oral-assessment-ethics-and-professional-responsibility

Studocu is not sponsored or endorsed by any college or university Oral assessment - Ethics and Professional Responsibility Ethics (The College of Law (Australia)) Studocu is not sponsored or endorsed by any college or university Oral assessment - Ethics and Professional Responsibility Ethics (The College of Law (Australia)) Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility Table of Contents REFLECTION ...................................................................................................................................... 2 TASK 1.1 AND 1.2: APPLYING THE ETHICAL DECISION-MAKING MODEL AND KEEPING PROMISES MADE IN PROFESSIONAL PRACTICE: ............................................. 3 A CTIVITY 1.1: H ERB ........................................................................................................................ 3 EDMM .............................................................................................................................................. 5 A CTIVITY 1.2 M OODY - F ILE NOTE ................................................................................................. 5 REVIEW OF TASK 2 – MANAGING CONFLICTS ..................................................................... 7 TASK 3 – ACCOUNTING FOR OTHER PEOPLE’S MONEY, PREPARING A BILL AND TRUST ACCOUNT STATEMENT ................................................................................................ 9 A CTIVITY 3.1 – E MAIL + E VENTS .................................................................................................... 9 A CTIVITY 3.2– B ILL OF COSTS + TRUST ACCOUNT STATEMENTS .................................................. 12 REVIEW OF TASK 4 – FACILITATING ACCESS TO JUSTICE ................................................................... 13 A CTIVITY 4.1 – A CCESS TO J USTICE ......................................................................................................... 13 W HAT CAN HAPPEN IF YOU BREACH THE CONDUCT RULES ? ............................................................................... 16 R EASONABLE PROSPECTS OF SUCCESS ........................................................................................................... 16 B ORROWING MONEY FROM A CLIENT ........................................................................................................... 16 1 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility Activity 1.1: Herb Facts: - Duty of confidentiality - Herb separated from his wife, passed from hit and run before it could be settled- ongoing family law matter - Tension and violence with his neighbour Alfonso and 5 sons - lawyer prepared a draft witness statement in case Herb decided to escalate the issue with his neighbour and has signed the statement. - Police and Herb’s wife’s solicitor requestion transfer of files What are the applicable professional conduct rules and do any exceptions apply? Issue 1: Transferring files to police R 3: Paramount duty to the court and administration of justice  It would be in the interest of the administration of justice for the police to have information for the investigation of Herb’s suspicious death. HOWEVER , the duty of confidentiality is still present. R 9.1: a solicitor must not disclose any information which is confidential to a client. o Herbs run in with neighbours and that he is seeking legal advice from the firm  Disclosure in contravention will amount to the breach of r 4.1.5: Fundamental duty to comply with ASCR + Law= professional misconduct Exception: rule 9.2.2: Duty of confidentiality will prevail until a search warranted is present  solicitor (prior to the issue of the warrant) to inform the police that she has confidential and privileged documents on her file which cannot be disclosed unless ordered to do so by the court. Confidential information vs info subject to Legal Professional Privilege - Privileged info = confidential - Confidential info is not all subject to legal professional privilege - Information subject to privilege: Info provided by a client and communicated between lawyer and client produced for the dominant purpose of the client seeking legal advice. o Will not be required to be disclosed in legal proceedings or to government authorities. - However, the intention not to file it because of the family law matter is no longer relevant and therefore will not be adverse to the client anymore as he is deceased. Legislation may require privileged info to be disclosed - S 316(1) of the Crimes Act 1900 relates to the concealment of a serious offence in that failure to reveal information that might be of material assistance in the conviction and prosecution of the offender results in 2-year imprisonment  In A v Hayden it is said that ‘the failure to disclose the information would tend to obstruct the course of justice and would be contrary to the public interest.’ o Does not apply because LPP applies to info received from Herb and the existence of that privilege will constitute a reasonable excuse to not disclose to police. 3 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility Should I simply proceed to follow David’s advice; or should I disclose the information I have to assist the police investigation; or can I take some other course of action? - R 9.2.2 Search warrant triggered and allows solicitor to disregard r 9.1 (duty of confidentiality) and disclose the info to the police - solicitor (prior to the issue of the warrant) to inform the police that she has confidential and privileged documents on her file which cannot be disclosed unless ordered to do so by the court. - then immediately prepare the files by isolating the documents to which client legal privilege is to be claimed and prepare a list/inventory of all the documents. - The police will then likely obtain an urgent warrant and she will be ready to comply with it. - The solicitor should take a copy of the warrant, seal the envelope containing the privileged documents, - obtain a receipt for the documents, and jointly convey the documents with the police to the court. Issue 2: Releasing client info to wife’s solicitor - a Grant of Probate should be obtained before the files are provided to her as executor of the estate. - Demanding files in a circumstance such as this would breach r 34.1 - Advise info has been handed over in compliance with search warrant + cooperation can be offered once wife receives grant of probate. R 34.1: A solicitor must not in any action or communication associated with representing a client—34.1.1 make any statement to another person— (i) which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and (ii) which misleads or intimidates the other person Where can I obtain further assistance in making this decision? - if a solicitor is going through this ethical dilemma, a solicitor might obtain legal assistance in coming to a decision through the law society hotline. alternative approaches you may have considered 1- Listen to David, say nothing  complying with confidentiality and not disputing a senior  Could conceal a serious offence and not be of best interest to community/public 2- Disclosing files and information to the police  Assisting police but without warrant would be breach s9 and fiduciary duty owed to herb = unsatisfactory professional conduct 3- contacting police post death and informing them of confidential and privileged documents on file which cannot be disclosed unless ordered to do so by the court  police will apply for warrant + gives time to separate/set aside privileged info so ready for compliance EDMM 4 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility o Mr Martin failed to comply with his undertaking. o the Tribunal found that Mr Martin could have remedied his breach of undertaking at any time by paying the outstanding bills and providing the necessary receipts. He chose not to do so, and the breach of the undertaking, in the circumstances, was Professional Misconduct. Legal Services Commissioner v Kaine (Legal Practice) [2013] VCAT 1077  Undertaking: As long as the substance of the correspondence is to get the other side to do something in reliance of a promise made. Vincent Confini [1994]  Undertakings made by the legal practitioner is required to be carried out and will be enforced by the Courts because legal practitioners are officers of the Court Grogan v Orr [2001],  Undertakings cannot be implied by lawyer’s silence as they do not amount to an express promise or engagement. 2- Consequences of failure to fulfill undertaking  result in professional misconduct and the undertaking will likely be imposed by the courts.  rule 6.1 of the Australian Solicitors’ Conduct Rules (ASCR)- undertakings given by a solicitor in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking.  A lawyer who fails to fulfil his/her undertaking would be guilty of professional misconduct under s 297(1)(a) of the Legal Profession Uniform Law (LPUL).  co-operation of a third party who is not party to the undertaking 3- co-operation of a third party who is not party to the undertaking  r 6.2 (ASCR 2015) o Prohibits solicitor A from asking solicitor B to give an undertaking which would require the co-operation of a third party who is not party to the undertaking o Moody : shouldn't have ask Saunders to undertake that their client will pay settlement sum early o Saunders : shouldn't have asked Moody to promise that his client will take down Facebook posts. 4- Offensive, discourteous or otherwise in breach of ASCR rules  r 4.1.2: Saunders email was written in anger + made allegations of conspiracy, Moody’s participation in defamatory posts both amount as offensive and discourteous. 