Standards of Conduct
Standards of Conduct
CL—framed in terms of professional negligence: Hedley Byrne v Heller (affirmed immunity for
barristers—based on finality of proceedings—offends against res judicata—would be relitigating
something finally determined by the court || Kirby dissenting)
Unsatisfactory Professional Conduct: s418(1)
includes
conduct of an Australian legal practitioner
happening 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 Australian legal practitioner.
Relates to Competency: In Re R and in Re A (1927) (conduct which may reasonably be held to
violate or to fall short of, to a substantial degree, the standard of professional conduct observed
or approved of by members of the profession of good repute and competency)
Only relates to conduct of a lawyer in connection with the practice of law
Standard—expectation of the public
Competence = ability to deal with issues (skills, knowledge & understanding)
Diligence = careful and precise in the way you exercise your skills, knowledge &
understanding
Professional Misconduct: s419(1)
includes—
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves
a substantial or consistent failure to reach or keep a reasonable standard of competence and
diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice
of law or happening otherwise than in connection with the practice of law that would, if
established, justify a finding that the practitioner is not a fit and proper person to engage in
legal practice.
Relates to Morality—conduct which would be reasonably regarded as disgraceful or
dishonourable by other professionals of good conduct competency and repute: In Re R and in
Re A (1927) (test applied)
Includes—
In connection with legal practice—Substantial or consistent unsatisfactory professional
conduct: s419(a)
General conduct—any other conduct meaning not a fit & proper person: s419(b)
o → consider suitability matters: s419(2) [→admission] (For finding that an Australian
legal practitioner is not a fit and proper person to engage in legal practice as mentioned
in subsection (1), regard may be had to the suitability matters that would be considered
if the practitioner were an applicant for admission to the legal profession under this Act
or for the grant or renewal of a local practising certificate)
Elaborated in Barristers & Solicitors’ Rules
Power to create
o BR—bar association: s220 (The bar association may make rules about legal practice in
this jurisdiction engaged in by Australian legal practitioners as barristers)
o SR—QLS: s219 (The law society may make rules about legal practice in this
jurisdiction engaged in by Australian legal practitioners as solicitors)
Legal Practice Rules binding: s227(1)
o LPR = SR & BR: s218
Andrew Trotter LWB433 Professional Responsibility Inconsistency—Act or Regulation takes precedence over BR or SR: s229(2)
Breach of Standards
Mere examples—definitions not limited by the following: s420(3)
In considering earlier cases must recognise that moral standards change: Ex parte AG (Cth): Re
a barrister and solicitor (1972)
Liable for failure to supervise: sr37
Financial Grounds
Insolvency: s420(1)(d)
Disqualification from management of a corporation under CA: s420(1)(e)
Dishonesty: sr1
Conviction for an offence involving dishonesty: s420(1)(c)(iii)
o Fraud & stealing: Queensland Law Society Inc v Smith [2000] (previously suspended
for providing client with false info | mixing affairs with those of client—fraud for
$12k—stealing $156k = 3yrs jail—offences related to 3 parties, not in relation to
provision of legal services struck off); Gregory John Casey (defrauding bank)
Bribing or corrupting witnesses—always strike off except under exceptional circumstances:
Attorney General and Minister for Justice v Gregory (1998) (defence lawyer speaking to crown
witness during adjournment—mentioned to husband that wife‘s evidence crucial—husband ―is
there $10K in it for us‖ G ―we can arrange something‖ struck off)
o Fabrication of evidence: LSC v Karl Strom Jameson
Lying
o For own sake—Concealing conduct & sharing receipts: Adamson v QLS [1990]
(signing off on conveyancing done by non-lawyer in return for 25% cut = knowing
breach of rules re sharing receipts—covered up with false statements to QLS
professional misconduct → removal from roll reduced to 12 month suspension on
appeal & had to pay costs of trial & appeal)
o On behalf of a client
Advancing client‘s case through dishonest means: Clough v Queensland Law
