Ethics Cases

Question 1

Clyne

Answer 1

commencing proceeding without proper basis

used the preliminary hearing to publicly attack the solicitor’s professional character without evidence

intimidate the solicitor into ceasing representation of another party.

invited the accused to defend - implied that dropping representation would end the criminal proceedings.

Unanimous decision - struck off for Grave professional misconduct

Question 2

Evatt

Answer 2

Facilitated and knowlingly shared in excessive charging

Excessive fees charged for own services

Disbarred professional misconduct

Question 3

Glissan

Answer 3

Believed case to have no prospects
Held: Unsatisfactory professional conduct
1. pressures a client to settle overbeared client’s free will

Question 4

Chamberlain

Answer 4

took advantage of error (one tenth of tax owed)

directly arranged the entry of a corrupt judgment.

used his skills as a legal practitioner (viewed as professional conduct) even though acting in his private affairs.

Unprofessional conduct by a legal practitioner may extend into conduct in his privacy capacity (citing Ziems).

The standard owed to an unrepresented opponent cannot be lower than that owed to a fellow practitioner, nor is the standard to be lowered when a practitioner acts for himself against an unrepresented opponent.

It is professional misconduct for a legal practitioner, knowing of an opponent’s mistake of fact, to take steps to deliberately take advantage of that error (as opposed to merely remain silent).

Misrepresentation is, by its nature, in tension with the overriding duty of honesty.

professional misconduct

Question 5

Glenn Gould

Answer 5

accepted brief that conflicted with existing hearing
1. misled client about availability to appear.
2. returned the brief without sufficient notice.

Misled the Bar Association response to complaint

Tribunal deplored the practice of passing briefs as a matter of barrister’s choice.

professional misconduct, and publicly reprimanded.

Question 6

Hunter

Answer 6

Failed to ensure separate representation

Failed to recognise separate case (character evidence, inadmissible and prejudicial evidence)

Basic standards of advocacy failed

= incompetance - miscarriage of justice - both convinctions quashed.

Question 7

McIntyre (2000)

Answer 7

Prosecutor belittled witness

Held: Mere misconduct by counsel doesn’t necessarily make the trial unfair or result in a miscarriage of justice.

Question 8

di Suvero

Answer 8

1. intemperate and insulting in-court behaviour towards the judge and prosecutor,
2. breach of secton 127 of the Legal Profession Act. (UPC)

Principles

1. UPC - “standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner” includes that barristers will behave in court in a way which maintains the public interest in the administration of justice, including according appropriate respect to the court.
2. consistent with the purpose of disciplinary proceedings, which is not to punish the practitioner but to protect the public and maintain proper professional standards.

Question 9

Meakes

Answer 9

if overcharging (and no fee agreement or disclosure) constituted statutory
professional misconduct

court of appeal advanced from upc to pmc

Question 10

Mullins

Answer 10

Cannot lie in settlement proceedings

concealed cancer diagnosis for benefit of clients life insurance claim.

knowingly and intentionally misled

mere silence, concealment of a fact, or failure to disclose amounts to misleading and deceptive conduct

Question 11

Sahade [2007]

Answer 11

“The law requires that an objective standard is used to determine whether a solicitor is a “fit and proper person”.”

” dishonest deceitful and fraudulant conduct”

Duration of misconduct - 4 years showed it was not a “moment of weakness:

Question 12

Howen [2008]

Answer 12

Unreasonable delay

Unfair dismissal case - barrister delayed filing an application and time to commence proceedings expired

Barrister made false statements as to reasons for delay

breach of duty of honesty and candour to the court
intentional preferring of his own interests over those of his client”.

Question 13

Attwells

Answer 13

advocates immunity does not extend to negligent advice regarding settlements.

immunity remains for action taken within the boundaries of court proceedings

Question 14

Dwyer

Answer 14

“Strikes at the heart of the obligation of candour”
1. Pratcicing without a certificate 14.1 LPA
2. Received fees for work ^ 14.4 LPA
3. Represented and advertised entitlement to engage 15(1)
4. Misled the council
.