6 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility  R 32.1: S in breach= A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide  R 34.1.2= Moody= solicitor must not threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor's client is not satisfied 5- Formal complaint to the Office of the Legal Services Commissioner 6- Tax offence An “automatic show cause event” is any of the following: - a bankruptcy-related event; - a conviction for a serious ofence or a tax ofence, - need to disclose that conviction with the appropriate Council in writing within 7 days of being charged. s 51(1) of the Legal Profession Uniform Law. (b) can the lawyer retain their practice certificate? - The lawyer must first disclose the conviction to the appropriate Council. - must explain why, despite the conviction, they still consider themselves to be a fit and proper person to hold a certificate under ss 87-88 of the LUPL. - must be given in writing within 28 days of the tax offence occurring. - s 86(b) a tax offence is deemed to be an “automatic show cause event” and once a receipt of this notice is given, the appropriate Council must determine if the person is a fit and proper person to hold a practising certificate (s 89(1) LUPL). - If the lawyer fails to provide a statement, the Council may vary, suspend, cancel, or refuse to renew their certificate under s 89(2) of the LUPL. Review of Task 2 – managing conflicts Identify any conduct rules relevant to Michelle or Robert Michelle: ASCR r 12.4.4: Acting for a client in any dealing in which a financial benefit may be payable to a third party for referring the client, provided the solicitor has first disclosed the payment or financial benefit to the client. ASCR r 12.4.3: 7 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility - where the firm possesses confidential information regarding the other client which may be material to the other clients’ interests, the ASCR requires that the firm establishes an effective information barrier. - rebuttable presumption- confidential information has moved freely within the firm. o If the firm intends to continue acting for Mary, it is important to be able to rebut this presumption if a conflict should arise. - if an actual conflict arises between two or more clients, the firm may only continue to act for one of the clients as long as the duty of confidentiality to the other client is not put at risk and all parties have given informed consent. Has Michelle breached her fiduciary obligations to her client, Mary Kwan, or to any other client who has funds invested at call with Gateway Credit Union? - Law Society of NSW v Harvey confirms - a lawyer’s fiduciary duty is to ‘ not prefer his interests or that of another to that of his client ’. - Based on the information in the file note, it appears that Michelle has failed to make a full and frank disclosure of her interest in GCU to Mary. By placing Mary’s estate funds ‘on call’ on behalf of her with GCU, Michelle failed to act in the best interests of her client and breached r12.4.4 of the ASCRs - Breach of fiduciary duty= by failing to refer Mary for independent advice about investment options - Tyrell v Bank of London, ‘ a solicitor must not make gain to himself at the expense of his client ’. the funds were invested by or through the firm and the source of funds were deposited with CGU, which deem CGU as clients. - Michelle has received some form of benefit by referring her client to a third party or by directing a client’s funds in a particular manner, as such she has breached her fiduciary obligation with CGU. The consequences of these breaches could mean that Michelle is found to have engaged in unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action. Describe any specific actions, policies and procedures that should be implemented by our law practice for future matters. - There should be reviews of the management system, conflicts policy and supervision of staff and practice in the law firm. Information Barriers - to prevent the spread of confidential information. - The Solicitor Conduct Rules Handbook suggests making undertakings not to communicate about confidential information, monitoring of compliance by having designated compliance officers and disciplinary sanctions are all effective measures. Awareness, Informed Consent and Disclosure 9 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility - Rule 11 allows a firm to act in matters where the firm represents the other party, providing that the firm has obtained both clients informed written consent. - It might also be necessary to advise each client to seek independent legal advice in highly contentious matters. - there should be disclosure practices in place in the event the firm receives a commission/benefit from a third party to whom they have referred a client. Conflict Checking - Every firm should have a practice of completing mandatory conflict checks before engaging new clients or providing legal advice Task 3 – accounting for other people’s money, preparing a bill and trust account statement Activity 3.1 – Email + Events When do you need to provide a trust account statement? LPUL - The law practice must send a trust account statement as soon as practicable after: i) completion of the matter. ii) receiving a reasonable request from the person on whose behalf the money is held or controlled. iii) 30 June each year, unless exempted by provision of Regulation 60(7). Trust Money – s 129(1)(a) LPUL  Money received by the law practice on account of legal costs in advance of providing the services. o If money received is a cheque opposed to cash- must be deposited into firm’s general trust account as soon as practicable after receiving it – s 137 Accounting records to be completed after receiving cheque: - r 36(1) General Rules- make out receipt ASAP and contain particulars found in r 36(2) - r 36(4) GR- must then provide it to client as they are the person whom trust money was received from - r 37 - must be paid into general trust account by direct deposit and record must be produced at the time the deposit was made r 37(1). 10 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility  if money received in cash form= s 143(1) needs to be deposited into trust account and paid as directed by client asap.  R 62(1)- law firm must operate a single controlled money receipt system for all its controlled money accounts.  R 62(2)- need to take out receipt asap after receiving controlled money  R 62(4)- receipt must be made out in duplicate and must contain all particulars  R 63(3)- written record containing all the required particulars of each withdrawal must be kept  r 64(8)- A preparation of a monthly statement containing a list of law firms- controlled money accounts with the particulars are then required to be prepared Reporting Obligations for significant cash transactions equivalent to $10k or more – s 15A Financial Transactions Report Act 1988. Power Money – s 129(1)  Money received by law practice which is the subject of a power exercisable by the law practice to deal with money for or on behalf of another person.  only dealt with in accordance with that power in reference to the balance of the sale proceeds (s 141(1) LPUL)  r 55 of the General Rules , law firm is required to keep a record of all the dealings with the money to which they are party, along with all the supporting information relating to it.  A register of powers must also be kept: LPUL General Rules r 60. Deficit  s 148 LPUL not cause deficiency in any trust account and notify client of any deficiency.  S 154 LPUL- report asap of irregularity in the law practices trust account + required to provide a written notice of this irregularity to the designated local regulatory authority. Allocate power to operate the trust and office accounts- r 42(2)(b) GR Must be: o Employee or associate of the firm; and o Authorised Australian Legal Practitioner who holds an Australian practising certificate which authorises the receipt of trust money S 135(2) LPUL = trust money that is held by a law practice can only be dealt with the law practice or an associate of the practice. 12 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility Activity 3.2– Bill of costs + trust account statements When you are deciding whether to charge a client for a particular item, you should be guided by the following questions: 1.Is the item disclosed in your cost disclose and cost agreement? and if so, 2.Is the item fair and reasonable? If the answer to both questions is ‘YES,’ then the general rule is that you can charge your client for those items. S 188 LPUL – Principal needs to sign bill/be identified. S 172 LPUL – Legal costs must be fair and reasonable. You CANNOT commence proceedings to recover unpaid legal costs unless the bill issued is compliant in its format and substance. SS 192 and 195 LPUL  Requires certain discourses to be made whether lump sum or itemised. You should not charge clients for 'general care and skill' – this is usually incorporated into hourly rates, and a client expects their matter to be handled with general care and skill. CANNOT CHARGE FOR:  Preparing bill – s 191  Admin Tasks (opening file, trust account ledger, preparing cost agreement) – Council of QLD Law Society v Roche  Retrieving a file from storage (unless a client has specifically agreed to this charge).  Work that was not carried out in a reasonable manner eg. work that could have been done by administrative or paralegal staff being charged out at a lawyer’s rate or charging a client for waiting on hold on the phone for an hour.  