v Woods (No 2) (2016) What are the relevant principles? What are the relevant sections and rules?
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)
Clyne v NSW Bar Association (1960) What are the relevant principles? What are the relevant rules?
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)
Kelly v London Transport Executive (1982) What are the relevant principles? What are the relevant rules?
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)
Gilham v R (2012) What are the relevant principles? What are the relevant rules?
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)
Wood v R (2012) What are the relevant principles? What are the relevant rules?
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)
R v Reardon (No 2) (2004) What are the relevant principles? What are the relevant rules?
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)
R v Kneebone (1999) What are the relevant principles? What are the relevant rules?
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)
Re Glenn Gould (1997) What are the relevant principles? What are the relevant rules?
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)
R v Kneebone (1999) 47 NSWLR 450
Relevant to: Ethics and duties of prosecutor
Principles:
Facts:
Finding:
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
R v Apostilides (1984) 15 A Crim R 88
Relevant to:
Principles:
Facts:
Finding:
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
