LWB145 Week Twelve Lecture Notes
Ethics and Lawyers
Overview – Ethics in LWB145
Topic 1 – Ethics and the lawyer: duties to clients, duties to the court and duties to the administration of
Topic 2 – Structure and regulation of the legal profession in Queensland.
Ethical obligations owed to clients.
Ethical obligations owed to the court and to the administration of justice.
What is an ethical dilemma?
Three categories of ethical dilemma: a conflict between:
1. The legal practitioner’s personal interest and the duty to the client;
2. Between the duties owed by the legal practitioner to two different clients; or
3. Between the client’s interest and the proper administration of justice
Category 1: Conflict between duty and lawyer’s interest
A person who undertakes to act for another is referred to as ‘a fiduciary’.
When a solicitor agrees to act for a client the solicitor becomes a fiduciary.
Contrast an ‘arm’s length’ relationship.
Arm’s length relationship: Each party is engaged in conducting their own affairs; acting in their own self-
interest; not required to disclose everything they know to the other party.
Fiduciary duties are imposed on lawyers by reason of their specialised skill; special opportunity to exercise a
power or discretion to the detriment of the client who is accordingly vulnerable to abuse by the fiduciary.
Aspects of the fiduciary duty:
To disclose to the client everything which the legal practitioner knows that may be of assistance to the
client; not to withhold information from the client.
Not to make, or attempt to make a personal profit from the lawyer’s position, (apart from the fees).
To avoid conflicts of duty and interest – that is conflict between the duty to the client and the lawyer’s own
To protect the interests of the client.
Conflict of duty and interest
Queensland Law Society Incorporated v Carberry – Respondent solicitor signed a cheque for $10,000 on her
behalf under the power of attorney, which he used to pay off some of his debts.
‘…A legal practitioner may let a client down in many ways, mishandling of clients' money being only one of
them; but fair dealing with such money is basic.’
Overlaps with offences relating to Trust Accounts contained in the Legal Profession Act 2007 – such offences
more often than not lead to striking off.
What is a duty of confidentiality?
Legal practitioners owe a separate duty of confidentiality to the client.
The law implies a term into the contract between the solicitor and the client to the effect that
communications between the solicitor and client will be kept secret.
In order to be able to give legal advice the client must be able to tell the legal practitioner all of the
surrounding facts and anything that may be relevant.
Anything disclosed to the legal practitioner for the dominant purpose of obtaining legal advice cannot be
revealed to a third party without the client’s consent. The information is said to be ‘privileged’. Lake (Un)Pleasant?
Lawyer acting for a multiple murder.
Lawyer is told by client of other murders and where the bodies are hidden.
Lawyer checks for himself??????
Placed under enormous pressure to disclose, so that families can get “closure” and begin the grieving
Lawyer refuses to reveal the information.
Category 1: Conflicting duties to two separate clients
Conflict of duty and duty (conflicting duties to different clients).
Fundamental duty to act with undivided loyalty to a client.
How can you serve two masters?
Acting for vendor and purchaser in a real estate transaction, where there is no real area of
disagreement between parties – fully informed consent?
Acting for both former husband and former wife in an acrimonious Family Court property settlement?
How does the court ‘stop’ unethical legal representation?
One party may object to a solicitor/firm of solicitors (or even a barrister) from acting, on the basis that there
is a conflict of duties (as in the pervious example).
Options for the Court:
The Court could enjoin a firm not to act for a particular client if the conflict is severe enough and can’t
be cured – i.e. issue an injunction;
The Court may allow a firm to act, despite the conflict, provided there are assurances that information
confidential to clients is not disclosed to opposing clients.
Chinese Walls (information barriers).
Undertakings by relevant lawyers.
Acting for both parties (concurrent representation):
Is it possible to act for both parties in the context of the same transaction/legal issue?
Conveyancing of a property?
Divorce (but no property or child residence issues).
Divorce (with property and/or child residence issues).
What factors might impact on a decision as to whether this was ethical/unethical/”dangerous”?
Is it possible to act for and against a party in the context of a different transaction/legal issue?
Large commercial firm with offices in different cities.
Office A (Brisbane) acting for client in one transaction.
Office B (Melbourne) acting against the Brisbane client in a different legal issue/dispute.
What factors might be relevant . . . ??
Acting against a former client
Represented A in prior dealings, through which lawyers have become party to confidential information
about (most obvious example) financial transactions.
Approached by B to act against A in circumstances where the information they acquired in prior dealings
would be relevant to what B was proceeding against A for.
Prince Jefri Bolkiah
Prince Jefri, brother of the Sultan of Brunei, appointed to run “Brunei Inc” – investment arm of the
Falling out within the family, and Prince Jefri removed.
KPMG – accountants – had advices Prince Jefri with Brunei Inc, and subsequently approached to conduct an
investigation into the finances of Brunei Inc.
Not surprisingly, Prince Jefri didn't want KPMG to act for the government in the investigation, because they
had access to all the financial transactions/strat