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Flashcards in Ethics Deck (33):
1

Attwells v Jackson Lalic Lawyers Pty Ltd [2016]
What are the relevant principles?

Advocate’s immunity does not extend to advice re: settlement

2

Prothonotary v McCaffery [2004]
What are the relevant principles?
What are the relevant rules?

Deceit in holding self out as counsel inconsistent with duty of candour to court and amounted to professional misconduct
Relevant rules: r 24 (barrister must not deceive or knowingly or recklessly mislead court)

3

NSW Bar Association v Dwyer (2015)
What are the relevant principles?
What are the relevant rules?

Holding self out as barrister and engaging in legal practice without PC amounts to professional misconduct
Knowingly misleading or deceptive conduct in dealings with Bar Council may amount to professional misconduct
Relevant rules: r 24 (barrister must not deceive court)

4

Re B (1981)
What are the relevant principles?
What are the relevant rules?

Barrister’s duty to court is paramount
Conduct outside practice may be inconsistent with barrister’s duty of honesty and candour to court
Relevant rules: r 23 (barrister has overriding duty to court), r 24 (barrister must not deceive court)

5

A Solicitor v Law Society (2004)
What are the relevant principles?
What are the relevant sections?

Distinction between professional misconduct and personal misconduct
Professional misconduct must be connected to professional practice, although personal conduct can demonstrate that a practitioner is not a fit and proper person to practice
Even if offences do not amount to professional misconduct, failure to disclose offences may be
Professional misconduct does not necessarily lead to removal from roll
Relevant section: s 297 (definition of professional misconduct)

6

NSW Bar Association v Costigan (2013)
What are the relevant principles?

Professional misconduct through misuse of trust moneys paid to barrister through direct access brief
Professional misconduct by practicing without practicing certificate
Unsatisfactory professional conduct through failure to notify bar association of creditors’ petitions, traffic/driving offences

7

NSW Bar Association v Evatt (1968)
What are the relevant principles?
What are the relevant rules?

Professional misconduct by facilitating overcharging by solicitors
Lack of contrition relevant to severity of offence
Relevant rules: r 35 (barrister must promote and protect client's best interests without regard to self-interest), r 47 (barrister must not exercise undue influence on client to benefit barrister)

8

NSW Bar Association v Meakes (2006)
What are the relevant principles?
What are the relevant sections?

Gross overcharging amounted to professional misconduct
Relevant section: s 172 (legal costs must be fair and reasonable)

9

Glissan (1990)
What are the relevant principles?
What are the relevant rules?

Pressure on client to settle should not overbear client’s will
Pressure on client to settle constituted unsatisfactory professional conduct (not professional misconduct)
Relevant rules: r 35 (barrister must promote and protect client's best interests), r 36 (barrister must inform client about alternatives to fully contested adjudication), r 37 (barrister must seek to assist client to understand issues in case sufficiently to permit client to give instructions)

10

di Suvero v NSW Bar Association (2001)
What are the relevant principles?
What are the relevant rules?

Insulting and offensive language in Court amounted to unsatisfactory professional conduct
Relevant rules: r 8 (barrister must not engage in conduct likely to diminish public confidence in legal profession or administration of justice)

11

Re Davis (1947)
What are the relevant principles?

Failure to disclose past convictions as indicating not of good fame and character

12

NSW Bar Association v Bryson (2003) (NSWADT)
What are the relevant principles?
What are the relevant rules?

Professional misconduct includes personal conduct short of that warranting removal from the roll
Relevant section: s 297 (definition of professional misconduct)

13

Bryson v NSW Bar Association (2003) (NSWADTAP)
What are the relevant principles?

No power to order barrister to complete further legal education

14

NSW Bar Association v Sahade (2007)
What are the relevant principles?
What are the relevant rules?

Professional misconduct in personal life: deceit in making multiple applications for shares, even though acquitted of criminal conduct
Professional misconduct not warranting removal from roll
Relevant section: s 297 (definition of professional misconduct)

15

Prothonotary v P (2003)
What are the relevant principles?
What are the relevant rules?

Conviction for serious offence not sufficient for striking out
Distinction between fame and good character: fame is reputation, character is actual nature
Order striking off roll should only be made if lawyer is permanently unfit to practice
Question of present fitness, not fitness at past time
Relevant section: s 297 (definition of professional misconduct)

16

Ziems v Prothonotary (1957)
What are the relevant principles?

‘Fit and proper’ person test
Court can look into circumstances underlying conviction; conviction is not of itself dispositive
Striking off is protective, not punitive

17

NSW Bar Association v Cummins (2001)
What are the relevant principles?
What are the relevant sections?

Professional misconduct through longstanding failure to pay taxes
Conduct outside practice may in some circumstances amount to professional misconduct
Relevant sections: ss 297 (definition of professional misconduct), 298 (examples of forms of professional misconduct)

18

NSW Bar Association v Murphy (2002)
What are the relevant principles?
What are the relevant sections?

Distinction between decision to issue practicing certificate and decision whether to remove from the roll
Bankruptcy and tax liabilities not sufficient to warrant removal from roll
Relevant sections: ss 297 (definition of professional misconduct), 298 (examples of forms of professional misconduct)

19

Legal Services Commissioner v Mullins (2006)
What are the relevant principles?
What are the relevant rules?

