Ethics reading list Flashcards
Bale v Mills (authority) CA
Fairness in the administration of justice
- Counsel failed to follow the rule in Browne v Dunn, wherein he sought to rely on matters which had not been put to a witness in cross examination.
- Witness failed to object to submissions being made about his credibility, which the primary judge accepted.
- The primary judge made findings of dishonesty on the subject matter in the absence of cross examination.
- A failure to object does not constitute a waiver because there is an overriding duty of a trial judge (equal to counsel) to ensure a fair trial.
- the rule applies to the trial judge equally as it does to counsel.
- New trial ordered.
[23] Allegations of dishonesty of practitioners need to be proven to a higher degree of satisfaction (Brig v Brig)
[38] Court findings were not based on his evidence in the box but on documentary evidence.
[41] Snr counsel should not have made the submissions nor should the judge have accepted them.
[46] A remedy to the breach might be precluding the party in default from submitting that the witnesses evidence should be accepted.
[48] remedy: witness be recalled or a party precluded from addressing upon a particular subject. Judge has discretion to ensure that a trial does not miscarry.
[57] Must not file any material after an appeal outside leave. It derogates from the principle of the open administration of justice. The proper course is to have the proceedings re-listed so that the record can be enlarged.
- if you are instructed to withdraw; write a memo to the court.
[63] If counsel has failed to object, there is a continuing obligation on the trial judge to ensure a fair trial.
[66] Fairness in the administration of justice extends to ensuring that a witness who is not a party is treated fairly.
[71] In civil litigation, a court should not make lightly findings that a party has engaged in criminal or fraudulent conduct.
Day v Perisher Blue (authority)
Coaching of witnesses
Described by Sheller JA as improper practice that seriously undermines the process by which evidence is taken. Trial judge failed to have regard to critical evidence.
- 70. a barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time.
- 68.(b) a barrister must not coach a witness by advising what answers the witness should give to questions which might be asked.
- Court referred the matter to the legal services commissioner. Verdict set aside and new trial ordered.
- defendant’s solicitors sent a letter to witnesses advising them to be familiar with each others statements and held a teleconference.
- witness refreshed his memory from various statements, not just his own, before giving evidence
[30] A teleconference where witnesses discussed among themselves the evidence that they would give. This undermines the process by which evidence is taken.
[35] Sufficiently serious for the papers to be sent to the legal services commissioner. Verdict and judgment set aside and a new trial ordered.
Solicitors were given 7 days notice to show cause why it should not be referred to the legal services commissioner.
Ken Tugrul v Tarrants
Duty to your opponent
Email communication with judge’s chambers - need for consent of all parties.
- There are four occasions where communication is appropriate without the consent of your opponent: trivial matters (start time, location, whether judge is robing); ex parte hearings; where an order of the court permits; exceptional circumstances.
- 53. a barrister must not, outside an ex parte hearing of which there has been proper notice, communicate with the court in their opponent’s absence.
- 55. Must not raise any matter with the court other than the matters which have been agreed to by consent.
Kunc details what should be done in the circumstances where you are emailing a judges chambers and you do have the consent of your opponent.
[3] No communication with a judges chambers without the consent of all the parties.
Opposing counsel were not aware that the email would be sent. Indeed, the solicitor who sent the email said in the email that he did not have their consent.
[17] Just because you call the judges attention to another parties objection does not cure the breach.
[21] Four exceptions to communicating without consent:
- trivial matters i.e. start time
- ex parte matters
- where response is permitted by order or direction
-exceptional circumstances
1. if communicating without consent, give the reason why in the first sentence of the email.
2. If consent is obtained, bring that to attention.
3. All written communication should be copied to the other parties
LSC v Mullins
Duty to opponent
Probity is essential to the utility of mediation as a form of alternative dispute resolution.
‘Honesty promotes confidence in the process’ as Lord Bingham puts it. It was said that by remaining silent, he [Mullins] practiced deception.
[19] Mullins did his own research and sought a second opinion from a silk.
[27] Context influences the context of legal and equitable obligations of disclosure… Honesty promotes confidence in the process. The common law enforces an expectation through the tort of deceit, which provides a legal remedy for harm so caused.
[29] bar rules 51 & 52
[31] A substantial departure expected of practitioners of good repute and competency as to constitute PMC
Tri-star v APLNG
When a court may impose a more onerous obligation of confidentiality than the implied Harman undertaking.