Society Inc; Attorney-General v Clough [2000] (prepared misleading statements
of loss and damage—omitted reference to self-employment earnings
professional misconduct (1 limb) → suspended for 12 months | legal education
program)
Lying to Commission about guilt or innocence of client: In Re Meagher (1896)
(defence lawyer for attempted murder—defendant confessed to lawyer—lied to
commission about guilt struck off)
With documents
o False witnessing of document: Tan Ngyuen ($4000 fine)
o Writing affidavit for witnesses & altering substance: R v Noble (2000)
o Forging docs: Wherry (struck off)
Financial gain from dishonesty: Cox
Failure to disclose charges
o even if not resulting in a conviction: A Solicitor v Law Society of NSW (2004) HCA (4 x
indecent assault—good behaviour period | later more allegations by same victims—
conviction & sentence quashed—professional misconduct = original charges & failure
to disclose later charges abuse of trust, child abuse too far removed from legal
profession ↔ failure to disclose charges = professional misconduct → suspended)
o Failure to disclose tax offence charges: Re Petroulias [2004] (application for
registration—failure to disclose charges of indictable offences re tax must disclose
circumstances that could possibly be relevant → refused)
o If in doubt about disclosure should just disclose: Adamson v QLS [1990]
Andrew Trotter LWB433 Professional Responsibility Communications with Court
Scandalous & obscene submissions: Turley (Prof misconduct public reprimand)
Must be courteous to opponent: sr21
o Must not provide false information: sr18.1
Contravention of Laws: br16; sr general principle
Contravention of relevant law: s420(1)(a) (if not related to practice of law → s419 only)
o Stealing—even where not trust money: Queensland Law Society Inc v Smith [2000]
(stealing from 3P struck off)
o Deals with non-practitioners: Adamson v QLS [1990] (signing off on conveyancing
done by non-lawyer in return for 25% cut = knowing breach of rules re sharing
receipts—covered up with false statements to QLS professional misconduct →
removal from roll reduced to 12 month suspension on appeal & had to pay costs of trial
& appeal)
o Tax evasion: Coe’s Case; Cain (failure to lodge reprimand)
o Aggravated assault: In a Solicitor (2 daughters of housemate—unlikely to reoffend but
did not disclose suspended)
o money laundering: Barrister’s Board v Darveniza [2000]
Conviction for—
o serious offence: s420(1)(c)(i)
= Indictable offence: Sch 2
o tax offence: s420(1)(c)(ii); Re Petroulias [2004] (application for registration—failure to
disclose charges of indictable offences re tax must disclose circumstances that could
possibly be relevant → refused); Coe’s Case (tax evasion—put on good behaviour bond
for 2 years struck off)
o offence involving dishonesty: s420(1)(c)(iii)
Conviction will not necessarily require striking off: Ziems v Prothonotary of the Supreme
Court of New South Wales (1957) HCA (barrister gets in fight at bar—advised to go to
hospital—drove wrong side of road, hit cyclist | inconclusive evidence that drunk—convicted
of manslaughter (2yrs jail) striking off reduced to suspension—small mistake even if drastic
consequences does not mean not a fit & proper person || Dixon CJ in dissent—conviction
removes confidence of community)
o ← Must look beyond conviction to look at all the circumstances: Ziems per Fullagar J
(manslaughter but exceptional circumstances striking off reduced to suspension
while in jail)
Especially if could readily translate into professional activities (money laundering): Barrister’s
Board v Darveniza [2000] (failure to disclose conviction for supplying dangerous drugs at
admission—came to light later—offered money laundering services—still involved in drug
activities (lied that ceased drugs at admission) struck off)
Disrespect for the law: Barrister’s Board v Darveniza [2000] (failure to disclose drug
convictions struck off)
Indecent dealing with a minor: Pratt
Breach of BRs & SRs
Breach may constitute unsatisfactory professional conduct or professional misconduct
Of their own right: s227(2) (Failure to follow LPR → may be unsatisfactory professional
conduct or professional misconduct)
as a ‗relevant law‘: s420(1)(a) & s7 AIA, s7 SIA
Failure to Comply with Disciplinary Orders
Order of disciplinary body: s420(1)(f) (eg failing to pay fine)
Compensation order: s420(1)(g)
Breach of Duty to Client
Andrew Trotter LWB433 Professional Responsibility Acting for both sides in conveyancing transaction: Ex parte AG (Cth): Re a barrister and
