Revision Questions Flashcards
(24 cards)
What is the significance of the case of Giannarelli v Wraith?
Giannarelli v Wraith (1988) 165 CLR 543 is a landmark High Court decision that established the principle of advocate’s immunity in Australian law. The Court held that barristers (and by extension, solicitors) cannot be sued for negligence in relation to work done in court or work intimately connected with court proceedings. The rationale for this immunity is grounded in public policy—specifically, the need to protect the finality of litigation and ensure lawyers can make independent forensic decisions without fear of being sued. While the immunity does not apply to all legal work, it covers conduct directly affecting how a case is run in court. The principle was later affirmed in D’Orta-Ekenaike v Victoria Legal Aid (2005), though it continues to attract criticism for limiting clients’ ability to seek legal redress.
Civil Liability Act 2002 (NSW) s 5O – why is it relevant?
Section 5O of the Civil Liability Act 2002 (NSW) sets out the standard of care for professionals in negligence cases. It essentially provides a defence for professionals—such as doctors, lawyers, or engineers—when their conduct aligns with widely accepted professional standards.
Explanation:
Subsection (1): A professional is not liable for negligence if they acted in a way that was widely accepted by their professional peers in Australia as competent practice at the time the service was provided. This means the standard is judged based on what was considered reasonable by other professionals in the field.
Subsection (2): The court can reject peer professional opinion if it finds the opinion to be irrational, meaning the opinion lacks logical basis or credibility.
Subsection (3): If there are multiple accepted approaches within the profession, a professional can rely on any of them as a defence—even if others would have acted differently.
Subsection (4): The opinion doesn’t need to be universally accepted—widespread acceptance is enough.
Can a barrister reject a repugnant client?
Under r 101(f) of the the Barrister Conduct Rules, they are able to return a brief if their professional conduct may be challenged. While not explicitly mentioned that barristers can reject repugnant clients under the Cab Rank Principle, this could be a potential argument
Who is responsible for the discipline of solicitors in New South Wales?
Office of NSW Legal Services Commissioner (OLSC)
Established by s 398 of the LPUL, the Commissioner for Uniform Legal Services Regulation monitors, reviews and issues guidelines and directions to the local regulatory authorities concerning Ch 5 functions of the LPUL (Dispute resolution and professional discipline). The Commissioner may issue guidelines about complaints functions to ensure consistency between jurisdictions but cannot determine particular disciplinary matters. This is left to the designated local regulatory authorities (DLRAs).
What is the duty of candour and to whom is it owed?
Candour must be shown to:
- Any binding authority
- Any binding authority decided by the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court
- Any authority on the same or materially similar legislation as that in question in the case, including any authority decided at first instance in the Federal Court or a Supreme Court which has not been disproved; or
- Any applicable legislation; which the practitioner has reasonable grounds to believe to be directly point, against the client’s case
What special duties does a prosecutor owe to the court?
ASCR r 29.1: A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.
What is the difference between confidentiality and privilege?
- Privilege is narrower than confidentiality
- Not all confidential information is privileged but all privileged information is confidential
- Privileged information is protected from all forms of compulsory disclosure, whereas confidential non-privileged information must yield to such compulsions. Once legal professional privilege is identified, it is absolute and unqualified unless it has been expressly outsed by statute.
o establish legal professional privilege, three elements are required:- Communications must be in the context of the relationship of the client and the client’s legal advisor
- The communications must be made for the dominant purpose of enabling the client to obtain legal advice (advice privilege) or for the purpose of actual or contemplated litigation (litigation privilege) affirmed in Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
- The communications must be confidential
Limits based on Public Policy
1. It does not rest on any contractual duty
2. A client cannot extend the area covered by privilege by contract
3. One a privilege is identified it is absolute and unqualified
4. Most important, because it is in public interest, there is also a limit to the doctrine. In particular, it does not extend to protect communications directed against the public interest. So for example, communications for the purpose of furthering
CASE LAW: R v Bell (1980) 146 CLR 141
→ Mother took a child against court orders
→ Solicitors used privileged info to inform address
What is a frozen defence?
A frozen defence is when the defendant chooses to plead not guilty when aware they are guilty
Why do lawyers require good communication skills?
ASCR r 7.1: 7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.
