Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Legal Professional Ethics (NSW) > Legal Ethics (NSW) > Flashcards

Legal Ethics (NSW) Flashcards

The statutory regime of Legal Professional Ethics in NSW. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, Legal Profession Uniform Conduct (Barristers) Rules 2015 Civil Procedure Act 2005 (NSW), Federal Court of Australia Act 1976, Legal Profession Uniform Law Application Act 2014 (NSW),

1
Q

Where can the following be found?

A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of

  1. any binding authority,
  2. where there is no binding authority, any authority decided by an Australian appellate court, and
  3. any applicable legislation,

known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:

Rule 19.6

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

A solicitor who becomes aware of matters within Rule 19.6 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:

A
  • 19.8.1 - a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter, or
  • 19.8.2 - requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

19.9?

A

19 Frankness in court

19.9 - A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Where in the conduct rules is the following found?

“A solicitor must not deceive or knowingly or recklessly mislead the court.”

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

19 Frankness in court

Rule 19.1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Rule 19.11?

A

A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

LPULSCR 2015, Rule 19.2?

A

A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

LPULSCR 2015, Rule 19.3?

A

A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

LPULSCR 2015, Rule 19.12?

A

19 - Frankness in Court

A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

LPULSCR Rule 19.4?

A

A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:

  • 19.4.1 are within the solicitor’s knowledge,
  • 19.4.2 are not protected by legal professional privilege, and
  • 19.4.3 the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

A solicitor who has knowledge of matters which are within Rule 19.4:

19.5.1 - must seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under Rule 19.4, and what?

What happens after, if the client does not waive the privilege as sought by the solicitor?

  • (i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so, and
  • (ii) must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.
A

LPULSCR (NSW) 2015

Rule 19.5.2

  • Under 19.5.2: The Solicitor must:
    • (i) must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so, and
    • (ii) must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

LPULSCR (NSW) 1995

Under rule 20.1, what must the solicitor learn to prompt action of 20.1.4 and 20.1.5?

A
  • LPULSCR (NSW) 1995 Rule 20.1:
    • Where LP learns, during hearing or after judgement, or decision is pending, that C,
      • 20.1.1 – has lied, or procured another to lie to court, or
      • 20.1.2 – has, or has procured another to falsify documents tended, or
      • 20.1.3 – has, or has procured another to suppress evidence when there was a positive duty to disclose to court,
    • LP must so specified, as per 20.1.4 and 20.1.5
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What must the solicitor do upon learning of the client’s, or procurement by another by the client’s, lie, falsification, or suppression?

A

As per LPULSCR (NSW) 2015

  • 20.1.4 – Solicitor must advise the client that the court should be informed on the lie, falsification, or suppression and request authority from the client to inform the court.
  • 20.1.5 – Solicitor must refuse to take further part on the case unless C authorises Solicitor to inform the court of the lie, falsification, or suppression.
    • The solicitor must then, on the authority of the client, inform the court
    • Otherwise, Solicitor may not inform the court without the client’s authorisation.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q
  • If the client denies the request, by their solicitor, to disclose the lie, falsification, suppression to the court, the solicitor must do what?
  • Also cite case Authority
A
  • Perpetual Trustee Co Ltd v Cowley [2010] QSC 65 at [130]–[132] per Atkinson J:

Solicitor mus withdraw from case but is not permitted to disclose the lie, falsification or suppression.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q
  • LPULSCR (NSW) 2015 – Rule 20.3.1 and 20.3.2 summarised?
A
  • An LP whose C discloses an intention to disobey a court order must advise against that course and warn of its dangers and not advise how to carry out or conceal that course.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

LPULSCR (NSW) 2015 – Rule 20.3.3 summarised?

A
  • Client’s intention to disobey court order
  • Where Client informs the solicitor an intention to disobey court order:
    • solicitor must not inform court or Client’s opponent of intention, unless:
      • authorised by the client, OR
      • solicitor believes Client’s conduct is a threat to anyone’s safety
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q
  • LPULSCR (NSW) 2015 – Rule 25
    • What is this rule summarised?
A
  • Rule 25 - Integrity of evidence—two witnesses together
    • A lawyer should not confer with, or condone another lawyer conferring with more than one lay witness at the one time, about any issues the lawyer believes may be contentious at a hearing and count be affected by, or may affect, evidence the witness may give.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q
  • LPULSCR (NSW) 2015 – Rule 24.1.1? Summarised
A

24 Integrity of evidence—influencing evidence

  1. 1 A solicitor must not:
  2. 1.1 advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

LPULSCR (NSW) 2015 – Rule 24.1.2? Summarised

A
  1. 1 A solicitor must not:
  2. 1.2 coach a witness by advising what answers the witness should give to questions which might be asked.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

LPULSCR (NSW) 2015 – Rule 24.2

A
  • Lawyer does not breach 24.1 by:
    • 24.2.1 – expressing a general admonition to tell the truth
    • 24.2.2 – questioning and testing the version of evidence to be given by the witness, or
    • 24.2.3 – drawing the witness’s attention to inconsistencies or difficulties of the evidence, but the solicitor must not encourage the witness to give evidence that is different from what the witness believes.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

