breach of duty of honesty and candor to the court and “intentionally preferring his interests to that of the client”
Honest conviction of the rightness of a lawyer’s advice does not entitle him to deprive his client of a free choice. The barrister must always, should his advice not be accepted, return his brief.
Whilst it is part of a barrister’s duty to encourage his client to settlement where he regards the case as unwinnable, long and expensive, this does not mean that counsel should, directly or indirectly, overbear his client’s will.
There is sometimes a tension between a legal practitioner’s role to protect and advance his client’s interest and acting unfairly and dishonestly. Sometimes there is a fine line between when it is acceptable to take advantage of a mistake and when it is not.
Where there is a mistake that may involve the other practitioner’s client in unnecessary expense or delay the practitioner should not do or say anything to induce or foster the mistake. To do so is detrimental to the relationship characterised by courtesy and fairness that ought to exist between members of the legal profession.
That standard is not to be lowered when the opponent is unrepresented or when a solicitor/barrister is acting for himself against an unrepresented opponent.
Whilst the matter involved the personal affairs of Chamberlain, he was using his knowledge and skills as a legal practitioner and therefore the Supreme Court was correct to characterise his conduct as professional misconduct. Whilst not directly inducing the settlement, he used sharp tactics to give himself and advantage.
Standard of conduct owed to unrep litigant cannot be lower than that owed to colleague, sol took advantage of mistake for own personal and tactical advantage… he prepared and placed a trap to ensnare him”
In a mediation scenario. negotiators anticipate a measure of honesty from each other.
Intentionally deceived by relying on report
Reprimand and fine and PM
Kelly v London Transport
- solicitors and counsel acting for legally-aided clients owe duties to court and to other side and can be made to pay other side’s costs if they fail in this; cannot claim immunity from suit which avails them only in regard to their own client
- duty is to ensure claim well-founded, not to refuse reasonable settlement offers and not incur unnecessary expenditure knowing they will be paid by legal aid
- must not run up costs with endless medical reports, and must not ask medical expert to change his report so as to favour client or conceal things that may be against him; they must not “settle” the evidence of medical experts as in Whitehouse
- essential that the absolute privilege which members of the bar enjoy in respect of defamatory statements made in court is not abused; privilege is abused if damaging irrelevant matter is introduced, and grossly abused if counsel makes statements in opening which he cannot substantiate and which may have ruinous consequences for a person; it is not enough for counsel to think he can establish his statements out of mouth of witness for the other side
- “obviously unfair and improper in the highest degree”
- note that disbarring order is not punitive: it is made, from the public point of view, for protection of those requiring protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege
- offensive or insulting behaviour in court can constitute unsatisfactory professional conduct
- public can reasonably expect barristers to accord appropriate respect to the Court, and failure to do so can be lack of “competence”
- conduct that is not contempt may still breach professional discipline
- applicable standard: barrister entitled to make known his objections concerning conduct of trial, but objection will be improper if [as here] no factual foundation for it or if expressed in a form that is bound to cause offence
- Rudeness in court can be miscarriage of justice, parituclarly where took place in front of jury
f a Barrister merely suspects his client is guilty or that evidence is untrue, that does not prevent him from running the case in accordance with his client’s instructions – the Barrister’s beliefs are irrelevant; but if the Barrister knows the truth, he cannot mislead the Court as to the facts; PMC.
it is a matter for the prosecutor to determine which witnesses are to be called in the Crown case
decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
The prosecutor should call all relevant witnesses, whether or not they advance the Crown case, unless the witness is considered unreliable or untruthful
However the Crown prosecutor must have a reasonable basis upon which to determine that the witness is unreliable before determining not to call a witness , which will require proper steps to form opinion (eg by interviewing) and it is not sufficient that the evidence of the witness merely contradicts the Crown's case
Obligation on the Crown to disclose all material to the defence ameliorates the imbalance of resources; Crown not to approach duty of disclosure narrowly; prosecutor must disclose all evidence that “on a sensible appraisal” is relevant : to be possibly relevant to an issue
- to possibly raise a new issue
- to hold out a real prospect of providing a lead as to such evidence
Crown is entitled to firmly & vigorously urge the Crown view & to test D’s case; but must always do so temperately & with restraint; cannot try to persuade the jury by introducing factors of prejudice & emotion; cannot pose questions which seem to reverse the onus of proof; breached duty of fairness & detachment.
Should only return a brief in “exceptional circumstances”; “barrister committed a grave act of impropriety affecting his professional character” which was “indicative of a failure either to understand or to practice the precepts of honesty & fair dealing in relation to his clients”; PMC.
- at common law PMC is conduct “reasonably be regarded as disgraceful or dishonourable by one’s peers”
- holding yourself out as a Barrister, particularly appearing before the Court, when not entitled to practice “undermines the system of regulation of Australian lawyers, the principal object of which is to protect the public” & “strikes at the heart of the obligation of candour”; PMC
- deceiving & misleading the council; PMC
- when considering whether to strike from the roll, question is whether “fit & proper person” at time of hearing
PMC does not always require striking off
- court not bound by statutory definition of PMC, can apply CL standard of “disgraceful or dishonourable”
- dishonesty & reckless disregard for professional obligations vis trust money; PMC
practicing without certificate was “the antithesis of the requirements of candour & honesty expected of members of the legal profession”; demonstrated lack of qualities of “character & trust” which are the necessary attributed of a person entrusted to be a lawyer; PMC
failing to deposit moneys received from direct access clients into an account maintained in connection with his law practice was appropriate characterised as a reckless disregard of his professional obligations. Further applying the moneys to person needs was dishonest = professional
Misconduct in the course of practice
Breach of client confidentiality
BR 114 – duty of confidence
Barrister disclosed content of his client’s privileged letter to McColl in relation to another matter; it showed his client was lying.
