Ethics Cases

Question 1

Ziems

Answer 1

Removal from the roll is protective, not punitive; strike off is permanent.
Conviction does not always necessitate conclusion barrister is not fit and proper.
Personal misconduct may be grounds for disbarring because it reveals some unfitness in terms of person’s character or qualities, but conviction for personal misconduct does not necessitate conclusion that barrister is unfit to practice.

Question 2

Chamberlain

Answer 2

Where conduct involves the use of a legal practitioner’s legal knowledge and skills, it should be considered professional conduct, notwithstanding that it is engaged in with respect to private or personal matters.
It is professional misconduct for a legal practitioner, knowing of an opponent’s mistake to take steps to take advantage of that error.
Use of court processes to obtain an advantage from an opponent’s mistake is professional misconduct and violation of barrister’s duty to the court.

Question 3

Cummins

Answer 3

Professional misconduct may include acts not in practice but sufficiently connected which manifest the presence or absence of qualities incompatible with practice. Failure to file tax return sufficiently connected with practice to constitute professional misconduct.

Question 4

Murphy

Answer 4

Bankrupt through poor financial literacy. Whether act of bankruptcy constitutes not being fit and proper, need to look at the facts

Question 5

Bryson

Answer 5

Barrister went to pub with guns for protection, took the law into his own hands

Question 6

Proth. v P

Answer 6

10 principles to determine whether a person is fit and proper:
1. Onus is party asserting fact to prove lawyer is not fit and proper.
2. Striking off only when lawyer is permanently unfit.
3. Conviction for prior offence is not necessarily sufficient to justify strike off (Ziems).
4. Conviction is not irrelevant as it carries disgrace (Re Davis).
5. Court must consider the conduct within the conviction.
6. Plea of guilty weighs in favour – remorse.
7. Personal misconduct may demonstrate unfitness where conduct is incompatible with qualities essential for practice.
8. Attitude of peers is significant.
9. Good fame and character is reputation and actual nature.
10. Present fitness is relevant, not fitness at time of the offence (Sahade; A Solicitor).

Question 7

A Solicitor

Answer 7

Personal conduct as distinct to professional conduct.
Indecent assault did not demonstrate unfitness to practice, nor was the ‘trustworthiness’ of a parent relevant to the trust required of the legal profession.
Failure to exercise duty of candour and was professional misconduct.

Question 8

Sahade

Answer 8

Dishonest behaviour in TLS IPO.
Dishonesty or deceit not connected with practice may constitute professional misconduct as the deceitfulness demonstrates unfitness to practice.
In assessing fitness, fitness is determined at time of hearing.
Contrition and brief nature of misconduct showed barrister was fit and proper.
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Question 9

Re Davis

Answer 9

Non-disclosure of break and enter offence showed lack of candour; struck off.

Question 10

Clyne

Answer 10

Bullying/intimidation tactics constituted strike off from roll.
It is unfair and improper for a B to make statements against a person unless the B knows that he or she has, and intends to adduce, evidence to support those statements.

Question 11

Evatt

Answer 11

Charging excessive fees is professional misconduct. By placing the barrister’s own interests above those of his client demonstrated unfitness to practice.

Question 12

Kelly

Answer 12

Legally aided matter; pursued claim with no prospects of success.
Counsel must not ask expert to change his report to favour claim or conceal things that are against him, and expert evidence must remain independent.

Question 13

Glissan

Answer 13

Overbore client’s will; cannot force a client to settle; clients need to have free choice

Question 14

Gould

Answer 14

Barrister accepted brief when already briefed and caused a clash

Question 15

Hunter

Answer 15

Counsel briefed for two co-caused failed to recognise conflict between them.

Question 16

McIntyre

Answer 16

Incredibly rude counsel in court, SC described conduct as ‘appalling’

Question 17

Di Suvero

Answer 17

Insulting Judge and other side amounted to UPC, accused court of bias (‘star chamber’ allegation)

Question 18

Mullins

Answer 18

Failed to disclose material expert report regarding recent diagnosis of cancer during settlement negotiations

Question 19

Meakes

Answer 19

Serious overcharging; failed to disclose costs details

Question 20

Costigan

Answer 20

Dispersed money held on trust without authorisation; practised without a PC; failed to properly disclose to direct brief clients

Question 21

Howen

Answer 21

Lied to court about delay, said that it was due to client’s mental illness

Question 22

Kaye v Woods

Answer 22

Tresscox lawyers mislead court regarding availability of an expert report. Even if breach is only temporary, need to rectify it ASAP.

Question 23

Attwells

Answer 23

Advocates immunity does not extend to settlement negotiations

Question 24

Dwyer

Answer 24

Practising without a PC

Question 25

Punch

Answer 25

Barrister coached witness in the cells to give false evidence

Question 26

Clive Andrews Evatt

Answer 26

Disclosed privileged correspondence by accident; mitigating factors considered

Question 27

Raphael

Answer 27

Sexual harassment of lawyer (“husband getting jealous of how much time we spend together”)

Question 28

EFA

Answer 28

Sexual harassment of female barrister at function (gestured fellatio to female colleague)

Question 29

Kneebone

Answer 29

Prosecution’s duty to call all material witnesses

Question 30

Gilham

Answer 30

Failure to call material witness resulted in miscarriage of justice; wielding a knife in closing submissions prejudicial to jury

Question 31

Reardon

Answer 31

All relevant material must be disclosed, even if only possibly relevant

Question 32

Bradley

Answer 32

Service of brief of evidence under s183 of CPA is no substitute for duty of disclosure and requires prosecution to take broad view of relevance

Question 33

Nguyen

Answer 33

Prosecution did not tender ERISP in second trial, resulted in miscarriage

Question 34

HT v R

Answer 34

Police informant; both sides need to have full info otherwise unfair

Question 35

Barbaro

Answer 35

Submissions on range of sentencing not taken into account by court when exercising discretion. Prosecution can submit on facts, principles and comparable cases, but not range of sentencing.

Question 36

Wood

Answer 36

Prosecution’s duty is not to obtain a conviction but to lay before the jury what the Crown considers credible evidence relevant to alleged offences and also carries a duty to present a case fairly and completely.
Reversal of the onus of proof to pose 50 rhetorical questions to jury.

Question 37

McKell

Answer 37

Summary by judge (s161 CPA) is to assist jury with a fair and accurate statement of the case of each party. Judge entitled to express a view but not persuade a jury.