ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS C P Cavendish Publishing (Australia) Pty Limited Sydney • London Titles in the series: Essential Administrative Law Essential Australian Law Essential Company Law Essential Constitutional Law Essential Contract Law Essential Criminal Law Essential Equity and Trusts Essential Evidence Essential Family Law Essential International Trade Law Essential Management Law Essential Professional Conduct: Legal Accounting Essential Professional Conduct: Legal Ethics Essential Tort Law ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Geoff Monahan, BA, LLB, LLM Associate Professor, Faculty of Law, University of Technology, Sydney General Editor Professor David Barker Dean of the Faculty of Law, University of Technology, Sydney C P Cavendish Publishing (Australia) Pty Limited Sydney • London First published 2001 by Cavendish Publishing (Australia) Pty Limited, 3/303 Barrenjoey Road, Newport, New South Wales 2106 Telephone: (02) 9999 2777 Facsimile: (02) 9999 3688 Email: info@cavendishpublishing.com.au Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: info@cavendishpublishing.com Website: www.cavendishpublishing.com © Monahan, G 2001 All rights reserved Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, photocopying, recording or otherwise, without the prior permission of the publisher and copyright owner Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages National Library of Australia Cataloguing in Publication Data Monahan, Geoff Essential professional conduct: legal ethics Lawyers – Discipline Legal ethics Practice of law I Title (Series: Essential series) 174.3 ISBN 876213 05 Printed and bound in Great Britain Preface This book is intended as a revision aid for students studying degree or diploma courses in law and practical legal training As space is limited, the book only covers the broad topic areas referred to in the ‘Priestley 11’ prescription for ‘Professional Conduct’, with the exception of trust accounting (which is covered in the companion Cavendish text Essential Professional Conduct: Legal Accounting, 2001, by Bronwyn Olliffe) The term ‘ethics’ appears to mean different things to different people There appears to be no agreed definition or meaning, certainly in the legal context One common theme is ‘morality’ – but what is morality? How many times have you heard a fictitious television lawyer comment: ‘well, it may not be ethical, but it is certainly legal!’ Clearly, there lies a blurring between the legal, ethical, moral and the commercial responsibilities of the modern day legal practitioner The law is stated as it was on February 2001 While the book makes references to the relevant State and Territory legislation and practice rules, it specifically refers to the practice rules in New South Wales and the Australian Capital Territory (based upon the Law Council of Australia’s Model Rules of Professional Conduct and Practice) and the Advocacy Rules incorporated into the Practice Rules in New South Wales and the Australian Capital Territory (and based upon the New South Wales Barristers’ Rules as adopted by the Australian Bar Association, and the Bar Associations in Queensland and the Australian Capital Territory) The quotations at the commencement of some chapters are mainly from the Model practice rules Given the growth in the interstate and international practice of law, it is hoped that all States and Territories will move towards basic uniform practice rules in the near future The cases referred to in this book include references to the following courts: Australian courts: (HC) High Court of Australia (Fed) Federal Court of Australia (Fam) Family Court of Australia v ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS (NSW) Supreme Court of New South Wales (Vic) Supreme Court of Victoria (Qld) Supreme Court of Queensland (SA) Supreme Court of South Australia (WA) Supreme Court of Western Australia New Zealand courts: (NZ) High Court of New Zealand United Kingdom courts: (PC) Privy Council (HL) House of Lords (CA) Court of Appeal (KB) King’s Bench Division (QB) Queen’s Bench Division (Ch) Chancery Division My thanks to Sharon Hunter-Taylor and David Hipsley for their comments I would also like to thank John O’Shannassy for his assistance in the research for this book This book is dedicated to my godsons Paul and Nicholas Enjoy your studies in Professional Conduct Geoff Monahan February 2001 vi Contents Preface v Table of Cases ix The Legal Profession and Admission to Practice Duty to the Law 11 Duty to the Court 19 Retainers and Liens 39 Competence, Care and Accountability 49 Confidentiality, Good Faith and Avoiding Conflicts 67 Relations with Third Parties 97 Relations with Other Lawyers 109 Discipline 117 Index 133 vii Table of Cases Allinson v General Council of Medical Education and Registration [1894] QB 750 Ambard v AG for Trinidad and Tobago [1936] AC 322 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 Arthur JS Hall and Co (A Firm) v Simmons [2000] WLR 873 Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 