Legal Ethics and Professional Regulation

Question 1

What are virtue ethics?

Answer 1

Ethics to do with being a good person - improving the general qualities of a person

Question 2

What is utilitarianism?

Answer 2

Maximising happiness for the most amount of people

Question 3

What are the two forms of utilitarianism?

Answer 3

Act utiliarianism - maximise happiness in that particular scenario. Rule utilitarianism - maximise happiness with with wider rules in mind.

Question 4

What is deontology?

Answer 4

Certain acts are inherently wrong and therefore to apply them would be immoral, irrespective of the situation. Devoid of consequences

Question 5

What is the difference between normative and applied ethics?

Answer 5

Normative = wider principles that guide human conduct
Applied = ethics within a particular field (e.g. med ethics)

Question 6

What were the results of the Trolley Problem?

Answer 6

90% of people would flick the switch but only 10% of the ppl would throw the fat man

Question 7

What are four approaches for lawyers to behave?

Answer 7

Adversarial advocate, responsible lawyering, moral activism and ethics of care

Question 8

What is adversarial advocate?

Answer 8

The interests of the clients are paramount at the expense of justice and the wider community.

E.g. Tobacco litigation - Clayton Utz

Question 9

Is an immoral and amoral lawyer the same?

Answer 9

An amoral lawyer is one that does not evaluate the morality of the client whereas an immoral lawyer is actively unethical.

Question 10

What is responsible lawyering?

Answer 10

Overriding role as officer of the court and trustee of the legal system - outweighs clients.

Question 11

What is moral activism?

Answer 11

Lawyers act as agents of justice through law reform + public interest lawyering.

Question 12

What problems arise with moral activism?

Answer 12

It can lead to the imposition of one’s own morality onto those of clients - esp when counselling clients with the right moral choice.

Question 13

What is ethics of care/co-operative approach?

Answer 13

Main priority is to preserve relationships and prevent harm. The client is perceived as a whole person and more important than just the law.

Question 14

Identify some contemporary issues that characterise the modern legal profession.

Answer 14

The business-profession dichotomy, lawyers as servants of the public good, the monopolisation of legal practice, reform of legal education and increased diversity.

Question 15

How was the legal profession regulated in the late 19th century to thwart it from becoming too business orientated?

Answer 15

The establishment of the Bar Association = retained professional codes + penalties for violations of it.

Question 16

What factors have contributed to the business-profession dichotomy in the 21st century?

Answer 16

Increase in the size of firms, geographic expansion, divergence of practice areas and competition.

Question 17

What remains the public image with respect to their relationship with the public good?

Answer 17

Turned from guardians of the law to prostitutes for gain - the hired gun.

Question 18

How was the market for legal services regulated previously?

Answer 18

Bar Association - rules of professional regulation - prevented authorised practice of non-lawyering.

Non-lawyer ownership of firms prohibited.

Question 19

What challenges does the legal market face currently?

Answer 19

1. Accessible legal services (relaxing of authorised practice proscriptive to allow Legal Zoom, etc)
2. Non-lawyer ownership to allow smaller firms to compete.
3. Are paralegals adequately trained to do the work that clients will be charged less for? And is that fair?

Question 20

What are some criticisms of contemporary legal education?

Answer 20

1. Practical skills v Professionalism/Ethics/Theory.

2. Huge fees = drives up legal fees.

Question 21

What is the impact of Cohen’s formal equality approach with respect to diversity in the legal profession?

Answer 21

It has increased access but minorities and women, still remain underrepresented especially at the top structures.

Question 22

How is the law of lawyering layered?

Answer 22

Contract, torts, equity, statute, criminal law and professional rules regulate.

Question 23

How nationalised is the legal professional rules?

Answer 23

Uniform rules in many states but the rules are administered and enforced by each respective jurisdiction

Question 24

What is the primary source of professional regulation in NSW?

Answer 24

Legal Profession Uniform Law

Question 25

What is unsatisfactory professional conduct and what section of the Legal Professional Uniform Law does it fall under?

Answer 25

Unsatisfactory professional conduct = falling short of the standard of competence and diligence required of a reasonably competent lawyer - s 296.

It has to be in the lawyer’s dealing with the law.

Question 26

What can constitute professional misconduct?

Answer 26

1. unsatisfactory conduct that involves a substantial or consistent failure to maintain a reasonable standard of competence and diligence.
2. Conduct in connection with the law or not, that would deem the lawyer to be not a fit and proper person for legal practice.

Question 27

How do you determine whether a lawyer is a fit and proper person to practice?

Answer 27

Refer to the expectations for admission or renewal of practicing licence.

Question 28

How does the complaint process work in NSW?

Answer 28

OLSC can deal with the complaint itself but if serious - refer to either the NSW Law Society or the Bar Association.

Question 29

What are some disciplinary orders available to regulatory bodies?

Answer 29

Striking off the roll of lawyers, conditions imposed on practice, suspension, fine and reprimand.