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Lecture

2.1 Duties--To the public (Professional Conduct)

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
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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