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National Library of Australia Cataloguing in Publication Data Monahan, Geoff Essential professional conduct: legal ethics 1 Lawyers – Discipline 2 Legal ethics 3 Practice of law I Title

PROFESSIONAL

CONDUCT: LEGAL ET H I C S

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

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

PROFESSIONAL

CONDUCT: LEGAL ET H I C S

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

CP

Cavendish Publishing (Australia) Pty Limited

Sydney • London

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 inany form or by any means, electronic or mechanical, photocopying,recording or otherwise, without the prior permission of the publisherand copyright owner

Any person who infringes the above in relation to this publicationmay 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

1 Lawyers – Discipline 2 Legal ethics 3 Practice of law

I Title (Series: Essential series)

174.3

ISBN 1 876213 05 1

Printed and bound in Great Britain

This book is intended as a revision aid for students studying degree ordiploma 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 thelegal context One common theme is ‘morality’ – but what is morality?How many times have you heard a fictitious television lawyercomment: ‘well, it may not be ethical, but it is certainly legal!’ Clearly,there lies a blurring between the legal, ethical, moral and the commercialresponsibilities of the modern day legal practitioner

The law is stated as it was on 1 February 2001

While the book makes references to the relevant State and Territorylegislation and practice rules, it specifically refers to the practice rules inNew South Wales and the Australian Capital Territory (based upon theLaw Council of Australia’s Model Rules of Professional Conduct andPractice) and the Advocacy Rules incorporated into the Practice Rules inNew South Wales and the Australian Capital Territory (and based uponthe New South Wales Barristers’ Rules as adopted by the Australian BarAssociation, and the Bar Associations in Queensland and the AustralianCapital Territory) The quotations at the commencement of somechapters are mainly from the Model practice rules Given the growth inthe interstate and international practice of law, it is hoped that all Statesand Territories will move towards basic uniform practice rules in thenear future

The cases referred to in this book include references to the followingcourts:

Australian courts:

(HC) High Court of Australia

(Fed) Federal Court of Australia

(Fam) Family Court of Australia

(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 theircomments I would also like to thank John O’Shannassy for hisassistance in the research for this book This book is dedicated to mygodsons Paul and Nicholas

Enjoy your studies in Professional Conduct

Geoff Monahan February 2001

Preface v Table of Cases ix

9 Discipline 117

Allinson v General Council of Medical Education

Beneficial Finance Corporation Ltd v Karavas

Dew v Richardson (1999) unreported,

Fraser v Council of the Law Society of NSW

Guardian Royal Exchange Assurance of

Hardware Services v Primac Association Ltd

Kennedy v Council of the Incorporated

Law Institute of NSW (1939) 13 ALJR 563 12, 30, 120Kleinwort Benson Australia v Armitage

(1989) unreported, 26 April, NSW SC 51, 53

Law Society of NSW v Foreman (1994) 34 NSWLR 408 124–126Law Society of NSW v Harvey [1976] 2 NSWLR 154 68, 80–83, 93Law Society of NSW v Moulton [1981] 2 NSWLR 736 50

Leary v Federal Commissioner of Taxation

McIndoe v Parbery (1994) Australian Torts Rep 81–290 52

Malleson Stephen Jacques v KPMG Peat Marwick

Marten v Royal College of Veterinary Surgeons

Montague Mining Pty Ltd v Gore and Others, trading

as Clayton Utz (1999) ANZ Conveyancing Rep 52

Nickelby Pty Ltd v Holden (1994) unreported,

NSW Bar Association v Evatt (1968) 117 CLR 177 125

O’Reilly v Law Society of NSW

Saif Ali v Sydney Mitchell and Co

Shannon, In the Will of [1977] 1 NSWLR 210 92–93Southern Law Society v Westbrook

Summerville v Walsh (1998) unreported,

The Prothonotary of the Supreme Court of NSW

v Jai Ram (1989) unreported, 11 May, NSWCA 126Tombling v Universal Bulbs Co Ltd [1951] 2 TLR 289 22

Unioil International Pty Ltd v Deloitte Touche

Weiss v Barker Gosling (1993) FLC 92–399 42Wentworth v NSW Bar Association (1992) 176 CLR 239 2Weston v CCC Courts Administrator [1977] QB 32 99

Admission to Practice

Inherent jurisdiction of courts

The State and Territory Supreme Courts retain an inherent jurisdiction

to admit individuals as legal practitioners This inherent jurisdictionalso extends to removal of individuals as legal practitioners (oftenreferred to as being ‘struck off the rolls’) Legal practitioners wishing

to practise in a federal court must also apply for admission to the HighCourt of Australia Applications for admission were traditionallymade by way of formal application to the court, although in moderntimes this function has been delegated to administrative boards The 1990s witnessed the adoption of uniform admission standards,mutual recognition of professional qualifications and, more recently,national practising certificates: see (NSW) Legal Profession Act 1987Part 3B; (Vic) Legal Practice Act 1996 Part 2A; (SA) Legal PractitionersAct 1981 Part 3A; (ACT) Legal Practitioners Act 1970 Part XVA

Uniform admission rules

All States and Territories have now implemented (with some localvariations, and not formally in Western Australia) the ‘uniformadmission rules’ drafted by the Consultative Committee of State andTerritory Law Admitting Authorities (also known as the PriestleyCommittee)

You should be familiar with the following areas:

• inherent jurisdiction of Supreme Courts to admit or removeindividuals as legal practitioners

• uniform admission rules and mutual recognition

• structure of the legal profession

• legal practice rules

An applicant for admission must provide evidence to the relevantState or Territory admitting authority that he or she has successfullycompleted:

• a recognised academic course (either a degree in law or similar

award) from an accredited institution; and

• the practical requirements either by undertaking ‘articles of

clerkship’ (if applicable) or a course of practical legal training from

an accredited institution

Apart from prescribing the necessary academic and practicalrequirements, the uniform admission rules confirm the common lawrequirement that applicants seeking admission must be of good fameand character and otherwise fit and proper persons to be admitted as

a legal practitioner In the case of Wentworth v NSW Bar Association (1992) (HC) the High Court (per Deane, Dawson, Toohey and Gaudron

JJ; Brennan J agreeing) stated that a court, when considering anapplication for admission:

… must ensure, as far as possible, that the public is protected from those who are not properly qualified, and to use the language of

s 4(2) of the [(NSW) Legal Profession Act 1987], from those who are not ‘suitable for admission’

Moreover, according to Moffitt P in the case of Re B (1981) (NSW), this

consideration extends to whether the character of the applicant:

… is such that he can be trusted to perform his duty … including that performed when what he does is unlikely to be the subject of scrutiny Reputation is also a relevant factor because the effectiveness of the law depends materially upon the confidence

of the public in the due administration of it That confidence is less

if those who administer the law, whether judges, barristers or solicitors, lack a reputation for integrity and that they will uphold and observe the law

In Re B (1981) (NSW), the applicant for admission had been previously

convicted of various offences related to her political activism Inaddition, there was evidence that the applicant had been a party to abogus bail agreement where she pledged the money of a prisonerpretending it to be her own Despite representations from theapplicant that her attitudes had changed since her convictions, the

New South Wales Court of Appeal (per Moffitt P, Reynolds JA and

Helsham CJ in Eq) refused her admission In his judgment, Reynolds

JA stated that it was:

… not a question of any difference of view as to her political ideology or indeed a dislike of the vigour with which she has pursued the many causes she has espoused It is rather a question

of whether a person who aspires to serve the law can be said to be fit to do so when it is demonstrated that in the zealous pursuit of political goals she will break the law if she regards it as impeding the success of her cause

By contrast, in the case of Ex p Lenehan (1948) (HC), the applicant (who

was in his mid 40s) was initially refused admission because he had(while in his early 20s) worked as legal clerk in a firm with a ‘bad’reputation and was found to have acted contrary to his duty toaccount in relation to client moneys The applicant’s appeal was

successful after the High Court (per Latham CJ, Dixon and Williams JJ)

found that, despite his earlier record, the applicant had (between theages of 28 and 45):

… behaved in such a way as to raise a strong presumption that he had redeemed his early errors and that they did not reflect any permanent defect in character … this court ought to give effect to the view that the adverse conclusions that might otherwise be drawn from an unsatisfactory beginning may be displaced by a completely satisfactory subsequent career [including service in the armed forces] sustained over a lengthy period of time

Obviously, where a lawyer fails to disclose relevant prior conduct (forexample, a criminal conviction for theft), he or she is likely to be foundnot a fit and proper person for the practice of law and may be

disbarred despite subsequent good behaviour: see In Re Davis (1947) (HC) (per Latham CJ, Starke, Dixon, McTiernan and Williams JJ).

Mutual recognition

The (Cth) Mutual Recognition Act 1992 (together with complementaryState and Territory legislation) provides for reciprocal recognition ofadmission to practise across State boundaries Section 17(1) states:

… a person who is [admitted] in the first State for an occupation

is, by this Act, entitled after notifying the local [admitting] authority of the second State for the equivalent occupation:

(a) to be [admitted] in the second State for the equivalent occupation; and

(b) pending such [admission], to carry on the equivalent occupation in the second State

In other words, a legal practitioner admitted in one State can beadmitted in a second State using mutual recognition If a legalpractitioner wishes to practise in the second State, he or she mustobtain a practising certificate in the second State after being admitted.The practising certificate can also be obtained using mutualrecognition As previously noted, National Practising Certificateslegislation exist in New South Wales, Victoria, South Australia and theAustralian Capital Territory.

Effect of admission

Once admitted, a legal practitioner becomes an officer of the court.Admission is a precondition to the grant of the privilege of acting as abarrister or solicitor In all jurisdictions, it is an offence for a person toeither falsely pretend to be qualified as a lawyer and/or to carry outgeneral legal work when not qualified as a lawyer Generally speaking,

a legal practitioner becomes a member of a professional association bytaking out a practising certificate with the relevant society orassociation

Structure of the profession

Some Australian States like New South Wales and Queenslandinherited the English characteristic of a divided profession In otherwords, there is a clear distinction between a legal practitioner working

as a ‘barrister’ and a legal practitioner working as a ‘solicitor’ OtherStates have what is known as a ‘fused’ profession where a legalpractitioner is both a barrister and solicitor In New South Wales, therehave been several attempts to achieve fusion of the so called two arms

of the profession The opposition to fusion has come mainly from theBar

A profession ‘divided’?

It has been argued that a divided profession leads to the development

of a group of specialist advocates who are independent and free fromany conflicting interests The contrary argument is that a dividedprofession often results in an unnecessary use of two lawyers(barrister and solicitor) leading to duplication, omission and confusion

of function Moreover, there is the perception that there is a lack of

freedom and incentive for lawyers to develop new methods of legalservices so as to provide a better public service.