Tri-star requested production of commercially sensitive documents. APLNG withheld certain documents on the basis that they would not be protected by the implied Harman undertaking. The documents contained market intelligence and would place APLNG at a commercial disadvantage.
The proposed confidentiality protocol is annexed to the judgment at Appendix 1. Justice Bond’s conclusions as to how it needed to be amended are set out. He adjourned to allow the parties to reach agreement based on his conclusions. Those viewing documents were required to sign an undertaking to bring home the importance of confidentiality.
TEST a court may impose a more onerous obligation if it is persuaded that the case involvesexceptional circumstancessuch that the implied obligation provides insufficient protection.
108. must not disclose or use in anyway confidential information obtained by the barrister in the course of practice.
if you received documents by way of disclosure, the documents cannot be used for an alternative purpose unless they are admitted into evidence (Hearne v Street). The ‘implied undertaking’ is an obligation to the Court
[51] a confidentiality protocol was proposed.
[55] implied undertaking is a mechanism which ensures that litigants do not endure a harsher or unnecessary invasion of privacy than necessary to achieve justice.
[57] cases which require something more than the implied undertaking are the exception not the rule (citing Hearne v Street).
[59] where a further protection is justified, the issue for the court is to strike a balance between competing interests.
[60] if the court is persuaded the court will consider the course proposed by the applicant and whether the implied obligation would provide insufficient protection.
Virgtel v Zabusky
Lawyers also have an obligation, not just to their clients but also to the administration of justice, to do everything possible to ensure the matter is soon concluded in a timely and cost efficient way.
An applicant is entitled to the ‘fruits of their victory’ before the conclusion of the action unless the other party shows ‘special or exceptional circumstances’.
Zabusky appealed a decision to refuse a stay of a costs order - after a failed interlocutory application - until the conclusion of proceedings. Virgtel applied to have the appeal struck out for lack of competence; you cannot appeal an order as to costs without leave because costs are discretionary. Further submissions were filed after the hearing which were not read. Dismissed with costs.
[19] QLD judges often order that interlocutory costs orders are to be paid ‘in any event’ (recoverable regardless of what happens). That is, at the conclusion of the action. Costs of this appeal were ‘final orders’. That is, Virgtel is entitled to the fruits of its victory before the conclusion of the action. Final orders are payable forthwith unless it can be shown that there are special or exceptional circumstances.
[30] There was $1.5 expended in costs before the commencement of the action. It was described as a stark example of the unacceptable costs for the access to justice in commercial matters. Lawyers also have an obligation, not just to their clients but also to the administration of justice, to do everything possible to ensure the matter is soon concluded in a timely and cost efficient way.
What are the 13 rules of advocacy and in which order do they appear?
General
The work of a barrister
Cab-rank principle
Duty to the court
Duty to the client
Independence
Duty to the opponent
Efficient administration of Justice
Responsible use of court process and privilege
Integrity of evidence
Media comment
Delinquent or guilty clients
Prosecutor’s duties
How do I answer an ethics question?
- identify the general principle behind the ethical/ bar rule and the reason for it;
- answer the question asked and identify any legislative provision or rule applicable;
- apply the content of the ethical/ Bar rule (or at least to state its key components) in addition
to stating the rule; and - identify where an active role in pursuing an ethical course is required of the barrister
whether that be vis a vis the solicitor, the client, third party or the court.
What are two things I should be conscious of when answering an ethics question?
- the reason for the ethical / bar rule
- identifying where an ethical course is required by the barrister vis a vis the solicitor, client, third party or the court.
What is the principle in Virgtel v Zabusky
Lawyers also have an obligation, not just to their clients but also to the administration of justice, to do everything possible to ensure the matter is soon concluded in a timely and cost efficient way.
What is the principle in Tristar v APLG
A court may impose a more onerous obligation of confidentiality if it is persuaded that the case involvesexceptional circumstancessuch that the implied obligation provides insufficient protection.
What is the principle in LSC v Mullins
Probity is essential to the utility of mediation as a form of alternative dispute resolution.
What is the principle in Ken Tugrul v Tarrants
No communication with a judges chambers without the consent of all parties.
What is the primary principle in Bale v Mills?
Fairness in the administration of justice extends to ensuring that a witness who is not a party is treated fairly.
What is the principle in Day v Perisher Blue?
Coaching of witnesses
Described by Sheller JA as improper practice that seriously undermines the process by which evidence is taken.
