LAWS104 Lecture Notes - Lecture 10: Fiduciary, Affirmative Defense, Administrative Appeals Tribunal
LAWS 104 - LEGAL READING, WRITING & READING
Wk. 10 – Legal Practices and Ethics
The Law
The law is thought to offer a service to the public
It is not purely a business
Lawyers need to grapple with the role of lawyers in society today.
To practice law a person must swear or affirm an affidavit
The applicant for admission must be a person of good fame and character
Members of the profession are certified to possess specialist knowledge,
training and skill and to possess certain personal attributes including a strong
ethical compass (LDTL, 111)
As law students you need to be aware that you must meet this requirement if
you are to be admitted to practice.
Good Fame and Character
Before admission, intending lawyers must declare any occasion on which they
have been dealt with by a court for a criminal offence, even minor offences, or
any issue that may impact on their fitness to practice
Certifying authorities do not look kindly on later discovery of a
misrepresentation of pre-admission behaviour by an existing member of the
profession, and the failure to disclose leaves the person open to later
disciplinary proceedings.
Consider the case involving Wendy Bacon, an activist and now a professor of
journalism – RE B [1981] 2 NSWLR 372
Ms Bacon, sought to be admitted to the NSW Bar
Some years prior to her application she provided bail for a defendant she was
helping to defend. She had told the court she had borrowed the sum from a
friend and had not provided it herself
The court did not believe her and that deceit was fatal to her application to join
the bar.
In his judgment Reynolds JA said at 402 that the decision was:
•a question of whether a person who aspires to serve the law can be said
to be fit to do so when it is demonstrated that in the zealous pursuit of
political goals she will break the law if she regards it as impeding the
success of her cause.
A solicitor is prevented from providing bail for a defendant they are appearing
for or assisting.
Entering Practice
find more resources at oneclass.com
find more resources at oneclass.com
Prior to being admitted to practice law, a student must satisfy the minimum
knowledge standards
Needs to successfully pass the required courses of study – the ‘Priestley 11’
(named after then chair of Law Admissions Consultative Committee)
See page 112 for 11 areas of academic study
In addition, a student has to have completed a practical legal training course
prior to admission.
Sources of Lawyers’ Professional Responsibilty
General Law
Legislation
Model Laws trend
Post-Model Laws: Legal Profession National (and now Uniform) Law
Professional Rules (made under the authority of the Uniform Law)
General Law
Contract
Tort: duty of care
Equity: fiduciary relationship
Confidentiality
Doctrine of legal professional privilege
Aiming for Uniform Laws
Push toward national regulation of the legal profession
Aim was to achieve uniform laws regulating matters such as admission
to profession and management of legal practices
Intended to form foundation for uniform legislation in each State
Professional Conduct Rules
Law Council of Australia, the peak body for the Australian legal profession,
developed the Australian Solicitors’ Conduct Rules 2011, now incorporated in
the Legal Profession Uniform Law applying in NSW and Victoria
Rules also adopted in Qld and SA
Rules provide a single, uniform set of professional conduct rules that govern
solicitors’ professional dealings with all those to whom they owe duties
Australian Bar Association has developed similar National Conduct Rules.
Fit and Proper Person
find more resources at oneclass.com
find more resources at oneclass.com
The Conduct Rules (August 2015) list the factors to be taken into account in
deciding whether a person is fit and proper to practise law, including whether
person has:
complied with the solicitor’s paramount duty to the court and the
administration of justice;
acted in the best interests of their clients;
been honest and courteous in all dealings in the course of legal
practice;
delivered legal services competently, diligently and as promptly as
reasonably possible;
avoided any compromise to their integrity and professional
independence; and
complied with the Rules and the law.
NSW Law Society: Statement of Ethics
Exemplifies professional obligations:
We acknowledge the role of our profession in serving our
community in the administration of justice. We recognise that the law
should protect the rights and freedoms of members of society. We
understand that we are responsible to our community to observe high
standards of conduct and behaviour when we perform our duties to the
courts, our clients and our fellow practitioners.
Our conduct and behaviour should reflect the character we aspire to have as a
profession. This means that as individuals engaged in the profession and as a
profession:
We primarily serve the interests of justice.
We act competently and diligently in the service of our clients.
We advance our clients’ interests above our own.
We act confidentially and in the protection of all client
information.
We act together for the mutual benefit of our profession.
We avoid conflicts of interests and duties.
We observe strictly our duty to the Court of which we are
officers to ensure the proper and efficient administration of justice.
We seek to maintain the highest standards of integrity, honesty
and fairness in all our dealings.
We charge fairly for our work.
Maintenance of these standards is important to ensure that legal practitioners
maintain public confidence in the legal profession and the justice system and
do not bring the profession into disrepute.
find more resources at oneclass.com
find more resources at oneclass.com