B, In Re (A Solicitor) [1986] VR 695 Baker v Campbell (1983) 153 CLR 52 Barwick v Law Society of NSW (2000) 169 ALR 236 Benecke v National Australia Bank (1993) unreported, 22 April, NSWCA Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 Brickhill v Cook [1984] NSWLR 396 Brinks Mat Ltd v Elcome [1988] WLR 1350 Broughton v Broughton (1855) 43 ER 831 Borland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 Caldwell v Treloar and Others (1982) 30 SASR 202 Carver v Legal Profession Disciplinary Tribunal (1991) unreported, 27 September, NSWCA Chamberlain v Law Society of the ACT (1993) 118 ALR 54 Clyne v NSW Bar Association (1960) 104 CLR 186 Commissioner for Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Davis, In Re (1947) 75 CLR 409 Demetrios v Gikas Dry Cleaning Industries Ltd (1991) 22 NSWLR 561 120 12 33 16, 59 72, 78 128 73, 76 118 70 101 54 33 92 54–55, 57 43 113 129 121, 123 72, 76 102 ix DISCIPLINE check the truth of what the other has suggested, the administration of justice would be seriously impeded Deterrent factor A relevant consideration in disciplinary hearings is the protection of the public against similar conduct This aspect was discussed by the court in the case of Law Society of NSW v Foreman (1994) (NSW), where a dispute arose between the lawyer (Forman) and her client with respect to legal costs, and in particular as to whether the solicitor provided, and the client signed, an authority to charge solicitor/client costs outside the scale under the (CLT) Family Law Rules There was evidence that the lawyer had falsely altered an internal time sheet to show that a costs agreement had been provided to the client This all happened in the early 1990s The lawyer subsequently confessed after being confronted with the evidence She was reported by the Law Society of New South Wales, who referred the matter to the to the then Legal Profession Disciplinary Tribunal The tribunal found the charge of professional misconduct proved and imposed a $20,000 fine On appeal (by way of a new hearing), the NSW Court of Appeal (per Kirby P, Mahoney JA and Giles AJA) struck off the lawyer The court made it clear that a relevant consideration in these hearings includes the protection of the public against similar conduct In his judgment, Mahoney JA stated: in the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done In New South Wales Bar Association v Evatt (1968) (HC), the High Court (per Barwick CJ, Kitto, Taylor, Menzies and Owen JJ) stated: the Supreme Court thought … that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways The power of the court to discipline a barrister is, however, entirely protective, and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved 125 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Relevance of mitigating circumstances One consequence of the judicial view that it exercises a protective, rather than disciplinary function, is that evidence of past hardship (or hardship that would be occasioned by the making of a conduct order) is irrelevant to the determination of whether a conduct order should be made To some extent, this was a factor in Law Society of NSW v Foreman (1994) (NSW), because there was evidence that the lawyer was under enormous pressure from her law firm (Clayton Utz) to increase the fees generated from family law clients Nevertheless, the quest for commercialism and economic reality should not provide a lawyer with an excuse to falsify documents In The Prothonotary of the Supreme Court of New South Wales v Jai Ram (NSW), Kirby P stated that: no amount of personal stress or sad misfortune can excuse such conduct on the part of a solicitor Whilst in human terms, sympathy is invoked to suggest that the appellant has suffered enough from the arrows of fortune, the purpose of this jurisdiction is not, as such, to burden him further with another of life’s punishments but to protect the community from practitioners who have shown themselves unfit to enjoy the high privilege of legal practice The public is entitled to deal with legal practitioners in the knowledge that they are honest and will not indulge in conduct that is deceitful and dishonourable This is a very high standard But it is one which the law requires and which the court enforces The giving of false evidence In the case of Weaver v Law Society of New South Wales (1979) (HC), the then Disciplinary Committee had previously dismissed charges of professional misconduct after it accepted the lawyer’s (Weaver’s) testimony That testimony was subsequently found to be wilfully false The Law Society of New South Wales issued fresh proceedings in the Supreme Court for declarations that the solicitor had been guilty of professional misconduct The High Court (per Mason J; Barwick CJ, Gibbs, Stephen and Aickin JJ agreeing) held that the doctrine of issue estoppel did not prevent the court from reconsidering the earlier charges of misconduct or entertaining a new charge of knowingly giving false evidence to the Disciplinary Committee 126 DISCIPLINE Prescribed