0521546648 cambridge university press inside lawyers ethics oct 2007

This page intentionally left blank Inside Lawyers’ Ethics Legal ethics is often described as an oxymoron – lay people find the concept amusing and lawyers can find ethics impossible But the best lawyers are those who have come to grips with their own values and actively seek to improve their ethics in practice Inside Lawyers’ Ethics is designed to help law students and new lawyers to understand and modify their own ethical priorities, not just because this knowledge makes it easier to practise law and earn an income, but also because self-aware, ethical legal practice is right, feels better and enhances justice Packed with case studies of ethical scandals and dilemmas from reallife legal practice in Australia, each chapter delves into the most difficult issues lawyers face From lawyers’ part in corporate fraud to the ethics of time-based billing, the authors expose the values that underlie current practice and set out the alternatives ethical lawyers can follow This book is a compact, usable resource for all students, teachers and practitioners in the disciplines of law and ethics Christine Parker is Associate Professor and Reader in the Faculty of Law at the University of Melbourne She is also an Australian Research Council Fellow Adrian Evans is Associate Professor and Convenor of Legal Practice Programs in the Faculty of Law at Monash University He is also a recipient of the Monash Vice-Chancellor’s Award for Distinguished Teaching Inside Lawyers’ Ethics Christine Parker and Adrian Evans CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521546645 © Christine Parker, Adrian Evans 2006 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2007 eBook (EBL) ISBN-13 978-0-511-29489-1 ISBN-10 0-511-29489-1 eBook (EBL) ISBN-13 ISBN-10 paperback 978-0-521-54664-5 paperback 0-521-54664-8 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate To Greg Restall and Maria Bohan Contents Preface viii Acknowledgments ix List of tables x List of figures xi List of illustrations xii List of case studies xiii Table of statutes xiv Table of cases xv Introduction: Values in Practice Alternatives to Adversarial Advocacy 21 The Responsibility Climate: Regulation of Lawyers’ Ethics 41 Civil Litigation and Excessive Adversarialism 66 Ethics in Criminal Justice: Proof and Truth 96 Ethics in Negotiation and Alternative Dispute Resolution 120 Conflicting Loyalties 151 Lawyers’ Fees and Costs: Billing and Over-Charging 182 Corporate Lawyers and Corporate Misconduct 212 10 Conclusion – Personal Professionalism: Personal Values and Legal Professionalism 243 Index 259 vii Preface We are very grateful to Camille Cameron, John Howe and Rob Rosen who very kindly read and helpfully commented on previous incarnations of various chapters of this book Linda Haller at the University of Melbourne deserves an extraordinary vote of thanks for her extremely helpful and detailed comments on drafts of almost all chapters, and for going on to try out the drafts in the classroom before publication We are also grateful to those colleagues with whom we have each taught legal ethics or researched with over the years, whose companionship and ideas have helped encourage and inspire us in the development of much of the material published here, including John Braithwaite, Camille Cameron, Andrew Crockett, Linda Haller, Matt Harvey, John Howe, Joanna Krygier, Suzanne Le Mire, Guy Powles, Stephen Parker, Josephine Palermo, Ysaiah Ross, Michelle Sharpe and Michelle Taylor-Sands We have also benefited greatly from the insight and experience of many legal practitioners and regulators to whom we have talked during the course of writing this book Particular thanks are due to Janet Cohen and also to Brind Zwicky-Woinarski QC, Greg Connellan, James Leach, Richard Meeran, and Pam Morton as well as some others who should remain anonymous Zoe Jackson (research assistant and ‘Footnote Queen’) made the final preparation of the manuscript so much easier and more pleasant, for which we are extremely grateful Needless to say, all mistakes, misjudgements or infelicities of expression remain our own responsibility We also thank law students at Monash University, University of Melbourne and the University of New South Wales who have ‘road tested’ much of the material in this book and goaded us (with their enthusiasm, vigorous disagreement or sometimes lack of interest) into improving our ideas, arguments and, particularly, our case studies through class discussions and their responses to assessment tasks The precept of this book is that readers will wish to make ethical choices in good faith, rather than seek only to avoid obligations in their professional behaviour We are especially grateful to the many students and lawyers we have known who have encouraged us that this is often true Finally, we dedicate this book to our partners, Greg Restall and Maria Bohan, thanking them, and also each other, for helping us to keep on going in the faith that it is worthwhile to spend much of our time in ethics education and discussion with law students and lawyers Christine Parker and Adrian Evans Melbourne, July 2006 viii CONCLUSION: VALUES & PROFESSIONALISM 255 before they are under too much pressure to make quick decisions that might not be