Obligations of candour in mediation
Breach of obligations of candour amounted to professional misconduct
Relevant rules: r 49 (barrister must not knowingly make false or misleading statement to opponent)

20

NSW Bar Association v Howen (2008)
What are the relevant principles?
What are the relevant rules?

Professional misconduct through breach of duty of honesty and candour
Professional misconduct through barrister’s preference of own interests over those of client
Relevant rules: r 24 (barrister must not deceive court), r 25 (barrister must correct any misleading statement to court), r 35 (barrister must promote and protect best interests of client without regard to own interest)

21

NSW Bar Association v Punch (2008)
What are the relevant principles?
What are the relevant rules?

Professional misconduct through running affirmative case of alibi known by barrister to be untrue
Relevant rules: r 80 (barrister cannot run affirmative case inconsistent with confession)

22

Evatt (1992)
What are the relevant principles?
What are the relevant rules?

Practitioner’s disclosure of privileged, confidential information amounted to professional misconduct
Contrition and extenuating circumstances relevant to penalty
Relevant rules: rr 114-115 (barrister must not disclose confidential information)

23

Hunter v R (1999)
What are the relevant principles?
What are the relevant rules?

Incompetence of counsel resulted in miscarriage of justice
Defence counsel failed to advise on separate representation, possible sentence, right to silence
Defence counsel made submissions inconsistent with substance of case (or reflecting 1A’s account but not 2A’s)
Obligations of defence counsel
Relevant rules: r 4 (barristers must maintain high standards of professional conduct)

24

R v McIntyre (2000)
What are the relevant principles?
What are the relevant rules?

Incompetence of counsel through rudeness to bench and expression of personal views
Incompetence of counsel jeopardised jury trust in defence counsel
Incompetence of counsel resulted in miscarriage of justice
Relevant rules: r 4 (barristers must maintain high standards of professional conduct), r 8 (barrister must not engage in conduct likely to diminish public confidence in legal profession or administration of justice)

25

Chamberlain v ACT Law Society (1993)
What are the relevant principles?
What are the relevant rules?

Practitioners should not induce or foster mistakes
Practitioners should draw opponents’ attention to mistakes, except where it would prejudice their own client
Relevant rules: r 49 (barrister must not knowingly make false or misleading statement to opponent in relation to case)

26

Kaye v Woods (No 2) (2016)
What are the relevant principles?
What are the relevant sections and rules?

Privilege waived in respect of documents through solicitor misconduct (as actions sufficient to prompt civil penalty)
Relevant sections and rules: EA s 125, BR r 49 (barrister must not knowingly make false or misleading statement to opponent)

27

Clyne v NSW Bar Association (1960)
What are the relevant principles?
What are the relevant rules?

Abuse (via unsubstantiated attacks) of barristers’ privilege to address court amounted to professional misconduct
Relevant rules: r 61 (barrister can only make allegations under privilege reasonably justified by material, appropriate for robust advancement of case on merits and where not made principally to harass or embarrass), r 65 (obligations where alleging criminality, fraud or other serious misconduct)

28

Kelly v London Transport Executive (1982)
What are the relevant principles?
What are the relevant rules?

Obligations not to interfere with expert evidence
Liability of solicitors for personal costs where claim unsubstantiated
Relevant rules: r 70 (must not encourage witness to give evidence different from evidence which witness believes to be true)

29

Gilham v R (2012)
What are the relevant principles?
What are the relevant rules?

Defendant previously acquitted must be afforded full benefit of prior acquittal
Relevant rules: r 84 (prosecutor must not press case for conviction beyond full and firm presentation of case)

30

Wood v R (2012)
What are the relevant principles?
What are the relevant rules?

Conduct of crown prosecutor caused trial to miscarry, occasioning miscarriage of justice
Questions put by Crown to jury reversed onus of proof
Relevant rules: r 84 (prosecutor must not press case for conviction beyond full and firm presentation of case), r 85 (prosecutor must not seek to inflame or bias court against accused)

31

R v Reardon (No 2) (2004)
What are the relevant principles?
What are the relevant rules?

Crown’s duty of disclosure
Duty of Crown to disclose ‘material’ documents
Relevant rules: r 87 (prosecutor's duty to disclose relevant material to opponent), r 88 (prosecutor's duties to consider withdrawal of charge if non-disclosure)

32

R v Kneebone (1999)
What are the relevant principles?
What are the relevant rules?

Responsibility of Crown to call material witnesses
Relevant rules: r 89 (prosecutor's duty to call material witnesses), r 90 (prosecutor's duty of disclosure if not calling witnesses)

33

Re Glenn Gould (1997)
What are the relevant principles?
What are the relevant rules?

Obligations in returning briefs in circumstances of clash of dates
Acceptance of briefs in circumstances where apparent prior commitments amounted to professional misconduct
Relevant rules: r 104 (barrister must not accept brief to appear on day when barrister already committed if barrister would not be able to appear in other brief), r 110 (barrister who wishes to return brief must do so in enough time to give another lawyer properly opportunity to take over case)