conduct In New South Wales, there are a number of provisions of the (NSW) Legal Profession Act 1987 that declare certain conduct to be professional misconduct or unsatisfactory professional conduct: (a) practising law without a practising certificate: s 25(4); (b) employing associates who are disqualified or convicted persons: s 48K(1); (c) hindering a trust account inspector: s 55(3)–(6); (d) wilful breach of s 61(1) (holding trust moneys): s 61(8); (e) wilful failure in depositing trust moneys into Statutory Interest Account: s 64(1) and (5); (f) failure to provide information during investigation of a complaint: s 152(4); and (g) grossly overcharging (cost misrepresentation): s 208Q(1)–(3) Penalties Inherent jurisdiction of Supreme Courts In addition to the power to admit solicitors and barristers to practice, the inherent jurisdiction of a State and Territory Supreme Court is extended to: (a) the removal of the practitioner’s name from the roll of practitioners; (b) suspension from practice; (c) admonition; and (d) the payment of costs of proceedings taken against the legal practitioner Substantial penalties All jurisdictions provide for the imposition of substantial penalties against practitioners who are found guilty of professional misconduct (or lesser conduct) in addition to the payment of a costs order (and a compensation order): see, generally, (NSW) Legal Profession Act 1987, 127 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS ss 171C–171E; (Vic) Legal Practice Act 1996; ss 159–63; (Qld) Queensland Law Society Act 1952, s 6R; (SA) Legal Practitioners Act 1981, s 82; (WA) Legal Practitioners Act 1893, s 29A; (Tas) Legal Profession Act 1993, s 76; (NT) Legal Practitioners Act 1974, ss 47, 51; (ACT) Legal Practitioners Act 1970, ss 58–59 Removal from rolls The ultimate sanction for professional misconduct is being ‘struck off the rolls’ For example, s 171C(1)(a) of the (NSW) Legal Profession Act 1987 provides that the tribunal may ‘order the name of the legal practitioner to be removed from the roll of legal practitioners’ Suspension from practice A lawyer may be suspended from practice for a prescribed period as an alternative to removal For example, s 171C(1)(b) of the (NSW) Legal Profession Act 1987 provides that the tribunal may ‘order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order’: for example, see, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) (HC) (see above, p 121) Suspension from practice may be appropriate, particularly where the finding of unfitness is based on mental or physical condition In the case of In Re B (A Solicitor) (1986) (Vic), the lawyer’s fitness was under consideration as a result of being found not guilty on the basis of insanity of a charge of shooting with intent to murder The lawyer was being detained during the Governor’s pleasure In his judgment, Brooking J stated: in my opinion a legal practitioner may be struck off the roll or suspended if he is shown for any reason not to be a fit and proper person to practise the law The ground may be misconduct It may be mental unfitness to practise It may be physical unfitness to practise Reprimand In appropriate circumstances, a lawyer may be reprimanded For example, s 171C(1)(c) of the (NSW) Legal Profession Act 1987 provides that the tribunal may ‘publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner’ 128 DISCIPLINE In the case of In Re Moseley (1925) (NSW), Street CJ, after finding the lawyer (Moseley) guilty of professional misconduct for overcharging, stated that the case: … is not one, however, calling for the removal of his name from the roll, and after much consideration, I not think that the court need go so far as to suspend him from practice I think, however, that he is deserving of a very severe censure for his misconduct, and for his breach of faith for his clients, and I hope that he will realise that it is a very serious blot upon a solicitor’s character and reputation to be censured publicly and in open court for professional misconduct In Chamberlain v Law Society of the Australian Capital Territory (1993) (Fed), a lawyer (Chamberlain) appealed against being suspended from practice for his part in a consent judgment where the other party was under a mistaken belief The lawyer’s tax assessment for 1975–83 was $255,579.20 He had objected and, in the subsequent proceedings for recovery, lawyers acting for the Australian Taxation Office made an error (by dropping a decimal point) and sued for only $25,557.92 The lawyer, upon realising the error, arranged through an employee for terms of settlement to be entered into When the truth was revealed, the lawyer claimed an estoppel for future recovery proceedings He succeeded, but was subsequently suspended from practising law for six months The Federal Court (by a 4:1 majority: Black CJ, Lockhart, Whitlam and Beazley JJ; Jenkinson J dissenting) agreed that the lawyer was guilty of professional misconduct, but held that the conduct was ‘at the lower end of the scale of professional misconduct’ The court substituted a reprimand after finding that the suspension penalty was disproportionate to the offence and represented a wrongful exercise of discretion (Whitlam J dissenting on this point) Other penalties Fine For example, s 171C(1)(d) of the (NSW) Legal Profession Act 1987 allows the tribunal to make an order that: … the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct 129 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Compensation order For example, s 171D(1) of the (NSW) Legal Profession Act 1987 provides that if the tribunal is satisfied that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct and that, in addition, the complainant has suffered loss because of the conduct concerned, the tribunal may any one or more of the following to compensate the complainant: (a) order that the legal practitioner waive or repay the whole or a specified part of the amount charged to the complainant by the legal practitioner in respect of the legal services specified in the order; (b) order that the legal practitioner provide to the complainant the legal services specified in the order, either free of charge or for a specified charge; (c) order that the legal practitioner waive any lien in respect of the document or class of document specified in the order; (d) order that the legal practitioner pay to the complainant, by way of monetary compensation for the loss, the amount specified in the order In addition, s 171D(2) of the (NSW) Legal Profession Act 1987 provides that a compensation order is not to exceed an amount of $10,000 unless the legal practitioner and the complainant consent Section 171D(3) provides that a compensation order is not to be made for any loss for which the complainant has received, or is entitled to receive, compensation under an order made by a court or compensation from the fidelity fund Section 171D(4) provides that the recovery of compensation awarded by the tribunal does not affect any other remedy which may be available to the complainant, but any compensation award is to be taken into account in any other proceedings by and on behalf of the complainant in respect of the same loss Costs orders For example, s 171E(1) of the (NSW) Legal Profession Act 1987 allows the tribunal to make an award of costs against a legal practitioner found guilty of unsatisfactory professional conduct or professional misconduct Costs not, however, follow the event Where the tribunal is satisfied that the practitioner is not guilty of unsatisfactory 130 DISCIPLINE professional conduct or professional misconduct, the tribunal may (but only if it considers that special circumstances so warrant) order payment from the statutory interest account to the practitioner concerned of such amount by way of costs as it determines: s 171E(2) An award of costs may be for a specified amount (or if unspecified, the basis on which the amount is to be determined) and may specify any terms for payment: s 171E(3) Course of further legal education For example, s 171C(1)(f) of the (NSW) Legal Profession Act 1987 allows the tribunal to make an order that: … the legal practitioner undertake and complete a course of further legal education specified in the order Orders against solicitors In New South Wales, s 171C(1)(g) of the (NSW) Legal Profession Act 1987 allows the tribunal to make specific orders against solicitors (only) pursuant to s 171C(2) These orders include one or more of the following: (a) order that the practising certificate of any associated solicitor corporation be cancelled or that a practising certificate not be issued to any associated solicitor corporation until the end of the period specified in the order; (b) order that the solicitor’s practice or the practice of any associated solicitor corporation, be subject to periodic inspection by the person, and for the period specified in the order; (c) order that the solicitor seek advice in relation to the management of the solicitor’s practice, or the practice of any associated solicitor corporation, from the person specified in the order; (d) order that the solicitor, or any associated solicitor corporation, cease to employ in the solicitor’s practice or the solicitor corporation’s practice the person specified in the order; (e) order that the solicitor, or any associated solicitor corporation, employ in the solicitor’s practice or the solicitor corporation’s practice, a person belonging to the class of persons specified in the order; 131 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS (f) order that the solicitor, or any associated solicitor corporation, cease to accept instructions in relation to the class of legal services specified in the order; (g) order that the solicitor’s practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate; (h) order that the appropriate regulatory authority of a participating State endorse the interstate practising certificate of a solicitor who is an interstate legal practitioner restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate (or its equivalent) in that participating State 132 Index