ethically justified.34 One way of uncovering students’ and lawyers’ values and challenging them with new perspectives might be the following staged approach to discussing a practical ethics scenario: Bring a group of law students or lawyers together and introduce them to the main ethical methods available as decision-making frameworks for lawyers, such as those set out in Chapters and – adversarial advocacy, responsible lawyering, moral activism and the ethics of care Ask each student/lawyer to consider and express which approach to ethical decision-making (or mixture thereof) intuitively seems most appropriate for them to apply in their own legal practice (if and when they enter practice) Give students a hypothetical, but realistic, practice scenario to consider, such as the case studies in this book and elsewhere.35 Begin by asking, ‘Has anyone seen anything or heard of anything similar in their work experience or practice environments?’ then go on to ask a series of more specific questions designed to uncover the values each student/lawyer would apply to resolving the scenario For illustration, we set out below as Case Study 10.2 one of the scenarios from the Australian Lawyers’ Values Study (discussed briefly in Chapter under the ethics of care heading) This approach can be compelling for participants because of its potential to extend their ethical ‘horizon’, allowing them to observe and reflect upon what they would each in a similar situation In many cases, people discuss what they have already done and the discussion builds from there, leading to a further discussion of their preferred (and sometimes newly re-formed) ethical method It is not necessary to define a ‘correct’ answer Often, there is none The discussion itself tends to raise the various competing moral issues Utilise results of actual values preferences and intentional choices, such as those in the Australian Lawyers’ Values Study,36 displayed graphically Invite individual participants to discuss how these results differ from their own answers This is often a moment of great surprise because differences between the two can be significant ‘De-brief’ participants by informing them about any rules of conduct, legislation and case law that apply to the scenario, and revisit the choice of ethical method with which they, as individual students/lawyers, feel most 34 Adrian Evans, ‘Just Following Orders’ (2004) 78(5) Law Institute Journal 95 35 Other resources include the scenarios in the Australian Lawyers’ Values Study in, eg, Evans and Palermo, ‘Zero Impact’; Debra Lamb, ‘Appendix: Case Studies’ in Stephen Parker and Charles Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Clarendon Press, Oxford, 1995) 237 (case studies collected from interviews with Australian lawyers about their real experiences); Philip B Heymann and Lance Liebman, The Social Responsibilities of Lawyers: Case Studies (Foundation Press, Westbury, New York, 1988) See also Robert Eli Rosen, ‘Ethical Soap: LA Law and the Privileging of Character’ (1989) 43 University of Miami Law Review 1229 (for an excellent discussion of the use of TV shows and popular culture for ethics teaching and the limitations of using only short hypothetical scenarios to explore issues of ethical character) 36 See Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2002) Legal Ethics 103 256 INSIDE LAWYERS’ ETHICS comfortable Take care to highlight any differences between what the ethical rules and law say should be done in the scenario and what the different ethical approaches say should be done, in order to encourage critique of the rules and law Finally, extend an invitation to participants to consider where they might stand, in the light of these preferences, when the issues in the scenarios come before them in real life C A S E S T U D Y 10.2 Confidentiality in the Face of Likely Child Abuse The issue of child abuse has a very high profile in Australia The deaths of young children at the hands of family members comprise regular features of metropolitan newspapers Nevertheless, confidentiality could be described as one of the ‘core’ values of the Australian legal profession and, despite some policy concerns that now question the utility of confidentiality in achieving just results in the trial process, it remains undeniably crucial as a linchpin of common law systems of representation Consider the following case study: You are acting for a mother of three small children in a divorce and intervention order matter Your client has previously shown you some old photographs of bruises and marks on the children which she, unconvincingly, claims were inflicted not by their father, but by her new boyfriend One of the children now has blurred vision Your client now instructs you to stop all legal proceedings as she intends to return to the children’s father with her children You believe the children will be at risk if this happens but your client tells you, as she leaves, to nothing Would you break client confidentiality and inform the relevant welfare department of your fears?37 DISCUSSION QUESTIONS Consider your reactions to the scenario Have you seen anything or heard of anything similar in your work experience environments, or those of your friends? A similar choice may confront you at some point in your career In reflecting on your