The importance of confidentiality to the client-lawyer relationship means breach of confidence is PMC; disclosure only allowed in “exceptional circumstances” to prevent “serious injustice”.
No penalty imposed because of mitigating circumstances (no sleep; baby; no medication; pro bono work for same client afterward)
Misconduct in the course of practice
gross overcharging (LPUL 172 – costs to be “fair & reasonable”)
Barrister charged excessive rates & excessive amount for work done; no record of time actually spent; 66% more than costs assessment; PMC.
- dishonesty or recklessness in overcharging would be regarded as “disgraceful or dishonourable” by peers & is PMC
even one instance of overcharging can be PMC
Misconduct in the course of practice
Evatt SNR was involved in gross and systematic overcharging on 18 occasions; scheme with solicitors to overcharge.
- gross overcharging was disgraceful conduct & is PMC
this was not “some isolated passing departure” from proper professional standards – demonstrates unfitness to remain on the roll; struck off
Misconduct outside practice
Barrister engaged in deception & dishonesty in order to obtain multiple Telstra shares.
- For misconduct unrelated to law, question is whether the underlying conduct is related to their status as a lawyer
Personal conduct involving deceptive or dishonest behaviour goes to whether a person has the “good character” required for the practice of law
Misconduct outside the law
Barrister convicted of manslaughter; drove negligently & killed a man after altercation in a pub in Newcastle. Question is whether fit & proper to remain on the roll; he was
- conviction for a serious offence is prima facie evidence that a person is not fit & proper to remain on the roll
- but the Court looks behind the bare fact of conviction to the circumstances
- question is whether the person has the requisite good character to be on the roll
- “conduct may show a defect of character incompatible with membership of self-respecting profession”
- Dishonesty or deciet of central relevance, even if outside particice. Will usuall be even more serious if in connection with practice
Misconduct outside law
Lawyer sexually abused his stepdaughters & failed to disclose a further charge to the Law Society investigating him. not struck off.
- PMC can extend to personal misconduct
- in personal misconduct cases, consider the circumstances of the conduct, & whether it is isolated
- the question is whether the personal misconduct is “so connected” to the practice of law as to be PMC
- even if personal misconduct is not PMC, it might demonstrate qualities of a kind that mean the person is not fit to practice
- fitness to practice is determined at the time of hearing
- breach of trust in the parental role was so remote from the trust reposed in solicitors that it cannot be PMC
breach of duty of candour was PMC
Proth v P
considers “fit & proper person” to be on roll
solicitor convicted of drug importation for personal use. Not struck off.
- onus is on the claimant to show that the lawyer is not a fit & proper person
- question is present fitness; not fitness at time of the crime
- order striking off the roll should only be made where lawyer permanently unfit to practice
- conviction for a serious offence is not necessarily sufficient to strike off (Ziems)
- but conviction is relevant & may carry sufficient disgrace to justify (Ziems)
- Court must consider conduct involved in the conviction & assess whether it is incompatible with the personal qualities essential for the conduct of practice – particularly where conduct over a long period shows systematic non-compliance with legal & civic obligations (Cummins)
- the attitude of the professional association is v significant
Barrister avoided tax for 38 years; PMC; struck off
- PMC can extend to personal misconduct “sufficiently closely connected to practice” or “which manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice”
- failing to pay tax is closely connected with the practice of a barrister; PMC
- long, systematic failure to observe legal & civic obligations means permanently unfit to practice; struck off
- maintenance of public confidence in the legal profession requires these declarations
failure to pay tax
Barrister did not pay tax for 7 years & went bankrupt; not deliberate avoidance; poorly advised; not struck off
- The fact of commission of an act of bankruptcy / tax offence etc is not what matters. The Court must look to the circumstance in which the act of was committed. The circumstances must show that the lawyer is not a fit & proper person to hold a practicing certificate.
failings did “not reveal such a deficiency in character or competence as a legal practitioner” that he was unfit to practice
Barrister carried loaded firearms unlawfully in Kings X; PMC; not struck off
- disciplinary proceedings against a lawyer are concerned with protection of the public
- the object is not to punish the practitioner but protect the public & maintain proper standards in the legal profession
- personal misconduct can be PMC where it would reasonably be regarded as dishonourable or disgraceful by peers
- PMC does not necessarily require striking off
Kaye v Woods
BR 23 – do not mislead the Court
BR 39 – do not mislead your opponent
Solicitor failed to serve medical report until last minute; deliberate tactical decision; but affidavit falsely suggested it was an oversight
Duty of candour applies to contested hearings (not just mediations); that duty requires the lawyer not to engage in conduct liable to mislead the Court, even if no false positive assertion is made
SC has the inherent power to remove practitioners from the roll (also under LPUL 23)
Barrister failed to disclose prior conviction for break & enter on admission as a barrister.
This was sufficient ground to remove the Barrister from the roll, despite having been admitted & approved by the Board.