Account, duty to Admission of guilt in criminal cases Admission to practice applications effect of admission inherent jurisdiction of courts mutual recognition of admission recognition of qualifications uniform standards Advertising Anton Piller orders Australian Bar Association Barristers, briefing counsel cab rank rule immunity for negligence liability negligence practice rules representation duty Breaking the law Briefing counsel Cab rank rule Character of client, no duty to inform client of Chinese walls Commissions Communications between lawyers professional obligation 64–65 35–37 3–4 1–3 107–08 33 112–13 16 56–60 56–60 15–17 12–14 112–13 16–17 23 88–90 93–95 110–11 109 third parties borrowing transactions false certification of documents false witness letters of demand offensive correspondence practice rules professional obligation Compensation order Competence and care account, duty to conduct standards and contractual liability, specialist lawyers standard of care expected indemnity insurance minimum standards negligence, liability in barristers generally solicitors third parties practice rules standard of care specialist lawyers third parties, liability to generally other areas proximity test wills unsatisfactory professional conduct wills 101–02 101–03 102 99–101 99 98 97–98 130 64–65 49–50 52–54 51–52 64 50 56–60 54 55–56 60–64 50 51–52 52–54 60 63–64 60 61–63 50–51 61–63 133 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Complaints inherent jurisdiction State and Territory tribunals Conduct, See, also, Misconduct common law deterrent factor false evidence fitness to practice mitigating circumstances prescribed Conducting civil proceedings Anton Piller orders character of client, no duty to inform client of correcting opponent’s concession discovery of documents ex parte applications false material provided to court frankness in court generally half-truths, common law practice rules informing court of binding authority oral evidence presentation of, false implications, no responsible use, court process/privilege positively assist court, duty to provide material to the court, failure to witnesses, dealing with adversarial proceedings coaching witness 134 117–18 118–19 123–24 125 126 124–25 126 127 33 23 23 24–25 24 23 22 25–26 26 23 31–32 32 32–33 22 27–31 29 27 consent to interview opposing witnesses cross-examination no property in a witness procedure for interviewing witnesses Conducting criminal proceedings admission of guilt in criminal cases Crown witnesses defence lawyer’s duty admission of guilt in criminal cases frozen defence, conducting sentencing role frozen defence prosecutor’s duty Crown witnesses generally sentencing Confidentiality duty court ordered disclosure disciplinary proceedings, defending exceptions to rule commission of criminal offence court ordered disclosure disciplinary proceedings, defending generally readily available information waiver by client generally legal privilege See Legal professional privilege 30 30–31 28 27–28 35–37 34–35 35–37 37 37 37 34–35 34–35 34 37 69 69 72–73 69 69 69 72 70–72 67 INDEX practice rules 67–68 readily available information 72 waiver by client 70–72 Conflicts of interest, duty to avoid, Chinese walls 88–90 commissions 93–95 generally 87 gifts received from client, undue influence 90–91 more than one party, acting for 87–88 referral fees 93–95 undue influence 90–91 will, receiving benefit under 91–92 Contractual liability specialist lawyers 52–54 standard of care 51–52 Correcting opponent’s concession 23 Costs hopeless cases 21–22 penalties 130–31 protecting costs of lawyer 115–16 Court, duty to the See Duty to the court inherent jurisdiction See Inherent jurisdiction of courts Disciplinary proceedings defending undertakings Discipline inherent jurisdiction of Supreme Courts investigations misconduct See, also, Misconduct penalties See Penalties 69 104 117–18 119 119–23 removal from rolls 128 reprimand 128 State and Territory tribunals 118–19 suspension from practice 128 Discovery of documents 24–25 Duty to account 64–65 Duty to the court, commencing proceedings 20–22 costs orders in hopeless cases 21–22 hopeless cases, role in 20–21 conduct, civil proceedings See Conducting civil proceedings conduct, criminal proceedings See Conducting criminal proceedings generally 19–20 Duty to the law efficient administration of justice 17–18 generally 11 representation, duty of 15–17 barristers 16–17 cab rank rule 16–17 solicitor, duty of 15 uphold the law, duty to 11–15 assisting another to break the law 14–15 breaking the law 12–14 generally 11 undermining the law 11–12 Efficient administration of justice Engaging another law firm Ex parte applications Anton Piller orders positively assist court, duty to 17–18 112 33 32–33 135 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS False material provided to court misconduct Fiduciary relationship, breach of Fines Frankness in court Frozen defence Gift from client undue influence Good faith, duty to act in avoidable conflicts of interest borrowing transactions elements