When should a solicitor refuse to accept instructions to act?
Lack of Competence or Expertise
If the solicitor does not have the necessary legal knowledge or skill to handle the matter competently and cannot reasonably acquire it, they must decline to act.
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (ASCR) r 4.1.1 and r 8.
Conflict of Interest
If there is a conflict between the interests of the solicitor and the client, or between two or more clients, the solicitor must not act unless the clients give informed consent and no duties are compromised (and even then, in many cases, acting is still prohibited).
ASCR rr 10, 11.
Instructions Would Require Unethical or Unlawful Conduct
If a client instructs the solicitor to break the law, mislead the court, or engage in unethical conduct, the solicitor must refuse to act.
ASCR r 3.1 (duty to uphold the law), r 19 (duty to the court and administration of justice).
Client Lacks Capacity
If the client lacks legal capacity to give instructions (e.g. due to age or mental impairment) and no appropriate guardian or litigation representative is in place, the solicitor should not act without further legal authority.
No Real Prospect of Success in Litigation
In some jurisdictions (e.g. for costs protection or court efficiency), a solicitor may be required to refuse to bring or defend a case that has no reasonable prospects of success.
See also: Civil Procedure Act 2005 (NSW) s 345.
Instructions Are Vexatious, Frivolous, or an Abuse of Process
If the client seeks to use the legal system to harass, delay, or oppress others without lawful purpose, a solicitor should decline to act.
Inability to Obtain Clear Instructions
Where a client is uncooperative, gives inconsistent instructions, or refuses to provide necessary information, a solicitor may not be able to act effectively or ethically.
Risk of Breach of Confidentiality or Legal Privilege
If acting for the client risks revealing confidential information obtained from a former client (especially where duties conflict), the solicitor must not accept the retainer.
Time Constraints or Excessive Workload
If the solicitor does not have the time or resources to act diligently and promptly (ASCR r 4.1.3), they must decline the matter.
What role does the Supreme Court play in disciplining legal professionals for misconduct?
Can be struck off the roll
What does the Legal Services Council do?
The objects of this body are set out in s 394 of the LPUL. The Council is a representative body comprised of five members from participating jurisdictions. One member is appointed by the Law Council of Australia, one member from the Australian Bar Association, two members on recommendation from the Attorneys-General Standing Committee and one member as chair. The Legal Services Council is charged with the responsibility of monitoring the implementation of the Uniform Law and Rules. The Council also addresses any need for change in the law to promote consistency across jurisdictions. It is overseen by the Standing Committee of the Attorneys-General
→ Umbrella body as all other bodies report to them
→ Independent Statutory Body that consults government
→ Monitors the overall operation of the LPUL framework and is responsible for making Uniform Rules. The council can issue guidelines and directions about the exercise of functions by local authorities (except about complaints and professional discipline, as this one of the Commissioner’s function)
→ The council’s objectives are:
○ Monitor the Uniform Law’s implementation and ensure that it is applied consistently
○ Ensure the Uniform Framework remains efficient, targeted and effective, and promotes the maintenance of professional standards
○ Ensure the Uniform Framework appropriately accounts for the interests and protection of clients of law practices
Can a lawyer be struck off the roll for conduct that is not related to the practice of law?
In Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, a barrister was suspended due to a criminal conviction for manslaughter (driving under the influence). The High Court held that the conduct, though not in the course of legal practice, reflected on the person’s fitness to practise.
In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, a barrister was struck off for failing to pay income tax for 14 years—again, unrelated to client work, but revealing serious dishonesty.
Do lawyers ever owe a duty of care to a party to a dispute who is not their client?
No, there is no positive duty to disclose. However, if there is a clear breach of confidentiality, yes.
Where does a lawyer’s primary duty lie?
To the Court
Can a lawyer be struck off the roll for having abhorrent political views?
→ Re B [1981] 2 NSWLR 372 involved Wendy Bacon, an activist who was refused admission partly due to her political activities and criticisms of institutions including the courts –> the problem was not character, but rather “fame”
What are the two main requirements for admission to the profession?
Academic Requirements
Fitness of Character
If a client consents for a lawyer to act for them after the lawyer has disclosed a conflict of interest, is the lawyer entitled to act?