decision about what to here, which of the preferred ethical approaches (as described above) is most attractive to you? How would you answer the question posed in this scenario? If you thought that a report to the welfare authorities would result in the Legal Services Commissioner investigating you, would you still proceed and make the report? Would your answers be different if, upon later, more thorough questioning of your client, you discovered that your client has an old history of drug abuse and was not, in the past, always reliable in what she said? What arguments would you raise if you had reported the matter to the welfare authorities, later discovered your client’s history, and your client then complained to the Legal Services Commissioner about your breach of her confidentiality? If you were the Commissioner, what attitude would you have to the complaint if the client complained about a breach of confidentiality? 37 Ibid 114 CONCLUSION: VALUES & PROFESSIONALISM 257 500 Number 400 300 200 100 yes no Figure 10.1 Respondents Who Would Break Confidentiality and Inform Welfare Authorities of Suspected Child Abuse – Results from 2001 Survey Consider the following result from a survey of final year Australian law students who reflected on this scenario: In the first year of the survey (2001) most final year law students indicated they would breach client confidentiality (60.6%), with females more likely than males to so (65.3%) The value that influenced the decision of participants in this instance was equality In contrast, participants who reported they would not break confidentiality appeared to be motivated by more instrumental values such as ambition, a sense of accomplishment, and obedience.38 In the following two years the students, now in the first and second years of their working lives, were surveyed again Now that they were lawyers they were increasingly prepared to break confidentiality in this case The proportion of respondents who would inform the welfare authorities rose to 67% in year and 72% in year (see Figure 10.1).39 How different is this result from your own choice and what does that say to you? Model Rule 3.1 provides that: A practitioner must never disclose to any person, who is not a partner, director or employee of the practitioner’s firm any information, which is confidential to a client and acquired by the practitioner or by the practitioner’s firm during the client’s engagement Model Rule 3.1.3 provides that lawyers not have to maintain confidentiality where the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client’s claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence 38 Palermo and Evans, ‘Relationships Between Personal Values and Reported Behaviour’ 39 Palermo and Evans, ‘Preparing Future Australian Lawyers’ 258 INSIDE LAWYERS’ ETHICS Does the Model Rule affect your choice as to what to in this scenario? Does it change your preferred ethical method? Do you think the rule together with its exception, reflects an appropriate ethical approach to this issue? Conclusion The UK legal ethicist Kim Economides has made the point that lawyers need to discover what really motivates them.40 As we have seen in Chapters 1, 2, 3, and particularly 9, legal practice serves up a proportion of clients whose objectives, strategies and tactics are morally questionable, even repugnant New lawyers face pressure to act quickly and with a clear idea as to their values and motivation in dealing with these environments Only with this knowledge is it possible to approach ethical dilemmas with some idea of the way through The question for the reader here is therefore: Have you, in reading this book, developed any better ideas as to what motivates you to be a lawyer? 40 Kim Economides, ‘Learning the Law of Lawyering’ (1999) 52 Current Legal Problems 392, 393 Index Abel, Richard 50 ABN 60 240 ACCC 227 accountability, lack of for advocates 112–114 Ackland, Richard 217 ACT, regulation in 60 active case management, cost control in 206 admission to legal profession, see qualifications for legal profession adversarial advocate approach 14–17 alternatives to 21–23, 131 avoids responsibility 72, 94 client loyalty in 167 disenchantment with 34 ethical basis 13 for corporate clients 225–226 in civil litigation 66–95 in negotiation 122 limitations of 17–19 Model Rules support for 87 self-regulation and 43 values in 243 adversarial imperative 69–74 advice fiduciary obligations for 193 fostering 75 given during ADR 128 independent, regarding conflicts of interest 159 moral responsibility in 76–77 v facilitation 130 advocacy role 11, see also adversarial advocate approach aggression in court 70 criminal cases 104 Model Rules forbid 126 Allens Arthur Robinson 172, 212, 232 advice to James Hardie 237–241 alternative dispute resolution 71, 120–148, see also out-of-court settlement financial incentives for lawyers 204 lawyers barred from 149 values for 131–134 alternative values 6, 131–134 Amaba Pty Ltd 238 Amaca Pty Ltd 238 American Bar Association 64, 165 amoral stance 14 amount of claim, billing based on 185 applied ethics 5–6, 11–13 arms’ length arrangements in regulation 60 Arthur Andersen 177, 219 Arthurs, Harry 50, 51 asbestos exposure 146–147, 237–241 associates of lawyers 154, 170 assumptions of the legal profession 42 Attorneys-General 