solicitor (1972) (acting for both sides in a conveyancing transaction more than negligence,
but arose from inexperience rather than immorality → unprofessional conduct → reprimand
sufficient)
Preferring own interests over those of client: Baker v Legal Services Commissioner
(overcharging struck off)
Loaning money to client—creates personal interest: Harvey; Re Fabriciu (error made due to
inexperience not dishonesty 2 year suspension)
Overcharging: s420(b); Baker v Legal Services Commissioner [2006] (overcharging—charging on no
win no fee | recommending $10k settlement when legal fees $19 | charging for services which hadn‘t
been provided | overstating amount professional misconduct → struck off)
Charging on no win no fee even if no favourable outcome: Baker
Recommending settlement for less than legal fees: Baker
Overstating amount on bills—charging clerk at partner rates etc: Baker
Deceiving clients out of money: In Re R and in Re A (1927) (neglected to prepare bills of
sale—received money for fees without handing to client || instituted appeal from conviction but
not within time limit—asked client to pay costs even though knew it wouldn‘t go through
both unprofessional conduct)
Gross Negligence
Delay
o Gross delay & neglect of case: Re WC Mosley
o Serious delay & lack of communication: LSC v Williams
Depends on level of sophistication of client: Legal Services Commissioner v
Williams [2005] (delay & lack of communication unsatisfactory professional
conduct)
o Unreasonable delay → UPC: Re King; Re Libling
Failure to notify client of hearing dates & orders made against them: Legal Services
Commissioner v Voll [2008] (substantial & consistent failure to reach or keep reasonable
standard of competence & diligence → professional misconduct)
Holding briefs to long before returning them: Gould (knew client would be forced to take on
inexperienced & ill-prepared counsel misconduct)
Dealings w Trust Money
Generally treated strictly—nearly always professional misconduct: Xavier
May not be struck off if negligent but not dishonest: LSC v Fergus (but not struck off)
Sexual Relations
Sexual harassment: br127; 128
Intimate relationship w judge—must disclose: Kennedy
With opposing counsel
o Failure to disclose material relationship between opposing counsel: Michael Carl Szabo
[2000] (defence & prosecution counsel effectively de facto relationship—relationship
terminated just before trial—immediately after trial moved back in together—accused
appealed conviction failure to disclose relationship = reasonable apprehension that
counsel compromised → conviction quashed)
o Married counsel can oppose each other—just have to declare relationship: Michael Carl
Szabo (counsel working in same chambers = counsel married & living together—if
disclose then client can make their own judgment)
o Test is a fair-minded, informed observer as to whether would prevent from advancing
the client‘s case
Sleeping with clients—must look at all the circumstances
o Considerations— (Bar Association of Queensland v Lamb [1972] (relationship between
lawyer & client in this case not so bad as to require striking off))
Andrew Trotter LWB433 Professional Responsibility Power imbalance
Any psychological issues or vulnerability on the part of the client
Dependence on legal practitioner
Breach of trust
Taking advantage
o Not always warranting strike off: Lamb
o If other dishonesty etc also → strike off: Legal Practitioners Conduct Board v Morel
(2004) (defence lawyer screwing prisoners—said had a stigma that needed to create
dependant relationships—also lied to jail staff about visits—compromised
independence of advice to clients struck off—detriment to clients | integrity as
practitioner)
For example where obtaining confidential information on psychological state &
using to convince her to have sex: Tante v Herring (US)
o Should suggest client gets independent legal advice: BAQ v Lamb
Actions & Character Generally
Violence
Extreme violence without provocation may result in disbarment: Law Society NSW v McKean
(stabbed de facto & her 5yo); In A Solicitor (2 daughters of housemate—unlikely to reoffend
but did not disclose suspended)
o Tribunal generally will not accept psychiatric evidence: McKean
If no dishonesty involved and can be put down to stress or some other factor, may not be
disbarred: Law Society SA v Poidevin
Extreme Political Disposition
Offences against the State: Re Margolis (1921) (advocating anarchism—avoiding conscription
struck off)
