LLB197 Lecture Notes - Lecture 6: Nanny, High Standard Manufacturing Company, Professional Liability Insurance
Week 6 – Duty of Competence and Care
Control – Admission
• Academic & PLT prerequisites for a s. 19 compliance certificate : s17(1)Uniform
Law (Ch. 3 text)
(a) Specified academic qualifications prerequisite (see r 5 Uniform Admission Rules)
– 3 year approved degree
(b) Specified practical legal training prerequisite (see r 6 Uniform Admission Rules) –
approved PLT or workplace training
(c) Section 49 Uniform Law
- Restricted practising certificate
- Supervision for 2 yrs (if did PLT), 18 mths if workplace training
Duty to be Competent
Uniform Law
• Sections 296 and 297
- odut ...that falls shot of the stadad of opetee ad diligee that a
member of the public is entitled to expect of a reasonably competent Australian
legal patitioe
- sustatial o osistet failue to eah o aitai a easoale stadard of
opetee ad diligee
• Breach of duty amounts to misconduct → discipline
Rule 4 Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and
4.1.5 comply with these Rules and the law
296 Unsatisfactory Professional Conduct
For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in
connection with the practice of law that falls short of the standard of competence and diligence that a member
of the public is entitled to expect of a reasonably competent lawyer.
find more resources at oneclass.com
find more resources at oneclass.com
Duty to the client: client-focused atio i…
• Contract – based on retainer
- Implied term
- NB. Can limit (but not reduce) – general principles of construction/exclusion
• Equity – fiduciary obligations
- Concurrent with duty of loyalty
• Tort – negligence
- Duty of care established by solicitor/client relationship
- Breach of the duty – failed to do what reasonable person would do to prevent
foreseeable risk
- Caused loss – cannot be too remote
- DEFENCES – contributory negligence and voluntary assumption of risk
• R 4.1.3 Uniform Conduct Rules (Solicitors) provides there is a requirement that
practitioners serve their clients with both competence and diligence
Client
• Can choose action in contract or tort
- Astley v Austrust Ltd (1999) 197 CLR 1
• Consider:
- Damages
▪ Contract = expectation; Tort = reliance
- Proof of elements, particularly loss
▪ Contract = breach of term; Tort = causation
- Limitation statutes
▪ Contract = starts at breach; Tort = starts at loss
- 3rd parties
▪ Contract = Privity; Negligence can extend to 3rd parties
297 Professional Misconduct
(1) For the purposes of this Law, professional misconduct includes—
a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or
consistent failure to reach or maintain a reasonable standard of competence and diligence; and
b) conduct of a lawyer whether occurring in connection with the practice of law or occurring
otherwise than in connection with the practice of law that would, if established, justify a finding
that the lawyer is not a fit and proper person to engage in legal practice.
(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal
practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered
if the lawyer were an applicant for admission to the Australian legal profession or for the grant or
renewal of an Australian practising certificate and any other relevant matters.
find more resources at oneclass.com
find more resources at oneclass.com
Competence: Standard of Care (text pg 283)
• Characteristics of competent lawyer subject to research in 1980s and 90s →
development of practical legal training programs to produce competent lawyers
• Copetee = the ailit to pefo a age of legal tasks, ad sole a age of
legal problems according to measurable standards within the framework of the rules
of odut ad the ethis of the legal pofessio tet p28
• Not just knowing what the law is. Need to be able to use it to solve problems
• Miiu stadad applied to a sigle otet ad tasatio at a tie… it ill e
different in different times ad plaes
• A fous o opetee aspies to effiiet ad effetie seie
• Use law as a tool to help clients → give effect to legitimate goals of clients
• At common law the test has been whether the solicitor exercised a reasonable and
competent degree of skill
• It is an objective standard of care
• Aspects regarded as generic in the course of knowledge, skills and attitudes which
competent lawyers bring:
- Attitudes of professional responsibility
- Sensitivity to client needs and concerns
- Ethical behaviour
- Knowledge of law, practice and procedure
- Highly developed oral and written communication skills
- Analytical abilities
- Problem-solving capabilities
- Organizational efficiency
• Cannot be excluded by clause in retainer
- Can be limited – but not reduced
• Firmly embedded in legislation → UPC and PM (text pg 286)
Threshold Learning Outcomes (TLOs) for law acknowledge the importance of teaching ethics
→ what a law graduate is expected to know, understand and be able to do as a result of
learning (text pg 285)
• Ethics are mentioned in TLO 1 on Knowledge, which recognises that law graduates
eed a udestadig of koledge that iludes a the fudaetal aeas of the
Australian legal system, underlying principles and concepts, (b) the broader contexts
within which legal issues arise (c) the principles and values of justice and of ethical
patie i laes oles
National Competency Standards for Entry Level lawyers (the Competency Standards) →
accepted in all jurisdictions → ust e ale to deostate the hae the koledge,
alues, attitudes ad skills euied to patise la opetetl
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 6 duty of competence and care. Control admission: academic & plt prerequisites for a s. 19 compliance certificate : s17(1)uniform. 3 text) (a) specified academic qualifications prerequisite (see r 5 uniform admission rules) 3 year approved degree (b) specified practical legal training prerequisite (see r 6 uniform admission rules) approved plt or workplace training (c) section 49 uniform law. Supervision for 2 yrs (if did plt), 18 mths if workplace training act in the best interests of a client in any matter in which the solicitor represents the client; 4. 1. 2 be honest and courteous in all dealings in the course of legal practice; 4. 1. 3 deliver legal services competently, diligently and as promptly as reasonably possible; 4. 1. 5 avoid any compromise to their integrity and professional independence; and comply with these rules and the law. Duty to the client: client-focused a(cid:272)tio(cid:374) i(cid:374) : contract based on retainer. Can limit (but not reduce) general principles of construction/exclusion: equity fiduciary obligations.