Question 15

Barbaro and CMB

Answer 15

prosecution expressed views about available range of sentences

common law does not mandate the consideration of prosecution submissions

“… to draw to the attention of the judge:
facts that should be found,
the relevant principles that should be applied and what has been done in other comparable cases”.

“surrogate judge”

Question 16

HT

Answer 16

Facts:
1. Statutory obligation to consider the offender’s assistance to law enforcement, but the evidence involved highly sensitive info.
2. Judge considered an affidavit detailing assistance but appellants counsel not given access to it

HC Held: denying defense counsel access
1. Deprived the opportunity to test the accuracy of the evidence
2. Submissions on its application to sentencing laws.

Public interest immunity provides an immunity from production of relevant and otherwise admissible evidence in the course of litigation. If an objection on these grounds is upheld, the document cannot be admitted into evidence at all.

Question 17

McKell

Answer 17

“the trial judges comments were so lacking in balance as to be an exercise in persuading the jury of the appellant’s guilt.”

unfair - miscarriage of justice

Question 18

Davis

Answer 18

approved for admission - failed to disclose a prior guilty plea to breaking, entering, and stealing.

conviction of a crime of dishonesty incompatible with … admission to the Bar…

DISTINCTION: concept of “good character” in criminal evidence with the broader question of an individual’s suitability to join a traditional profession

Question 19

Punch

Answer 19

knowingly led evidence that was untrue > RESULTED IN CLIENTS AQUITTAL

Argued: received further instructions justifying the change in evidence. (rejected)

Guilty of PMC

emphasised that personal belief in a client’s guilt isn’t enough to prove professional misconduct.

Factors:
* Lack of remorse
* failure to explain events
* absence of rehabilitation

Question 20

Clive Andrews Evatt

Answer 20

released a confidential letter from his client to other lawyers in the discovery/subpoena process.

Letter was later tendered in court to the client’s detriment.

release of a confidential communications only justified in exceptional circumstances - to prevent a serious injustice

wasn’t the case - guilty of professional misconduct despite mitigating circumstances, e.g. stress/exhaustion, no harm came from the disclosure.

Question 21

Raphael [2021]

Answer 21

Facts:

Admitted to placing arm on shoulder and kissing her head.

Tribunal found it constitutes sexual harassment under Anti-Discrimination Act.

Act of physical intimacy was unwelcome, and a reasonable person would anticipate offense or humiliation by the conduct.

Rule 123 sexual harassment,

Breach of Rule 8:

damaging the reputation of the legal profession.

plead guilty - unsatisfactory professional conduct

Question 22

Wood v The Queen (2012)

Answer 22

50 questions - the raising of matters that require the accused to explain reverse the onus of proof - Rugari (rhetorical questions fall into this catergory)

crowns address - factors to make appelable: Wood and Livermore

“(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or
emotion in the jury.
(iii) Comments which belittle or ridicule any part of the accused’s case.
(iv) Impugning the credit of a Crown witness, where the witness was not
afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor’s own opinion.”

Question 23

Gilham v R (2012)

Answer 23

decision not to call expert because of differing opinion

The Crown is obligated to present all relevant evidence at its disposal, regardless of whether it supports or contradicts its case.

discrimination between expert witnesses is not permissible.

Question 24

Costigan

Answer 24

1. Duty to appropriately disclose basis of which costs are calculated
2. Inferred doing work of barrister and solicitor 22 BR
3. Practicing without a certificate
4. Failure to notify: creditors petition

Normal conseqeunce of misappropriation of funds is removal from the roll

Question 25

Kaye v Woods

Answer 25

BR - misleading the opponent / misleading the court - presenting a misleading affidavit (said late service was an oversight, evidence to the contrary)

duty to correct misleading statements - duty to ensure that statements made on behalf of the client are not misleading

inviting wrongful inferences - misleading

s 125 Evidence Act - Privilege lost due to misconduct

common law view suggests that wrongful conduct by solicitor acting on clients behalf can deny privilege.