Extreme political activism inconsistent with respect for the law: Re B [1981] (former
journalist—behaviour pattern suggested she would break the law if she didn‘t agree with it
admission refused)
General Moral Turpitude
Using false name on a bank account: Champan (→reprimand)
Organising a rave where persons likely to take drugs: Brief (UPC)
See also Suitability Matters for admission [→Admission]
Displays of contempt for court system—threats to court officers etc: Re Bell [2005]
Plagiarism: Re Liveri
Crime—but so remote that irrelevant—eg if acquitted: Del Castillo (2001) (tried & acquitted of
murder of friend—did not disclose admitted anyway—so remote from legal practice that
irrelevant)
NOT political outlook, race, colour, religion or otherwise: Julius (sold communist literature)
o unless would indicate that they would break the law: Re B [1981] (journalist with
contempt for law—evidence showed that would break the law if she thought it was
unjust refused admission)
Penalty
Court is the guardian of the legal profession—registrar can‘t just register practitioners to put
beyond court‘s reach: Re Petroulias [2004]
Ct has inherent power to discipline—not punish but protection of public: Clyne; Kennedy
Disciplinary ↔ Criminal
Not criminal proceedings
Civil, Criminal and Professional actions do not constitute double punishment: Ziems v
Prothonotary of the Supreme Court of New South Wales (1957) (manslaughter & suspension)
Standard of proof—BOP (not criminal): Adamson v QLS [1990]
Andrew Trotter LWB433 Professional Responsibility Object—protection of profession & public: In Re Meagher (1896) (―I know that removing
him from the roll means professional ruin for him and therefore the court discharges its duty
with utmost pain. But at the same time it is the duty that the court owes to the public and no
matter how much pain it can cause – it is a duty from which the court must not shrink.‖)
Determining Culpability
Striking off—Should not be struck off unless no longer a fit & proper person: Ex parte AG
(Cth); Re a barrister and solicitor (1972) (acting for both sides in a conveyancing transaction
more than negligence, but arose from inexperience rather than immorality → unprofessional
conduct → reprimand sufficient)
Partner can be liable for failure to supervise—liable for any legal and fiduciary duties avoided
by employees (legal or support staff): Baker v Legal Services Commissioner [2006]
(overcharging—partner failing to supervise sending of accounts professional misconduct →
struck off)
Must look beyond result to all the circumstances: Ziems per Fullagar J (manslaughter but
exceptional circumstances striking off reduced to suspension while in jail)
Mitigating Factors
Remorse: AG v Bax
Lack of experience
o not a defence for dishonesty & betrayal of fundamental parts of the legal system: AG v
Bax; AG v Gregory (bribing witness—evidence that taking medication for anxiety
struck off)
o May be a mitigating factor if a mistake rather than dishonesty: Re Fabriciu (loaned
money to client—error made due to inexperience not dishonesty 2 year suspension)
Anxiety to advance client‘s interests
o not a defence for dishonesty & betrayal of fundamental parts of the legal system: AG v
Bax; AG v Gregory (bribing witness—evidence that taking medication for anxiety
struck off)
o May be a mitigating factor where not acting for own benefit but due to grave
misjudgement & anxiety to advance client interests: LSC v Mullins (2006) (barrister—
knowingly misled insurer about life expectancy ← client had cancer but continued to
rely on old Evidex reports professional misconduct | otherwise of good character,
mainly because of anxiety to advance clients‘ interests & grave misjudgement → public
reprimand & substantial fine)
↔ where no evidence led—merely acting in a client‘s interest is not a mitigating
factor: NSW Bar Association v Punch [2008] (led alibi evidence for
accused=client & 4 supporting witnesses—knew to be untrue as client told him
he was present professional misconduct—no evidence of motivation,
remorse, rehabilitation etc → struck off)
Some indiscretions may be so far removed from legal practice as to be irrelevant: A Solicitor v
Law Society of NSW (2004) HCA (indecent assault || but failure to disclose charges
suspended)
o Crime so remote that irrelevant—eg if acquitted: Del Castillo (2001) (tried & acquitted
of murder of friend—did not disclose admitted anyway—so remote from legal
practice that irrelevant)
Misjudgement rather than dishonesty: LSC v Mullins (2006) (barrister—knowingly misled
