Ethics cases

Question 1

A Solicitor vs Law Society NSW

Answer 1

Duty of candor to disclose convictions

Fitness to remain on roll determined at time of hearing not at time of offence

Doesn’t need to be professional misconduct in order to demonstrate unfitness

Person’s behaviour, even if not involving professional conduct, may demonstrate qualities of a kind that suggest person not fit and proper

Suspended - isolated nature of offence, character references, potential for rehabilitation

Question 2

Barbaro v The Queen

Answer 2

Prosecutor obligated to make submissions on sentencing range

Court not bound to accept those submissions

Question 3

Chamberlain v Law Society ACT

Answer 3

Intentionally took advantage of mathematical errors in favour to procure consent judgment

Overring duty of honesty

Mitigating factors - isolated nature, good character - Reprimand received

Would not have been PM if just paid the amount on the notice and took no further action

Question 4

Bryson v NSW Bar Association

Answer 4

Took a loaded weapon into a pub

Though conduct personal, amounted to professional misconduct – key aggravating factor was belief he could take law into his own hands rather than involve law enforcement officials

Fine given - mitigating factors - character evidence, medical evidence of stress under

Question 5

Atwells v Jackson Lalic

Answer 5

Negligent advice given to settle on unfavourable terms

Associates immunity does not extend to work that has not relate to judicial determination or resolution of matter by that Court

Indemnity therefore does not apply to settlement by consent

Question 6

Clive Andrews Evatt

Answer 6

Released confidential communication to other side - error arose from lack of sleep, not taking usual medication, not eaten

Tried to rectify error - did not charge for work done

Costs order only

Question 7

Ziems

Answer 7

Attacked in pub - accident on way to hospital leading to fatality

Personal conduct can be grounds for disbarment if demonstrates not fit and proper person

Conviction not enough to ground disbarment - need to look at circumstances of the case

Suspended for term of imprisonment

Question 8

Clyne v NSW Bar Association

Answer 8

Made allegations in court of fraud and perjury against opposing solicitor without foundation with intent to obtain advantage

Lied to the court and deliberately misrepresented the law

Grave professional misconduct - not fit and proper

Question 9

Bar Association v Evatt

Answer 9

Excessive charging over multiple instances

No remorse or recognition of wrongdoing

Question 10

Kelly v London Transport Executive

Answer 10

Client’s claim was without proper basis - misused Legal Aid funding in obtaining multiple expert evidence reports and only one was served

Barrister should not settle medical evidence or suggest changes to content - report should be independent product of expert

Question 11

Glissan

Answer 11

Barrister told client could settle case over objections

Case merits were poor and credibility of client was of concern

Should not deprive client of choice as to how they act on instructions

If advice not accepted then proper course is to return the brief

Reprimand

Question 12

Hunter v R

Answer 12

Miscarriage of justice caused by:

1. Not ensuring separate representation for co-defendants
2. Failure to recognise different cases/defences available to different defendants
3. Neglected to adduce good character evidence when it would have assisted one defendant
4. Failed to object to inadmissible evidence

Duty to one client was in conflict with another

• Imperative that information given by client (particularly an accused who is not always reliable source of info) is checked from a source which is reliable before any forensic step is taken to raise character. Counsel bears very heavy burden when advising client in relation to raising good character.
• Also issue of accepting brief without own experienced solicitor.

Question 13

R v Kneebone

Answer 13

{Did not call mother of sexual assault complainant as witness]

Not calling witness without having a principled basis to do so (proper basis for determining is unreliable) could result in miscarriage of justice

Evidence is not unreliable simply because their account does accord with case theory

Prosecutor should call all available witnesses whose evidence it is necessary to unfold the narrative and give complete account of events upon which prosecution is based

Question 14

R v McIntyre

Answer 14

Extreme rudeness and disrespect to Judge and prosecution including in front of jury

Nature and frequency of comment - including claims of prejudice/bias

Miscarriage of justice

Question 15

diSuvero v NSW Bar Association

Answer 15

Fearless representation of client should not extent to disrespectful or abusive language

Conduct that does not amount to contempt may still breach professional conduct.

Barrister must afford appropriate respect to court, to maintain interest in administration of justice.

Objection is improper if no foundation for it, or if expressed in a form (even with foundation) that is bound to cause offence.

Question 16

NSW Bar Association v Cummins

Answer 16

Failed to lodge tax returns for 38 years

No excuse or explanation

Personal conduct reflected dishonesty and disregard for legal and civic obligations - inconsistent with qualities required for practice

Removed from roll

Question 17

NSW Bar Association v Murphy

Answer 17

[Barrister delayed taxes to help save finances, eventually declared bankruptcy.]

Fact of bankruptcy, indictable offence or tax offence not sufficient – must look to circumstances in which the act came about to see if fit and proper person

Respondent not indifferent to tax obligations – circs here do not show deficiency in character or competence as legal practitioner.

Is the conduct sufficiently connected to legal practice

Question 18

Prothonotary v P

Answer 18

[Solicitor drug addict for some years, convicted of possession of commercial quantity when entering country.]

Role of disciplinary action is protection of public. Only struck off if permanently unfit to practice

Fact of conviction and imprisonment not conclusive, but relevant

Fitness determined at time of hearing

Here, pleaded guilty, absence of prior criminal record, absence of motive for personal enrichment, honesty and cooperation with authorities, offences unrelated to practice of law and have not harmed clients, absence of premeditation, evidence of good character, self-imposed suspension from practice, delay in commencing disciplinary proceedings and clear and convincing evidence of rehabilitation.

