Week 1: Perception of Lawyers in Australia

Question 1

Adversarial Advocate - traditional conception

Answer 1

• Lawyers’ ethics governed by role as advocate in adversarial legal process and complex legal system
• Duty is to advocate client’s interests as vigorously as possible within the bounds of the law (barest obligation to legality)

Question 2

Responsible Lawyer - office of the Court and Trustee of the Legal System

Answer 2

• Lawyers’ ethics governed by role of facilitating the public administration of justice according to law in the public interest
• Duties of advocacy are tempered by duty to ensure integrity of and compliance with the spirit of the law; to ensure that issues are not decided on purely procedural or formal grounds but substantive merits
• May need to act as a gatekeeper of the law and advocate of the law against the client

Question 3

Moral Activist - agents of justice through law reform

Answer 3

• General ethics, particularly social and political conceptions of justice, moral philosophy and promotion of substantive justice define lawyers’ responsibilities

Question 4

Ethics of Care - relational lawyering

Answer 4

• Social role of lawyers is irrelevant
• Responsibilities to people, communities, and relationships should guide lawyers (and clients) and everybody else
• Preserving relationships and avoiding harm are more important than impersonal justice

Question 5

Lawyer X Inquiry

Answer 5

• Victorian Criminal Barrister was found in 2018 to be representing clients whilst also working as a criminal informant to Victorian Police
• In 2018 the HC said the use of Gobbo as a police informant “debased fundamental premises of the criminal justice system” and that police conduct in using Gobbo as an informant was “reprehensible”
• Over rid the fundamental principles of rule of law and procedural fairness, “right to a fair trial”
• Royal Commission established and found Gobbo as an informer affected the convictions of over 1000 cases

Question 6

R V Einfeld (2008) NSWCCA

Answer 6

• Einfeld had pleaded guilty to perjury and making a false statement with intent to pervert the course of justice, to avoid a $75 speeding ticket in 2006.
• He concluded Einfeld had engaged in “planned criminal activity”, detailing the numerous lies in his police statement when he asserted he was not driving his car when it was clocked going 10kmh over the speed limit in the Sydney suburb of Mosman.
• Marcus Richard Einfeld was committed for trial to the District Court in Sydney on nine counts, six of which charged him with offences under section 319 of the Crimes Act of doing an act with intent to pervert the course of justice. The Chief Justice granted an exemption under section 128 of the Criminal Procedure Act 1986 (NSW) permitting the presentation of the indictment in the Supreme Court. The matter was first listed in this Court on 7 March 2008.

Question 7

McCabe v British American Tobacco Australia Ltd

Answer 7

• In late 2001, Rolah McCabe commenced a case against British American Tobacco (BAT) Australia in the Supreme Court of Victoria. In
• April 2002, Rolah became the first person outside of the United States to obtain a verdict against the tobacco industry in a personal injury claim; though the verdict was overturned on appeal later that year. Rolah obtained the verdict in her favour after the trial judge, Justice Geoffrey Eames, struck out BAT’s defence to the proceeding and ordered judgment for her, after finding that ‘the process of discovery in this case was subverted by the defendant and its solicitor… with the deliberate intention of denying a fair trial to the plaintiff, and the strategy to achieve that outcome was successful.’
• The subversion of the process of discovery had, according to Justice Eames, involved the deliberate destruction of thousands of relevant documents to keep them from prospective plaintiffs such as Rolah; misleading the court about what had become of the missing documents; and the ongoing ‘warehousing’ of documents to keep them from the court. Justice Eames sent the case to trial before a jury solely on the issue of quantum of damages. The jury awarded Rolah $700,000.

Question 8

Solicitors

Answer 8

• Direct relationship with clients
• Can be generalist or specialist
• Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
• See NSW Law Society
• Can be employed by government, legal aid commission, incorporated business, raise equity, debt, in house counsel
• Solicitors’ Conduct Rules - Rule 3: Paramount Duty to Court and the Administration of Justice: 3.1 A Solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty e.g can’t enourage clients to disobey law, can’t contaminate evidence

Question 9

Barristers (specialists in advocacy)

Answer 9

• Characterised by independence
• Usually receive instructions from solicitors
• Advocates in court
• Before you can apply for a practising certificate you must be admitted as a lawyer of the Supreme Court of NSW or another Australian state or territory under corresponding law - the Legal Profession Admission Board (LPAB) is the admitting authority in NSW
• Legal Profession Uniform Conduct (Barristers) Rules 2015 (See rule 11, 12, 13)
• See NSW Bar Association
• If called to Bar, must give up solicitor’s practicing certificate
• Act independently - neither an employee or employer –> brings an objectivity benefits client, society and justice
• Must complete an intense exam and apply to chambers to become a reader
• Barristers’ Conduct Rule - Rule 23: Duty to the Court, A barrister has an overriding duty to the court to act with independence with the administration of justice e.g. cannot mislead court
• Barristers receive their work predominantly from being “briefed” by solicitors - although r22 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) permits a barrister to accept briefs directly from clients, the entitlement is exercised mainly to facilitate access to justice in criminal matters and by barristers early in their career - it is seldom used in civil proceedings

Question 10

Cab Rank Principle

Answer 10

• Barristers Rule 17: Cab Rank Principle
• “the first taxi that sees you is meant to take you” i.e. can’t show favour or disadvantage to cases/solicitors”
• Legal Profession Uniform Conduct (Barristers) Rules 2015, Barristers Rule 17, “A barrister must accept a brief from a solicitor to appear before a court in which the barrister practices or professes to practice if:
  A. The brief is within the barrister’s capacity, skill and experience
  B. The barrister would be available to work as a barrister when brief would require the barrister to appear
  C. The free offered on the brief is acceptable to the barrister, and
  D. The barrister is not obliged or permitted to refuse the brief under rule 101, 103, 104, 105

Question 11

Barrister Statistics

Answer 11

· 2419 barristers in NSW; 397 Senior Counsel (Feb 2025)
· 26.16% of all barristers and 15,87% of Senior Counsel are female
· Total of 18 Indigenous Members of the Australian Bar Association (8 in NSW)
· Women make up 35% of barrister that are under 10 years seniority –> over that is 20%
Likelihood for less female barrister barristers is risk diversion i.e. when working for yourself you do not get maternity leave

Question 12

Solicitor Statistics

Answer 12

• 42,228 Solicitors in NSW (June 2024)
• Around 55% of all solicitors are female (an increase from 50/50 in 2016)
• In Australia, 1% of the profession identify as Indigenous
  29% were born overseas