insurer about life expectancy ← client had cancer but continued to rely on old Evidex reports
professional misconduct | otherwise of good character, mainly because of anxiety to
advance clients‘ interests & grave misjudgement → public reprimand & substantial fine)
Trauma giving rise to difficulty admitting to failure: A-G & Minister for Justice Qld v Priddle
[2002] (trust accounting—P=trustee made poor investments & lost money—sparse accounting
records—previously held hostage by gunman—failed to respond to request for updates from
beneficiaries not deceitful—arose from difficulty admitting poor judgment to
relatives=beneficiaries → suspension only)
Andrew Trotter LWB433 Professional Responsibility Not Mitigating
Heavy dosage of medication to cloud judgment → not a mitigating factor: AG v Gregory
(bribing witness—evidence that taking medication for anxiety struck off)
Mental illness explains but does not excuse: LPB v Phillips (also, does nothing to explain lack
of candour & disclosure)
o Does not excuse lack of candour: LPB v Phillips
o But depression may show that not deliberate: Harrison (had a mental block about filing
tax returns—depression helped explain this)
Personal stresses → not a mitigating factor—strict compliance required at all times: LPC v
Hannaford
Aggravating Factors
Dishonesty & lack of candour—if minor may become serious if not frank or gives false
explanation: Livesey per Moffitt J
Refusal to give evidence & treating disciplinary proceedings as adversarial: Veron
Andrew Trotter LWB433 Professional Responsibility Cases
Concealing client’s guilt of murder
In Re Meagher (1896) 17 NSWR 157
Meagher defended a person charged with murder
The person was convicted of that murder
It later turned out that the accused person had confessed his guilt to Meagher
A commission was appointed to investigate the accused‘s guilt or innocence, and Meagher was
involved in this
Meagher took steps to imply that the accused was not guilty, even though his client had told him
otherwise
This became public knowledge
The issue was whether Meagher had the capacity to be and remain a member of the legal
profession
HELD: Meagher was struck off the Roll
The test to be applied was whether the practitioner was fit to be on the Roll
There was a 2 step approach in this case –
o Not punishment, but rather reassurance to the public
o Determination of whether the practitioner was a ‗fit and proper person‘
Failure to act on client’s instructions and lying about progress of case
In Re R, a practitioner of the Supreme Court and in Re A, a practitioner of the Supreme Court
[1927]
2 practitioners in South Australia were held to be guilty of unprofessional conduct by the
Statutory Committee of the Law Society in SA which had jurisdiction to deal with disciplinary
matters
Practitioner R neglected to prepare bills of sale for several months without excuse and had
concealed the true state of facts from his client and had also received moneys for costs and fees
connected therewith and had not returned the same
Practitioner A was instructed to institute an appeal from a conviction, but took no steps to do so
in the time allowed, and after the time expired wrote to his client untruly stating that he had
instituted the appeal, demanding costs from his client
HELD:: Both practitioners were found guilty of unprofessional conduct
NB: unprofessional conduct is wider than professional misconduct
Historically, the question for professional misconduct is whether anything that has been done
by the practitioner in the pursuit of his profession would be reasonably regarded as disgraceful or
dishonourable by other professionals of good conduct, competency and repute
This test for professional misconduct connotes immorality and ethical considerations, and is
tested by the standard of others in the legal profession (c.f. LPA which also considers the
standards of society)
The question for unprofessional conduct is conduct which may be reasonably be held to violate
or to fall short of, to a substantial degree, the standard of professional conduct observed or
approved of by members of the profession of good repute and competency
This test for unprofessional conduct has less ethical considerations, and assesses the standards
of competency
which may reasonably be held to violate, or to fall short of, to a substantial degree, the
standard of professional conduct observed or approved of by members of the profession of good
repute and competency’.