In a 1993 Report, the Trade Practices Commission, the forerunner

to the Australian Competition and Consumer Commission (ACCC),found that a divided legal profession reduces competition and causeseconomic inefficiency The Commission also advocated for thederegulation of legal fees and eliminating the lawyer’s monopoly inareas such as conveyancing, civil claims, family law and wills

The NSW reforms in the 1990s

Although a divided profession still exists in New South Wales,substantial reforms occurred as part of the (NSW) Legal ProfessionReform Act 1993 that amended the (NSW) Legal Profession Act 1987.Some of the relevant changes included:

(a) common admission into the legal profession and then election as towhether a lawyer wishes to practise as a barrister or a solicitor (butnot both) This last point was changed by a further amendmentintroduced in 1997 which allows admission as ‘solicitor andbarrister’, but retained a separate bar: see ss 25–26, s 38A and 38D

as amended by (NSW) Legal Profession Amendment (NationalPractising Certificates) Act 1996;

(b) direct access to barristers by any client: see s 38I;

(c) the right of a barrister to choose a solicitor advocate as a junior: see

s 38M; and

(d) the cessation of further appointment of Queen’s Counsel by theCrown: see s 38O This change prompted the New South Wales BarAssociation to appoint its own ‘silks’ by the introduction of the SC(Senior Counsel) title

The complimentary Federal and State Competition Policy Reform Act

1995 means that the New South Wales legal profession is subject to aCompetition Code which is contained in the federal competitionpolicy legislation and which is administered by the ACCC In addition

to these changes, legislation was introduced in 1992 opening updomestic conveyancing to ‘licensed conveyancers’ Further legislation,

in 1995, extended the rights of licensed conveyancers to commercial,retail and rural transfers of property: see (NSW) Conveyancers’Licensing Act 1995

National associations

On a national level, there are two relevant organisations; namely, theLaw Council of Australia, and to a lesser extent, the Australian BarAssociation

Law Council of Australia

This organisation champions the welfare of lawyers at a national level.Its main function is co-ordinating various submissions by itsconstituent organisations comprising each State and Territory LawSociety and Bar Association The Council has different committees forparticular practice areas (the largest being the influential Family LawSection) The Council is precluded from interfering with the domesticconcerns of its constituent associations and therefore exercises littlecontrol over the vested interests of its members

Australian Bar Association

Not surprisingly, this organisation represents lawyers practising solely

as barristers Its objectives include advancing the interests of itsmembers and encouraging the continued existence and growth of anindependent bar in Australia

It should be noted that these two national organisations are far lessinfluential as national bodies than similar bodies of other professions

in Australia, for example, the Australian Society of Accountants, theInstitute of Chartered Accountants, the Australian Institute ofEngineers, and the Australian Medical Association Moreover, thesebodies have little power when compared to other common lawcountries (in particular, the American Bar Association)

States and Territories

The law societies (or institutes) in each of the States and Territories(apart from Western Australia) have the power to control (orinfluence) admission, discipline, the setting of ethical standards, theauditing of trust accounts, and the setting of standards for continuedpractice (for example, continuing legal education requirements) andother related matters

The law societies have both a representative function (not unlike atrade union) as well as operating as a regulatory body to protect thepublic interest (or assisting in the regulatory process) The regulatorypowers come from their constitutions or are conferred by statute

Bar Associations also exist at State and Territory level and exerciseregulatory powers through a central committee or council electedannually by its members

Legal practice rules

Common law

Broadly, the rules governing the practice of law in Australia weredeveloped by the common law (as amended by statute) and partiallycodified by the practice rules of the various professional associations(see below, p 8)

In the case of Re B (1981) (NSW), Moffitt P stated that:

in exchange for the legal privileges that the law confers on the barrister or on his relationship with his client, his duty in the public interest is to conduct himself in relation to those privileges and otherwise in a manner which will uphold the law and further its pure administration.

In 1994, the Law Society of New South Wales published the following

Statement of Ethics setting out general duties or responsibilities of

solicitors:

The law should protect the rights and freedoms of members of the community The administration of the law should be just The lawyer practises law as an officer of the court The lawyer’s role is both to uphold the rule of law and serve the community in the administration of justice In fulfilling this role, lawyers should:

• serve their client’s interests competently;

• communicate clearly with their clients;

• treat people with respect;

• act fairly, honestly and diligently in all dealings;

• pursue an ideal of service that transcends self-interest;

• work with their colleagues to uphold the integrity of the profession and honourable standards and principles;

• develop and maintain excellent professional skills;

• act frankly and fairly with all dealings with the courts;

• be trustworthy;

• keep the affairs of clients confidential, unless otherwise required by the law;

• maintain and defend the rights and liberty of the individual;

• avoid any conflict of interest.

In fulfilling this role, lawyers are not obliged to serve the client’s interests alone, if to do so would conflict with the duty which lawyers owe to the court and to serving the ends of justice.

Statute

The relevant State and Territory statutes are:

(a) (NSW) Legal Profession Act 1987;

(b) (Vic) Legal Practice Act 1996;

(c) (ACT) Legal Practitioners Act 1970;

(d) (Qld) Queensland Law Society Act 1952;

(e) (SA) Legal Practitioners Act 1981;

(f) (WA) Legal Practitioners Act 1893;

(g) (Tas) Legal Profession Act 1993;

(h) (NT) Legal Practitioners Act 1974

Practice rules

The practice rules applicable in New South Wales (adopted as theProfessional Conduct and Practice Rules by the Law Society of NewSouth Wales in 1994, revised in 1995 and most recently amended in2000) and the Australian Capital Territory (adopted by the Law Society

of the Australian Capital Territory as the Professional Conduct Rules

in 1998) are based upon the Law Council of Australia’s Model Rules ofProfessional Conduct and Practice The Practice Rules are in five parts(in New South Wales) and six parts (in the Australian CapitalTerritory); namely:

(a) relations with clients: (NSW) rr 1–16; (ACT) rr 1–11;

(b) practitioners’ duties to the court: (NSW) rr 17–24 (incorporatesAdvocacy Rules (based upon the Barrister’s Rules) A.15-A.72;(ACT) rr 12–16 (Duties to the court) and rr 17–24 (Advocacy rules);

(c) relations with other practitioners: (NSW) rr 25–31A; (ACT)

rr 25–29;

(d) relations with third parties: (NSW) rr 31–36; (ACT) rr 30–33; and(e) legal practice: (NSW) rr 37–45; (ACT) rr 34–44

These rules do not represent a complete codification of the general law

in New South Wales or the Australian Capital Territory The ethicalprinciples must be read in conjunction with common law Althoughfailure to comply with a practice rule does not, of itself, amount to abreach of the legal profession legislation, it could amount toprofessional misconduct or unsatisfactory professional conduct: see(NSW) s 57D(4) of the Legal Profession Act 1987 and (ACT) s 74 of theLegal Practitioners Act 1970

The other relevant practice rules in Australia are contained in:(a) (Vic) Professional Conduct and Practice Rules 2000 (of theVictorian Lawyers RPA Ltd as the recognised professionalassociation for solicitors under the (Vic) Legal Practice Act 1996);(b) (Qld) Solicitors’ Handbook;

(c) (SA) Professional Conduct Rules;

(d) (WA) Professional Conduct Rules;

(e) (Tas) Rules of Practice 1994; and

(f) (NT) Professional Conduct Rules

Barristers’ rules

In 1993, the Bar Associations in all States and Territories (except NewSouth Wales and Tasmania) adopted the Australian Bar AssociationCode of Conduct The New South Wales Bar Association adopted newBarristers’ Rules in 1994 (most recently amended in 2000) Thisresulted in the Australian Bar Association revising its own AdvocacyRules in 1995 by adopting the NSW Barristers’ Rules These revisedAdvocacy Rules have also been adopted by the Bar Associations inQueensland and the Australian Capital Territory In Tasmania, therelevant rules are the Bar Association Professional ConductGuidelines The Victorian Bar Inc (as the recognised professionalassociation for barristers under the (Vic) Legal Practice Act 1996)adopted its most recent Victorian Bar Practice Rules in 1998

Practitioners should not, in the service of their clients, engage in,

or assist, conduct that is calculated to defeat the ends of justice or

is otherwise in breach of the law … [(NSW) Professional Conduct and Practice Rules; (ACT) Professional Conduct Rules; Preamble – Relations with Clients.]

Duty to uphold the law

A lawyer has a duty to obey existing laws and assist in their

enforcement In the case of Re B (1981) (NSW), Moffitt P stated that a

lawyer ‘must foster respect for the law and its administration’ While

a lawyer has no obligation to support any particular law, a lawyer whodefies the law will, in all likelihood, be considered unfit to be amember of the legal profession This duty to uphold the law manifestsitself in three ways, namely:

(a) undermining the law;

(b) breaking the law; and

(c) assisting a client or an agent to break the law

Undermining the law

While a lawyer is entitled to criticise the law, he or she should takeparticular care to ensure such criticism does not undermine the law

You should be familiar with the following areas:

• lawyers have a duty to obey existing laws and assist in theirenforcement

• the cab rank rule for barristers

• the lawyer’s role in the efficient administration of justice

itself, or public confidence in it Care is also required to ensure that, invoicing criticism, the lawyer is not ‘scandalising the court’ In the case

of Ambard v AG for Trinidad and Tobago (1936) (PC), Lord Atkin stated

that the:

path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right

of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

Breaking the law

Lawyers must not engage in conduct, whether professional orotherwise, that is dishonest, illegal or which may otherwise bring theprofession into disrepute or which is prejudicial to the administration

of justice Historically, being convicted of a criminal offence (otherthan very minor offences) usually amounted to unprofessionalconduct even if no dishonesty was involved This arose because suchconduct may indicate that the lawyer has demonstrated disrespect for

the law In the case of Re Weare (1893) (QB) a lawyer (Weare) had been

convicted and sentenced to imprisonment for the offence ofunlawfully and wilfully being a party (as a landlord) to the continueduse of premises as a brothel The lawyer was subsequently struck offthe rolls following his conviction

As with all matters of professional conduct, it is a question oflooking at the conduct of the lawyer to determine, quoting from Rich

J in the case of Kennedy v Incorporated Law Institute (1939) (HC),

whether the conduct is indicative of a failure either to understand or

to practise the precepts of honesty or fair dealing in relation to thecourts, clients or the public Determining the seriousness of the

conduct is often a difficult task In the case of Ziems v The Prothonotary

of the Supreme Court of NSW (1957) (HC), Kitto J stated that:

there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means an easy task.

In the Ziems case, a barrister (Ziems) had been convicted of

manslaughter arising out of the death of a motorcyclist The barristerwas convicted and sentenced to two years’ imprisonment with hardlabour He was subsequently struck off the rolls The barristerappealed and a majority of the High Court (Fullagar, Kitto and TaylorJJ) upheld his appeal and ordered that he be suspended from practicefor the balance of his sentence

In his judgment, Fullagar J held that personal conduct, as distinctfrom professional conduct, may be a ground of disbarring because itmay show that a person guilty of it is not a fit and proper person topractise as a barrister Nevertheless, his Honour disagreed with theNSW Supreme Court that the ‘personal and professional sides of[Ziems’] life cannot be dissociated’ He went on to state:

but the whole approach of a court to a case of personal misconduct must surely be different from its approach to a case of professional misconduct Generally speaking, the latter must have

a much more direct bearing on the question of a man’s fitness to practise than the former.

Similarly, both Kitto and Taylor JJ, in separate judgments, held that onecannot simply conclude that a criminal conviction and sentence ofimprisonment will automatically render a barrister unfit to remain amember of the Bar According to Taylor J:

the vital question is whether the conduct of the person concerned constitutes an offence against the law or not [and whether] he is unfit to remain a member of the Bar The fact that his conduct may have amounted to an offence against the law is of course a matter for consideration but it is by no means the end

According to McTiernan J:

the removal of the appellant’s name from the roll of barristers is not a further punishment of him, but merely an inevitable consequence of his conviction.

His Honour went on to state that he did not believe that the convictionwould prevent the barrister from reapplying for admission:

provided that in the meantime his good fame and worthiness to

be a barrister have been re-established.

Assisting another to break the law

Obviously, if a lawyer knowingly assists a client to break the law, thensuch conduct is a crime in itself In addition, the lawyer’s conduct islikely to be considered as professional misconduct It should be noted,however, that there is a well recognised distinction between assisting

a client to break the law and the professional duty when acting on aclient’s instructions to find a ‘loophole’ in the law An obvious example

is in the area of the tax minimisation as distinct from tax avoidance: for

example, see O’Donovan v Forsyth (1987) (Fed) In the case of Leary v

Federal Commissioner of Taxation (1980) (Fed), Brennan J (as he then was)

commented that:

the evidence in this case suggests that the scheme was promoted

by members of the legal and accounting professions, who assumed the mantle of entrepreneurs It has not been material to consider whether it is possible for the role of a professional adviser and the role of an entrepreneur properly to coincide or overlap, but the appearance of lawyers performing these respective roles in the present case leads me to invite attention to significant differences between the two functions The differences

do not arise out of any judicial view as to the lawfulness or morality of tax avoidance they arise because the field of professional activity is coextensive with the lawyer’s professional duty That duty is to give advice as to the meaning and operation

of the law and to render proper professional assistance in furtherance of the client’s interests within the terms of the client’s retainer It is a duty which is cast upon a lawyer as a member of an independent profession, whether his services are sought with respect to the operation of taxing statutes, the provisions of the contract, charges under criminal law or any other of the varied fields of professional concern It is a duty which arises out of the relationship of lawyer and client But activities of an entrepreneur and the promotion of a scheme in which tax payers will be encouraged to participate falls outside the field of professional activities; those activities are not pursued and discharged with antecedent professional duty Entrepreneurial activity does not attract the same privilege or the same protection

as professional activity; and the promotion of a scheme in which particular clients may be advised to participate is pregnant with the possibility of conflict of entrepreneurial interest with professional duty.

Taxation advice, and the issue of tax avoidance, is specifically codified

by the (SA) Professional Conduct Rules, rr 15.1–15.3 For example,

r 15.2 states:

a practitioner shall not promote, or assist or advise in the promotion or marketing to the general public of artificial or contrived schemes or arrangements which have no commercial justification other than the avoidance of tax through exploitation

of revenue laws.

Even where a lawyer is acting as a professional adviser and not as anentrepreneur, the lawyer must not knowingly give advice to a clientthat assists the client in an illegal purpose Problems may arise for thelawyer in circumstances where the purpose for which advice isrequired is unclear or where the lawyer’s advice is sought as to thelegality of the scheme itself Difficult questions will arise both as towhen a lawyer should reasonably have made inquiries of the client as

to the client’s purpose in seeking advice and as to the reasonableness

of the lawyer’s conduct in accepting the client’s response in all thecircumstances

Duty of representation

Is there a duty imposed upon a legal practitioner to accept instructionsfrom anyone? The answer differs somewhat for solicitors andbarristers

Duty of a solicitor

There is no obligation imposed upon a solicitor to accept legal work,subject of course, to provisions of the Federal, State and Territory anti-discrimination legislation The Law Society of New South Wales haspublicly stated that ‘most solicitors feel they have a subjective moralobligation to accept most work and most clients’ and has furthersuggested that a solicitor may be ethically bound to accept a client ‘incases of dire emergency or unavailability of alternative practitioners’:

see (NSW) Law Reform Commission Report 31, 1982.

Duty of a barrister

Cab rank rule

The situation is different for barristers, owing to the ‘cab rank’ rule,where they are professionally bound to accept a brief in any court in

which they practise In the case of Rondel v Worsely (1969) (HL), Lord

Pearce quoted the famous statement of Erskine to justify hisunpopular defence of the US and French revolutionary Tom Paine:

from the moment that any advocate can be permitted to say that

he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end.

The practical reality of the cab rank rule is debatable In the case of

Arthur JS Hall and Co (A Firm) v Simons (AP) (2000) (HL), Lord Steyn

noted that the cab rank rule is often cited as an argument for theretention of the barrister’s immunity from negligence His Lordshipcommented that despite it being ‘a valuable professional rule’:

… its impact on the administration of justice is not great In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits.

It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept.

Interestingly, His Lordship noted that as the rule binds barristers, andnot solicitor advocates, it ‘cannot therefore account for the immunity

(a) the brief is within the barrister’s capacity, skill and experience;

(b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or prepare, and the barrister is not already committed to other professional or personal engagements which may, as

a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence;

(c) the fee offered on the brief is acceptable to the barrister; and

(d) the barrister is not obliged or permitted to refuse the brief under rr 87, 90 or 91.

In Chapter 6 of (NSW) Law Reform Commission Report 31, 1982, the New

South Wales Law Reform Commission stated:

in our view, the main practical effect of the [cab rank] rule is not that it forces reluctant barristers into accepting unpopular cases, but rather that it reduces criticism of barristers who do take such cases.

Interestingly, the Commission also stated that, in view of thebarristers’ cab rank rule, there was no need for a general ‘duty’ toaccept work to be imposed upon the legal profession They did,however, recommend that the Law Society consider introducing such

a rule for solicitors This situation (and standing of lawyers) inEngland and Australia should be compared with the US, where there

is no cab rank rule

Efficient administration of justice

The (Vic) Professional Conduct and Practice Rules 2000 have codifiedthe legal practitioner’s responsibility in ‘serving the end of justice andcomplying with the law’ Rule 1A(3) states:

a regulated practitioner must not, in the course of engaging in legal practice, engage in, or assist, conduct which is:

(i) dishonest or otherwise discreditable to the practitioner;

(ii) prejudicial to the administration of justice; or

(iii)likely to diminish public confidence in the legal profession or

in the administration of justice or otherwise bring the legal profession into disrepute.

The (NSW) Professional Conduct and Practice Rules were amended in

2000 to specify the legal practitioner’s role in the efficientadministration of justice The amendments are contained in AdvocacyRules A.15, A.15A and A.15B as applicable in Practice Rule 23(discussed below, Chapter 3)

(NSW) Professional Conduct and Practice Rules A.15 states:

… a practitioner must ensure that:

(a) the practitioner does work which the practitioner is retained to

do, whether expressly or impliedly, specially or generally, in relation to the steps to be taken by or on behalf of a client, in sufficient time to enable compliance with orders, directions, rules or practice notes of a court; and

(b) warning is given to any instructing practitioner or the client, and to the opponent, as soon as the practitioner has reasonable grounds to believe that the practitioner may not complete any such work on time.

(NSW) Professional Conduct and Practice Rules A.15A states:

… a practitioner must seek to ensure that work which the practitioner is retained to do in relation to a case is done so as to: (a) confine the case to identified issues which are genuinely in dispute;

(b) have the case ready to be heard as soon as possible;

(c) present the identified issues in dispute clearly and succinctly; (d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and

(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.

(NSW) Professional Conduct and Practice Rules A.15B states:

… a practitioner must take steps to inform the opponent as soon

as possible after the practitioner has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of the fact and the grounds of the application, and must try with the opponent’s consent to inform the court of that application promptly

Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour Practitioners should be frank in their responses and disclosures to the court, and diligent in their observance of undertakings which they give to the court or their opponents [(NSW) Professional Conduct and Practice Rules; (ACT) Professional Conduct Rules; Preamble – Practitioners’ Duties to the Court.]

Introduction

In New South Wales, Practice Rule 23 adopts the Advocacy Ruleswithin the New South Wales Barristers’ Rules (namely rr 16–72 andreferred to as A.16–A.72) The (NSW) Professional Conduct andPractice Rules were amended in 2000 and included the addition ofAdvocacy Rule A.15, A.15A and A.15B (discussed above, Chapter 2).Practice Rule 23 explains that it is intended that these Advocacy Rulesshould apply to lawyers acting as advocates as well as barristers and,therefore, the term ‘practitioner’ is used throughout the rules In the

You should be familiar with the following areas:

• the lawyer’s role in commencing civil proceedings

• the lawyer’s role in conducting civil proceedings, includingdealing with witnesses and presenting evidence

• the lawyer’s role in conducting criminal proceedings,

including the respective duties of prosecutor and defence

advocate

Australian Capital Territory, the Advocacy Rules are set out in (ACT)Professional Conduct Rules rr 17–24 In South Australia, there are ‘BarRules’ incorporated into the (SA) Professional Conduct Rules(rr 16.1–16.5).

The Advocacy Rules should also be read in conjunction with thegeneral law

Commencing proceedings

What is the practitioner’s duty when faced with a hopeless case? In the

case of Re Cooke (1889) (CA), Lord Esher MR stated that:

If a client came to a solicitor with a case which was such that the solicitor must know that it was absolutely and certainly hopeless, and if the client nevertheless insisted on the solicitor going on with the case, although there could be absolutely no doubt as to the result and although the solicitor knew this, then, if the solicitor were to go on with the case in consequence of these mad instructions in order to make costs for himself, he would be betraying his duty to his client and would be guilty of a dishonourable act

His Lordship went on to say that, even where proceedings could belegally taken, but were taken ‘in order to gratify’ the client’s own anger

or malice, if the practitioner knew all of this, then the practitionerwould be wrong to litigate the proceedings

The practitioner’s role in ‘hopeless cases’

Where the lawyer is not convinced that the case is absolutely hopeless,great care must be exercised to ensure that the court is not deceived

nor its time wasted According to Lord Esher MR in Re Cooke (1889)

(CA):

if the solicitor could not come to the certain and absolute opinion that the case was hopeless, it was his duty to inform the client of the risk he was running, and, having told him that and having advised him most strongly not to go on, if the client still insisted in going on the solicitor would be doing nothing dishonourable in taking his instructions.

It is worth noting that, in the Senate Standing Committee on Legal and

Constitutional Affairs, Discussion Paper No 5, Legal Ethics, February

1992, Professor Stephen Parker proposed the adoption of the following

it is unethical for a lawyer to take a step in litigation where the clients’ prospects of success are not sufficiently good to justify the expense and inconvenience caused to third parties and to the administration of justice as a whole.

Is such a strict ethical rule a good idea? In its April 1992 response tothe Senate Standing Committee Paper, the Law Society of New SouthWales commented that:

all litigation is based upon the individual lawyer’s perception as

to the success of the case It is a subjective decision initially and based on the client’s evidence It is simply not possible to establish rules based on objective criteria as to the chance of success Phrases such as ‘are not sufficiently good’ merely create more problems than resolve the difficulty It is strongly submitted that such rules should not be formulated It is a fundamental right of every citizen to have his or her dispute resolved by the courts Introduction of such rules [is] an erosion of this fundamental right and cannot be condoned

Costs orders and ‘hopeless cases’

Costs orders are designed to make litigants think twice about havingtheir day in court Australian courts (in most jurisdictions) havediscretion to make a costs order against the unsuccessful party: see, forexample, (NSW) Supreme Court Rules Part 52A r 43; (Cth) High Courtand Federal Court Rules Ord 62 r 9

Courts may order that costs are to be paid on either a ‘party/party’

basis or on a ‘solicitor/client’ (indemnity) basis In the case of Flower

and Hart (A Firm) v White Industries (Qld) Pty Ltd (1999) (Fed), the trial

judge (Goldberg J) made a costs order (on an indemnity basis) againstthe law firm (Flower and Hart) An appeal was made by the law firm

to the Full Bench of the Federal Court failed The court (per Lee, Hill

and Sunberg JJ) noted that the costs order followed a finding by thetrial judge that the earlier litigation pursued by the law firm on behalf

of their client (Caboolture Park Shopping Centre Pty Ltd inliquidation) was a negotiation tactic designed to delay an actioncommenced by White Industries In fact, the trial judge found that thelaw firm had done so for the:

… primary purpose of delaying action by White Industries to recover moneys from Caboolture under a building contract [They] did not do so for the purpose of vindicating any right that Caboolture might have … His Honour held that this amounted to

an abuse of process because of the illegitimate purpose for which the proceedings were instituted … His Honour also held that Flower and Hart had breached its duty to the court by instituting the proceedings without any proper foundation for an allegation

of fraud Further, His Honour found that the manner in which Flower and Hart conducted the proceedings and the obstructionist and delaying conduct in which it indulged exacerbated the abuse of the process.

Conducting civil proceedings

A lawyer must not wilfully or knowingly mislead the court as to thelaw or as to the facts Two broad issues can arise:

(a) the failure of an lawyer to provide material to the court; and(b) providing false material to the court

Failure to provide material to the court

The general rule is that passive withholding of material is permissible,

but misleading the court is prohibited In the case of Tombling v

Universal Bulb Co Ltd (1951) (CA), Lord Denning stated:

the duty of counsel to his client in a civil case or in defending an accused person is to make every honest endeavour to succeed.

He must not, of course, knowingly mislead the court, either on the facts or on the law, but short of that, he may put such matters such as in his discretion he thinks will be most to the advantage of his client

Similarly, Lord Diplock in the case of Saif Ali v Sydney Mitchell and Co

(1980) (HL) stated that:

a barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts, although, consistently with the rule that the prosecution must prove its case,

he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barristers’ knowledge.

Frankness in court

This ‘frankness in court’ approach is now sanctioned in the AdvocacyRules: see, generally, (NSW) Professional Conduct and Practice RulesA.21–A.23; (NSW/ABA/Qld/ACT) Barristers’ Rules rr 21–23; (ACT)Professional Conduct Rules r 19; see, also, (Vic) Victorian Bar PracticeRules r 19; (WA) Professional Conduct Rules r 13.2

Informing court of a binding authority

The Advocacy Rules clearly impose a duty on lawyers to inform thecourt of a binding authority: see (NSW) Professional Conduct andPractice Rules A.25; (NSW/ABA/Qld/ACT) Barristers’ Rules r 25;(Vic) Victorian Bar Practice Rules r 24; (ACT) Professional ConductRules r 19.6

No duty to inform court of client’s character

The Advocacy Rules also make it clear that a lawyer will not havemade a misleading statement to a court by failing to disclose factsknown to the lawyer concerning his or her client’s past, when thelawyer makes other statements concerning those matters to the court,and those statements are not themselves misleading: see (NSW)Professional Conduct and Practice Rules A.29; (NSW/ABA/Qld/ACT) Barristers’ Rules r 29; (ACT) Professional Conduct Rules r 19.10

Correcting an opponent’s concession

The (NSW) Professional Conduct and Practice Rules were amended in

2000 to include the following Advocacy Rule:

A.31A A practitioner must take all necessary steps to correct any express concession made to a court in civil proceedings by the opponent in relation to any material fact, case law or legislation:

(a) only if the practitioner knows or believes on reasonable grounds that it was contrary to what should be regarded as the true facts or the correct state of law;

(b) only if the practitioner believes the concession was in error; and

(c) not (in the case of a concession of fact) if the client’s instructions to the practitioner support the concession.

Providing false material to the court

A lawyer should not blindly accept as the truth all that is related orproduced by the client In some instances, a lawyer may be required toinvestigate the truth or otherwise of matters conveyed by the clientand associated witnesses

This aspect is now regulated by the Advocacy Rules: see (NSW)Professional Conduct and Practice Rules A.32; (NSW/ABA/Qld/ACT) Barristers’ Rules r 32; (Vic) Victorian Bar Practice Rules r 24;(ACT) Professional Conduct Rules r 20; see, also, (WA) ProfessionalConduct Rules r 13.3; (Tas) Bar Association Professional ConductGuidelines para 40 For example, in New South Wales:

A.32 A practitioner whose client informs the practitioner, during a hearing or after judgment or decision is reserved and while it remains pending, that the client has lied in a material particular to the court or has procured another person to lie to the court or has falsified or procured another person to falsify in any way a document which has been tendered:

(a) must refuse to take any further part in the case unless the client authorises the practitioner to inform the court of the lie or falsification;

(b) must promptly inform the court of the lie or falsification upon the client authorising the practitioner to do so; but

(c) must not otherwise inform the court of the lie or falsification.

There are several areas where this duty has come under judicialscrutiny; namely:

(a) discovery of documents (by affidavit);

(b) half-truths (in affidavits);

(c) dealings with witnesses (including the coaching of witnesses); and(d) oral testimony giving rise to false implications

Discovery of documents

Failing to proffer material is a common issue in the area of discovery

An order for discovery requires the client to give information inwriting and on oath or affirmation of all the documents which are orhave been in his or her possession or power, whether he or she isbound to produce them or not Clearly, the lawyer relies on the

documents disclosed to the lawyer and the client relies on the advice

of the lawyer as to the content of the affidavit to be sworn by the client

In the case of Myers v Elman (1940) (HL), Lord Atkin made the

following comments as to the lawyer’s obligations when preparing anAffidavit of Documents, after the making of an order for discovery:

he is at an early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial Obviously he must explain to his client what is the meaning of relevance If he has reasonable grounds for supposing that there are others, he must investigate the matter: but he need not go beyond taking reasonable steps to ascertain the truth He is not the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed towards him.

His Lordship went on to qualify his comments in a situation where thecase involves fraud:

I may add that the duty is especially incumbent on the solicitor where there has been a charge of fraud; for a wilful omission to perform his duty in such a case may well amount to conduct which is aiding and abetting a criminal in concealing his crime, and in preventing restitution.

Half-truths

A half-truth arises where only a part of the true facts are presented to

a court This in turn may result in the court being positively misled

Common law

In the case of Re Thom (1918) (NSW), the solicitor under investigation

was acting for the mother in an application to remove her from theposition as the guardian of her two children The affidavit in support

of the application for removal alleged that the mother had, some years

ago, left her husband and was living in a de facto relationship with a

man named Rix The affidavit further alleged that the mother was stillliving an ‘unchaste life’ In relation to the allegation of adultery, themother’s affidavit in reply stated:

I do not admit the allegations against my character.

As to the issue of still living an unchaste life, the affidavit read:

I say I was married to Charles Rix on 15 September 1917 and I deny that I have lived an unchaste life.

Under cross-examination in the witness box, the mother admitted heradultery It appears that, at the time of drafting the affidavit inquestion, the mother’s solicitor was aware of his client’s adultery In

the subsequent disciplinary proceedings, the court (per Cullen CJ;

Gordon and Ferguson JJ agreeing) said:

the practice of stating in an affidavit that the deponent does not admit a charge which the defendant knows to be a true charge is

a very reprehensible one an affidavit is not a pleading, but a statement of facts for the information of the judicial tribunal the affidavit gives the impression that there was no foundation for the charge of adultery The fact was that the mother is not leading an unchaste life at the present time but she had committed adultery prior to husband’s death There was a conscious withholding of information in the affidavit.

1.1 aware the a client is withholding information required by

an order or rule of a court, with the intention of misleading the court; or

1.2 informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular,

and the client will not make the relevant information available,

or allow the practitioner to correct the false evidence, the practitioner must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the court, give notice of the practitioner’s withdrawal from the proceedings.

2 A practitioner must not draw an affidavit alleging criminality, fraud, or other serious misconduct unless the practitioner believes on reasonable grounds that:

2.1 factual material already available to the practitioner provides a proper basis for the allegation;

2.2 the allegation will be material and admissible in the case,

as to an issue or as to credit;

2.3 the client wishes the allegation to be made after having been advised of the seriousness of the allegation.

Dealing with witnesses

Witness should not be coached

As a general rule, a witness in a court case should not be a ‘human taperecorder’ The witness should simply answer the legitimate questionsthat are put to him or her and no more

This aspect is now regulated by the Advocacy Rules: see (NSW)Professional Conduct and Practice Rules A.43–A.44; (NSW/ABA/Qld/ACT) Barristers’ Rules rr 43–44; (Vic) Victorian Bar Practice Rules

rr 44–45; (ACT) Professional Conduct Rules r 22.1–22.2 For example,

in New South Wales:

A.43 A practitioner must not suggest or condone another person suggesting in any way to any prospective witness (including a party or the client) the content of any particular evidence which the witness should give at any stage in the proceedings.

A.44 A practitioner will not have breached Rule A.43 by expressing a general admonition [warning] to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.

Procedure for interviewing witnesses

It is improper for a lawyer to advise or suggest that a witness shouldgive false evidence or to hint at results that certain evidence willachieve However, there is no prohibition against a lawyerinterviewing witnesses before their evidence is given, but witnesses(including a party) should be interviewed separately in relation to anycontentious issue

This aspect is now regulated by the Advocacy Rules: see (NSW)Professional Conduct and Practice Rules A.46–A.47; (NSW/ABA/Qld/ACT) Barristers’ Rules rr 46–47; (ACT) Professional ConductRules r 22.3–22.4 For example, in New South Wales:

A.46 A practitioner must not confer with, or condone another legal practitioner conferring with, more than one lay witness (including a party or client) at a time, about any issue:

(a) as to which there are reasonable grounds for the practitioner to believe it may be contentious at a hearing; or