Ethics by topics Flashcards
Fit and proper person, including admission / re-admission - cases and legislation?
Cases:
- Ziems v Prothonotary of SCNSW
- P v Prothonotary of SCNSW
- Re B
- Re Davis
LPUL:
- s 298(e) - conviction for serious offence capable of constituting UPC or PM.
- s 87(b) - conviction for serious offence is automatic show cause offence;
- ss 299 or 302 - consequences of being found guilty for UPC or PM
- s 16 - Admission to profession
- s 23 - Removal from the roll
Bar Rules:
- 3, 4 and 8
- Any others as appropriate.
Overcharging
Cases and legislation
Cases:
- Meakes v NSW Bar Association
- NSWBA v Evatt
LPUL:
- s 172(1) - legal costs must be fair and reasonable
- s 172 - prohibition against acting in a way that unnecessarily increases costs
- s 174(1) and (2) requires appropriate costs disclosure as soon as practicable
- s 174 and 175 - costs disclosure
- s 178 - costs agreement void and can only charge a fair and reasonable amount
- s 298(a) - breach of the LPUL is capable of constituting UPC or PM.
Bar Rules:
Overcharging breaches rules:
- 3, 4 and 8
- 35 duty to the client
Cab-rank principle
Legislation, then cases
Bar Rules:
- r 17(a) - (d) - cab rank rule
- r 18 - can’t increase fees to discourage the brief
- r 21 - not obliged to accept a brief from a person who is not a solicitor
- r 22 - disclosure obligations for direct access briefs
- r 101 - briefs which must be returned
- r 103 - barrister must return brief is he holds confidential information of someone other than the client and isn’t authorised to disclose
r 104 - Prohibition against barrister double-booking himself
- r 105 - briefs which may be returned
- r 106 - barrister may return a brief on a conditional costs agreement if the client rejects a reasonable offer of settlement
- r 107 - limited circumstances under which a barrister can return a brief to defend a serious criminal charge
- r 108 - barrister’s requirements if he wishes to return a brief to accept another brief
- r 109 - Prohibition against returning a brief for a social function unless client / instructing solicitor expressly permits it
- r 110 - Any brief that is returned, must be returned with sufficient time for another legal practitioner to take over
- r 111 - promptly inform the legal practitioner if the barrister will be unable to appear
- r 112 - Prohibition against giving brief to another barrister unless the instructing solicitor consents.
LPUL:
- Under s 298(c), conduct contravening the Uniform Rules is capable of constituting UPC or PM
- Returning a brief for an improper purpose is likely to constitute UPC
- s 299 and 302 outline the applicable sanctions for UPC and PM
Relevant cases:
- Gould, Glenn Re Legal Services Tribunal - Barrister returned a brief at the last minute to accept appear in another matter and failed to warn his instructing solicitor.
Breach of prosecutor’s duties
Cases and legislation
Relevant cases:
- R v Kneebone - failure to call a material witness
- Gilham v R - Failure to call material witnesses and overzealous prosecution, sought to inflame jury
- R v Wood - overzealous prosecution through reversing the onus of proof by asking a serious of improper questions
- Reardon v R - failure to adduce relevant evidence
- Nguyen v The Queen - Duty to tender “mixed statements”; prosecution is not entitled to make a tactical decision on relevant evidence designed to maximise the chance of conviction
- ** Also just consider Palmer v The Queen and Picker v The Queen where asking the accused to speculate on why the complainant may lie reverses the onus of proof and is therefore a breach of the prosecutor’s duties too.
Bar Rules:
- r 83 - Pros to fairly assist the court to arrive at truth and impartially put all relevant evidence before the court
- r 84 - Not press case for conviction beyond a full and firm presentation of the case
- r 85 - Prohibition against inflaming the jury
- r 86 - Can’t argue any point of fact or law that pros doesn’t believe is capable of contributing to a finding of guilt
- r 87 & 88 - Pros must disclose relevant material to the opponent
- r 89 - Pros must call all material witnesses as part of its case
- r 90 - if chooses not to, must disclose details to defence
- r 91 - Duty to inform and disclose to opponent any improperly obtained evidence
- r 92 - Prohibition against conferring with accused directly
- r 93 - 95 - Integrity of the prosecutor’s evidence.