Andrew Trotter LWB433 Professional Responsibility Solicitor acting for both sides in conveyancing
Ex parte Attorney General for the Commonwealth: Re a barrister and solicitor (1972) 20 FLR 235
A solicitor acted for both sides to a sale and purchase of a house
Order made by the AG to show cause why an order should not be made by the court that he be not
entitled to practise as a barrister and solicitor in the ACT, or alternatively, why an order should not
be made that his entitlement to practise as a barrister and solicitor in the ACT be suspended for
such period as the court may deem fit
HELD:
That reprimand was appropriate:
the solicitor‘s conduct was more than mere negligence, but arose from inexperience, mistakes of
law and the general lack of understanding of solicitors‘ duties to clients
He overestimated his ability to be able to separate his interests
He was clearly negligent – the client‘s remedy lay in common law negligence
He did engage in unprofessional conduct, but it was not of such a degree to justify the suspension or
removal from the Roll
The only relevant question when considering removal from the Roll is whether the legal practitioner who
has been charged is a fit and proper person to remain a member of the profession
Earlier cases are relevant – although behaviour may be viewed differently at different times
Sharing receipts: sr33
Adamson v Qld Law Society [1990] 1 Qd R 498
A practitioner had shared receipts with an unqualified person
The scheme was that the unqualified person worked as a conveyancer in her own business and
had the practitioner sign off on the work she brought in
The profits were split 75% to 25%
The practitioner knowingly breached one of the QLS rules about the sharing of receipts
The unqualified conveyancer eventually left his business and she took the files and clients
The practitioner then made a complaint to the QLS and covered up his misconduct by making
false and misleading statements and they said that the practitioner did not exercise supervision
The practitioner tried to argue that the conveyancer was employed by him, but she was not
receiving wages or bonuses for her work – she was getting 75% of the receipts, so it was more
like a partnership
The Statutory Committee of the Queensland Law Society Incorporated ordered that the
appellant's name be struck off the roll of solicitors and that he pay the costs of the Society.
The allegations brought before the Statutory Committee were that the appellant had shared
receipts from his practice with an unqualified person, that he had knowingly breached r 67(1) of
the Rules of the Queensland Law Society, that he endeavoured to cover up his misconduct by
making false and misleading statements to the Society and its officers and that he had failed to
exercise satisfactory supervision over the unqualified person who was permitted to perform the
duties of a solicitor in relation to the conduct of clients‘ affairs.
The Statutory Committee was not satisfied of the allegations concerning unsatisfactory
supervision, but was satisfied of the substance of the remaining allegations.
The Committee, in reaching its conclusion that such behaviour constituted professional
misconduct, did not give reasons or set out all the facts upon which its conclusion was based.
HELD: allowing the appeal:
(1) That disciplinary proceedings before a professional tribunal could not generally be regarded
as criminal proceedings whether or not the tribunal had the power to impose a fine.
Consequently the civil standard of proof applied.
(2) That the test of professional misconduct was whether the conduct violated or fell short of,
to a substantial degree, the standard of professional conduct observed or approved by
members of the profession of good repute and competency.
Tribunal’s Obligation to give Reasons:
Andrew Trotter LWB433 Professional Responsibility (3) The Statutory Committee, in exercising the important a function of striking professionals
off the role, had to give reasons where was necessary to enable the matter to be properly
considered on appeal.
The duty arose whenever there was conflicting evidence and whenever the Committee
had a view that might help to explain why it concluded that professional misconduct had
been established.
(4) Having regard to the limited basis on which the find
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