Work that the client has not agreed to pay e.g., for duplicate entries made by both supervised lawyer and the principal for the same work, basic legal research. employed solicitors can be found guilty of professional misconduct for overcharging clients. The disciplinary report in Legal Services Commissioner v Scroope [2012] NSW ADT 107 is relevant. - Travelling in a taxi - charge the client only for the taxi fee unless you have indicated otherwise in your cost agreement and/or are doing legal work for the client in the taxi- Any allowance for travel time should be clearly outlined in your cost agreement if it is to be charged. - distinguish between professional fees and disbursements. Remember that disbursements are generally third-party costs or costs that you have specifically identified as disbursements in the cost agreement that you charge the client for. LOOK OVER ASS MEMO FOR 3.2 13 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility - Under r 21.2 of the ASCR , a solicitor is required to ensure that any allegations made are reasonably justifed by the material and must be deemed appropriate for the advancement of their client’s case - Under r 21.5 , a solicitor must not make suggestions in a cross-examination unless there are reasonable grounds that acceptance of the suggestion would diminish the credibility of the witness’ evidence. - 4.1 A solicitor must also— o 4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client, o 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible, o 4.1.4 avoid any compromise to their integrity and professional independence, and o 4.1.5 comply with these Rules and the law. Did anything happen to him?  He had to pay the costs of both Attorney-General and Minister for Justice, and Chief Executive Department of Transport, on an indemnity basis.  White Industries : the Supreme Court has the power to make personal cost orders against a legal practitioner if it is found that an unsuccessful party’s solicitors unreasonably initiated or continued an action where there were no prospects of success, thereby affecting the administration of justice.  The power to make personal cost orders against legal practitioners in these instances are found under sch 2 cl 5 of the Uniform Law Application Act. What can you do and not do in your early years of practice? Indemnity insurance must also be granted alongside an Australian practicing certificate after the completion of my PLT.  I am unable to engage in legal practice without first obtaining professional indemnity insurance in accordance with s 211 of the Uniform Law.  As I have only been practising for 6 months as a solicitor after having completed my PLT, I am unable to act for Indira as an independent legal practitioner. This is because my practising certificate requires me to first engage in supervised legal practice for a period equivalent to 2 years (s 49(1) Uniform Law). More than 2 years post admission when Indira contacted me  I would now be able to accept to take on Indira’s case as her independent legal practitioner.  This is because I would have completed the condition of 2 years supervised legal practice under s 49(1) of the Uniform Law. Legal Aid + Tests 15 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058

Oral assessment - Ethics and Professional Responsibility  Indira would be able to seek assistance from Legal Aid in this matter.  The tests to determine whether Indira would be entitled to Legal Aid include the means test, unpaid contributions test, merit test, funds availability and social disadvantage test. Barney and Marron – Aboriginal Clients The scenario highlights what could be some ethical practice issues concerning cross-cultural communication. In practice, where the client does not do any talking and appears overly represented, in these circumstances, you would need to get the client alone and ask, asking questions, including if the instructions are accurate  Both Barney and Marron are not giving eye contact and the father Barney, is nodding throughout the interviews.  This indicates that there is a gratuitous concurrence (the ‘Yes syndrome’) response occurring. This is a common occurrence from Aboriginal and Torres Strait Islander people responding to authority figures.  This often results in ‘yes’ responses which seem amenable rather than agreeable to people who are not familiar with the cultural practices and norms of Aboriginal and Torres Strait Islander people.  This is not indicative of dishonesty, rather it is a case of cultural coherence to the belief that sustained eye contact is disrespectful and aggressive. Actual or Potential Conflicts in this Matter This question requires you to consider the issue of conflicts of interest. As a lawyer on secondment, you will also need to consider any pro bono clients who have a dispute with an existing (or even potential) client of the law firm Will I need to be supervised in this matter w/o experience?  Under r 37 of the ASCR, a solicitor who has designated responsibility for a matter is required to exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services in the matter. As such, supervision would be required.  This is reinforced in Legal Services Commissioner v Michael Vincent Baker [2005] as it reinforces the obligation to supervise. What can happen if you breach the conduct rules? 2.3 A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct , and may give rise to disciplinary action by the relevant regulatory authority, but cannot be enforced by a third party. 16 Downloaded by le you (lora1yousufziy@gmail.com) lOMoARcPSD|12353058