of duty avoidable conflicts of interest full disclosure of lawyer’s interest generally independent advice, client receiving promotion of lawyer’s interest fiduciary relationship, breach of full disclosure of lawyer’s interest independent advice, client receiving practice rules borrowing transactions conducting another business conflict of duty register of financial interests Indemnity insurance Informing court of binding authority 136 24 126 79–80 129 23 37 90–91 81 84–85 80–83 81 81 80 81 81–83 79–80 81 81 84–85 86 83–84 85 64 23 Inherent jurisdiction of courts admission to practice discipline penalties striking off the rolls Investigations Law Council of Australia Law, duty to the See Duty to the law Legal practice rules Barristers’ rules codification of law common law coverage statute Legal profession, admission See Admission to practice Australian Bar Association divided profession Law Council of Australia national associations NSW reforms States and Territories structure Legal professional privilege, common law dominant purpose test generally scope sole purpose (Uniform) Evidence Act 1995 Letters of demand costs of recovery not allowed, where criminal proceedings not threatening mercantile agents 117–18 127 119 9 7–8 8–9 4–5 6 6–7 4–7 74–78 73–74 73 73 74–78 73–74 99–101 100 99–100 100–01 INDEX Liens generally overturning particular lien retaining trust accounts Misconduct breach of practice rules common law, personal misconduct professional misconduct concept deterrent factor false evidence fitness to continue practising mitigating circumstances penalties inherent jurisdiction substantial professional misconduct common law statutory statutory professional misconduct Misuse of trust account reporting National associations Negligence barristers generally solicitors third parties, liability to proximity test wills wills 45 48 47 45–46 47–48 119–23 121–22 121 120 119–20 125 126 124–25 126 127 127–28 120–21 122–23 122–23 111 56–60 54 55–56 60 61–63 61–63 Oral evidence presentation of false implications, no responsible use, court process/privilege Particular lien Payments, briefing counsel engaging another law firm third parties, to Penalties, compensation order costs orders fines further legal education, course of inherent jurisdiction orders against solicitors removal from rolls reprimand substantial suspension from practice Privilege, legal professional See Legal professional privilege Professional fees/charges, disclosure of Recognition of qualifications Referral fees Register of financial interests Reporting trust account misuse Representation duty of barristers cab rank rule solicitors 31–32 32 47 112–13 112 102–03 130 130–31 129 131 127 131–32 128 128 127–28 128 40–41 93–95 85 111 15–17 16–17 16 15 137 ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Reprimand Retainers costs agreements ending retainer criminal proceedings entire contract principle reasonable notice of termination need for non-disclosure, effect of professional fees and charges, disclosure of termination Sentencing conducting criminal proceedings Solicitors negligence orders against representation duty Striking off the rolls Suspension from practice Third parties, communications with borrowing transactions false certification of documents false witness letters of demand offensive correspondence practice rules professional obligation liability to, generally other areas proximity test wills 138 128 41–42 45 payments to undertakings See Undertakings Trust account liens reporting misuse 102–03 47–48 111 42 42–43 39–40 41 40–41 43–44 37 55–56 131–32 15 1, 128 128 101–02 101–03 102 99–101 99 98 97–98 60 63–64 60 61–63 Undermining the law 11–12 Undertakings disciplinary proceedings 104 generally 103, 114 judicial enforcement 104–06 one practitioner to another 114 practice rules 106–07 summary enforcement 104 third parties, involving 114–15 Undue influence gift from client 90–91 Unsatisfactory professional conduct 50–51 Uphold the law, duty to 11–15 assisting another to break the law 14–15 breaking the law 12–14 generally 11 undermining the law 11–12 Waiver confidentiality duty Wills competence and care negligence receipt of benefit by lawyer under Witnesses adversarial proceedings and coaching communication with other lawyers’ client consent to interview opposing witnesses 70–72 61–63 61–63 91–92 29 27 28–29 30 INDEX cross-examination dealing with 30–31 27–31 no property in procedure for interviewing 28 27–28 139 ... Essential Management Law Essential Professional Conduct: Legal Accounting Essential Professional Conduct: Legal Ethics Essential Tort Law ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS Geoff Monahan,... Company Law Essential Constitutional Law Essential Contract Law Essential Criminal Law Essential Equity and Trusts Essential Evidence Essential Family Law Essential International Trade Law Essential. . .ESSENTIAL PROFESSIONAL CONDUCT: LEGAL ETHICS C P Cavendish Publishing (Australia) Pty Limited Sydney • London Titles in the series: Essential Administrative Law Essential Australian Law Essential