48, see also names of States and Territories Australia, see also government; names of States and Territories prosecution of alleged terrorists 98, 248–250 Australian Capital Territory, regulation in 60 Australian Competition and Consumer Commission 227 Australian Corporate Lawyers’ Association 229 Australian Corporations Act 229 Australian Law Reform Commission 134 Australian Lawyers’ Alliance 208 Australian Lawyers’ Values Study 251, 253, 254 Australian Stock Exchange 235 Australian Wheat Board 221 Avidan, Mrs 209 avoiding responsibility 14, 71–73, 224, see also moral responsibility awareness of ethical issues 10–11 Bacon, Wendy 248, 249 Baker Johnson case 56, 191 bankruptcy by barristers 54, 55 Banksia Foundation Bar Association (NSW) 55 259 260 INDEX Barker, Ian 85 barristers, see also defence counsel in criminal cases; prosecutors adversarial advocate approach 16 as criminal advocates 102 bankruptcy claims by 54, 55 tax shelter involvement 219 baseless allegations, see harassment BATAS case 16, 67 Clayton Utz 16 commercial immersion of legal staff 223 corporate misconduct 213 documents destroyed during 220 best informed judgements as to guilt 103 Best Principles for Corporate Governance 235 bias in ADR 139 billing, see also costs; fees billable hours 198 fair and reasonable 193–195 time limit for challenges to 201 Blake Dawson Waldron case 174 Bolkiah’s case 162 Bongiorno J Boswell 174 Brayne, Hugh 247 bright line rules 78 Brooking JA 162, 175 Spincode case 164 Brougham, Lord 15 Brown, Bob bullying by mediators 130 in court 70 in negotiation 125 ‘burying’ evidence 70 business ethics 215, see also corporate clients in corporate lawyering 222–224 legal ethics and 231–233 business relationships between parties to negotiation 125 importance of maintaining 131 minimising risks in 134 Byrne J 175, 176 cab rank rule 16, 105 Caboolture Park 84–85 Callinan, Ian 84–85 candour, see truthfulness Cape asbestos case 144, 146–147 care-based ethics of women 31 care, duty of 152 caring for people 12 caring way of lawyering, see ethics of care approach Caroline, Queen of England 15 Catholic Church, attitude to child abuse 73 CEOs, contact with 234 character standards 44, 46 actions promoting ‘fit and proper character’ 248 for admission to the Bar 244, 248 Chief Executive Officers, contact with 234 child abuse cases see also sexual abuse cases confidentiality in 256 ethics of care and 33 lawyer charged in 45 Chinese walls, see information barriers civil litigation 66–95 adversarialism limited by 79 event-based fees 204 Clarke, Ben 102 Clayton Utz BATAS case 16, 220 corporate ethics 16 Foreman case 209 involved in corporate misconduct 213 client care 34, see also ethics of care approach clients, see also advocacy role; consent of clients; corporate clients; loyalty; relations with clients best interests of 36 conflicts of interest between 157 conflicts of interest with lawyers 156 confused by cost structure 187 determining best interests of 12 ‘difficult’ 203 discussing ethics with 76, 77 ethical education of 26, 141 former, obligations to 128, 153, 161–166 fostering responsibility in 75 holistic view of 33 identifying correctly 233–234 in ADR 134–138 ‘known’ to be guilty 103 memory of events 88 refusal to hear confessions 103 respect for 195 responsible for ethics 72 right to lawyer of choice 160 screening obligations 94 trust account handling 42, 53, 61–64, 65, 182 with weak cases 88 INDEX Clyne case 86 co-regulation 46–50, 53, 54 coaching witnesses 105 coercion, see also harassment during ADR 140 in negotiation 124 cognitive dissonance 223 Cole Inquiry into AWB 222 collaborative law 137 commercial approach to law 218 common law, see also courts on wasted costs 89, 90 communication about fees and costs 200–203 compassion ethics based on 100 in moral activism 169 compensation cases 208 competence standards 44 competition policy 52 complaints against corporations, see consumer protection complaints against lawyers about fees 195, 197, 201 handling of 42, 46, 54 complex judgment in decision making 115 compliance, creative forms of 26 compliance officers 166, 218, 225 compromise, see negotiation computerised billing 197 conditional fees, see ‘no win, no fee’ cases ‘confessions’, see ‘guilty’ clients confidentiality, see also disclosure obligations child abuse cases 256 corporate abuse of 219–222 in ADR 143 in negotiation 136 obligations of 151 reasons for breaching 33, 170, 230 to former clients 161, 164 v obligations of truthfulness 82, 108, 109 conflicts of interest 151–153 between corporate stakeholders 228–231 fee-related 191 in ADR 139 in joint representation 171 of professional organisations 57 LIV President fined for 59 Connellan, Greg 116 consent of clients in ADR 133, 141 in ethics of care approach 171 obtained with intent to deceive 184 to possible conflicts of interest 159, 168 261 consumer protection 26, 143, see also complaints against lawyers; complaints cases complaints cases 143 contest mention hearings 102 contributory negligence, cost structure of awards 189 controlled accounts 63 corporate clients, see also institutional ethics duty to 228–229 ethical education of 26 governance issues 218, 222 identifying correctly 233–234 misconduct by 212–231 corrupt management 229 costs 182–210, see also fees fair and realistic 199 legislated