Question 19

Legal Services Commissioner v Mullins

Answer 19

[Medical report and damages report prepared on assumption of life expectancy, which proved false when P learned of cancer. Not disclosed to other side at mediation.]

Problem not so much non-disclosure of client’s cancer, but that barrister, in mediation, continued to rely on the damages report as basis for claim for loss of wages etc, knowing that assumption in it was wrong. That was fraudulent deception of opposing party.

Question 20

NSW Bar Association v Meakes

Answer 20

[Gross overcharging and not providing fee agreement or fee disclosure. Overcharging by 66% for barrister of his experience and competency.]

Expectation legal practitioners will mount witness box to explain their conduct, rather than relying on evidence from Bar table.
Respondent grossly reckless in charging fees – not clear what time spent on or how fees calculated – at worst conduct dishonest, at best highly irresponsible.

Reprimand - conduct not part of pattern, restitution to client, length of time since offence

Question 21

Bar Association v Sahade

Answer 21

[Barrister registering for Telstra shares hundreds of times].

Willingness to engage in deceptive or dishonest behaviour will generally be a matter of central relevance to practice of law.

Persistent misconduct which is disgraceful or dishonourable will ordinarily justify order unfit to practice

At time of conduct, barrister did engage in professional misconduct, but happened a long time ago and finding of deceit long ago with respect to finances doesn’t mean dishonest and not fit and proper today. Character references where people knew of allegation suggested of good character.

Question 22

Bar Association v Howen

Answer 22

[Not filing unfair dismissal claim in time, seeking extension which was refused and not disclosing reason was because of barrister not timely causing to file.]

Evidence to IRC was misleading, and barrister knowingly preferred own interest over his own client’s.

Breached duty of candour and honesty to court, and was professional misconduct.

Question 23

Bar Association v Costigan

Answer 23

[Numerous breaches – not complying with conditions of certificate, appearing without practising certificate, applied trust fund monies towards expenses before rendering bill, did not disclose bankruptcy petition etc.]

Normal consequence of misappropriation of client money is name removed from roll.

Question 24

Kaye v Woods

Answer 24

[Serving fourth medical report just prior to trial well after obtained, and after solicitors confirmed to other side no other reports when there were. Affidavit evidence to court on report was misleading.]

• Party cannot, knowing court has been misled with respect to a material matter foster and confirm misrepresentation.
Once misleading impression created, even innocently, lawyer has obligation to correct impression.
• The fact that the true position is likely to emerge during the course of evidence is not sufficient to excuse a practitioner for misleading the court.
• Because the affidavit was drafted so as to invite the drawing of inferences which did not accord with the facts, and that in the absence of drawing those inferences the affidavit would contain nothing of relevance for the purpose for which it was brought into existence, it was misleading.

Question 25

Bar Association v Dwyer

Answer 25

Acted without holding practicing certificate

Told Bar Association he had not practiced when he had - provided false statutory declaration

Pattern of dishonesty - removal from roll

Question 26

Nguyen v the Queen

Answer 26

It is for the prosecution to decide which witnesses are called and evidence necessary to put case fully and fairly

Relevant evidence should be admitted unless there are grounds for believing witnesses are not credible or where contradicted by objective evidence

Question 27

HT v The Queen

Answer 27

Information relevant to sentencing which included information from a police informant - disclosed to the Judge but not the defence

Defence should have been able to see the evidence so that the accused could give instructions on it - denial of procedural fairness

Question 28

McKell v The Queen

Answer 28

Judge should not comment in a way that conveys their opinion as to the proper determination of fact in issue (e.g. guilt of accused)

Comments were unfairly balanced - seen as persuading jury of guilt

Comment should be directed at guiding jury on what it needs to know to do justice not the end result

Question 29

Re Davis

Answer 29

Didn’t disclose convictions in application to Bar Association or to those who supplied character references

Can have regard to conduct which occurred prior to seeking admission

Conviction of crime of dishonesty and non disclosure fatal

Question 30

Wood v R

Answer 30

Prosecutor asking questions and inviting jury to consider whether accused provided satisfactory answers is impermissible

Don’t invite jury to consider how they feel or would react in determining issues

Speculation, conjecture, suspicion can never amount to proof beyond reasonable doubt

Question 31

Gilham v R

Answer 31

Evidence can’t be admitted at a later trial when decision to admit it would be at odds with an earlier decision to reject it

Evidence of earlier crime for which has been acquitted cannot be adduced unless jury directed it can’t be used in a way which denies the acquittal

Question 32

R v Reardon

Answer 32

Running sheets not disclosed

Prosecution must disclose material evidence - take a broad view

Miscarriage of justice only if accused lost a real chance of acquittal by reason of non-disclosure

Question 33

Bar Association v Punch

Answer 33

Barrister adduced alibi evidence he knew was false due to admission by client

Barrister must not falsely suggest someone else has committed crime if client has disclosed guilt - BR 80(b)

Barrister did not give evidence as to his actual knowledge of accused’s guilt- only he could do that - inference drawn his evidence would not assist his case

Question 34

NSW Bar Association v Raphael

Answer 34

Sexual harrassment of junior solicitor- unwelcome act of physical intimacy

Previous similar conduct

Denied initially, downplayed gravity

Counselling, reprimanded

Question 35

Gould

Answer 35

Two commitments for one day, did not do anything until right at the end.]

Finding of misconduct can arise if it amounts to a grave impropriety affecting professionally character and indicative of a failure either to understand or to practice the precepts of honesty or fair dealing - in accepting second brief, misleading client in AVO matter through conference to prepare and not mentioning conflicted, mislead solicitor, and misled Bar Association in answer gave.

Taken together, disgraceful and dishonourable.