Ethics Cases Flashcards
Ziems
Removal from the roll is protective, not punitive; strike off is permanent.
Conviction does not always necessitate conclusion barrister is not fit and proper.
Personal misconduct may be grounds for disbarring because it reveals some unfitness in terms of person’s character or qualities, but conviction for personal misconduct does not necessitate conclusion that barrister is unfit to practice.
Chamberlain
Where conduct involves the use of a legal practitioner’s legal knowledge and skills, it should be considered professional conduct, notwithstanding that it is engaged in with respect to private or personal matters.
It is professional misconduct for a legal practitioner, knowing of an opponent’s mistake to take steps to take advantage of that error.
Use of court processes to obtain an advantage from an opponent’s mistake is professional misconduct and violation of barrister’s duty to the court.
Cummins
Professional misconduct may include acts not in practice but sufficiently connected which manifest the presence or absence of qualities incompatible with practice. Failure to file tax return sufficiently connected with practice to constitute professional misconduct.
Murphy
Bankrupt through poor financial literacy. Whether act of bankruptcy constitutes not being fit and proper, need to look at the facts
Bryson
Barrister went to pub with guns for protection, took the law into his own hands
Proth. v P
10 principles to determine whether a person is fit and proper:
1. Onus is party asserting fact to prove lawyer is not fit and proper.
2. Striking off only when lawyer is permanently unfit.
3. Conviction for prior offence is not necessarily sufficient to justify strike off (Ziems).
4. Conviction is not irrelevant as it carries disgrace (Re Davis).
5. Court must consider the conduct within the conviction.
6. Plea of guilty weighs in favour – remorse.
7. Personal misconduct may demonstrate unfitness where conduct is incompatible with qualities essential for practice.
8. Attitude of peers is significant.
9. Good fame and character is reputation and actual nature.
10. Present fitness is relevant, not fitness at time of the offence (Sahade; A Solicitor).
A Solicitor
Personal conduct as distinct to professional conduct.
Indecent assault did not demonstrate unfitness to practice, nor was the ‘trustworthiness’ of a parent relevant to the trust required of the legal profession.
Failure to exercise duty of candour and was professional misconduct.
Sahade
Dishonest behaviour in TLS IPO.
Dishonesty or deceit not connected with practice may constitute professional misconduct as the deceitfulness demonstrates unfitness to practice.
In assessing fitness, fitness is determined at time of hearing.
Contrition and brief nature of misconduct showed barrister was fit and proper.
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Re Davis
Non-disclosure of break and enter offence showed lack of candour; struck off.
Clyne
Bullying/intimidation tactics constituted strike off from roll.
It is unfair and improper for a B to make statements against a person unless the B knows that he or she has, and intends to adduce, evidence to support those statements.
Evatt
Charging excessive fees is professional misconduct. By placing the barrister’s own interests above those of his client demonstrated unfitness to practice.
Kelly
Legally aided matter; pursued claim with no prospects of success.
Counsel must not ask expert to change his report to favour claim or conceal things that are against him, and expert evidence must remain independent.
Glissan
Overbore client’s will; cannot force a client to settle; clients need to have free choice
Gould
Barrister accepted brief when already briefed and caused a clash
Hunter
Counsel briefed for two co-caused failed to recognise conflict between them.
McIntyre
Incredibly rude counsel in court, SC described conduct as ‘appalling’
Di Suvero
Insulting Judge and other side amounted to UPC, accused court of bias (‘star chamber’ allegation)
Mullins
Failed to disclose material expert report regarding recent diagnosis of cancer during settlement negotiations
Meakes
Serious overcharging; failed to disclose costs details
Costigan
Dispersed money held on trust without authorisation; practised without a PC; failed to properly disclose to direct brief clients
Howen
Lied to court about delay, said that it was due to client’s mental illness
Kaye v Woods
Tresscox lawyers mislead court regarding availability of an expert report. Even if breach is only temporary, need to rectify it ASAP.
Attwells
Advocates immunity does not extend to settlement negotiations
Dwyer
Practising without a PC
Punch
Barrister coached witness in the cells to give false evidence
Clive Andrews Evatt
Disclosed privileged correspondence by accident; mitigating factors considered
Raphael
Sexual harassment of lawyer (“husband getting jealous of how much time we spend together”)
EFA
Sexual harassment of female barrister at function (gestured fellatio to female colleague)
Kneebone
Prosecution’s duty to call all material witnesses
Gilham
Failure to call material witness resulted in miscarriage of justice; wielding a knife in closing submissions prejudicial to jury
Reardon
All relevant material must be disclosed, even if only possibly relevant
Bradley
Service of brief of evidence under s183 of CPA is no substitute for duty of disclosure and requires prosecution to take broad view of relevance
Nguyen
Prosecution did not tender ERISP in second trial, resulted in miscarriage
HT v R
Police informant; both sides need to have full info otherwise unfair
Barbaro
Submissions on range of sentencing not taken into account by court when exercising discretion. Prosecution can submit on facts, principles and comparable cases, but not range of sentencing.
Wood
Prosecution’s duty is not to obtain a conviction but to lay before the jury what the Crown considers credible evidence relevant to alleged offences and also carries a duty to present a case fairly and completely.
Reversal of the onus of proof to pose 50 rhetorical questions to jury.
McKell
Summary by judge (s161 CPA) is to assist jury with a fair and accurate statement of the case of each party. Judge entitled to express a view but not persuade a jury.