costs disclosure approach 34 of actions to clients 69, 76 of ADR 139 of criminal trials 101 time-based allocation 198 unreasonable 84 wasted, common law on 89, 90 costs assessment 195 Council of the Queensland Law Society Inc v Roche 154 counselling for clients 33 courts, see also litigation control of costs 206 inherent jurisdiction 79 loyalty to 168 obligation to inform 112 rulings by 78 Cravath Swaine 37–39 Craven, Greg 85 creative compliance 218 Credit Suisse 37–39 criminal cases, ethics in 96–97 critiques of the law 27 Cummins J 160 current values damages, time limits on 68 deception blocks admission to Bar 249 incentives for 70 decision making 6–9 defamation, privileged liability from 86 defence counsel in criminal cases 97, 106–110 delaying tactics 183 democratic participation in ADR 133 262 INDEX deontological ethics Department of Immigration, costs sought by 91 desensitisation to conflict 180 detention powers, widening of 110 ‘difficult clients’ 203 dingo fences, see information barriers directors, communication with 234 disbarring orders 45 disbursements 187 disciplinary actions 45, see also sanctions against law firms 235 effect on litigation 92 rarity of 48, 78, 79 specialist tribunals 48 disclosure obligations, see also confidentiality about fees and costs 34, 190, 200, 202 in ADR 139 medical reports 116 Model Rules on 89 of clients 103 possible conflicts of interest 157, 158 reporting illegal conduct 230 to corporate stakeholders 229 to correct errors 107 to court during litigation 80–83 dishonesty, see truthfulness dispute prevention 134 document retention policies 67, 213 Cape asbestos case 147 lawyers’ suggestions on 81 donation process, see trust account handling drink-driving cases 115 drug companies, representing 172 Dutch dykes, see information barriers duties, see clients; conflicts of interest; courts; law duty of care 152 Economides, Kim 258 educating in values 6, 254 embarrassing of witnesses 86 Emotional Intelligence 247 Enron case 177–179 abuse of confidentiality 219 corporate misconduct 214 environmentalist lawyers 169 errors, see mistakes ethical issues 2, 76–77, see also business ethics; ethics of care approach; moral responsibility ethical reflection 6–9 Ethical Standards for Mediators 140 ethics of care approach 5, 18, 22, 31–37 loyalties in 170–172 to ADR 122, 133 to fees and costs 200 values in 243 ethics partners 236 ethnic cleansing 100 European Court of Human Rights 66 event-based fees 204 evidence, absence of, see weak cases ex parte application for interlocutory relief 83 excessive adversarialism 66–95 ‘excuses’ for harassing witnesses 87 expert witnesses in ADR 142 suggestions made to 81 ‘sympathetic’ 220 expropriation of interest, see trust account handling extradition proceedings 1–3 facilitative ADR 127–131, 139–143 facts, obligations to disclose 83 fairness 83–93, see also justice ‘appropriate’ settlements 144 by criminal prosecutors 97 in ADR 140 in allocating wasted costs 90 in cost agreements 199 in legal fees 193–195 in negotiation 125, 136 in time-based costs allocation 198 obligations towards 24, 71 false evidence, see perjury false statements, obligation to correct 126 family law, collaborative 137 family members of lawyer 170 Fastow, Andrew 178 fees 182–210, see also costs; overcharging based on claim size 185 calculating methods 185–187 from legal aid 18 in ADR 140 feminism, care-based ethics 31 fidelity funds 62 financing of 62, 64 Solicitors’ Guarantee Fund (Vic) 58 fiduciary obligations 151, 193 financial relations with clients 155, 177 Fisher, Roger 131 INDEX ‘fit and proper character’, see character standards fixed-fee billing 206 flexible billing, see value billing Flower & Hart 84–85 folk practices 21 Foreman, Carol 209–210 former clients, obligations to 128, 152, 161–166 Framework for ADR Standards 142, 145 fraud, see misconduct free speech, threats to 249 French J 30 gatekeeping obligations 87 for corporate clients 215, 226 HIH Insurance collapse 207–208 holistic approach 33, 77 Hollingworth, Peter 74 Holocaust victims, money deposited by honesty, see truthfulness hopeless cases, see weak cases human rights 98 263 38 illegal conduct by corporate clients 227 conduct standards and 248 ethical justification for 12 in ADR 141 obligation to disclose 230 Immigration Department, costs sought by 91 Gencor 146–147 Genn, Hazel 144 genocide 38, 100 George IV, King of England 15 Gilligan, Carol 31 global ethics 98–101 gold looting case 37–39 Goldberg J 84 Goleman, Daniel 247 good character, see character standards good faith principles 34, 132 Gordon, Robert 135 government intervention by 92 Gray J 132 gross negligence 44 Guggenheim, Hans 100 ‘guilty’ clients 109 criminal cases 103 Tuckiar v The King 108–109 Gulson, Fred 220 Gunns Limited 7–9 impartiality in ADR 139 implementing ethical decisions 13–14 impropriety, see misconduct incompetence 105 indemnity insurance 208, 209 independent counsellors 226 independent regulation 46, 52 indirect conflicts of interest 155 information barriers 153, 161–166 inhouse lawyers 227, see also corporate clients insanity defence 116 institutional ethics, see also corporate clients effect on personal ethics 41 on trust fund handling 62 v personal moral beliefs 57 insurance industry 208 integrity, see fairness; truthfulness interest on trust funds, see trust