Not always. Even if a client gives informed consent after a lawyer discloses a conflict of interest, the lawyer is not automatically entitled to act. Under the Australian Solicitors’ Conduct Rules 2015 (ASCR) and general legal ethics principles, the lawyer must ensure that acting will not compromise their duties to either client and that the conflict is properly manageable.
Can a lawyer mix their firm funds with client funds if the purpose is to maximise the interest to return to the client?
VCAT: citing Law Society of NSW v Harvey [1976] 2 NSWLR 154 in which that court ‘acknowledged there are exceptional cases where a transaction may be in the special interest of a particular client … but such cases will be isolated, and will require conscientious disclosure of all material circumstances and everything known relating to the proposed transaction which might influence the client, or anybody from whom the client might seek advice’ (Reprimanded and payment of costs)
→ CASE LAW: Legal Services Commissioner v Adami [2014] VCAT 1107: Adami sought to borrow money ($30,000) from his client for two months. The client, Mr Barrato, was a long-term client who had given express consent to the arrangment (and supported him at the tribunal). The money was taken out of the trust account, and returned within the timeline.
VCAT: This is a violation of the rule against borrowing (2 months suspension + costs main outcome, “The reason for such a rule as this is that borrowing from a client raises the spectre of conflict of interest especially in the circumstances such as these where no security was given for the loan”
What is a concurrent client conflict and how can it be cured?
→ Two cleitns at the same time for one solicitor or two solicitors in the same firm
→ Clients in the same case:
○ Different sides e.g lawyer represents borrower and lender/vendor and purchaser (major potential for conflict)
○ If on the same side e.g all co-accused in criminal case or all claimants in negligence
→ Clients in related matters:
Where the firm works on two cases that may conflict at the same time e.g law firm represents company A against company B but also takes instructions from company C which is B’s subsidiary
Compliance with the conflict of interest exception requires:
1. Each solicitor complies with duty to act in client’s interests (ASCR 4.1.1)
2. Each client is aware that the solicitor/firm acts for the other client
Each client have given informed consent for the arrangem
Is it permissible to make a false allegation in court about another lawyer provided you are acting in your client’s best interests?
No, duty to not mislead the court
Is it ok to charge a client a higher fee for work that has to be done urgently?
- Disclosure and Agreement (Informed Consent): The lawyer must disclose the increased rate in writing as part of the costs disclosure under the Legal Profession Uniform Law (NSW) (or equivalent in other states). The client must agree to the terms—preferably in writing—before or as soon as practicable after the urgent work begins.
- Fair and Reasonable Charges: Under s 172 of the Legal Profession Uniform Law, legal costs must be fair and reasonable in all the circumstances.Charging a higher rate for out-of-hours or time-sensitive work can be reasonable if it reflects the disruption, complexity, or additional resources required.
- No Overreaching or Exploitation: A lawyer must not exploit the client’s urgent need to impose excessive fees. If the client is vulnerable, lacks capacity, or is under pressure, additional care must be taken to ensure fair dealing.
- Ethical Standards Apply: Under the Australian Solicitors’ Conduct Rules 2015, r 4.1.4 and r 12, a solicitor must act honestly and fairly in charging legal costs.
True or false - Its ok for a lawyer to lie to their opponent in a mediation because mediation is not court.
- Duty of Honesty and Integrity: Under the Australian Solicitors’ Conduct Rules 2015, a lawyer has a fundamental duty to act honestly and fairly in all dealings, including alternative dispute resolution like mediation (see r 4.1.2 and r 22).
- Misleading or Deceptive Conduct Prohibited: Rule 22 explicitly states that a solicitor must not engage in misleading or deceptive conduct during negotiations.
- Mediation is a Formal Legal Process: Although it is not a court, mediation is a structured process intended to resolve legal disputes in good faith. Lawyers are still bound by professional conduct rules.
- Reputation and Professional Discipline: Lying or misleading conduct in mediation could result in a complaint to the legal regulator, leading to potential disciplinary action, including fines, suspension, or removal from practice.
What is the role of the prosecutor?
“The prosecutor’s role excludes any notion of winning or losing; their function is a matter of public duty to act with fairness and detachment.”
– Whitehorn v The Queen (1983) 152 CLR 657
