Ethics cases Flashcards
A Solicitor vs Law Society NSW
Duty of candor to disclose convictions
Fitness to remain on roll determined at time of hearing not at time of offence
Doesn’t need to be professional misconduct in order to demonstrate unfitness
Person’s behaviour, even if not involving professional conduct, may demonstrate qualities of a kind that suggest person not fit and proper
Suspended - isolated nature of offence, character references, potential for rehabilitation
Barbaro v The Queen
Prosecutor obligated to make submissions on sentencing range
Court not bound to accept those submissions
Chamberlain v Law Society ACT
Intentionally took advantage of mathematical errors in favour to procure consent judgment
Overring duty of honesty
Mitigating factors - isolated nature, good character - Reprimand received
Would not have been PM if just paid the amount on the notice and took no further action
Bryson v NSW Bar Association
Took a loaded weapon into a pub
Though conduct personal, amounted to professional misconduct – key aggravating factor was belief he could take law into his own hands rather than involve law enforcement officials
Fine given - mitigating factors - character evidence, medical evidence of stress under
Atwells v Jackson Lalic
Negligent advice given to settle on unfavourable terms
Associates immunity does not extend to work that has not relate to judicial determination or resolution of matter by that Court
Indemnity therefore does not apply to settlement by consent
Clive Andrews Evatt
Released confidential communication to other side - error arose from lack of sleep, not taking usual medication, not eaten
Tried to rectify error - did not charge for work done
Costs order only
Ziems
Attacked in pub - accident on way to hospital leading to fatality
Personal conduct can be grounds for disbarment if demonstrates not fit and proper person
Conviction not enough to ground disbarment - need to look at circumstances of the case
Suspended for term of imprisonment
Clyne v NSW Bar Association
Made allegations in court of fraud and perjury against opposing solicitor without foundation with intent to obtain advantage
Lied to the court and deliberately misrepresented the law
Grave professional misconduct - not fit and proper
Bar Association v Evatt
Excessive charging over multiple instances
No remorse or recognition of wrongdoing
Kelly v London Transport Executive
Client’s claim was without proper basis - misused Legal Aid funding in obtaining multiple expert evidence reports and only one was served
Barrister should not settle medical evidence or suggest changes to content - report should be independent product of expert
Glissan
Barrister told client could settle case over objections
Case merits were poor and credibility of client was of concern
Should not deprive client of choice as to how they act on instructions
If advice not accepted then proper course is to return the brief
Reprimand
Hunter v R
Miscarriage of justice caused by:
- Not ensuring separate representation for co-defendants
- Failure to recognise different cases/defences available to different defendants
- Neglected to adduce good character evidence when it would have assisted one defendant
- Failed to object to inadmissible evidence
Duty to one client was in conflict with another
- Imperative that information given by client (particularly an accused who is not always reliable source of info) is checked from a source which is reliable before any forensic step is taken to raise character. Counsel bears very heavy burden when advising client in relation to raising good character.
- Also issue of accepting brief without own experienced solicitor.
R v Kneebone
{Did not call mother of sexual assault complainant as witness]
Not calling witness without having a principled basis to do so (proper basis for determining is unreliable) could result in miscarriage of justice
Evidence is not unreliable simply because their account does accord with case theory
Prosecutor should call all available witnesses whose evidence it is necessary to unfold the narrative and give complete account of events upon which prosecution is based
R v McIntyre
Extreme rudeness and disrespect to Judge and prosecution including in front of jury
Nature and frequency of comment - including claims of prejudice/bias
Miscarriage of justice
diSuvero v NSW Bar Association
Fearless representation of client should not extent to disrespectful or abusive language
Conduct that does not amount to contempt may still breach professional conduct.
Barrister must afford appropriate respect to court, to maintain interest in administration of justice.
Objection is improper if no foundation for it, or if expressed in a form (even with foundation) that is bound to cause offence.
NSW Bar Association v Cummins
Failed to lodge tax returns for 38 years
No excuse or explanation
Personal conduct reflected dishonesty and disregard for legal and civic obligations - inconsistent with qualities required for practice
Removed from roll
NSW Bar Association v Murphy
[Barrister delayed taxes to help save finances, eventually declared bankruptcy.]
Fact of bankruptcy, indictable offence or tax offence not sufficient – must look to circumstances in which the act came about to see if fit and proper person
Respondent not indifferent to tax obligations – circs here do not show deficiency in character or competence as legal practitioner.
Is the conduct sufficiently connected to legal practice
Prothonotary v P
[Solicitor drug addict for some years, convicted of possession of commercial quantity when entering country.]
Role of disciplinary action is protection of public. Only struck off if permanently unfit to practice
Fact of conviction and imprisonment not conclusive, but relevant
Fitness determined at time of hearing
Here, pleaded guilty, absence of prior criminal record, absence of motive for personal enrichment, honesty and cooperation with authorities, offences unrelated to practice of law and have not harmed clients, absence of premeditation, evidence of good character, self-imposed suspension from practice, delay in commencing disciplinary proceedings and clear and convincing evidence of rehabilitation.