account handling interim billing 203 Ipp J 94 Iraq, AWB involvement in 221 item remuneration billing 185 Haigh, Gideon 232 harassment, see also coercion; sexual harassment allegations against professional conduct rules 86 in criminal cases 104, 105 in negotiation 122 obligations to avoid 87 ‘hard’ cases 22 ‘healing’ practice 171 Herscu, George 84–85 High Court of Australia A Solicitor case 45 on confidentiality obligations 109 on disclosure of illegality 230 Jackson, David 216, 237, 238, 239, 240 James Hardie 232 asbestos liabilities 236, 237–241 corporate misconduct 216 Jesuits, accused of abuse 73–74 joint representation, see conflicts of interest ‘Julie’ (sex worker) 35 juries in criminal cases 97 ‘nullification’ of 105 justice, see also fairness extends beyond legality 28 financial barriers to 189 264 INDEX justice (cont.) obligations towards social justice 28 12 Kalejs, Konrad 1–3, 26, 35 Kantian ethics Kirby P 210 Kopper, Michael 178 large legal firms, see also corporate clients conflicts of interest within 161, 167 corporate lawyers in 222 delaying tactics 183 ethics within 235 hours worked in 199 information barriers in 165 lawyers employed in 212 working atmosphere 244, 251–254 Lasry, Lex 243 law obligation to make known 83 obligations towards 12, 17, 31, 227–228 regulation of lawyers 42, 78–80 law-breaking, see illegal conduct Law Council of Australia 3, 48, 140, see also Model Rules of Professional Conduct and Practice law reform, advocacy of 29 law societies, see names of States and Territories; professional organisations Law Society of England and Wales 63 law students attitude to overcharging 183 attitudes to confidentiality 256 lawyers, see also barristers; character standards; large legal firms; solicitors as ADR facilitators 121 as parties to ADR 134–138 associates of 154, 170 clients’ choice of 160 difficulty pricing work by 190 for the situation 171 hours worked by 198 personal interests conflict with clients’ legal fees, see fees legal firms, see large legal firms legal justice 26 Legal Ombudsman of Victoria 59 Legal Practice Act 1996 (Vic) 58 Legal Profession – Model Laws Project Model Provisions, see Model Laws legal services commissioners 46 legal system, see also courts; litigation assumptions behind 42 at risk through over-zealous advocacy 71 attempts to change 28, 29 duties towards 24–27 ethical implications 18 legalism 4, 216–218 legislated costs disclosure approach 34 Leigh Day 146 liability minimisation 217, 227 liberal democracies, threats to human rights 98 liberal model of legal partisanship 244 Liberty Victoria 29 Lincoln, Abraham 30 litigation, see also courts anticipation of 69 as business tactic 219 costs awards after 187–189 criminal trials 101–106 event-based fees for 204 following negotiation 137 responsibility for 71–73, 77–78 rules of procedure 78 support for alternatives to 134 ulterior purposes for 84, 86 unforeseen costs of 69 ‘litigotiation’ 122–125 Look Software 163 loophole lawyering 27 loyalty conflicting 151–153 to clients 2, 16, 153 to fair process 24 to former clients 162 to the law 168 Luban, David 28 156 turnover of 252 Lay, Kenneth 178 learning values 6, 254 Leech-Larkin, Lucien 73–74 left-wing attitudes 29 legal aid, insufficiency of 18 legal authority, obligation to make known 83 management communication with 234 ethical 234 whistleblowing to 229 marginalisation of groups 100 market forces, values imposed by 50, 52 Mason CJ 78 materiality of confidential information 162 INDEX May, Larry 156 Mayne 172 McCabe v British American Tobacco Australia Services Ltd, see BATAS case McDonald’s case 66 McMahon, Julian 243 McPherson + Kelly 163 med-arb model 128 mediation 121, see also alternative dispute resolution ethics in 129–130 financial incentive to choose 190 professional conduct in 125–127 Medical Research and Compensation Fund 232, 237, 240, 241 Meeran, Richard 146 Menkel-Meadow, Carrie 132, 133 mere silence rules 107 Milgram, Stanley 10 ministry approach 32 Minters 174 misconduct 46 defined 46 financial 184–199 in wasting costs 91 lengthening trials 104 obligations to report 129 progression in 223 regarding costs agreements 201 misleading tactics 70, 82, 107 during negotiations 125, 135 ‘no win, no fee’ cases 154 ‘trapping’ witnesses into opinions 114 misrepresentation, see misconduct; misleading tactics; perjury mistakes collaboration to correct 138 failure to correct 107 taking advantage of 81, 124 Model Laws, development of 48, 49 Model Rules of Professional Conduct and Practice 3, 49 development of 48 ‘mental gymnastics’ required by 160 on billing 194 on client–client conflicts of interest 158–161 on competence 105 on confidentiality obligations 257 on costs disputes 201 on criminal prosecutors 110, 112 on defence counsel 106 on ethical obligations 79 265 on failure to disclose 107 on fees and costs disclosure 200 on former clients 161 on harassing and embarrassing witnesses 87 on lawyer–client relations 153 on loyalty to clients 153 on misleading tactics 80, 126 on personal opinions 106 on reporting misconduct 129 on uplift fees 192, 201 on will-making 155 Moore, Robert 163 moral activism approach 18, 28–31 loyalties in 169–170 personal costs orders in 92 to repugnant settlements 145 use of 22 values in 243 view of client 36 moral responsibility, see also ethical issues; values