LPULSCR (NSW) 2015 – Rule 26.1.1

A

A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

LPULSCR (NSW) 2015 – Rule 26.1.2

  1. 1 - A solicitor must not confer with a witness under cross-examination UNLESS
  2. 1.2?
A
  • the Solicitor:
    • (i) believes on reasonable grounds special circumstances require a conference with the witness,
    • (ii) the solicitor informs the cross-examiner before LPs intention to do so, AND,
    • (iii)otherwise informs the cross-examiner as soon as possible after doing so.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q
  • LPULSCR (NSW) 2015 – Rule 23.1:
A
  • A solicitor must not discourage a witness from conferring with an opponent or be interviewed by a person involved in proceedings.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q
  • LPULSCR (NSW) 2015 – Rule 23.2:
A
  • A solicitor will not breach Rule 23.1 by telling a witness they need not agree to confer or be interviewed or by advising relevant obligations of confidentiality.
24
Q

A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

the brief is to appear in a contested or ex parte hearing before the barrister’s parent, sibling, spouse or child or a member of the barrister’s household, or before a bench of which such a person is a member, unless the hearing is before the High Court of Australia sitting all available judges,

Where does this appear?

A

Legal Profession Uniform Conduct (Barristers) Rules 2015

Rule 101 (j)

25
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Rule 28.1?

A

A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.

26
Q
  • Barrister must not publish material concerning any proceeding which
    • (a) is known to be inaccurate
    • (b) discloses confidential information
    • (c) appears to express the opinion of the barrister on the merit or issue of the proceeding, other than in the course of general educational or academic discussion of the law
  • Where is this found?
A
  • LPUCBR 2015 – Rule 76
27
Q
  • LPULASCR 2015 – What is Rule 21.3 [summarised]
A
  • A lawyer must not be party to presentation to court evidence, or make a statement of allegation, for which there is, in the lawyer’s opinion, insufficient evidentiary burden.
28
Q
  • LPULASCR 2015 – Rule 21.1 and 21.2 Summarised
A

A lawyer, in exercising the forensic judgments called for throughout a case, to take care to ensure decisions to invoke the coercive powers of a court or to make allegations or suggestions under privilege are reasonably justified by the material then available, and are appropriate for the robust advancement of the client’s case on its merits.

Proscribe decisions or allegations made principally to harass or embarrass, or to gain a collateral advantage for the client, the barrister or the instructing solicitor out of court

29
Q
  • LPULASCR 2015 – Rule 21.8 and LPUCBR 2015 – Rule 62 summarised?
A
  • Proceedings that involve allegations of sexual assault, indecent assault, act of indecency, which the alleged victim gives evidence,
    • A lawyer/barrister must not ask witness or questions intended to:
      • Mislead/confuse the witness
      • Be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive
    • A law/barrister must consider particular vulnerability of the witness in manner and tone of the questions.
30
Q
  • LPULASCR 2015 – Rule 21.4 and LPUCBR 2015 – Rule 65 summarised.
A
  • Lawyer/Barrister not to allege criminality, fraud or serious misconduct unless Lawyer/Barrister believes on reasonable grounds that:
    • [1] allegation could be supported or based by proper available material, AND
    • [2] the client wishes the allegation to be made, after being advised on the seriousness of the allegation, and the possible consequences for the client if the case is not made out.
31
Q
  • LPULASCR 2015 – Rule 21.7 (Summarised)
A
  • Where the solicitor is to make submissions that mitigate the client’s criminality to another person, who is not able to answer those allegations, must seek to avoid disclosing the identity of that person unless disclosure is necessary for the proper conduct of the client case.
32
Q
  • Which statutes at the NSW level and Federal level address the issues of Wasting of time and money in court proceedings?
A
  • Civil Procedure Act 2005 (NSW), s 56: and
  • Federal Court of Australia Act 1976 (Cth), s 37M:

Establishes the lawyer’s duty ( also mainly ‘overarching purpose’ or ‘overriding purpose’ of civil practice and procedure) to assist in facilitating the just, quick, cheap resolution of the real issues in proceedings.

33
Q

A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

Where can this be found?

A

LPULASCR 2015 – Rule 22.8

34
Q
  • (a) A barrister to ensure the briefed work is done in sufficient time to allow compliance of court orders, direction, rules and practice notes, AND
  • (b) if there are reasonable grounds that briefed work cannot be completed on time, the barrister must inform the instructing solicitor or client.

Where is this unsummarised rule found? What is the rule’s heading?

A

Legal Profession Uniform Conduct (Barristers) Rules 2015

Rule 57 - Efficient administration of justice

35
Q

Where can the following be found?

A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as to:

(a) confine the case to identified issues which are genuinely in dispute,
(b) have the case ready to be heard as soon as practicable,
(c) present the identified issues in dispute clearly and succinctly,
(d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case, and
(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.

