Misc matters Flashcards
(14 cards)
Where an undertaking is given to the court. What are the consequences for noncompliance?
The court may enforce compliance. A breach of, or failure to fulfil, the undertaking constitutes contempt of court.
The court also has the power to order a lawyer to pay compensation to the person who suffers as a result of the failure to comply.
Where an undertaking is given to a third party what are the potential consequences for noncompliance?
The third party may enforce it by civil proceeding depending on the matter that may be breach of contract or tort or under statue…the court in it’s inherent jurisdiction can order compensation be paid for non compliance.
What are 3 matters/steps which might assist a legal practitioner to avoid liability in relation to the giving of an undertaking?
- Firstly, the undertaking should be given on the client’s behalf with their authority, not personally by the lawyer. The lawyer should clearly disclaim personal liability for its performance.
- Secondly, give the undertaking in clear and unambiguous terms. Ambiguity is usually construed strictly against the lawyer. Saying “on behalf of my client” will not suffice. It needs to be more clear.
- Thirdly, only give the undertaking personally if you have complete control of fulfilling it (i.e., don’t give an undertaking to file an affidavit before it is sworn).
What is an undertaking?
An undertaking is a promise to do or refrain from doing something.
Why are undertakings given? How are they enforced? and why is it necessary they are enforced?
Undertakings are given by lawyers for purpose of enabling a legal activity to either the court, another lawyer, or a third party to either do or refrain from doing something,
Strict compliance is required. Undertakings not complied with will be enforced by the court. This is because lawyers are officers of the court and without enforcement they would become worthless and persons would be unable to rely on the word of a lawyer and this aspect of legal practice demands compliance for legal efficiency…
Where a lawyer has given another lawyer an undertaking which has failed to comply can lodge a complaint with the relevant legal regulator and generally this will amount to misconduct. True or false?
True
A client has asked you to provide undertaking on their behalf to the court. How should you go about this?
(1) I would provide advice to the client about the performance of the undertaking and the liability for non compliance.
(2) I would take clear and unambiguous instructions from the client to give an undertaking on the client’s behalf.
(3) When I attend court I would explain to the judicial officer that “…I have been instructed that my client undertakes to [insert]”
The danger in not making it clear who is given the undertaking is assuming personal liability.
When should a lawyer give a personal undertaking?
A lawyer should only give personal undertakings where it means the fulfilment are within their complete control as opposed to being partly dependant on the acts or omissions of another person.
Should the lawyer give a personal undertaking in this situation?
….regarding the filing of documents in a court or the swearing of an affidavit by the client…
No unless the documents are in the lawyer’s possession or the affidavit was being sworn at the time of the undertaking….this is because the lawyer has complete control over the fulfilment of the undertaking.
In Family Law litigation the court will have paramount consideration of in the interests of the child for parenting orders, location, and recovery orders.
Clarkson v Clarkson – The interest of the child is paramount, and the interest of the party are secondary.
How does the focus on the interest of the child impact the way in which counsel gives advice?
Counsel must always remain aware that interest come before his client…and therefore it is necessary to adduce all available evidence which has baring on this matter…must account of interest of non-client in providing advice and conducting the hearing…
What is the role and obligation of an independent child lawyer?
The role of an independent child lawyer is not as the lawyer for the child but rather to form a view based on the evidence and make submissions about what is in the child’s best interests.
Interestingly, where a child tells the ICL information in a confidential setting it may disclose that information to the court contrary to the client’s wishes if it is in the childs best interest.
Why should the profession maintain a high standard of ethical conduct?
The bar is essential to ensuring the proper functioning of the judicial system. This is because the bar provides the public access to specialist legal representation which assists the court in the administration of justice, and without it, the court would be unable to efficiently provide justice according to law.
Where a barristers to not maintain a high standard of ethical conduct it would diminish public confidence in the legal profession and/or the administration of justice and/or otherwise bring the legal profession into disrepute.
Why is the proper functioning of the bar important?
The proper functioning of the bar is essential to the proper functioning of the legal system. This is because the bar provides the public access to specialist advocates which will assist in the proper functioning of the administration of justice, and without it, the court would be unable to efficiently administer justice.
Why are lawyers referred to as officers of the court?
Lawyers have been referred to as officers of the court because they owe a paramount duty to the court to act with independence in the interest of the administration of justice (r 25; r 5). The duty requires lawyers to exercise independence: not to mislead the court, efficient presentation of the case etc
The duty to the client must be discharged within the limits imposed by the duty to the court. Any conflict between duties must be resolved in favour of the duty paramount to the court.
The Supreme Court retains the inherent disciplinary jurisdiction regarding lawyers: solicitors, and barristers.
The supreme court has the ability to restrain or disqualify a lawyer from representing a client where it appears to an ordinary reasonably informed person would perceive the continued appearance would be subversive to the administration of justice, however this will only be exercised in clear and exceptional cases which can include where (1) where there may be a misuse of confidential information or perception of misuse owed to former client (2) where the court had doubts about the independence of lawyer or (3) where it is clear duty to the client is being placed above duty to the court.
The court will exercise caution in using this power (1) as it deprives a person of their choice of lawyer and (2) the application may be used as a tactical advantage by the other side.