avoidance of 14, 71–73, 224 client passes to lawyer 72 clients’ view of 12 fostering 75 in corporate governance 218 in responsible lawyering approach 26 More, Sir Thomas 250 mortgage schemes 57 MRCF, see Medical Research and Compensation Fund NADRAC standards for ADR 139, 142, 145 national agreed regulatory structure 48 National Legal Practice Model Bill 2004 Nazi Germany genocide in 100 gold stolen by 37–39 war criminal case 1–3 necessary costs 187, 193–195 negotiation 120–148, see also alternative dispute resolution; mediation Neilan, Mark 113 nervous shock case 67 neutral model of legal partisanship 244 neutrality in ADR 139 New South Wales, regulation in 54–55 New South Wales Attorney-General 55 New South Wales Court of Appeal 249 New South Wales Law Society 54 deception of 45 deprecates costs order threats 92 266 INDEX New South Wales Legal Fees Review Panel 197, 206 172 New South Wales Legal Services Commissioner 54 deprecates costs order threats 92 on contingency fees 192 on time-based billing 197 regulation reform by 48 suggests value billing 206 trust in 55 New South Wales Supreme Court 251 New Zealand, cost control by courts 206 Nguyen Tuong Van 243 Nicolson, Donald 245 Nimmo, Jack 56 ‘no win, no fee’ cases 191–193 Baker Johnson case 56 exploitation of 182 misleading clients on 154 non-accountability principle 14 non-adversarial dispute resolution 34 Northern Territory, regulation in 60 not guilty pleas for ‘guilty’ clients 103 NSW see under New South Wales officers of the court, duties of pharmaceutical companies, representing 24–27, 78 omissions of fact in negotiation 126 mere silence rules 107 taking advantage of 81 online trading system case 68 organisational resources 13 organised crime 110 out-of-court settlement 191, see also alternative dispute resolution overcharging 182–210, 251, see also costs; fees padding timesheets 199 participatory approach 34 partnership principle 14 party–party costs 187 Pepper, Stephen 244 perjury 80, see also truthfulness failure to correct 81, 82 obligations to correct 126 Permanent Trustee 174 personal costs orders 92 personal moral beliefs, see values personal opinions held by lawyers also values Pfizer 172 philosophy of ethics 4–5 phronesis 28 PILCH 29 plausible deniability 217 plea discussions 102 political justice 28 positive morality 51 ‘posturing’ 122, 125 power imbalances in ADR 140, 143 institutional 245 with corporate clients 225 pressure, see coercion; harassment pressure points in professional practice 247 price-fixing 44, 227 principled negotiation 131 principles of adversarial advocacy 14 prior convictions 115 privilege from liability for defamation 86 in relations with clients 151 proactive role of lawyers 31, 218–219 problem-solving 133, 234–236 professional conduct 3–4, see also misconduct; professional organisations American Bar Association rules 165 co-operative negotiation obligations 136 ethics of care and 32 existing regulations 18 for corporate lawyers 229 harassing and embarrassing witnesses 86 in negotiation 122, 125–127 loyalty to the law 24 moral responsibility and 78 personal moral beliefs in 243–258 professional indemnity insurance 208, 209 professional misconduct, see misconduct professional organisations, see also names of States and Territories entry requirements 44 fee scales 186 on trust fund handling 63 support corporate ethics for law firms 229–230 106, see professional responsibility, see professional conduct Project Rose 221 proof, burden of 96 proportional fees 191 prosecutors in criminal cases 97, 110–112 traditional restraints on 15 INDEX protests, Gunns case psychological types 244 public interest 246 disclosure of illegality for 230 loyalty to 168 protection of 143–147 Public Interest Advocacy Centre 248–250 Public Interest Law Clearing House 29 public interest lawyering 29, 30 public liability insurance 208 public professions 24 public view of lawyers 43 Putt, Peg QLS 56 qualifications for legal profession 46, see also character standards Queensland, regulation in 56–57 Queensland Attorney-General 56 Queensland Law Society 56 Queensland Legal Ombudsman 56 R v Kina case 105 R v Neilan case 107, 113–115 R v Wilson case 104 Ramsay, Ian 179 rank and yank process 177 rape cases 105, 116 Raper, Mark 73 rationalisation 223 rationalist economics 52 reactive corporate lawyering 216–218 realistic cost agreements 199 reasonable and necessary costs 187, 193–195 record-keeping, by clients 88 refugee cases ethical need for 97 marginalisation of groups 100 Tampa case 29 regulation ethical implications 18 existing regulations 41–64 independent 46, 52 insufficiency of 50–54 of fees 195 relational lawyering, see ethics of care approach relations with clients built on trust and shared knowledge 190 communication in 200–203 conflicts of interest in 153–158 corporate lawyers 222 34, 267 ethical issues 12 financial exploitation in 184–199 ‘Julie’ (sex worker) 35 like that of addict and supplier 69 limits to 168 privileged communications 151 refusal to hear ‘confessions’ 103 respect in 195 sexual 156 strategic silence in 232 under adversarial advocacy 17–19 under time-based billing 197 written progress reports 203 relationships, see business relationships responsibility, see moral responsibility responsibility climate, see regulation responsible lawyering approach 18 ‘appropriate’ settlements 145 client loyalty in 168–169 compliance officers 225 moral responsibility in 76 social role of lawyers in 24–27 values in 243 with corporate clients 226–231 right action Rogers, Gavin 163 rule in Harman 148 Rule of Law, applied to terrorism cases 99 rules of procedure, inadequacy of 246 Sampford, Charles 51 sanctions for gross negligence 44 for misconduct 45 Santow, Kim 239 Sarbanes–Oxley Act (US) 235 SCAG 48 scientists, ‘sympathetic’ 220 Scotland, trust fund handling in 63 screening of clients 94 second opinions 159 sedition legislation 248–250 self-regulation burden of 51 by corporate lawyers 235 critiques of 50 traditional 41, 43–46 self-worth, cultivating 12 sentence indication hearings 102 settlements, ‘appropriate’ 144, see also out-of-court settlement sexual abuse cases 45, 73–74 sexual harassment allegations 217, 234 sexual relations with clients 156 268 INDEX Shaffer, Thomas 32 ‘silencing’ of clients 103 Skilling, Jeffrey 178 skills required to act ethically 13 SLAPPs SmithKline 172 social democratic left 29 social ethics 4–5 social goods, preserving 24 social justice, see justice social responsibility, see moral responsibility social role of lawyers 11, 24 solicitors, see also trust account handling loyalty owed to clients 16 mortgage schemes 57 on billable hours 198 overcharging by 184 South Australia, regulation in 60 special purpose financial vehicles 177 Spigelman CJ 52, 196 Spincode case 163 spirit of the law 12 stakeholders awareness of 10 corporate lawyers’ duty to 228–231 identifying 233 Standing Committee of Attorneys-General 48 state, see government States and Territories, regulation status in 47, see also names of States and Territories strategic lawsuits against public participation teleological ethics 4, 32 tendering for work 186 terrorism 110 ethical issues in prosecution of 98, 99, 248–250 third parties in ADR 141 protection of 143–147 third party mediators 127–131 threats, see bullying; coercion time-based billing 186 alternatives to 203–207 ethics of 196 ‘time spent’ charges 76 timesheet padding 199 timesheet padding 199 tobacco company cases, see also BATAS case sympathetic scientists 220 trial lawyers 15 Trowbridge Report 238 true sale opinion letters 177 trust account handling 42, 61–64, 65, 182 trustees of the legal system 24–27 truthfulness in advocacy role 11 in negotiation 125, 136 in pleading 88 misleading tactics 80–83 obligations towards 71 of clients, evaluating 88 requirements for candour 106 Tuckiar v The King 107 stress, effects of 132 Supreme Courts 46, see also names of States and Territories Switzerland, gold looting case 37–39 Tampa case 29 task-completed billing 185 Tasmania logging regulation in 57 Tasmanian Attorney-General 57 Tasmanian Law Society 57 Tasmanian Legal Profession Board 57 taxation issues 120–148 barrister bankruptcy claims 54, 55 companies’ legal expenses deductible conniving at illegality 227 costs sought for appeals 91 tax shelters 219 trust fund handling 63 ulterior purposes for litigation 84, 86, 87, 92 for negotiation 127 unbundling legal services 224 unconscious use of confidential information 159 70 United States, see USA unreasonable delay or expense 84 unsatisfactory conduct, see also misconduct defined 46 in wasting costs 91 uplift fees 191–193, 201 Ury, William 131 USA anti-SLAPP legislation prosecution of alleged terrorists 98 utilitarianism value billing 206 INDEX values (personal moral beliefs) awareness of 254–258 choice of 180 current v alternative decisions about 22 essential nature of 51 for ADR 131–134 in professional conduct 243–258 of law students 116 of prosecutors 116 responsible lawyering approach 25 supported by regulation 50 v institutional ethics 57 Victoria fidelity fund financing 62 regulation in 55, 58–60 Victorian Attorney-General 60 Victorian Council for Civil Liberties 29 Victorian Law Institute 58 Victorian Legal Practice Board 59 Victorian Legal Services Board 59 Victorian Legal Services Commissioner 59 Victorian Solicitors’ Guarantee Fund 58 Victorian Supreme Court Gunns case Spincode case 163, 164 Village Roadshow 174 vindictiveness 112 Vinson and Elkins 177, 180 involved in corporate misconduct 216 over-identification with client 223 virtue ethics Walker, Bret 186 war criminal case 17, 26, 35 war on terror, see terrorism wasted costs orders 89, 127 Watkins, Sherron 178 weak cases 88 absence of evidence 88 allocating costs for 90 uplift fees not allowed for 192 Webb, Julian 245 Wendel, Bradley 244 Wendy Bacon case 248, 249 Western Australia, regulation in 60 whistleblowing 170, 229, see also confidentiality Enron case 178 ethical issues and 233 White Industries case 84–85 delaying tactics 183 length of 92 Wilderness Society will-making, fees for 155 winners and losers 246 ‘wise guys’ 27 withdrawing representation following perjury 80 in ADR 142 without prejudice communications 136 witnesses, see also bullying; expert witnesses coaching 105 detention of 110 lawyers’ personal opinions of 106 preparation of 81 ‘trapping’ into opinions 114 women, care-based ethics of 31 woodchipping work–life balance, attitudes to 253 Workcover, on lawyers’ hours 198 worthy causes 29 written progress reports 203 Young CJ 160 zeal damages legal system 71 in adversarial advocacy 14 not always ethical 152 not in client’s best interests 69 269