Probably also breaches rr 3, 4 and 8
- r 42 as barrister is to use forensic judgment
Different types of breaches of prosecutor’s duties and applicable Bar Rules and LPUL?
The most common types of breaches of prosecutor’s duties are:
1) Failure to call a material witness / adduce relevant evidence. This:
(a) breaches bar rules 83, 84, 87 and 89;
(b) If the prosecutor decides not to call a certain witness, they must consider withdrawing or lessening the charges if necessary, as per r 88 and disclose that decision to the opposition as per r. 90.
Relevant cases are: R v Kneebone; Nguyen v The Queen, Gilham v R and Reardon v R.
2) Overzealous prosecution. This:
(a) breaches bar rules 83, 84, 85 and 86;
(b) relevant cases are Wood v R; Gilham v R
Remember that under s 298(b) LPUL, a contravention of the Uniform Rules is capable of constituting PM or UPC.
Crown Prosecutor is also a barrister, so they owe all other duties under the Bar Rules.
Breach of duty to the client
cases and legislation
Cases:
- Glissan James Lindsay; re LPDT: improper pressure to settle; and
- Hunter v R; Sara v R: Incompetence of counsel, failure to recognise conflict, failure to object where necessary.
- NSWBA v Howen: Failure to file application in time (then separate breach for misleading the court); and
- Kelly v London Transport: Maintaining a claim with no sustainable cause of action puts own interests before client (breaches a number of other rules too re duty to court, opponent, rules 3, 4 and 8, may breach rules 60 - 64 too depending on circumstances).
Bar Rules:
- 35: Promote and fearlessly protect client
- 36: Advise client on alternatives to hearing
- 37: Assist the client to understand issues, rights and obligations
- r 38 - 41 if criminal client
- 114 - 122 re confidentiality and conflicts (particularly for r v Hunter);
- If breach as per Howen, then breached rules 57 - 59 re efficient administration of justice too;
- Also likely a breach of rr 3, 4 and 8
Attwells v Jackson Lalic.
What are the principles?
The HCA found that:
(1) The principle of advocate’s immunity should be upheld, but they rejected its extension to a settlement agreement between parties to litigation;
(2) Advice in relation to settlement is insufficiently connected to advocate’s work in the courtroom to fall within this principle; and
(3) The respondent cannot rely on advocate’s immunity from suit as a complete answer to negligence proceedings against it.
Breach of duty to client. How might it occur from the relevant case examples?
Duty to the client can occur in the following ways:
(1) Overbearing the client as per Glissan re LPDT;
(2) Incompetence / negligence as per R v Hunter, Attwells v Jackson Lalic and NSWBA v Howen
Breach of duty to the court.
How does it occur?
What are the case examples?
Breach of duty to the court can occur in the following ways:
(1) Gratuitous rudeness to the court, as per R v McIntyre and Di Suvero;
(2) Maintaining a claim that should be abandoned, as per Kelly v London Transport;
(3) Misleading the court, as per NSWBA v PUNCH, NSWBA v Howen, Kaye v Woods.
Breach of duty to the court.
What are the relevant cases and legislative provisions?
Relevant cases:
- NSWBA v Punch: Misleading the court
- R v McIntyre: Gratuitous rudeness to court, opponent and witnesses;
- Di Suvero: Rudeness to judge;
- Kaye v Woods: Misleading court about reason for non-service of report
Relevant bar rules:
- Rules 23 - 34: Duty to the court;
- Rules 3, 4 and 8; and
- Potentially a breach of rules 57 - 59, efficient administration of justice; and
- Potentially a breach of rules 60, 64, 65 in relation to responsible use of court privilege, if making unsubstantiated allegations in court.
LPUL:
- s 298(b): Conduct contravening the Uniform Rules is capable of constituting UPC or PM.
- Possible disciplinary consequences are outlined at sections 299 and 302 LPUL.
Breach of duty to the opponent.
How might it occur from the caselaw?
A breach of duty to the opponent may occur through:
(1) Lying to / misleading opponent: LSC v Mullins, Kaye v Woods and Kelly v London Transport
(2) Dealing with a represented party directly when you shouldn’t:
(3) Dealing with the court directly when you shouldn’t
(4) Discourteous dealing with opponent: R v McIntyre and Di Suvero
Note: In a lot of respects, a breach of the prosecutor’s duty also breaches the duty to the opponent. Bit of a stretch though.
