LLB103 Lecture Notes - Lecture 13: Legal Services Commission, Queensland Law Society, Alternative Dispute Resolution
LLB103 DISPUTE RESOLUTION LECTURE 13: LAWYER ETHICS AND DISPUTE RESOLUTION
TO DEVELOP AN UNDERSTANDING OF:
●Ethics and ethical dilemmas in dispute resolution.
●The difference between ethical rules and making an ethical judgment.
●Sources of ethical guidance for lawyers.
ETHICAL DECISION-MAKING IS FUNDAMENTALLY IMPORTANT TO LAWYERING.
●Being able to make ethical decisions as a lawyer requires more than just a knowledge of the rules of
ethics.
●The rules are sometimes ambiguous, or simply don’t clearly apply to a situation.
●A knowledge of the rules must be supported by a personal ethical framework; a professional moral
compass.
WHY ARE LEGAL ETHICS SO IMPORTANT?
●Ethical practice is the foundation of legal professional practice because ‘lawyers occupy a critical and
sensitive place in the functioning of a society governed by the rule of law’ (QLS).
●Lawyers owe their highest ethical duty to the Court and must be ‘fit and proper’ persons to hold that
office.
●Lawyers’ ethics impact on public confidence in the profession and in the administration of justice.
WHAT ARE LAWYERS’ ETHICS?
●‘Principles and values which, along with conduct rules and common law, regulate a lawyer’s behaviour’
(QLS website).
●Professional guidance as to what is right and wrong in the conduct of daily practice.
●A reason for the public to trust the integrity of our work and of the legal system.
●A quality benchmark through an enforceable regulatory system.
THE DISCREPANCY BETWEEN PUBLIC OPINION AND LEGAL PROFESSIONAL REALITY.
●The daily stresses and rigours we face as lawyers in ensuring that our professional conduct is ethical
are not readily recognised.
●The mismatch between the way we view ourselves as an ethical profession, and society’s view of the
profession, can have negative implications for the development of a positive professional legal identity.
SOURCES OF LAWYERS’ ETHICAL OBLIGATIONS
●Extrinsic sources – such as the Australian Solicitors Conduct Rules (ASCR) and the Legal Profession
Acts.
●Common law – as found, for example, in disciplinary hearings; confidentiality and legal professional
privilege.
●Intrinsic sources – including personal values and principles of honesty, courtesy, loyalty and
competence. Often times good ethical judgment means you falling back onto your personal values and
morals as to what is right or wrong.
ETHICAL DECISION-MAKING SKILLS
●Ethical decision-making skills are complex and take time and experience to develop.
●Most ethical issues arise in the heat of the moment.
●Even the most experienced legal professionals are challenged by ethical dilemmas in their daily work.
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●To fulfil our ethical obligations as lawyers, we need to remain committed to life-long learning about
ethics and ethical decision-making.
ETHICS IN DISPUTE RESOLUTION
●Lawyer’s ethical duties when acting for clients in dispute resolution environments are the same as their
general ethical obligations in professional practice.
●For example, the Australian Solicitors Conduct Rules cover the behaviour of lawyers in dispute
resolution processes because ‘court’ is defined as including ‘(h) an arbitration or mediation or any other
form of dispute resolution.’
(ASCR Glossary of Terms).
AUSTRALIAN SOLICITORS’ CONDUCT RULES (ASCR)
●Commenced on 1 June 2012.
●Introduced a new national system of regulation of the professional conduct of solicitors in every State
and Territory of Australia.
●The rules specifically apply to the work of solicitors.
●A ‘solicitor’ is: ‘(a) an Australian legal practitioner who practises as or in the manner of a solicitor; or (b)
an Australian registered foreign lawyer who practises as or in the manner of a solicitor’.
(ASCR Glossary of terms).
THE ASCR ETHICAL RULES
●The ASCR articulate ethical rules in relation to:
○Fundamental duties
○Relations with clients
○Advocacy and litigation
○Relations with other solicitors, and
○Law practice management.
PARAMOUNT DUTY
3. Paramount duty to the court and the administration of justice
3.1. A solicitor’s duty to the court and the administration of justice is paramount and
prevails to the extent of inconsistency with any other duty.
4. Other fundamental ethical duties
4.1. A solicitor must also:
4.4.1.1 act in the best interests of a client in any matter in which the solicitor
represents the client;
4.4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.4.1.2 deliver legal services competently, diligently and as promptly as reasonably
possible;
4.5.1.2 avoid any compromise to their integrity and professional independence; and
4.6.1.2 comply with these Rules and the law.
7. Communication of advice
7.2 A solicitor must inform the client or the instructing solicitor about the alternatives to fully
contested adjudication of the case which are reasonably available to the client, unless the
solicitor believes on reasonable grounds that the client already has such an understanding of
those alternatives as to permit the client to make decisions about the client’s best interests in
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Document Summary
Llb103 dispute resolution lecture 13: lawyer ethics and dispute resolution. Ethics and ethical dilemmas in dispute resolution. The difference between ethical rules and making an ethical judgment. Being able to make ethical decisions as a lawyer requires more than just a knowledge of the rules of ethics. The rules are sometimes ambiguous, or simply don"t clearly apply to a situation. A knowledge of the rules must be supported by a personal ethical framework; a professional moral compass. Ethical practice is the foundation of legal professional practice because lawyers occupy a critical and sensitive place in the functioning of a society governed by the rule of law" (qls). Lawyers owe their highest ethical duty to the court and must be fit and proper" persons to hold that office. Lawyers" ethics impact on public confidence in the profession and in the administration of justice. Principles and values which, along with conduct rules and common law, regulate a lawyer"s behaviour" (qls website).