Legal Services Commissioner v Mullins
[Medical report and damages report prepared on assumption of life expectancy, which proved false when P learned of cancer. Not disclosed to other side at mediation.]
Problem not so much non-disclosure of client’s cancer, but that barrister, in mediation, continued to rely on the damages report as basis for claim for loss of wages etc, knowing that assumption in it was wrong. That was fraudulent deception of opposing party.
NSW Bar Association v Meakes
[Gross overcharging and not providing fee agreement or fee disclosure. Overcharging by 66% for barrister of his experience and competency.]
Expectation legal practitioners will mount witness box to explain their conduct, rather than relying on evidence from Bar table.
Respondent grossly reckless in charging fees – not clear what time spent on or how fees calculated – at worst conduct dishonest, at best highly irresponsible.
Reprimand - conduct not part of pattern, restitution to client, length of time since offence
Bar Association v Sahade
[Barrister registering for Telstra shares hundreds of times].
Willingness to engage in deceptive or dishonest behaviour will generally be a matter of central relevance to practice of law.
Persistent misconduct which is disgraceful or dishonourable will ordinarily justify order unfit to practice
At time of conduct, barrister did engage in professional misconduct, but happened a long time ago and finding of deceit long ago with respect to finances doesn’t mean dishonest and not fit and proper today. Character references where people knew of allegation suggested of good character.
Bar Association v Howen
[Not filing unfair dismissal claim in time, seeking extension which was refused and not disclosing reason was because of barrister not timely causing to file.]
Evidence to IRC was misleading, and barrister knowingly preferred own interest over his own client’s.
Breached duty of candour and honesty to court, and was professional misconduct.
Bar Association v Costigan
[Numerous breaches – not complying with conditions of certificate, appearing without practising certificate, applied trust fund monies towards expenses before rendering bill, did not disclose bankruptcy petition etc.]
Normal consequence of misappropriation of client money is name removed from roll.
Kaye v Woods
[Serving fourth medical report just prior to trial well after obtained, and after solicitors confirmed to other side no other reports when there were. Affidavit evidence to court on report was misleading.]
• Party cannot, knowing court has been misled with respect to a material matter foster and confirm misrepresentation.
Once misleading impression created, even innocently, lawyer has obligation to correct impression.
• The fact that the true position is likely to emerge during the course of evidence is not sufficient to excuse a practitioner for misleading the court.
• Because the affidavit was drafted so as to invite the drawing of inferences which did not accord with the facts, and that in the absence of drawing those inferences the affidavit would contain nothing of relevance for the purpose for which it was brought into existence, it was misleading.
Bar Association v Dwyer
Acted without holding practicing certificate
Told Bar Association he had not practiced when he had - provided false statutory declaration
Pattern of dishonesty - removal from roll
Nguyen v the Queen
It is for the prosecution to decide which witnesses are called and evidence necessary to put case fully and fairly
Relevant evidence should be admitted unless there are grounds for believing witnesses are not credible or where contradicted by objective evidence
HT v The Queen
Information relevant to sentencing which included information from a police informant - disclosed to the Judge but not the defence
Defence should have been able to see the evidence so that the accused could give instructions on it - denial of procedural fairness
McKell v The Queen
Judge should not comment in a way that conveys their opinion as to the proper determination of fact in issue (e.g. guilt of accused)
Comments were unfairly balanced - seen as persuading jury of guilt
Comment should be directed at guiding jury on what it needs to know to do justice not the end result
Re Davis
Didn’t disclose convictions in application to Bar Association or to those who supplied character references
Can have regard to conduct which occurred prior to seeking admission
Conviction of crime of dishonesty and non disclosure fatal
Wood v R
Prosecutor asking questions and inviting jury to consider whether accused provided satisfactory answers is impermissible
Don’t invite jury to consider how they feel or would react in determining issues
Speculation, conjecture, suspicion can never amount to proof beyond reasonable doubt
Gilham v R
Evidence can’t be admitted at a later trial when decision to admit it would be at odds with an earlier decision to reject it
Evidence of earlier crime for which has been acquitted cannot be adduced unless jury directed it can’t be used in a way which denies the acquittal
R v Reardon
Running sheets not disclosed
Prosecution must disclose material evidence - take a broad view
Miscarriage of justice only if accused lost a real chance of acquittal by reason of non-disclosure
Bar Association v Punch
Barrister adduced alibi evidence he knew was false due to admission by client
Barrister must not falsely suggest someone else has committed crime if client has disclosed guilt - BR 80(b)
Barrister did not give evidence as to his actual knowledge of accused’s guilt- only he could do that - inference drawn his evidence would not assist his case
NSW Bar Association v Raphael
Sexual harrassment of junior solicitor- unwelcome act of physical intimacy
Previous similar conduct
Denied initially, downplayed gravity
Counselling, reprimanded
Gould
Two commitments for one day, did not do anything until right at the end.]
Finding of misconduct can arise if it amounts to a grave impropriety affecting professionally character and indicative of a failure either to understand or to practice the precepts of honesty or fair dealing - in accepting second brief, misleading client in AVO matter through conference to prepare and not mentioning conflicted, mislead solicitor, and misled Bar Association in answer gave.
Taken together, disgraceful and dishonourable.