A

LPUCBR 2015 – Rule 58

36
Q

Where are guidelines found in regards to the ‘Law practice not to act unless there are reasonable prospects of success’?

A

Legal Profession Uniform Law Application Act 2014

Schedule 2 Costs in civil claims where no reasonable prospects of success

Clause 2

37
Q

What is meant by “reasonable prospect of success” in relation to Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 Clause 2(1) where:
A law practice must not provide services unless legal practitioner reasonably believes on (1)facts and (2)reasonably arguable view that claim has reasonable prospects of success?

Also Where can this definition be found?

A

Under:

Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 Clause 2(4):

“reasonable prospects of success” = possible to recover damages as a claim, or reduction of damages of defending a claim

38
Q

In summary, what is meant by:

Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2

Clause 2 (1)?

A
  • A law practice must not provide services unless legal practitioner reasonably believes on the facts and it is a reasonably arguable view that the claim has a reasonable prospect of success.
39
Q

In summary, what is meant by:

Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2

Clause 4 (1)?

A
  • Legal services provided without reasonable prospect of success is (1) NOT an offence, but (2) capable of being unsatisfactory conduct or professional misconduct.
40
Q

In summary, what is meant by:

Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2

Clause 5 (1)?

A
  • Where the legal services are provided without reasonable prospects of success, the court can order personal costs against the law practice or lawyer who supplied those services.
41
Q

Where can the statutory regime of hopeless cases in relation to migration litigation be found?

A

Migration Act 1958 (Cth) - Section 486E Obligation where there is no reasonable prospect of success

42
Q

Accurately recite heading and rule of:

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:

Rule 5

A

5 Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

  • 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice, or
  • 5.1.2 bring the profession into disrepute.
43
Q

To be concise, what is the purpose of

  • Financial Transactions Reports Act 1988 (Cth):
    • Section 15A
    • Section 28(3)(a)
A

Section 15A provides the statutory duty of solicitors to report significant cash transactions made by a lawyer or on behalf of clients that are over $10,000

Section 28(3)(a) provides that a failure to report the significant cash transaction (as per s15A) is an offence.

44
Q

Which legislation and section addresses:

‘conspiracy to defraud’

against a third party, where the third party is a Commonwealth entity OR

conspiring, with another, to influence a Commonwealth public official?

A

Criminal Code Act 1995 (Cth), s 135.4

Conspiracy to defraud

45
Q

Where is the following stipulated?

“A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.”

A

Legal Profession Uniform Conduct (Barristers) Rules 2015

Rule 35 Duty to the client

46
Q

Legal Profession Uniform Conduct (Barristers) Rules 2015

Summarise Rule 114

A

A barrister must not disclose/use information obtained in the course of the practice to whom the barrister owes some obligation of confidentiality. Exceptions apply.

47
Q

Where are the Prosecutor’s duties found in the context of solicitors?

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Rule 29 - Prosecutor’s duties

48
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Recite Rule 29.2

A

Rule 29.2:

A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

49
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Recite Rule 29.3

A

Rule 29.3

A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

50
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Complete Rule 29.4

A prosecutor must not argue any proposition…

A

Rule 29.4

A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight.

51
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

What must a solicitor not do according to Rule 17.3

A

Rule 17.3:

A solicitor must not make submissions/express views to a court on evidence or issue of case in terms or appear to convey a personal opinion on the merits of that evidence or issue

52
Q

Where can the rules of what should be disclosed in a criminal case by a prosecutor be found?

Summarise the first half of the rule.

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Rule 29.5:

In summary, the first half states that the PC must disclose to OP (1) all material including (2) names and means of finding witnesses in connection with such material (A) available to PC, or (B) of which PC becomes aware, that is relevant to the guilt and innocence of the accused.

53
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

According to Rule 29.5, the prosecution must disclose all material UNLESS

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Rule 29.5 [second half]:

UNLESS the prosecutor believes on reasonable grounds that such disclosure would:

    1. Seriously threaten the integrity of the administration of justice OR
    1. the safety of any person.
54
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Under Rule 29.8,

What must the prosecutor do when they have reasonable grounds that the material available to the prosecutor may have been improperly or unlawfully obtained?

A

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Under Rule 29.8,

If there is reasonable belief the material may have been improperly/unlawfully obtained, the prosecutor must:

(1) inform the opponent if the prosecutor intends to use material AND;

(2) make a copy of the material, if it is a document, to the opponent

55
Q

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Summarise Rule 29.7

(29.7.1 and 19.7.2 [not including exceptions under 7.2] )

A
  • Persecutor must call as part of prosecution’s case all witnesses:
    • 29.7.1 - whose testimony is admissible and necessary for the presentation of all relevant circumstances,
    • 29.7.2 – whose testimony provides reasonable grounds for the persecutor to believe that it could provide admissible evidence relevant to any matter in issue, [with exceptions]

Legal Professional Ethics (NSW) (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions