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Lecture notes all

Legal Practice and Ethics (Deakin University)

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Lecture 1 (Introduction: Ethics, morality and the legal profession. Chapter 1)

- What do we mean by ‘ethics’?
o Generally
 Knowing the difference between right and wrong and choosing to do the
right thing
o ‘Ethics’ in the legal profession
 Separate concept to morals- e.g. admission of guilt by client privileged
 Values and rules of conduct governing a legal professional’s behaviour –
minimum standards which a lawyer must maintain
o Enforcement of professional standards
 Academic and practical requirements to be met before admission
 Continuing profession development obligations
 If breach: unsatisfactory professional conduct or professional misconduct
 Consequences? Loss of right to practice as a lawyer, suspension,
reprimand
- Law as a profession
o Three core attributes of a profession:
 Special skill and learning.
 Public service as principal goal.
 Autonomous and independent of outside control (conditional on attributes
1 & 2).
- Challenges facing the legal profession
o Traditional core attribute of profession – public service as primary goal.
o Number of business-like characteristics today – e.g. marketing, law firms
incorporated entities, non-legal services also offered.
o Challenges:
 Shift in priority from provision of legal advice to making money (e.g.
focus on billable hours)?
 Lack of client loyalty – duty to the court/administration of justice and duty
to the client may collide. E.g. client dictates course of matter.
 What was traditionally legal work can now be undertaken by non-lawyers
– e.g. conveyancers.
- Sources of ethical obligations (‘the law of lawyering’)
o Common law.
 Governs most aspects of lawyer’s relationship with:
 clients – contract (e.g. retainer), tort (e.g. duty of care), fiduciary
law (e.g. act in best interests of client), equity (e.g. duty of
confidentiality);
 the court; and
 third parties – contract (e.g. where fail to make it clear entering into
as agent), tort and equity (e.g. non-disclosure of information) in
certain circumstances.
- Statute law and Professional rules
o Statute:
 Legal Profession Uniform Law (Schedule 1 of the Legal Profession
Uniform Law Application Act 2014 (Vic)) – commenced 1 July 2015.
 Governs all matters relating to regulation of the legal profession –
e.g. admission, practising certificates, CPD requirements, costs and

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disclosure, trust accounting requirements, complaints and

discipline issues.
o Professional rules:
 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules
2015
 Set out minimum standard of conduct/expectations as to
professional conduct.
 Legal Profession Uniform General Rules 2015
 Additional rules relating to, eg, matters relevant to assessment of
whether an applicant is fit and proper to hold a practising
certificate.
 Matters not covered in Admission Rules, Legal Practice Rules, etc.
 Legal Profession Uniform Legal Practice (Solicitors) Rules 2015
 Covers matters such as transfer of a solicitor's practice, acting on
instructions from debt collection agencies, conflicts with other
business interests, etc.
 Legal Profession Uniform Admission Rules 2015
 Specify academic and practical training prerequisites, outline
procedure for admission, etc.
 Legal Profession Uniform Continuing Professional Development
(Solicitors) Rules 2015
 Specify minimum requirements for CPD for solicitors .
 Also note:
 Legal Profession Uniform Conduct (Barristers) Rules 2015
 Legal Profession Uniform Continuing Professional Development
(Barristers) Rules 2015.
- Key definitions – Schedule 1, cl 6 Uniform Law
o Cannot engage in legal practice unless a qualified entity.
 Australian legal practitioner: an Australian lawyer who holds a current
Australian practising certificate.
 Australian lawyer: a person admitted to the Australian legal
profession in Victoria or any other jurisdiction.
 Law practice: sole practitioner, law firm, community legal service,
incorporated legal practice and unincorporated legal practice.
o Barrister: restricted Australian practising certificate – ‘solicitor’ vs ‘barrister’?
o Provision of legal services – work done or business transacted in the ordinary
course of legal practice.
o Participating jurisdictions (Vic and NSW) and non-participating jurisdictions
(every other State and Territory!).
- Australian Solicitors’ Conduct Rules
o Codify a number of ethical obligations.
o Provide a standard of conduct in disciplinary proceedings.
o Key ethical duties:
 Duty to the law (rule 4 ASCR) – to comply with the rules and the law.
 Duty to the court and to the administration of justice (rule 3 ASCR) –
paramount.
 Duty to colleagues and third parties generally (rules 4 and 5 ACSR) –
honesty and courtesy.

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 Duty to clients (rule 4 ACSR) – competency, diligence and promptness,

act in best interests.
o http://www.legislation.nsw.gov.au/regulations/2015-244.pdf
o Failure to follow may amount to unsatisfactory professional conduct or
professional misconduct.
o Important: if it is not prohibited by the rules, it does not mean it is ethical conduct!
o Rules as guide to how professionals should conduct themselves in certain
circumstances.
 ‘The first and perhaps the most important thing to be said about ethics is
that they cannot be reduced to rules… If ethics were reduced merely to
rules, a spiritless compliance would soon be replaced by skilful evasion.’
(Former High Court CJ Brennan)
- The Role of the LSB + C, LIV and VLAB
o Known as ‘local regulatory authorities’ under the Uniform Law.
o Victorian Legal Services Board (http://lsbc.vic.gov.au/) – Pt 3, Div 2 Uniform
Law.
 Independent statutory authority – responsible for regulating the legal
profession in Victoria.
 Objectives (s 30 Uniform Law Application Act).
 Responsibilities include: handling practising certificates,
monitoring trust accounts, prosecuting breaches of the Uniform
Law Application Act, etc.
 Can delegate responsibilities, e.g. to the LIV and Victorian Bar.
o Victorian Legal Services Commissioner (http://lsbc.vic.gov.au/) – Pt 3, Div 3
Uniform Law.
 CEO of Vic LSB.
 Manages complaints against legal practitioners.
 Educative role.
o Law Institute of Victoria (https://www.liv.asn.au/): professional association for
lawyers –
 represents member interests (e.g. drafting of Uniform Law);
 provide services such as bookshop, library, CPD events;
 is responsible for a specialist accreditation scheme;
 provides community resources (e.g. lawyer referral services, fact sheets).
o Victorian Legal Admissions Board (https://www.lawadmissions.vic.gov.au/) – Pt
3, Div 1 Uniform Law: manages admission to practice process.
 Assessing applications for admission.
 Providing compliance certificates.
- New bodies under the Uniform Law
o Legal Services Council –
 Monitors implementation of Uniform Law.
 Ensures consistency in application.
 Sets the rules under the Uniform Law – e.g. Australian Solicitors’
Conduct Rules 2015.
o Commissioner for Uniform Legal Services Regulation – CEO of LSC.
 Supports Council in performing functions.
 Oversees implementation of dispute resolution and discipline elements of
Uniform Law (Ch 5).
o Admissions Committee – part of the LSC.

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 Develops admission rules for use by VLAB.

Lecture 2
- Remember
o You can only engage in legal practice if you are a ‘qualified entity’ (includes
Australian legal practitioners and law practices, clause 6 of Schedule 1 UL): s
10(1) UL).
- Uniform law
o S 15: admission is regulated to protect administration of justice and clients as only
eligible to be admitted if –
 have appropriate university and PLT qualifications; and
 are a ‘fit and proper person’.
o Supreme Court makes admission decisions on basis of compliance certificate
supplied by VLAB (s 19(3)).
 Certificate will be supplied where academic and PLT requirements met and
Board considers person ‘fit and proper’ (s 17(1)).
o Once admitted as an Australian Lawyer become an officer of the Victorian
Supreme Court (s 25).
o Part 2 (qualifications), 3(admission procedure) ,4 (general procedure)
o Documents are submitted to the Board of examiners
o Provide evidences that you have rule 5 (academic qualification legal admission
rules)
- Uniform admission rules
o Made under s 421 and s 426 Uniform Law.

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o Worthwhile looking through these as will be highly relevant to Part B of your

assignment!
- Requirements for admission
o Three requirements:
 1. University study.
 2. Practical legal training.
 3. Character requirement.
o The education requirements are found in the legal admission uniform rules in
part 2
o Schedule 1 outlines the subjects that must be undertaken
 i.e. the Priestley 11 subjects
o 1. University study
 Rule 5 AR – completed:
 accredited course (s 29 UL and rule 7 AR) covering Priestly 11
areas; and
 course equivalent to 3+ years full time equivalent of law study.
 If delay of 5 or more years between completion of study and admission
application, may need to undertake further study (rule 5(2) AR).
 Overseas applicants may need to complete further study (rule 11 AR).
 PLT under rule 6
 Must provide a police report
 Certificate from PLT that you have completed the PLT training, must be
sent directly to the admission board
o 2. Practical legal training
 ‘Practical legal training’ (s 6 UL):
 legal training through coursework – accredited providers (s 29 UL
and rule 7 AR), e.g. College of Law, Leo Cussens Centre for Law;
and/or
 supervised legal training – 12+ months, approved training plan.
 Purpose?
 Ensure obtain necessary skills (e.g. lawyer’s skills, advocacy skills,
dispute resolution skills) and required knowledge in certain
practice areas (e.g. civil litigation, property law) and understand
ethical responsibility.
 See Schedule 2 AR.
o 3. Character of applicant
 Must be ‘fit and proper’ (rule 10 AR).
 Why?
 Anyone admitted to the profession must be trustworthy and
someone in whom the public can have confidence.
 Assessment made by VLAB (s 17 UL and rule 10 AR):
 Can look at any relevant matter.
 Will look at documents accompanying application for compliance
certificate (e.g. police report, character statements, etc).
 Of particular relevance – rule 10(1)(f): ‘whether the person is
currently of good fame and character’.
o Meaning not defined – focus on quality of applicant with
reference to former acts.
 Rule 10 of admission rules

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 Relates to determining if a person is a fit and proper person

 Rule 16- evidence of character
 Must provide two stat decs (i.e. character reference)
 Foreign lawyer
 One of the stat decs must be from the applicant’s previous
employer
 Character references must read the applicant’s disclosure statement
 Potentially relevant conduct:
o Dishonesty
o Criminal history
o Improper conduct in litigation
o Academic misconduct
o Extreme political views
o Behaviour in previous profession(s)/occupation(s)
o Mental illness
 If you have nothing to disclose you have to write a statement
stating word for word
o “I have read and understood the Disclosure Guidelines for
applicants for admission. I further state that I am and
always have been of good fame and character. I am not
aware of any matter or circumstance that might affect my
suitability to be admitted as an Australian lawyer and an
officer of the Court.”
 Rule 17(7) Admission rules
 Schedule 1 of the legal profession uniform law application act
o Section 17: Prerequisites for compliance certificates
 Dishonesty generally
 Honesty and fair dealings very important.
 Any past dishonesty of any kind will be significant hurdle to
admission.
o E.g. in criminal convictions, through academic misconduct,
in previous dealings with the court, etc.
 Important to make full and frank disclosure and demonstrate (a)
acceptance of conduct, (b) appreciation of its significance and (c)
rehabilitation.
 Criminal history
 Relevant under rule 10(1)(h) AR (whether found guilty of offence
in Australia or overseas) – will also impact on ‘good fame and
character’ assessment.
 Indicates disrespect for the law.
 Important considerations: nature of offence (e.g. once-off parking
tickets as opposed to murder or fraud), how long ago it occurred,
applicant’s age at time of commission.
 Will impact on good fame and character
- Examples
o Victorian Lawyers RPA Ltd v X (2001)
 Applicant made false reports of sexual abuse and was subsequently
charged; failed to adequately disclose circumstances surrounding charge.

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Applicant was a person of good fame and character but not fit and proper
to be admitted.
 Inability to deal with own issues meant could not be trusted to assist others
in similar situations.
 Take-away point: if applicant fails to show understanding of impact of
conduct then will be hard to establish ‘fit and proper’.
 The board found that the applicant was of good fame and character but
was not a fit and proper person to be admitted
 The board held that the applicant did not possess adequate understanding
of the consequences of her false accusations
o Re Davis (1947)
 Applicant convicted of breaking, entering and stealing and failed to
disclose this when applying for admission.
 Grave crime of dishonesty and lack of candour meant applicant’s
disbarment was confirmed (even though some 14 years since conviction).
 Take-away point: it is extremely important to give a full and frank
disclosure as the failure to disclose can be just as bad as that which was
not disclosed.
 Convictions dated 1930
 Sought admission in 1947
 Tried to get admitted again and was successful since he made the requisite
disclosures
o Ex parte Lenehan
 20 years earlier, applicant committed numerous dishonesty offences
involving money which he fully disclosed; subsequently respectable work
record and war service involving handling of money.
 Applicant admitted – youthful indiscretions not always final proof of poor
character; subsequent conduct can be redeeming.
 Take-away point: full disclosure key, as is proof that applicant has
changed to now be ‘fit and proper’.
 Applicant was in his 20’s
 Case was about trust moneys
 The applicant paid himself from the trust account
 Applicant was candid with his history
 He disclosed his past transgressions
 Did a war service
 Was able to demonstrate a work history without incident after those
previous transgressions occurred
o Frugtniet v Board of Examiners (1948)
 Applicant had 25 yrs of criminal history, continuing until just before
admission application.
 Not admitted – insufficient evidence of rehabilitation.
 Take-away point: many years of blameless conduct is needed to
overcome a lengthy and extensive criminal past.
 “The requirement for admission to practice law that the applicant be a fit
and proper person, means that the applicant must have the personal
qualities of character which are necessary to discharge the important and
grave responsibilities of being a barrister and solicitor. A legal practitioner,
upon being admitted to practice, assumes duties to the courts, to fellow
practitioners as well as to clients. At the heart of all of those duties is a

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commitment to honesty and, in those circumstances when it is required, to

open candour and frankness, irrespective of self interest or embarrassment.
The entire administration of justice in any community which is governed
by law depends upon the honest working of legal practitioners who can be
relied upon to meet high standards of honesty and ethical behaviour. It is
the legal practitioner who is effectively the daily minister and executor in
the administration of justice when advising clients, acting for clients,
certifying documents, and making presentations to courts, governments,
other professionals, and so on. The level and extent of trust placed in what
legal practitioners say or do is necessarily high and the need for honesty is
self evident and essential.”
o Prothonotary v Del Castillo (2001)
 Application brought by Prothonotary to have DC removed from roll:
applicant failed to disclose was charged with but acquitted of murder.
 Applicants should be frank.
 Even though acquitted can impact on character.
 Ultimately DC was not removed from the roll as no evidence of continuing
unfitness and said to be result of extraordinary pressures.
 Even where an applicant has been charged and acquitted, full disclosure is
still required
 De Castillo has been charged and acquitted of murder
 Sought advice from lecturer about the need for disclosure
 Admitted in NSW later sought admission in ACT
 The ACT supreme court held even though an applicant has been acquitted,
disclosure is still needed
o Overall:
 Prior convictions not automatic bar to admission.
 Full disclosure, acceptance of responsibility for conduct, mitigating
circumstances surrounding conviction (e.g. young age) and evidence of
rehabilitation crucial.
 Best not to turn a blind eye to criminal past
- Improper conduct in litigation
o Indicative of view of court and judicial process.
o Particularly relevant if would have lead to disciplinary proceedings had applicant
already been admitted.
o EXAMPLE
 Jackson (previously known as Subramaniam) v Legal Practitioners
Admission Board (2006):
 Applicant 10 years previously knowingly made a false statutory
declaration and gave false evidence – conduct did not lead to any
convictions.
 No admission – dishonesty and failure to disclose.
 The applicant was not charged with making a false declaration
 Re Bell [2005] QCA 151
 The applicant was a family law litigator
 Was not a lawyer
 Bankrupted in 1995
 2 breaches of domestic violence orders
 Made allegations against those that opposed his admission
 He was not held to be a fit and proper person

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 Applicant must acted in good faith

 His conduct was held to inconsistent with being an officer of the
court
 They demonstrate an inability to distinguish between vigorous but
legitimate advocacy of a position and a reaction to an adverse
decision of the courts which is entirely unacceptable in a officer of
the court, as is Mr Bell's evident tendency to identify a court which
does not decide in his favour as part of a persecuting opposition.
 Wentworth V NSW Bar Association (1992) 176 CLR 239
 The litigant made baseless accusations against other people
- Academic misconduct
o All instances of academic misconduct (even if alleged and not ultimately proven)
should be fully disclosed.
o EXAMPLES –
 Re AJG (2004):
 applicant disclosed had be found guilty of misconduct during PLT.
 Not admitted – degree of integrity needed; applicant responded to
stress by cheating.
 Legal practitioners must exhibit a degree of integrity which
engenders in the Court and in clients unquestioning confidence in
the completely honest discharge of their professional commitments.
Cheating in the academic course which leads to the qualification
central to practice and at a time so close to the application for
admission must preclude our presently being satisfied of this
applicant’s fitness. (de Jersey CJ)
 Copied work
 Re OG (2007):
 Colluded in non-law unit while at university, failed to fully disclose
circumstances of misconduct.
 Must be frank and honest about anything which may impact on
fitness to be admitted.
 Candour does not permit deliberate or reckless misrepresentation,
as applicant did here.
 Admission revoked.
 Quality of disclosure
 After the case, student conduct report is needed
 Non-disclosure of OG of the collusion
 Be frank and honest of the board of examiners
 An applicant must honestly should be left out
 Candour does not permit misrepresentation as disclosure
 He was struck off the role
 Re Liveri (2006):
 Applicant submitted journal article as her own work and also used
quotes without attribution in other assignments; originally
maintained conduct was ‘inadvertent’.
 Applicant not admitted – serious plagiarism and unwillingness to
acknowledge misconduct (showed lack of insight into gravity and
significance).
 Sufficient evidence to such that it was not inadvertent
 Plagiarism was repeated

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 She was 25-27

 Law Society of Tasmania v Richardson [2003] TASSC 9
 The applicant got through the admission board
 Allowed them to stay on the roll despite not disclosing
 No evidence of intent to collude
 His parents were also lawyers
 “I must conclude from the evidence presented to the Court that
Scott Richardson could only be properly criticised, from the
University's stand point, for providing student X with a copy of his
draft assignment when requested to do so. It was not suggested to
him in cross-examination that he did so for the purpose of assisting
student X to plagiarise his assignment. He was not asked for his
reasons. They may have been merely to provide student X with a
copy of a few notes that had been made on the draft in the course
of their cooperative research. He also knew that the committee had
found that he had believed that what he had done was acceptable to
the Law School. He further knew that the committee had made its
determination after having received statements and evidence from
student X and the two lecturers in Equity and Trusts without him
being given an opportunity to respond.”
o Overall:
 The nature of the misconduct, the full disclosure of the conduct, evidence
of remorse and an acceptance of responsibility for the conduct, as well as
an understanding of its gravity, will be important.
- Extreme political views
o Concern to do with applicant’s respect of the law.
o EXAMPLE –
 Re B (1981)
 Applicant claimed bail money she provided was her own when it
was actually the prisoner’s money.
 Not admitted – applicant lied to the court (dishonesty); attitude was
one of ‘the ends justify the means’ even if the ends necessitate
breaking the law – attitude likely to continue in the future.
 Having ‘radical’ political views not of itself a bar to admission.
 Take-away point: it is fundamental to the profession that a person
can be trusted to tell the truth and not participate in a breach of the
law.
 Political activist
 Anti-establishment
 Disobeying the police, graffitiing
 Continued to lie to police
 Re Julius 1943
 Applicant was a communist
 Was admitted
 Supporting communism was not unlawful
 Distributed communism material
 Barristers objected to his admission
 He made a false declaration
 The court held that the false declaration was not serious. The
declaration was made some time ago

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- Behaviour in previous profession(s)

o Relevant under rule 10(1)(j) AR (whether person been subject to disciplinary
action) – will also impact on ‘good fame and character’ assessment.
o Lack of professional judgment and discretion.
o EXAMPLE
 Re: Hampton [2002] QCA 129
 Applicant had inappropriate dealings with females in his care and
performed nursing work will not registered.
 Risks of questionable conduct in legal profession.
 Failure to candidly disclosure confirmed court’s concern over
character.
 Involved a nurse
 Hampton’s nurse licence was revoked
 Pleaded guilty to acting as a nurse without a licence
 Failed to disclose this
 “An applicant for admission is obliged to approach the Board, and
later the court, with the utmost good faith and candour,
comprehensively disclosing any matter which may reasonably be
taken to bear on an assessment of fitness for practice”
 “Consideration should however be given to amending the “notice
previous to admission as a solicitor” to refer specifically to the duty
of disclosure, in candid good faith, of any circumstance which may
reasonably bear upon the applicant’s fitness to practise. That aside,
the applicant’s reliance on the form of the question as excusing his
not disclosing his acknowledged contravention of the legislation,
provides yet further evidence of his lack of appropriate ethical
awareness and judgment.”
 Thomas v Legal Practitioners Admission Board [2004] QCA 407
 Misappropriating trust money
 Failed to disclosed
 Wasn’t admitted
- Mental illness
o Relevant under rule 10(1)(k) AR (whether person is unable to satisfactorily carry
out requirements of practice) – will also impact on ‘good fame and character’
assessment.
o Issue of capacity/fitness rather than ethical assessment.
o EXAMPLE
 XY v Board of Examiners (2005):
 History of threats, assault of protective services officers and the
police, damage to property; continuing alcohol addiction and
borderline personality disorder.
 Applicant admitted – offences due to poor mental state, no charges
for preceding 8 years, medical evidence of fitness.
 Required to maintain attendance at Alcoholics Anonymous.
 XY was admitted
 The applicant had been sexually been abused
 Had been admitted to psychiatric facilities
 Alcohol abuse, self harming
 There had been no charges since 1997
 Was referred to alcoholics anonymous

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 Whether the mental was such that she could protection of the
public of the damage caused mentally unstable legal practitioners
legal profession act
 Skerritt v The Legal Practice Board of Western Australia [2004] WASCA
28S
 “43 Leaving aside for the moment the misconduct with regard to
the two women, the difficulty with this reasoning, it seems to us, is
that there is no rational basis for a conclusion that a suicide attempt
some 12 years prior to an application for admission, either alone or
in combination with the taking of anti-depressant medication,
renders a person unfit to practice. It is necessary to step back a
moment and to consider the nature of the enquiry into fitness to
practice. The practitioner owes duties of candour to the Court,
owes duties of candour, honesty, and competence to clients, and
obviously must be a person who is able to be trusted to behave with
propriety and fairness in relation to all those persons with whose
important personal affairs a practitioner may be entrusted.”
 Was admitted
 Depression leading to a suicide attempt does not hinder admission
o Overall
 Lack of candour and/or refusal to appreciate one’s actions are decisive
elements in denial of admission – can be worse than the actual conduct
itself.
 Evidence lack of the candour and honesty expected of a practising
lawyer.
 Only way may still be okay is if could say was oversight, genuine
mistake or understandable error of judgment (e.g. lapse of memory
due to car accident: Legal Services Commissioner v Scott [2014]
QCA).
 Past conduct is not determinative of application for admission.
 Mitigating factors may include:
 Age
 External stressors
- Applying for readmission
o Practitioners must show that they are of good fame and character AND that they
completely accept the decision which resulted in their removal from the roll AND
that they have been rehabilitated.
o Heavy onus to discharge.
o Readmission occurs when someone is struck off and wants to be admitted again
o The hurdle is higher
o The courts role is to ensure that the reputation and standards are upheld
o Applicants seeking readmission are in a more disadvantageous position than those
that are seeking admission for the first time
o EXAMPLE – Kotowicz v Law Society of NSW (No 2) (1987):
 Struck off for trust account breaches, reapplied for admission after 9 years.
 Applicant failed to take personal responsibility for breaches
 Subsequently applied for real estate licence and did not disclose
circumstances around disbarment.
 Still not a fit and proper person.

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 Didn’t disclose in his stat dec

 Wanted to be readmitted
 Showed that he did not acknowledge his past wrongs
o Re Wendy Anne Wright [2011] QSC 34
 Moral regeneration
 A person who seeks readmission for profession misconduct must
acknowledge genuine remorse it is generally indicative of insight there
may be cases of no remorse were wrong the applicant might accept by the
disciplinary assessment of all the circumstances
- Admission procedure
o Application for compliance certificate (online) – statutory declaration (s 19(1) UL
and rule 12(1) AR).
o Board to publish notice of applicant’s name on its website (s 19(6) UL and rule
12(2) AR).
o Documents accompanying application:
 Evidence of tertiary and PLT qualifications (rule 15 AR).
 Evidence of character – two character statements (rule 16 AR).
 Disclosure statement (rule 17 AR).
 Police report (rule 18 AR).
 Student conduct report (rule 19 AR).
o Can be summoned before VLAB to provide further information (rule 22 AR).
o If VLAB does not provide compliance certificate, can appeal to Supreme Court (s
26 UL).
o If provide false, misleading or incomplete information then VLAB can revoke a
compliance certificate (s 19(4) UL).
o Admission ceremonies – webcasts of latest admission ceremonies:
http://scvwebcast.com/admissions/.
- Once admitted
o Not immediately entitled to engage in practice.
 Need to obtain a practising certificate (s 44 UL) – managed by the LSBC.
 Note: need to be fit and proper person.
 Period of supervised law practice (s 49 UL).
o Ongoing Continuing Professional Development (‘CPD’) requirements – condition
of practising certificate (s 52 UL).
 10 CPD points per year (rule 6 CPD Rules).
o If wish to become a barrister: entrance exam, 8 week Bar readers course (s 50
UL), 7 months work under mentor.

Lecture 3 (Duties owed to clients: Chapters 3, 4, 5, 6, 7 and 8)

- The lawyer-client relationship
o Lawyer has concurrent duty sourced in contract, tort law, the fiduciary
relationship and equity.
o Duties include:
 Competence
 Loyalty
 Confidence

Duties Owed
to Clients
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Competence Loyalty Confidence Other

 Others – provide quality client care, promote access to justice and

- Duty of confidentiality - To provide quality and
encourage
- Tort law (negligence - settlement.
- Fiduciary law (duties (contract - implied term in client care ('quality
standard of care) mandated by equity). retainer; equity - survives assurance').
- Contract (implied term of - 2 primary duties: (1) avoid termination of retainer; rule - Duty to promote access to
skill and care). conflicts of interest; (2) not 9.1 SCR). justice.
- Statute (s 18 Austrlian profit from relationship - Presumption of undue - Duty to encourage
Consumer Law) without consent. influence (arises from settlement.
fiduciary nature of lawyer-
client relationship).

- The retainer
o Marks the commencement of the duties owed to the client.
o Contract between lawyer and client – sets out the work to be completed.
 Identifies the parameters of the relationship and therefore the extent of the
duties owed.
o In the exam need to establish 3 things
 Who is the client? It is the company?
 What is the scope of the work?
 What authority do I have to settle the matter?
o The lawyer acts as the client’s agent
o Terms can be express or implied by law
o Relationship between client and lawyer is a fiduciary relationship
 Therefore, cannot profit from the relationship
o The lawyer can only charge once the client has given informed consent
o If there is no retainer the lawyer cannot claim monies from the client for work
completed
o Why do you have to careful of the retainer?
 Can be sued
 PLC (insurance) is the professional insurance company
o Lawyers need to be careful about inadvertently entering into a retainer by
answering questions on social media platforms
 Lawyers should thus have a declaimer
o Engagement letter
 Specifies the work retained
 And what won’t be undertaken
- Creation of the retainer
o Can be created:
 expressly – in writing or orally; or
 by implication – based on the conduct of the parties.
o If created by implication:
 Onus on party alleging lawyer-client relationship.
 Determined objectively (Pegrum v Fatharly (1996)).
o It is prudent to make sure the retainer is in writing!
o At common law the retainer does not need to be in writing
o Implied based on conduct
o Terms may be express or implied subject to legislation
o General rule- should be in writing
o A cost agreement must be in writing schedule 1 ULA s 180(2)

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o When it comes to infants, administration guardians, it is important to identify who

the client is
o Company
 Who is the person instructing to?
 Is it the directors, managing director, board of directors?
o Obligations under tort law
 requisite standard of care
 must be competent
o Obligations under contract law
o To avoid ambiguity, the retainer (as well as being in writing) should:
 Identify the client(s).
 Set out the scope of the retainer.
 Outline the services that the lawyer is going to provide.
 Outline the costs to be charged and how payment is to be made.
 Set out the lawyer’s authority to enter into negotiations, etc on behalf of
the client.
o Who is the client?
 Joint clients – need joint instructions.
 Individual clients coming to see a lawyer together – beware!
 Need to clearly identify – e.g. deceased estate, power of attorney.
- Scope of the retainer
o Terms should be clearly expressed as will determine scope of:
 lawyer’s authority as an agent; and
 duties owed by lawyer to client.
o Ambiguity construed in favour of client (Owners – Strata Plan No 45205 v
Andreones [2009]).
o Includes authority to do all things incidental to the purpose of the retainer:
Polkinghorne v Holland (1934).
o Implied terms –
 Lawyer to protect client interests and exercise reasonable care and skill
when carrying out client instructions (Astley v Austrust Ltd (1999)).
 Lawyer to keep communications confidential.
o Must be clear so can determine whether acts or omissions fall within or outside
retainer.
o Lawyers generally need express authority to –
 Compromise a proceeding.
 Create contractual obligations on behalf of the client: Pianta v National
Finance & Trustees Ltd (1964).
 Institute proceedings on behalf of a client: Hawkins Hill Gold Mining Co
v Briscoe (1887).
 Incur significant or unusual expenses: Schiliro v Gadens Ridgeway
(1995).
- Rejecting the retainer
o Different position for barristers and lawyers.
o Barristers – ‘cab-rank’ principle: must accept brief from any client (Giannarelli v
Wraith (1988); rule 17 Legal Profession Uniform Conduct (Barristers) Rules
2015).

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 Can refuse if outside capacity or skill, would be unavailable, fee not

acceptable, reasonable grounds to doubt fee will be paid, etc (rules 17 and
105 BR).
 Must refuse if have conflict of interest, confidential information about the
other side, etc (rules 101, 103, 104 and 105 BR).
o Lawyers – no obligation to accept instructions.
 Can choose not to where cannot competently represent client, promptly
advise and act for client, or are not independent.
- Termination of the retainer
o Rule 13.1, Solicitor Conduct Rules
 A solicitor with designated responsibility for a client’s matter must ensure
completion of the legal services for that matter UNLESS:
 13.1.1 the client has otherwise agreed;
 13.1.2 the law practice is discharged from the engagement by the
client;
 13.1.3 the law practice terminates the engagement for just cause
and on reasonable notice; or
 13.1.4 the engagement comes to an end by operation of law.
o When the matter comes to the end, this is when the retainer comes to an end
o Early termination may be appropriate
 Solicitor conduct rules rule 13.1
o ‘Just cause’
 Rule 13.1.3
 Examples of just cause
 Clients refuses to accept advice
 Client lies
 Client is unwilling to pay costs
o Does not apply to criminal matters
 Conflict of interest
o Can arise at the start or during the proceedings
 I.e the lawyer becomes a witness in their own case
 Client instruct you to act against your duty to the court
 Significant detriment to the lawyer’s health
o Rule 13.2.1- 7 days notice for criminal matters
 13.2 Where a client is required to stand trial for a serious criminal
offence, the client’s failure to make satisfactory arrangements for the
payment of costs will not normally justify termination of the engagement
UNLESS the solicitor or law practice has:
 13.2.1 served written notice on the client of the solicitor’s
intention, a reasonable time before the date appointed for
commencement of the trial or the commencement of the sittings of
the court in which the trial is listed, providing the client at least 7
days to make satisfactory arrangements for payment of the
solicitor’s costs; and
 13.2.2 given appropriate notice to the registrar of the court in
which the trial is listed to commence.
o Rule 13.3
 13.3 Where a client is legally assisted and the grant of aid is withdrawn or
otherwise terminated, a solicitor or law practice may terminate the

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engagement by giving reasonable notice in writing to the client, such that

the client has a reasonable opportunity to make other satisfactory
arrangements for payment of costs which would be incurred if the
engagement continued.
o Lawyer can terminate the retainer at any time
 If there is a court trial going on you must give 7 days notice
o Liv ethics committee
 Good cause, reasonable notice
 Couldn’t obtain clear instructions
o What do you after terminating retainer?
 Keep the file for 7 years (conduct rules rule 14.2)
 Will matter must keep the file forever
o Normally when matter concludes.
 Must retain client documents for 7 years (rule 14.2 SCR) – original
documents such as Wills, etc should be retained indefinitely.
o Client can terminate at any time.
o Lawyer needs client consent to terminate or can do so without consent for just
cause and on reasonable notice (rule 13.1.3 SCR).
 Just cause – e.g. cannot properly perform responsibilities because cannot
find client, cannot get instructions, etc.
 Reasonable notice – in litigation, at least 7 days before next court date.
- Document lien
o If retainer terminated, client entitled to ‘client documents’ (rule 14.1 SCR).
 E.g. letters from the lawyer to third parties, briefs to counsel, drafted
documents such as leases, contracts, etc.
 Not internal memorandums, file notes, etc.
o If unpaid costs on the file, can exercise a solicitor’s/document lien (rule 15 SCR).
 Where documents are essential to prosecution or defence in current
proceedings, must deliver documents to client if (rule 15.1.1 and 15.1.2
SCR):
 another lawyer is acting – then must surrender to that lawyer
(subject to lien and with reasonable security for costs); or
 second lawyer agrees to pay or enters into agreement with client to
procure payment of costs upon completion of proceedings; or
 lawyer receives reasonable security for the unpaid costs.
o Can also exercise lien over money held in trust – will discuss in week 5 or 6.
o You can hold a lien over files if costs are not paid
o Rule 14.1 (conduct rules)
o Can exclude personal notes do not have to be handed over once lien is paid
o Brief to counsel- i.e. brief given to barrister
o Rule 15
 If the client doesn’t pay you but the new lawyer’s signs an undertaking
saying that you will be paid once the matter is resolves
- Duty of competence
o Under:
 contract law – implied term of skill and care; and
 tort law – duty to take reasonable care (negligence).
o Rule 4.1.3 SCR: a solicitor must deliver legal services competently…
o ‘Competence’ has no legal definition.

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 Examples of conduct potentially falling short of expected level of

competency:
 not advising client about limitation period
 missing deadline
 making representations about things that the lawyer cannot control
o Lawyers must maintain their professional conduct by continuing updating their
development
o Where a lawyer is not competent in a particular matter, they should refrain from
giving advice in that matter
o When a lawyer can be found incompetent
 Limitation period
 Missing deadlines
 Quality of advice
o Ensuring legal practitioners are competent:
 Academic and PLT admission requirements.
 Mandatory CPD requirements.
 Need to remain up-to-date on developments in law.
o If a lawyer cannot competently complete the work then they should decline it
or confine it.
o Rule 6.1 (conduct rules)- undertaking
 Undertaking is a promise
 Person
 Fine the lawyer for professional conduct
o Must clearly state that the undertaking is taken on behalf of someone else
 If a lawyer wants to avoid personal liability
- Duty of care under tort law
o Lawyers can be held to be negligent if fall below requisite standard of care.
 May also amount to misconduct or unsatisfactory professional conduct.
o Duty to:
 Act in best interests of client
 Disclose all material information
o Legal service commissioner can charge you with unprofessional conduct if you
fall below the requisite standard of care
o Requisite standard of care
 1. act in best interest of client (rule 4 professional conduct rule)
 2. disclose all material information
- Scope of duty
o Duty to act in client’s best interests – prudent to include objectives in retainer.
o Scope of lawyer’s duty of care defined by retainer (Hawkins v Clayton (1988)).
 Retainer can be restricted – express terms and seek advice from others.
o Important – can, in rare circumstances, extend to taking positive steps outside of
retainer.
 Where is a real and foreseeable risk of economic loss to a client
(Hawkins).
 E.g. failure to warn of expiry of limitation period, even though retainer
previously ended (Curnuck v Nitschke (2001)).
o Hawkins v Clayton [1988] HCA 15
 A solicitor’s duty was to considered to be limited by the retainer
(previously)

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 There was no justification for imposing a contractual duty, might require

positive steps to avoid a foreseeable economic loss had retained the
solicitor
 Retainer could extend to other parties
 Should have taken steps to locate the executor

o Scope of
duty
 Can extend to taking positive steps outside the retainer
o Inexperienced vs sophisticated clients:
 Scope may be broader (so more expected from lawyer) where client at a
disadvantage, e.g. lack of education.
 But still owe duty to sophisticated clients to properly advise.
o Circumstances in which advice is given:
 Urgent advice – qualify advice provided (e.g. preliminary views); properly
inform client of risks.
 Preliminary advice to prospective clients – possible for duty of care to be
imposed even without retainer (Hedley Byrne & Co Ltd v Heller (1964)).
o The provision of financial or taxation advice?
 Retainer will generally not extend to financial or taxation advice.
 May provide advice on, e.g. tax implications – keep it legal!
o No obligation to provide non-legal advice.
o State in the scope that you are providing advice to a specific matter
o Does not extend to financial or taxation advice
- Standard of care
o That of a qualified, reasonably competent and careful lawyer in the practice of
their profession (Hawkins v Clayton).
 An ordinary, skilled person exercising and professing to have that special
skill: Rogers v Whitaker (1992).
 Not a warranty of perfection: The Duchess of Argyle v Beuslinck (1972).
o Expectation: will possess knowledge of reasonably competent lawyer of well-
settled principles of law and applicable court procedure and rules.
 Higher for accredited specialists/experts in relation to that particular area
of law (Wakim v McNally (2002); Yates Property Corporation v Boland
(1998)).
 Will exercise appropriate supervision over work done by others (Re a
Solicitor (1960)).
o Basic duty
 Do the contract without negligence
o Claiming to be an expect

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 Higher duty of care

o Examples of conduct potentially not to standard –
 Giving advice falling short of that expected of a reasonably competent
lawyer, e.g. outside of area of expertise, providing incomplete advice (e.g.
failing to advice on key element of claim), failing to act to protect a
client’s interests (e.g. lodge caveat).
 Failure to disclose relevant information to client resulting in loss.
 Giving advice not qualified to give, e.g. financial advice.
 Not properly instructing counsel.
o Lowering the standard of care?
 Generally cannot limit liability by lowering standard of care!
 Better to clearly restrict scope of retainer.
 Cannot unquestioningly rely on counsel’s advice – independent judgment
required: Darvall McCutcheon v HK Frost Holdings.
 Even if solicitor is inexperienced in field and barrister is ‘eminent’
(Wakim v McNally).
 You can’t lower the standard of care, so that there is lower threshold
 Darvall
 If you are not an expert in something and you retain a barrister and
you rely just on the barrister’s advice
 The client can still sue you
o S 59 Wrongs Act 1958 (Vic) (standard of care for professionals): not negligent if
show acted in manner widely accepted in the field as competent professional
practice in the circumstances.
 S 59 wrongs act
 Relates to professionals
o BUT note that following ‘common practice’ will not meet standard of care if
practice unsound (Edward Wong Finance v Johnson Stokes & Master (1984)).
 Prudent lawyer will always take steps to reduce risk.
o Following a client’s advice?
 Rule 8.1 SCR: a solicitor must follow a client’s lawful, proper and
competent instructions.
 BUT need to inform client of risks associated with course of conduct
(Credit Lyonnais SA v Russell Jones and Walker (a firm)) otherwise may
have breached duty of care.
 If client decides to proceed anyway and instructs the lawyer
accordingly, lawyer is not responsible for client’s actions and any
resulting losses/harm.
 ‘[A] person under a duty to take reasonable care to provide
information on which someone else will decide upon a course of
action is, if negligent, not generally regarded as responsible for all
the consequences of that court of action. He is responsible only for
the consequences of the information being wrong.’ (Banque
Bruxelles Lambert SA v Eagle Star Insurance Co Ltd (1997))
o Immunity for ‘in court’ acts or omissions
 Barristers immune from action by clients for professional negligence
relating to work in conducting litigation: Giannarelli v Wraith (1988);
D’Orta-Ekenaike v Victoria Legal Aid (2005).
 Applies to negligent acts and omissions.
 Limited to in court work – connection needed.

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 Can apply to solicitor acting as advocate or instructing counsel.

 i.e the barrister did not call a particular witness result, $10,000 damages.
The barrister cannot be sued for this because it is related to court-work
- Breach of duty of competence
o Damages award:
 In contract – difference in position from if retainer had been performed.
 In tort – putting client in position would have been in had tort not been
committed.
 Causation: would client have behaved the same way even if there
was no breach? (Berry v Kanakis (2002)).
o Disciplinary action – misconduct or unsatisfactory professional conduct.
o Maintenance of professional indemnity insurance (s 211 UL).
 Normally indemnifies against loss occurring as a result of negligence by
lawyer.
 Some exceptions, e.g. fraud by lawyer.
o Professional indemnity
 s 211 Uniform Law Act
- Duty of loyalty
o Fiduciary nature of lawyer-client relationship – lawyer in position of trust (can
affect legal status of client), client reliant on lawyer’s skill and knowledge.
o Must always act in best interests of client (rule 4.1.1 SCR).
o Central fiduciary duty = undivided loyalty.
o Two key duties:
 1. Lawyers must not, without informed consent of client, place themselves
in a position where there may be a conflict between their duty as a
fiduciary and their own interests (direct conflict: duty-interest) or those of
a third party (indirect conflict: duty-duty).
 2. Lawyers must not profit from the fiduciary relationship except with the
client’s informed consent – presumption of undue influence.
o Note that this are proscriptive rather than prescriptive (Breen v Williams).
o Quasi duties
 Successive conflict
 Information confidential
 account for money
 Disclose all material information that comes into the lawyer’s possession
o Both key duties are strictly applied – why?
 Status as a professional = notion of public service.
 Public perception that lawyers use privileged position to own advantage
lowers public respect for profession and public confidence in the legal
system.
o BUT client can consent to behaviour otherwise ‘in breach’ if give informed
consent.
- 1. Conflict of interests
o Two types:
 Direct conflicts – conflict between acting in the best interests of the client
and the lawyer seeking to protect or advance their own interests.
 Client-solicitor conflict
 Indirect conflicts – conflict between concurrent or successive clients.
 Client-client conflict

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o When there is a conflict it is always a good idea to get them to sign something
o Rule 10,11,12 conduct rules
 Rule 10,11- indirect
 Rule 10- former clients- successive clients
 Rule 11- current clients
 Rule 12- solicitors’ own interest- direct conflict
o Solicitor-client conflict
 Solicitor is a shareholder
 Legal Services Commissioner v Francis (Legal Practice) [2006]
 The lawyer had a client (vendor)
 Francis (lawyer)
 Lawyer’s wife is purchasing land from the vendor
 Lawyer fined $50,000
o Full disclosure is needed to both parties if a lawyer is to be continued being
retained
o Information barrier- Chinese wall
 That a lawyer cannot physically access files especially when there is a
conflict
o (a) Lawyer-client (interest-duty) conflict
 Rule 12 Solicitor Conduct Rules
 12.1 A solicitor must not act for a client where there is a conflict
between the duty to serve the best interests of a client and the
interests of the solicitor or an associate of the solicitor, except as
permitted by this Rule.
 12.2 A solicitor must not exercise any undue influence intended to
dispose the client to benefit the solicitor in excess of the solicitor’s
fair remuneration for legal services provided to the client.
o i.e. a lawyer cannot profit from the relationship
 Should avoid accepting any gifts
 If personally involved in dealing, cannot provide disinterested advice.
 Ongoing clients – risky trying to separate out one particular transaction
(O’Reilly v Law Society of New South Wales (1988)).
 Provides an example of undue exercise
 A lawyer bears a heavy burden to show that fully informed consent
was given in any transaction that advantages the lawyer
 O’Reilly would tell clients to gain finance from a company in
which he owned/operate
 O’Reilly was fined
o Originally it was held that he should be struck off the roll
 Cannot actively seek to deal with client(s) as ‘non-lawyer’: Law Society of
New South Wales v Harvey (1976).
 Extends:
 To avoidance of appearance of conflict (Spector v Ageda (1973))
 Beyond individual lawyer – reference to ‘associates’ in rule 12.1
SCR.
 Includes, e.g., personally lending money to clients, borrowing money from
clients, buying property from clients, selling property to clients.

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 Be wary of acting for yourself and a family member or associate – may

compromise independent judgment and is potential for conflict of interest
(Woolley v Ritchie [1999]).
 If a conflict arises, need to make full disclosure (Law Society of New
South Wales v Harvey (1976)).
 Exception to no conflict rule – where client gives informed consent for
lawyer to continue to represent them.
 Full and frank disclosure about nature and extent of lawyer’s
interest and implications of conflict otherwise not informed consent
(Castlereagh Motels Ltd v Davies-Roe (1967)).
 The disclosure ‘must be a conscientious disclosure of all material
circumstances, and everything known to him relating to the
proposed transaction which might influence the conduct of the
client or anybody from whom he might seek advice. To disclose
less that all that is material may positively mislead. Thus for a
solicitor to merely disclose that he has an interest, without
identifying the interest, may serve only to mislead the client into an
enhanced confidence that the solicitor will be in a position to better
protect the client’s interest.’ Street CJ in Law Society of New
South Wales v Harvey [1976]
 Should:
 get consent in writing; and
 insist client obtain independent legal advice on conflict.
 Heavy onus on lawyer to prove full disclosure and informed consent.
 Risk of transaction being set aside, order for compensation, etc.
 Also: possible disciplinary consequences.
 EXAMPLE: borrowing money from clients.
 Interests of borrower (lawyer) and lender (client) conflict.
 Very hard to provide disinterested advice!
 Informed client consent on basis of independent legal advice
required.
 Rule 12.3
 12.3 A solicitor must not borrow any money, nor assist an associate
to borrow money, from:
o 12.3.1 a client of the solicitor or of the solicitor’s law
practice; or
o 12.3.2 a former client of the solicitor or of the solicitor’s
law practice who has indicated a continuing reliance upon
the advice of the solicitor or of the solicitor’s law practice
in relation to the investment of money, UNLESS the client
is:
 (i) an Authorised Deposit-taking Institution;
 (ii) a trustee company;
 (iii) the responsible entity of a managed investment
scheme registered under Chapter 5C of the
Corporations Act 2001 (Cth) or a custodian for such
a scheme;
 (iv) an associate of the solicitor and the solicitor is
able to discharge the onus of proving that a full
written disclosure was made to the client and that

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the client’s interests are protected in the

circumstances, whether by legal representation or
otherwise; or
 (v) the employer of the solicitor.
 ***It prohibits the borrowing of monies from clients
 EXAMPLE: lending money to clients.
 No specific prohibition in rules but best to avoid – note disparity
between interests of lender (lawyer) and borrower (client).
 Would need to:
o Fully disclose interest;
o Strongly advise client to obtain independent legal advice;
and
o Advise client of other funding options.
 If fiduciary breach, court may set aside transaction (Maguire v
Makaronis (1997)).
 EXAMPLE: buying property from or selling property to client.
 Interests of vendor and purchaser do not align – client to obtain
independent legal advice (Longstaff v Birtles (2002)).
 Lawyer in position of influence – may be liable for fiduciary
breach or undue influence (Talbot & Olivier v Shann (2005)).
o Transaction may be invalid or unenforceable!
 Same applies where is associate of lawyer involved in transaction
with client (Sewell v Zelden (2010)).
 Former clients?
 No prohibition on dealing with former clients as fiduciary duties
end with termination of retainer. (Note ongoing obligations
regarding confidential information.)
 Still prudent to disclose and suggest independent legal advice –
need to dispel any suggestion that acting for client.
 Proscription against secret profits –
 Cannot profit from fiduciary position without informed consent of
client.
 Rule 12.4 SCR sets out circumstances in which rule 12 will not be
breached:
o where draft Will appointing lawyer as executor (rule
12.4.1) – provided advise of entitlement to commission;
o where draft Will or other instrument under which lawyer
will receive substantial benefit – provided client is family
member or colleague;
o where receive commission from third party – provided
disclose and obtain client’s consent to receipt (independent
legal advice may be necessary);
o where pay commission to third party – provided first
disclose to client.
 Rule 12.4.3
 12.1 A solicitor will not have breached this Rule merely by:
o 12.4.3 receiving a financial benefit from a third party in
relation to any dealing where the solicitor represents a
client, or from another service provider to whom a client

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has been referred by the solicitor, provided the solicitor

advises the client:
 (i) that a commission or benefit is or may be payable
to the solicitor in respect of the dealing or referral
and the nature of that commission or benefit;
 (ii) that the client may refuse any referral, and
 the client has given informed consent to the
commission or benefit received or which may be
received
 To get informed consent if you refer them to another company
you must disclosure
o The nature of the commission or benefit
o The potential disadvantage of the client if the lawyer takes
the benefit/commission
o The client may be alternatively be able to use another
solicitor without a conflict
 Rule 12.4.4
 12.4 A solicitor will not have breached this Rule merely by:
o 12.4.4 acting for a client in any dealing in which a financial
benefit may be payable to a third party for referring the
client, provided the solicitor has first disclosed the payment
or financial benefit to the client.
 Disclosure requirements
o Make it in writing
 Criminal sanctions may apply
o Crimes Act
 S 175(1)
 S 176(1)
 S 177
 Wills
 Lawyers can name themselves the executor
o You can charge an executor fee, you must inform the will
maker
 Lawyers cannot name themselves the beneficiary
 Rule 12.4.1
o 12.4 A solicitor will not have breached this Rule merely by:
 12.4.1 drawing a Will appointing the solicitor or an
associate of the solicitor as executor, provided the
solicitor informs the client in writing before the
client signs the Will:
 (i) of any entitlement of the solicitor, or the
solicitor’s law practice or associate, to claim
executor’s commission;
 (ii) of the inclusion in the Will of any
provision entitling the solicitor, or the
solicitor’s law practice or associate, to
charge legal costs in relation to the
administration of the estate; and

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 (iii) if the solicitor or the solicitor’s law

practice or associate has an entitlement to
claim commission, that the client could
appoint as executor a person who might
make no claim for executor’s commission.
o (b) Client-client (duty-duty) conflict
 Remember: undivided loyalty by lawyer to client is required (must also
avoid appearance of disloyalty).
 Need to give full and effective representation to clients – may not be
possible where 2+ clients with conflicting (or potentially conflicting)
interests: Farrington v Rowe McBride & Partners (1985).
 Two types:
o Conflict between two concurrent clients.
o Conflict between a former and a current client.
 Concurrent clients
 Example of conflict – duty to act in best interests of client and
disclose all relevant information and competing duty not to
disclose confidential information.
 No outright prohibition on acting for concurrent clients.
 Rule 11 Solicitor Conduct Rules
o 11.1 A solicitor and a law practice must avoid conflicts
between the duties owed to two or more current clients,
except where permitted by this Rule.
o 11.2 If a solicitor or a law practice seeks to act for two or
more clients in the same or related matters where the
clients’ interests are adverse and there is a conflict or
potential conflict of the duties to act in the best interests of
each client, the solicitor or law practice must not act,
except where permitted by Rule 11.3.
o 11.3 Where a solicitor or law practice seeks to act in the
circumstances specified in Rule 11.2, the solicitor or law
practice may, subject always to each solicitor discharging
their duty to act in the best interests of their client, only act
if each client:
 11.3.1 is aware that the solicitor or law practice is
also acting for another client; AND
 11.3.2 has given informed consent to the solicitor
or law practice so acting.
 Law Society of NSW v Foreman (1994) 34
NSWLR 408
o Informed consent means ‘full and
frank disclosure to the client of all
information known to the solicitor
which the client should know’
 If you continue act for one client the lawyer owes a
equitable duty to the other former client when actin
in the same or related matter
 Spincode Pty Ltd v Look Software Pty Ltd
[2001] VSC 287
 NOTE:

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 Informed client consent is not enough to

avoid breach of duty – must always ensure
acting in best interests of every client.
o 11.4 In addition to the requirements of Rule 11.3, where a
solicitor or law practice is in possession of information
which is confidential to a client (the first client) which
might reasonably be concluded to be material to another
client’s current matter and detrimental to the interests of the
first client if disclosed, there is a conflict of duties and the
solicitor and the solicitor’s law practice must not act for the
other client, except as follows:
 11.4.1 a solicitor may act where there is a conflict of
duties arising from the possession of confidential
information, where each client has given informed
consent to the solicitor acting for another client; and
 11.4.2 a law practice (and the solicitors concerned)
may act where there is a conflict of duties arising
from the possession of confidential information
where an effective information barrier has been
established.
 NOTE:
 Confidential and adverse to client A’s
interests if disclosed but material to client
B’s matter (would benefit client B) =
conundrum!
o 11.5 If a solicitor or a law practice acts for more than one
client in a matter and, during the course of the conduct of
that matter, an actual conflict arises between the duties
owed to two or more of those clients, the solicitor or law
practice may only continue to act for one of the clients (or a
group of clients between whom there is no conflict)
provided the duty of confidentiality to other client(s) is not
put at risk and the parties have given informed consent.
 Practically, it would be safest to withdraw
representation of both clients.
 Client consent to conflict
o Clients need to understand existence and possible
consequences of the conflict (Marron v J Chatham Daunt
Pty Ltd (1998)).
o Prudent to recommend independent legal advice regarding
the conflict.
o Important! Lawyer still to make independent judgment
about whether can truly act in best interests of both parties.
 Contentious work: cannot represent parties in litigation who do not
share the same interests.
o Be wary of joint representation of co-accused, etc.
 Non-contentious work: should not act when is even the slightest
possibility that there may be a potential conflict (Clark v Baker
(1987)).

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o E.g. acting for vendor and purchaser, lessor and lessee,

lender and borrower.
o If actual conflict arises, cannot act without consent but
continuing to act on the basis of client ‘consent’ is risky.
 Do not assume that certain clients have complimentary interests
(e.g. spouses).
- Successive clients
o Fiduciary duties end when retainer ends (so no continuing duty of loyalty to
former clients) but duty of confidentiality continues.
o Focus here: potential breaches of confidence owed to former client (Prince Jefri
Bolkiah v KPMG (a firm) (1999)).
o Rule 10, Solicitor Conduct Rules
 10.1 A solicitor and law practice must avoid conflicts between the duties
owed to current and former clients, except as permitted by Rule 10.2.
 10.2 A solicitor or law practice who or which is in possession of
information which is confidential to a former client where that information
might reasonably be concluded to be material to the matter of another
client and detrimental to the interests of the former client if disclosed, must
not act for the current client in that matter UNLESS:
 10.2.1 the former client has given informed written consent to the
solicitor or law practice so acting; or
 10.2.2 an effective information barrier has been established.
o Rule 10- Concerns former clients
 Duty confidential
 Use all your knowledge for the benefit of the current client
o Exceptions
 Where the former client has given informed consent (10.2.1)
 The lawyer would have to be extremely careful
o E.g. detailed file notes
 Information barrier (10.2.2)
 ‘Chinese walls’
o Concurrent conflict- relates to the firm not the individual lawyer
o Mallesons Stephens Jaques v KPMG Peat Marwick (1990) 4 WAR 357
 Instructing lawyer is taken to instruct the whole firm
 Conflict refers to the firm not the individual lawyer
 If there is a real possibility that the interests of a new client will conflict
with a past client, the firm should not act
o A lawyer should never act for a client that they have previous acted against
 D and J Construction
o Confidential information about a client, and you can use it against them
 This is a conflict
 You have to cease to act
o Survives the end of the retainer and may prevent them from acting in the same or
similar matter
 Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287
o Rule 10.2
 The solicitor would need to be extremely careful.
 Maintain excellent file notes
 Send letter outline conflict

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o Must not act relevant information from a relevant retainer???

 Unioil International Pty Ltd V Deloitte Touche Tohmatsu (A Firm)
(1997) 17 WAR 98
 There is a strong presumption that lawyers that work together share
knowledge but the presumption is rebuttal if all reasonable
measures have been take to ensure that no disclosure will occur
o Key example of potential client-client successive conflict: where lawyer retained
to act against former client.
 Need to protect and encourage confidential disclosures by client to lawyer:
Re a Firm of Solicitors (1995).
 Can act where former client consents to use of confidential information.
o Court can grant injunction disqualifying lawyer from acting against a former
client (Yamaji v Westpac Banking Corp (No 1) (1993)).
o Has inherent jurisdiction to determine which officers of the court can represent
parties (Davies v Clough (1837)).
o Relevant question in such circumstances: how likely is it that confidential
information will be misused?
 Must be real as opposed to theoretical possible – would a reasonable
observer, aware of all of the relevant facts, perceive a real and sensible
possibility of misuse of confidential information? (Spincode Pty Ltd v
Look Software Pty Ltd (2001)
 Take into account risk of inadvertent disclosure (Mills v Day Dawn Block
Gold Mining Co Ltd (1882)).
 Onus on former client to show (Prince Jefri Bolkiah v KPMG (a firm)
(1999)):
 Lawyer is in possession of confidential information which the
plaintiff hasn’t given permission to disclose; and
 The information is or may be relevant to the new matter in which
the interest of the other client is or may be adverse to the former
client’s interest.
 If retainers closely related = increased risk of misuse of information.
 Even if retainers unrelated, lawyer may have ‘impression’ of former client
– ‘getting to know you’ factors (Yunghanns v Elfic Ltd (1998)).
 E.g. former client’s strengths, weaknesses, attitudes to litigation,
etc.
 Such impressions do not always amount to ‘confidential
information’ – need to consider nature of previous retainer(s) and
lawyer’s involvement.
- Where there is no prior lawyer-client relationship?
o Example: where friend has imparted confidential information and lawyer is then
retained to act against that friend.
 No rule prohibiting acting against friend (Marriage of Kossatz (1993)).
 Would need to show proof of confidential nature of (lawyer-client)
relationship.
o Example: where confidential information is disclosed as part of preliminary
consultation but client does not engage lawyer and ends up being opposing party.
 Would need to show information supplied in expectation it would be kept
confidential (Brennan v McGuire (2008)).
 Note rule 10.1 refers to ‘former clients’ – defined to include someone who
‘has provided confidential information to a solicitor, notwithstanding that

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the solicitor was not formally retained and did not render an account’
(Glossary, SCR).
- Information barriers
o May seek to rely on in relation to concurrent conflict or successive conflict.
 ‘Effective information barrier’ referred to in rule 11.4.2 SCR (concurrent
conflicts) and rule 10.2.2 SCR (successive conflicts).
o Remember that the prohibition on acting in conflict situations extends beyond
individual lawyer and to firm itself (rule 10.1 SCR).
o The screening of those with confidential information from using it, or passing it
on to others who may use it, to a (current or former) client’s detriment.
 E.g. physical barriers in office, using different computer systems, etc.
o Courts reluctant to recognise – require substantial evidence that ‘Chinese wall’ is
impenetrable (Mallesons Stephen Jaques v KPMG Peat Marwick (1990))
o If previous retainer extensive, close to current retainer and disputes attracted
significant attention then hard to prove efficacy of barrier.
o LIV Guidelines – would need to show:
 Show protocols for setting up and maintaining barriers;
 Identify number of screened individuals (limited and clearly identified);
 Ensure that such screened individuals have no involvement with the
current matter;
 Provide undertakings;
 Ensure contact between screened individuals and those involved in the
current matter be appropriately limited.
o It won’t work for small firms
 But will work for large firms
o The courts take a strict approach to information barriers
o D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
 The Chinese walls did not provide good protection
o Fruehauf Finance Corporation Pty Ltd v Feez Ruthning [1991]1 Qd.R. 558
 The judge permitted the information barrier
 1. Civil case
o Only work for civil cases
o Will never work for criminal case
 2. General nature
o Not really related
 3. The client had released the firm
 4. The second of the firm was separate and discrete and the two
sections did not know about their activities
 5. No reason to doubt the undertakings
- 2. Presumption of undue influence
o Fiduciary relationship between lawyer and client – therefore presumed to be one
of influence: Powell v Powell (1900)).
 Clients place trust in lawyers to give competent, disinterested advice on
matters affecting them.
o Rule 12.2 Solicitor Conduct Rules
 12.2 A solicitor must not exercise any undue influence intended to dispose
the client to benefit the solicitor in excess of the solicitor’s fair
remuneration for legal services provided to the client.

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o Will vary depending on sophistication of client – weighty were clear client wholly
dependent on lawyer.
o Presumption can be rebutted – lawyer to show act/transaction transaction was
independent and well understood by client who was in a position to exercise free
judgment based on complete information (Johnson v Buttress (1936)).
 Client having obtained independent legal advice will assist with rebuttal of
presumption (Bester v Perpetual Trustee Co Ltd (1970)).
o EXAMPLE: receiving gifts from clients
 Generally should avoid accepting – appearance that given as a result of
undue influence (Re Coomber (1911)).
 If accept, would have to show given of own free will (Smith v O’Neill
(2014)).
 Rule 12.4.2 SCR regarding receipt of substantial benefit under Will or
other instrument – if unrelated to donor then strong presumption a result of
undue influence.
 Best not to accept give or to decline instructions to act.
o Breach of duty of loyalty
 Breach of fiduciary duty, potentially resulting in:
 equitable compensation;
 account of (secret) profits;
 rescission of transaction.
 Liability for breach of fiduciary duty is strict.
- Confidentiality
o Rule 9 of the Solicitor Conduct Rules
 9.1 A solicitor must not disclose any information which is confidential to a
client and acquired by the solicitor during the client’s engagement to any
person who is not:
 9.1.1 a solicitor who is a partner, principal, director, or employee of
the solicitor’s law practice; or
 9.1.2 a barrister or an employee of, or person otherwise engaged
by, the solicitor’s law practice or by an associated entity for the
purposes of delivering or administering legal services in relation to
the client
 EXCEPT as permitted in Rule 9.2
 9.2 A solicitor may disclose information which is confidential to a client if:
 9.2.1 the client expressly or impliedly authorises disclosure;
 9.2.2 the solicitor is permitted or is compelled by law to disclose;
o E.g. a subpoena
 9.2.3 the solicitor discloses the information in a confidential
setting, for the sole purpose of obtaining advice in connection with
the solicitor’s legal or ethical obligations;
 9.2.4 the solicitor discloses the information for the sole purpose of
avoiding the probable commission of a serious criminal offence;
o No definition of ‘serious criminal offence’
 9.2.5 the solicitor discloses the information for the purpose of
preventing imminent serious physical harm to the client or to
another person; or
 9.2.6 the information is disclosed to the insurer of the solicitor, law
practice or associated entity.

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o Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287
 A solicitor misused confidential information
o Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 239
 Intervention could not been justified without a real possibility of a misuse
of confidential information
 Where the court's intervention is sought by a former client, however, the
position is entirely different. The court's jurisdiction cannot be based on
any conflict of interest, real or perceived, for there is none. The fiduciary
relationship which subsists between solicitor and client comes to an end
with the termination of the retainer. Thereafter the solicitor has no
obligation to defend and advance the interests of his former client. The
only duty to the former client which survives the termination of the client
relationship is a continuing duty to preserve the confidentiality of
information imparted during its subsistence
o Sent v John Fairfax Publication Pty Ltd [2002] VSC 429
 The plaintiff sought to retrain counsel from acting him
 14 years had passed since the lawyer had acted against the person
 The counsel was stopped from acting
 Test
 Whether a fair minded, reasonably informed member of society
think
 Authority establishes that the court will restrain a legal practitioner
continuing to act for a party to litigation if a reasonable person informed
of the facts might reasonably anticipate a danger of misuse of
confidential information of a former client and that there is a real and
sensible possibility that the interest of the practitioner in advancing
the case in the litigation might conflict with practitioner's duty to keep
the information confidential, and to refrain from using that information to
the detriment of the former client
- Privilege
o If you don’t want to disclosure information to the other side
 The argument that you can make is that it is protected by legal privilege
o Some of the information provided to the lawyer in relation to litigation is
protected by legal professional privilege
o If they are relevant to other party to litigation
o It is a fundamental civil right
 Daniels Corporation International Pty Limited v ACCC [2002] HCA 49
 A rule of substantive law a person resist the production of
document that would reveal communication between the client and
his or her client for the purpose of legal advice or representation
o Onus is on the party claiming privilege
o Can remain even after death
o Client can waive privilege
o Evidence Act
 Section 118-119
o Dominant purpose act
 Commissioner of taxation
 Communication has been for the dominate purpose of legal advice
or contemplated litigation

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Lecture 4 (Duties owed to clients: Chapters 10 and 11)

- Duty of confidentiality
o Sourced in:

 Contract
 Implied term in retainer
 The obligation is based on the connection to the retainer
 Equity
 Protects confidential information from unauthorised use or
disclosure
 Recognises that not every communication between lawyer and
client is confidential
 Rule 9.1 SCR.
 9. CONFIDENTIALITY
o 9.1 A solicitor must not disclose any information which is
confidential to a client and acquired by the solicitor during
the client’s engagement to any person who is not:
 9.1.1 a solicitor who is a partner, principal, director,
or employee of the solicitor’s law practice; or
 9.1.2 a barrister or an employee of, or person
otherwise engaged by, the solicitor’s law practice or
by an associated entity for the purposes of
delivering or administering legal services in relation
to the client
o Obligation on lawyers not to reveal clients’ information (Spincode Pty Ltd v Look
Software Pty Ltd (2001)) or misuse it (Prince Jeffri Bolkiah v KPMG (a firm)
(1999)).
 Spincode
 Same or closely related matter
 The law firm acted for a company from its inception even where
disputes arose between the shareholders
 The law firm acted for the shareholders against one other
 The law firm continued acting for the company (as a whole) and
two individual shareholders
 Winding up proceeding
 1 shareholder

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 They eventually gave up acting for one shareholder

 Law in Victoria
 Prince
 Intervention could not be justified unless there was a risk of misuse
of confidential information
 English case
 Held
o “Where the court's intervention is sought by a former client,
however, the position is entirely different. The court's
jurisdiction cannot be based on any conflict of interest, real
or perceived, for there is none. The fiduciary relationship
which subsists between solicitor and client comes to an end
with the termination of the retainer. Thereafter the solicitor
has no obligation to defend and advance the interests of his
former client. The only duty to the former client which
survives the termination of the client relationship is a
continuing duty to preserve the confidentiality of
information imparted during its subsistence.”
o Obligation cannot be reduced by duty owed to another client (Hilton v Barker
Booth & Eastwood (2002)).
 Hilton
 Law firm was acting for A and B
 A did a fraudulent transaction
 English Court of Appeal
 The law firm was called BBE
 Hilton was a client for many years
 A conflict occurred and Hilton was no longer represented
 Sued the law firm based on the fact that the other party conducted
fraudulent transactions
 Held
o “While both remained clients, each had an equal priority,
and was entitled to the same standard of loyal observance of
the duties owed to each, up to, but not beyond their full
ambit.”

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o “In short, the best interests of one client were prejudiced to

the advantage of the other. That was impermissible,
whichever client was favoured.”
 If you have a client, two clients acting for both. And you know that
one party in the past has conducted fraudulent transactions. You
have to stop acting for both
o Designed to encourage full and frank disclosure between lawyer and client.

o Proper administration of justice – maintain public confidence in legal system.

o Pursuant to equity, duty to keep information confidential survives termination of
retainer.
o Rationale

 To encourage full and frank disclosure

o Equity duration
 Duty remains until the information is no longer confidential
 Duty is not ousted when the client dies
- Risks to confidential information:
o Communications by fax.

 Faxes sent to the wrong person

 Faxes read by the wrong person
 Best thing to do is to get a consent form
 Include a Confidentiality page/cover sheet on the document
 Notify the person before you send the fax
 This ensures they are okay with it
 Double check
o Communications by email.
 It is insecure
 It may be accessed by those who are not the intended recipient
o Mobile phone communications.

o Communication via social media.

o Communication with family and friends.

o ‘Confidential’ information?

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 Not all information communicated by client to lawyer is confidential

(Australian Commercial Research & Development Ltd v Hampson
(1991)).
 No set test – will depend on circumstances.
 General proposition: information must have been confidential to client at
the time it was communicated (D & J Constructions Pty Ltd v Head
(1987)).
 Must be facts and circumstances to indicate that the information
should be kept confidential and secret (D & J Constructions Pty
Ltd v Head (1987)).
o An obligation of confidentiality arises when a reasonable person, in the shoes of
the recipient of the information, would have realised that the information was
being provided in confidence (Smith Kline v Secretary (1990)).
o Applicant would need to show (H Stanke & Sons Pty Ltd & Cape Banks
Processing Company Pty Ltd v Von Stanke (2006)):
 information had ‘necessary quality of confidence’;
 was imparted in circumstances that import an obligation of confidence;
and
 disclosure would be detrimental to the applicant.
- Exceptions
o Commonly referred to exceptions:

 client consent;
 information that is public knowledge;
 disclosure is compelled by law;
 matters incidental to normal conduct of retainer;
 criminal matters;
 client’s intention to disobey a court order;
 defence of disciplinary or legal proceedings;
 to substantiate entitlement to remuneration; and
 public interest exception.
o EXCEPTION: client gives consent to disclosure of confidential information (rule
9.2.1 SCR).
 Have implied authority to:

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 make disclosures in the best interests of client for purposes of

retainer;
 make disclosures to partners or employees in the firm.
 Would need authorisation to get advice from, e.g., expert or barrister.
 Can disclose in confidential setting for purpose of obtaining advice in
connection with the solicitor’s legal or ethical obligations (rule 9.2.3
SCR).
o EXCEPTION: information is in the public domain.

 Careful – lawyer may no more than what is in public domain!

o EXCEPTION: disclosure compelled by law.
 Disclosures are restricted in scope.
o EXCEPTION: criminal matters

 For the purpose of avoiding the probable commission of a serious criminal

offence and/or preventing imminent serious physical harm to someone.
 Disclosures should be restricted to those who need to know.
 Rule 9 of the Solicitor Conduct Rules
 9.2.4 the solicitor discloses the information for the sole purpose of
avoiding the probable commission of a serious criminal offence;
9.2.5 the solicitor discloses the information for the purpose of
preventing imminent serious physical harm to the client or to
another person; or
o EXCEPTION: client’s intention to disobey a court order.
 Need to believe on reasonable grounds client’s conduct is a threat to
person’s safety.
 Rule 20.3 of the Solicitor Conduct Rules
 20.3 A solicitor whose client informs the solicitor that the client
intends to disobey a court's order must:
o 20.3.1 advise the client against that course and warn the
client of its dangers;
o 20.3.2 not advise the client how to carry out or conceal that
course; and
o 20.3.3 not inform the court or the opponent of the client's
intention unless:
 (i) the client has authorised the solicitor to do so
beforehand; or

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 (ii) the solicitor believes on reasonable grounds that

the client's conduct constitutes a threat to any
person's safety.
o EXCEPTION: defence of disciplinary proceedings or legal proceedings.

 If client institutes proceedings against lawyer, taken to have waived

confidentiality in relation to those matters (Benecke v NAB Ltd (1993)).
 Note rule 9.2.6 SCR regarding disclosures to professional
indemnity insurers.
 If client complains about lawyer, lawyer may need to provide documents
and information to LSC.
 Section 321 of the Uniform Law
 (1) If a client of a law practice makes a complaint about the law
practice or a lawyer, the complainant is taken to have waived legal
professional privilege, or the benefit of any duty of confidentiality,
to enable the law practice or lawyer to disclose to the appropriate
authorities any information necessary for investigating and dealing
with the complaint.
 (2) Without limiting subsection (1), any information so disclosed
may be used in or in connection with any procedures or
proceedings relating to the complaint.
 COMMENTARY
o Relates to complaints
o Duty of confidentiality will be waved

o If you make a complaint, duty of confidentiality is waived

o EXCEPTION: disclosure to substantiate claim for remuneration.

 E.g. where account unpaid, lawyer can disclose retainer in order to prove
debt.
 May disclose confidential information to substantiate claim
o EXCEPTION: disclosure is in the public interest.
 Onus on lawyer to prove.
 Would not protect from breach of contract in any event.
- Breach of duty of confidentiality
o Actionable by client:

 If disclosure has not occurred – injunction (Rakusen v Ellis, Munday and

Clarke (1912)).

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 Breach of contract – damages.

 Equity – damages, account of profits.
 Orders for delivery and/or destruction of material containing confidential
information.
o Breach of professional ethics – disciplinary proceedings.

- Legal professional privilege

o Certain communications arising out of lawyer-client relationship are protected
from compulsory disclosure.
 Common law right – fundamental (Daniels Corporation International Pty
Ltd v ACCC (2002)).
o Applies to both litigious and non-litigious matters.
o Based on public policy – i.e. maintaining client confidences serves public interest
in proper administration of justice.
o Also recognised in Evidence Act 2008 (Vic) – Part 3.10, Div 1.

 Applies to the ‘adducing of evidence’.

o LPP- legal professional privilege
o Privilege can be ousted by statute

o Confidentiality is a fundamental civil right: Daniels

o S 118 Evidence Act

 Evidence is not to be adduced if, on objection by a client, the court finds

that adducing the evidence would result in disclosure of—
 (a) a confidential communication made between the client and a
lawyer; or
 (b) a confidential communication made between 2 or more
lawyers acting for the client; or

 (c) the contents of a confidential document (whether delivered
or not) prepared by the client, lawyer or another person—
 for the dominant purpose of the lawyer, or one or more of the
lawyers, providing legal advice to the client.
o Interaction with duty of confidentiality?
 Privilege does not depend on contract, equitable or professional duties
owed to clients.

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 Duty of confidentiality covers a wider range of communications than

professional privilege – privilege a subset of confidential communications.
 Privileged information is protected from all forms of compulsory
disclosure whereas confidential information must be disclosed if required
by law.
 LPP vs confidentiality
 Privilege does not depend on contract, equity, or professional rules
 Rests on public policy
 Confidentiality is more broad than privilege
 Privilege is a subset of confidential information
o Scope of privilege

 Client cannot contract to extend scope of privilege (Southern Cross

Commodities Pty Ltd (in liq) v Crinis (1984)).
 Does not extend to protect communications contrary to public interest (R v
Bell (1980)) – e.g. fraud (R v Cox & Railton (1884)).
 E.g. communications for purpose of putting client’s assets beyond
reach of legitimate creditor (Kang v Kwan (2001)).
o Section 125: Loss of client legal privilege—misconduct of Evidence Act
 (1) This Division does not prevent the adducing of evidence of—
 (a) a communication made or the contents of a document
prepared by a client or lawyer (or both), or a party who is not
represented in the proceeding by a lawyer, in furtherance of the
commission of a fraud or an offence or the commission of an act
that renders a person liable to a civil penalty; or
 (b) a communication or the contents of a document that the
client or lawyer (or both), or the party, knew or ought reasonably to
have known was made or prepared in furtherance of a deliberate
abuse of a power.
 COMMENTARY
 If you advise a client to rob a bank, that advice is not protected by
privilege
o LPP is directed at fostering trust between client and lawyer

 Encourages disclosure
 Encourages clients to be full and frank
o A court draws no adverse information from privilege

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o Limitations

 Does not protect confidentiality against the public interest

o Privilege belongs to the client (Attorney-General (NT) v Maurice (1986)).
 So only the client can waive this privilege!
 Does not die with the client (Chant v Brown (1849)).
 Survives the termination of the retainer (Daniels Corporation
International Pty Ltd v ACCC (2002); In the Marriage of Griffiths
(1991)).
o Applies in respect of all forms of compulsory disclosure – e.g. extra-judicial
processes of search and seizure (Baker v Campbell (1983)).
 Search warrants present a difficult situation.
o Two types of privilege:

 Advice privilege
 Litigation privilege
o Confidential information between client and lawyer
 Advice privilege
o Litigation privilege

 Existing or anticipating of litigation

o Search warrant at law firm
 Privilege belongs to the client, a lawyer cannot waive it
 A lawyer should do
 1. review the warrant, valid, scope
 2. check the executing officer ID
 3. obtain the client’s instructions
o Commence proceedings to establish privilege

 Put the documents in question seal the documents

and send to the court
 The lawyer will be bound by the Courts decision
o If you cannot contact client, still seal documents etc
- Advice privilege

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o Confidential communications between the client and lawyer (either directly or

through their agents) and between the lawyer and third parties for the purpose of
giving legal advice are protected (Somerville v ASC (1995)).
o Section 118: Legal advice Evidence Act

 Evidence is not to be adduced if, on objection by a client, the court finds

that adducing the evidence would result in disclosure of—
 (a) a confidential communication made between the client and a
lawyer; or
 (b) a confidential communication made between 2 or more
lawyers acting for the client; or
 (c) the contents of a confidential document (whether delivered or
not) prepared by the client, lawyer or another person—
 for the dominant purpose of the lawyer, or one or more of the
lawyers, providing legal advice to the client.
- Litigation privilege
o Confidential communications made (between lawyer and client or lawyer and
third parties) for the purpose of use in existing or reasonably anticipated
litigation are protected (ACCC v Aust Safeway Stores (1998)).
o Litigation must be more than a mere possibility (Mitsubishi Electric Australia
Pty Ltd v Victorian Workcover Authority (2002)).
o Example
 Anticipated litigation
 A worker who has slipped and may sue
 You engineer a report detailing how slippery the surface of the
floor was
o Section 119: Litigation Evidence Act

 Evidence is not to be adduced if, on objection by a client, the court finds

that adducing the evidence would result in disclosure of—
 (a) a confidential communication between the client and another
person, or between a lawyer acting for the client and another
person, that was made; or
 (b) the contents of a confidential document (whether delivered or
not) that was prepared—
 for the dominant purpose of the client being provided with
professional legal services relating to an Australian or overseas
proceeding (including the proceeding before the court), or an

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anticipated or pending Australian or overseas proceeding, in which

the client is or may be, or was or might have been, a party.
o Can be likely even before begin to gather evidence.

o Investigating does not always equate to purpose for use in apprehended litigation
(Brunswick Hill Apartments Pty Ltd v CGU Insurance Ltd (2010)).
o Witness statements:
 Privilege applies to witness statements (Sanko Steamship Co Ltd v
Sumitomo Australia Ltd (1992)).
 Will apply to communications between expert and lawyer when made for
the purpose of confidential use in litigation (Interchase Corp v Grosvenor
Hill (Qld) (1999)).
o Can claim even before you gather evidence

o Interchase Corp v Grosvenor Hill (Qld) (1999

 when an expert is engaged by a solicitor for the purpose of giving evidence
in a case, documents generated by the expert and information recorded in
one form or another by the expert in the course of forming an opinion are
not a proper subject for a claim of legal professional privilege. Privilege
may however be claimed in relation to communications between the expert
and the solicitor (both ways) when such communication is made for the
purpose of confidential use in the litigation. Beyond this there is no
sufficient reason why any material relevant to the formation of the expert’s
opinion should be subject to a claim of legal professional privilege. It is as
well to add that an expert or solicitor may not artificially manufacture
privilege
- Communications with or from third parties
o Agents of a client: communications (of lawyer) to or from third parties acting as
agents of a client.
 Can be regarded as communications of the client itself and therefore attract
privilege.
o Agents of the lawyer: privilege extends to any communication made through the
agents of the lawyer (Trade Practices Commission v Sterling (1979)).
o Section 117: Definitions Evidence Act

 "client" includes the following—

 (a) a person or body who engages a lawyer to provide legal
services or who employs a lawyer (including under a contract of
service);
 (b) an employee or agent of a client;

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 (c) an employer of a lawyer if the employer is—

o (i) the Commonwealth or a State or Territory; or

o (ii) a body established by a law of the Commonwealth or

a State or Territory;
 (d) if, under a law of a State or Territory relating to persons of
unsound mind, a manager, committee or person (however
described) is for the time being acting in respect of the person,
estate or property of a client—a manager, committee or person so
acting;
 (e) if a client has died—a personal representative of the client;
 (f) a successor to the rights and obligations of a client, being
rights and obligations in respect of which a confidential
communication was made;
 "lawyer" means—
 (a) an Australian lawyer; and
 (b) a non-participant registered foreign lawyer; and
 (c) a foreign lawyer or a natural person who, under the law of a
foreign country, is permitted to engage in legal practice in that
country; and
 (d) an employee or agent of a lawyer referred to in paragraph (a),
(b) or (c);
- Privileged information
o Communications of a confidential nature from a lawyer to a client or vice versa
touching the subject matter of the retainer are prima face privileged (Dalleagles
Pty Ltd v Australian Securities Commission (1991)).
o Privilege does not extend to all communications made between a lawyer and a
client.
 Remember: needs to be for purpose of advice or for purpose of use in
existing or reasonably anticipated litigation.
o Section 117: Definitions Evidence Act
 "confidential communication" means a communication made in such
circumstances that, when it was made—
 (a) the person who made it; or
 (b) the person to whom it was made—
 was under an express or implied obligation not to disclose its
contents, whether or not the obligation arises under law;

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 "confidential document" means a document prepared in such

circumstances that, when it was prepared—
 (a) the person who prepared it; or
 (b) the person for whom it was prepared—
 was under an express or implied obligation not to disclose its
contents, whether or not the obligation arises under law;
o To be privileged, communication must:

 1. Be confidential (Ritz Hotel Ltd v Charles of the Ritz Ltd (No 22)
(1988)).
 Context and proposed use relevant.
 Disclosing in presence of third parties may not undermine the
confidential nature of the communication and/or document
(Australian Rugby Union v Hospitality Group (1999) cf Gotha
City v Sotheby’s (1998)).
 2. Be between a lawyer and client – lawyer acting in professional
capacity (Trade Practices Commission v Sterling (1979)).
 Must be ‘fairly referable’ to relationship (Minter v Priest (1930)).
 Not privileged – unrelated to provision of legal services;
communications made in social context.
 Communications between lawyer and prospective clients can be
privileged (Minter v Priest (1930)) – where client believed retainer
existed.
 Privilege may arise where person is not actually a lawyer, up until
client becomes aware of this fact (Grofam Pty Ltd v ANZ Banking
Group Ltd (1993)).
o Focus is on what client reasonably believes (Grofam).
 Normally denied to unrepresented individuals but note s 120
Evidence Act 2008 (Vic).
 Communication must be in the lawyer’s professional capacity
 Section 120
o Unrepresented individuals

o Ousts the general law rule

 3. Meet the dominant purpose test (Esso Australia Resources Ltd v
Commissioner of Taxation (1999)).

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 Communications must have been made with the dominant purpose

of legal advice or anticipated litigation.
 Onus on client (Waterford v Commonwealth (1987)).
 Relevant time for determination is at the time of the
communication and/or creation of document.
 Non-privileged information will be severed from privileged
information if possible (Actew Corporation Ltd v Mihaljevic
(2007)).
 Furthering fraud is not privileged
 Dominant
o Refers to the ruling prevailing purpose

 But the privilege is not merely denied because it has an ancillary

use
 Discrete, severable material
o Dominant purpose test is different
o That part is not privileged

 The onus is on the client to prove that the information is covered

by LPP
- ‘Communications’
o Covers oral, written and other communications.
 Not if already previously in existence (Commissioner of Inland Revenue
v West-Walker (1954)).
 Copies of original privileged document will also be privileged
(Commissioner, Australian Federal Police v Propend Finance Pty Ltd
(1997)).
 Copies of non-privileged documents will be privileged if made for
purpose of obtaining advice or use in anticipated litigation
(Propend).
 Attachments to privileged documents not automatically privileged
(Brooks v Medical Defence Association of Western Australia (1999)).
 A detailed bill of costs may be privileged (Chant v Brown (1849)).
 Detailed bill of costs
o Details all legal work undertaken

o Contained a history/nature of work undertaken

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o Communications covers

 Diagrams, charts, notes, pictures, file notes, letters

 Can be oral, recorded provided they meet the over requirements (the three-
point test see previous slides)
o Normally not:
 Instructions to a lawyer to do a particular thing (Federal Commissioner of
Taxation v Coombes (1999)).
 The identity of the client (Bursill v Tanner (1885)).
 The address of the client – may be confidential.
 Trust account records (Marsden v Amalgamated Television Services Pty
Ltd (1999))
 Not generally privileged
 Only in the most unusually circumstances
 Documents that are evidence of a transaction (Dalleagles Pty Ltd v
Australian Securities Commission (1991)).
 Mere reference to legal advice without disclosing its substance (Assistant
Treasurer and Minister for Competition Policy and Consumer Affairs v
Cathay Pacific Airways Ltd (2009)).
 Indicating that action was undertaken on the basis of legal advice
(Temwood Holdings Pty Ltd v Western Australian Planning Commission
(2003)).
o Ex parte Campbell (1870)

 If merely collateral will not be privileged

 Address was not found to be not be privileged
- Abrogation of privilege by statute
o Must be done by way of clear and unambiguous terms (Baker v Campbell
(1983)).
 May be express words or by necessary implication.
o If clearly ousted, will be for limited purpose/to limited extent (Southern Equities
Corp Ltd (in liq) v Arthur Andersen & Co (1997)).
o Two important principles of statutory interpretation
 1. Is a presumption against Parliament intending a statute to operate so as
to impair an existing substantive right

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 2. Is that parliament is not presumed to intend to interfere with basic

common law doctrines unless, and only to the extent to which, statutory
words expressly or necessarily require that outcome

o Statutory that seeks to destroy or impair must be express and unambiguous

o Federal Commissioner of Taxation v Citibank Ltd (1989)

 Dealt with section 263 Tax Assessment Act
 Full and free access to books buildings to any purpose
 Can make extracts or copies
 What about documents protected by privilege?
 Contains no express mention of privilege nor including it there is
nothing directed its intention to it. The power of should be read to
not refer to document of which unrestricted subject or the right to
claim privilege
 “s.10 contains no express reference to communication between a
person and his legal advisers. It neither expressly includes them in,
nor expressly excludes them from, the things to which it refers. …
The consequence of that construction of the section is that the
search warrant in the present case should be read as not referring to
documents to which legal professional privilege attaches."
o Must be expressly stated to override privilege

- Waiver of privilege
o The only person able to claim privilege is the client
o Can only be done by the client as ‘owner’ of the privilege (Mann v Carnell
(1999); s 122 Evidence Act 2008 (Vic)).
 If joint clients, must all waive (Farrow Mortgage Services Ltd v Webb
(1995)) – exception in s 124(2) Evidence Act 2008 (Vic).
o Can be done expressly or implied from the circumstances.

 E.g. disclosure by the client of privileged material or client authorising

disclosure by lawyer (actual or ostensible authority will bind client:
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997))
o Imputation of waiver by court where conduct of client or lawyer inconsistent with
maintenance of confidentiality means it becomes unfair to the opponent to
maintain the privilege.
 What is fair depends on the facts of each case
o Overhearing by a third party will not amount to a waiver where client and lawyer
have sought to keep information confidential (R v Uljee (1982)).

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 The solicitor and the client was talking the police overheard what was said
 The judge said that it should be protected even though it was overheard
 “If deliberate and careful steps have been taken to keep the communication
secure from others it seems wrong that it should lose its protection because
some eavesdropper has either chanced upon it or taken deliberate steps to
listen to it”
o Inadvertent disclosure

 Inadvertent disclosure does not waive privilege (Great Atlantic Insurance

Co v Home Insurance Co (1981)).
 Inadvertent disclosure
 The other party needs to destroy it
 And take steps to ensure that steps are taken to not misuse the
information
 Rule 31 of Solicitor Conduct Rules
 31.1 Unless otherwise permitted or compelled by law, a solicitor to
whom material known or reasonably suspected to be confidential is
disclosed by another solicitor, or by some other person and who is
aware that the disclosure was inadvertent must not use the material
and must:
o 31.1.1 return, destroy or delete the material (as appropriate)
immediately upon becoming aware that disclosure was
inadvertent; and
o 31.1.2 notify the other solicitor or the other person of the
disclosure and the steps taken to prevent inappropriate
misuse of the material.
 31.2 A solicitor who reads part or all of the confidential material
before becoming aware of its confidential status must:
o 31.2.1 notify the opposing solicitor or the other person
immediately; and
o 31.2.2 not read any more of the material.
 31.3 If a solicitor is instructed by a client to read confidential
material received in error, the solicitor must refuse to do so.
- Privilege in the aid of settlement
o ‘Without prejudice’ communications – those made with the intention of settling a
matter.
 Recognised in s 131 Evidence Act 2008 (Vic) – Division 3, Part 3.10

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 Note: criminal matters excluded (s 131(5)(b) Evidence Act).

o Admissions contained in correspondence between litigants made bona fide for the
purpose of settling their dispute are excluded from admissibility into evidence
(Field v Commissioner for Railways for NSW (1957).
o Public policy – in the interest of the public to encourage settlement of disputes.

o If correspondence between lawyer and another party, if a lawyer wants to exclude

the communication from being tendered into a court proceeding must state
‘without prejudice’ ie. in an email or at the beginning of an email
o Requirements –
 Must be a dispute between the parties at the time of the communication,
whether or not proceedings have been commenced (but must be
contemplated: Rodgers v Rodgers (1964)).
 Express or implied admissions in correspondence must be made bona fide
for purpose of achieving a settlement (Field v Commissioner for Railways
for NSW (1957)).
o Connection between admission and settlement of dispute:

 ‘Without prejudice’ not sufficient, though raises presumption (Smith v

Gould (Ruling No 1) (2012)).
 Test – what was the intention of the author (objective) and how would a
reasonable recipient understand it (Schering Corporation v Cipla Ltd
(2005))?
o Section 131: Exclusion of evidence of settlement negotiations Evidence Act
 (1) Evidence is not to be adduced of—
 (a) a communication that is made between persons in dispute, or
between one or more persons in dispute and a third party, in
connection with an attempt to negotiate a settlement of the dispute;
or
 (b) a document (whether delivered or not) that has been prepared
in connection with an attempt to negotiate a settlement of a dispute.
o General law requirements are replicated in section 131(1)

 Key points for correspondence not being tendered

 That correspondence is for the sole purpose of settlement
o If it is not for the sole purpose of settlement, then the
communication can be tendered in court

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 i.e if a lawyer agrees with adverse statements

against their client, this can be tendered because the
sole purpose is not to settle
o If you are not wanting to settle, do not agree to adverse statements

- Exceptions to ‘without prejudice’ privilege

o If settlement is reached, communications will be evidence of settlement and its
terms and will not be privileged.
o Numerous exceptions listed in s 131(2) Evidence Act 2008 (Vic).
 Where privilege is waived by the litigant (Avonwick Holdings Ltd v
Webinvest Ltd (2014); s 131(2)(a) and (b)).
 Where ‘without prejudice’ nature of discussions used as a cover for
improper behaviour (s 131(2)(g), (j) and (k)).
 ‘Calderbank offers’ – i.e. without prejudice communications considered in
determining costs (s 131(2)(h)).
o Once a settlement has been reached, the terms of the settlement can now be
tendered.
 This is because the terms have been agreed by both parties
o Section 131(2)(h)- Calderbank offer

 If you write a letter to the other side saying that you will settle for X and
that the other side must pay with X days. If the case eventually settles in
court for more than the original offer, the letter can be tendered. The legal
fees charged from the time the offer is made until the settlement, can be
charged to the opposing party. The court has a discretion to do this. The
court can make a costs order against the other party.
 i.e. the losing party (the person not the law firm) pays for your
legal fees from the time from the original offer until settlement.
- Other duties
o Duty to promote quality client care:
 Must (rule 7 SCR) –
 provide clear and timely advice to help client understand issues;
 make informed decisions; and
 advise on alternative dispute resolution options.
 Must also be honest and courteous (rule 4.1.2 SCR).
o Duty to promote access to justice: should not prohibit access to justice by, e.g.,
high fees.

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o Duty to encourage settlement: main responsibility of legal practitioner in

contentious matter is to achieve an efficient and effective resolution.
 As above, must advise client on ADR options.
 Should aim to settle matters out of court – note obligation under s 22 Civil
Procedure Act 2010 (Vic).
o Civil Procedure Act 2010

 Overarching Obligations set out in Sections 16, 17, 18, 19, 20, 21, 22, 23,
24, 25 AND 26 of the Civil Procedure Act
 Section 16 Paramount duty
 Section 17 Overarching obligation to act honestly
 If you commence proceeding, you have an obligation to act
honestly
 Section 18 Overarching obligation – requirement of proper basis
 Section 19 Overarching obligation to only take steps to resolve or
determine dispute
 Section 20 Overarching obligation to cooperate in the conduct of civil
proceeding
 Section 21 Overarching obligation not to mislead or deceive
 Section 22 Overarching obligation to use reasonable endeavours to resolve
dispute
 If you can settle it via mediation, conciliation etc you should do so
 Section 23 Overarching obligation to narrow the issues in dispute
 If you cannot resolve the matter, you have an obligation to narrow
the issues down
 Section 24 Overarching obligation to ensure costs are reasonable and
proportionate
 For example, a lawyer writing 10-20 letter a day, or a lawyer
engaging 20 doctors.
 Section 25 Overarching obligation to minimise delay
 You need to ensure that you comply with the timetable/delay the
matter
 Section 26 Overarching obligation to disclose existence of documents
 COMMENTARY
 These sections encourage settlement of claims/legal proceedings.

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 It also makes solicitors and clients sign a form stating that their
matter is a legitimate claim
 Overarching obligation certificate
o Both the lawyer and the client signs the certificate

o Signatories agree to follow sections 16-26

Lecture 4 (Costs: Chapters 9, 14, 15 and 16)
- Duty to account
o When lawyer receives money to be held on behalf of client, hold as trustee
(Target Holdings Ltd v Redferns (a firm) (1996)).
o Lawyers have duties:

 to keep trust money separate from the lawyer’s/law firm’s own money;
 not to mix the money of two separate client trust accounts; and
 to keep proper accounts in respect of trust money.
o Obligations in relation to trust money and trust accounts are closely regulated by
statute – Part 4.2 UL and Part 4.2 Div 2 Legal Profession Uniform General
Rules 2015.
o Section 137 Uniform Law
 Reflects this general position
o The legal services commission can see how much a law firm has in their trust
account
o Section 129 Uniform Law

 Defines trust money

o Section 150 Uniform Law
 Only principles with authority can receive trust money
o Broad duty

 To keep trust money separate from firm’s/person bank account

 Cannot mix trust money with other money
 Section 146
o Section 136 Uniform Law
 Must have a general trust account
 Must give details of account to the Legal Services Board
 Section 151

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o Can’t mix trust money of two clients

 i.e. keep a ledger of trust money

o Section 147 Uniform Law
 Trust records must be kept
o Law practice must maintain a general trust account (s 136 UL) into which trust
money is to be deposited.
o Read section 137 and 138 together

o Section 137: Certain trust money to be deposited in general trust account

 A law practice must deposit trust money (other than cash) into the law
practice's general trust account as soon as practicable after receiving it
unless—
 (a) the law practice has a written direction by a person legally entitled to
provide it to deal with the money otherwise than by depositing it in the
account; or
 (b) the money is controlled money or transit money; or
 (c) the money is the subject of a power given to the practice or an
associate of the practice to deal with the money for or on behalf of another
person.
- ‘Trust money’
o Defined in s 129 of the UL.

 (1) For the purposes of this Law, trust money is money entrusted to a
law practice in the course of or in connection with the provision of legal
services by the law practice, and includes—
 (a) money received by the law practice on account of legal costs
in advance of providing the services; and
 (b) controlled money received by the law practice; and
 (c) transit money received by the law practice; and
 (d) money received by the law practice, that is the subject of a
power exercisable by the law practice or an associate of the law
practice, to deal with the money for or on behalf of another person.
o Controlled money:
 Money in respect of which the law practice has a written direction to
deposit the money in an account (other than a general trust account) over
which the practice has or will have exclusive control (s 128 UL).
o Transit money:

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 Money received by a law practice subject to instructions to pay or deliver

it to a third party, other than an associate of the practice (s 128 UL).
 Transit money is generally a cheque so there is no need to deposit it unless
it is cash.
o Does not include (s 129(2) UL), e.g. money received in payment of bill relating to
costs already incurred.
 BUT remember that will include money received on account of legal costs
in advance of the legal services being provided (s 129(1)(a) UL).
o Where trust money is received in form of cash, must first be deposited in trust
account before following any written direction (s 143 UL).
- What does the duty to account entail?
o Record keeping (s 147 UL): must, in relation to trust money received, keep trust
records –
 in accordance with the regulations;
 in a way that the records at all times disclose the true position in relation to
trust money received for or on behalf of any person;
 in a way that the records can be conveniently and properly investigated or
externally examined; and
 for a period of seven years.
o Providing accounts: upon request, must supply client with account of trust funds
(rules 52 and 53 UGR).
o Section 148
 Must not overdraw trust account
o Section 147(3)
 Can’t knowing put trust money in a false name
o Section 147(4)

 All names must be put on the trust account

o Section 147
 Must keep trust record
 ‘Uniform Rules’
 Means General Rules
o Legal Services Commissioner v Nguyen (Legal Practice) [2014] VCAT 744

 Lawyer was suspended

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 He was incompetent for not keeping records

o Not to mix money:

 must not mix trust money with other non-trust money (Re Todd (No 2)
(1910)); s 146 UL).
o To avoid deficiencies:
 Must not, without reasonable excuse, cause a deficiency in a trust account
or ledger or fail to pay or deliver any trust money (s 148 UL).
o Report certain irregularities and suspected irregularities:

 As soon as practicable after lawyer becomes aware of irregularity in trust

account or ledgers, must notify the LSB (s 154(1) UL).
o Also, regarding external irregularities, requirement to notify LSB if believe on
reasonable grounds that there is an irregularity in any trust account of another law
practice (s 154(2) UL).
o Section 148
 Trust account not to be overdrawn
o Section 154(2)

 Duty to report if you have a thought of irregularities in firm’s trust account

o False names:
 must not knowingly receive money or record receipt of money in trust
records under false name (s 147(3) UL).
 Should ensure trust records show all names by which a person is
known (s 147(4) UL).
 Cahill v The Law Society of New South Wales (1988)
 A lawyer who allowed clients to adopt fictitious names was guilty
of misconduct
o Duties in relation to controlled money and transit money:

 Controlled money – must be deposited in nominated account, held for

benefit of person from whom it was received and not be disbursed without
written direction (s 139 UL).
 Transit money – must be paid or delivered as per instructions (s 140 UL).
- Prohibition on use or withdrawal of trust money without authority
o Have duty to hold and disburse money in trust account as directed (Re a Solicitor
(1991); s 138-140 UL).
o Withdrawal of trust money to pay legal costs?

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 Can do so provided follow procedure and requirements set out in UL (s

144(2)(b)) – see rule 42 UGR.
 Broadly speaking, money may be transferred from trust where:
 there is express written authority authorising the withdrawal and
before effecting the withdrawal, written notice is given of the
withdrawal (rule 42(4) UGR)
 the law practice has given the client a bill and there has been no
objection to the bill within 7 days or application for review of the
costs (rule 42(3) UGR)
 money is owed to the law practice by way of reimbursement of
money it has paid on behalf of the client of, before effecting the
withdrawal, written notice is given of the withdrawal (rule 42(5)
UGR)
- Breach of duty to account
o Client can make claim against Fidelity Fund (Part 4.5 UL) where, e.g. lawyer has
fraudulently dealt with trust money.
 The LSB then ‘steps into shoes of’ client and brings claim against the
lawyer (s 246 UL).
o Disciplinary consequences – professional misconduct or unsatisfactory
professional conduct.
o Client may bring action for compensation directly against lawyer.

o Section 218 (UL)

 Objective of a fidelity fund
 Only for dishonest acts
 If a lawyer misses a statute of limitation (negligence)
 Therefore, the client cannot make a claim under the fidelity fund
o Fidelity fund

 Maintained by the legal services board

 Only covers legal services
 Claims are made directly to the board
 Lawyers must make an annual contribution to the scheme
 Each financial year
 Per s 225(1) of the UL
 Exceptions s 225(4)

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o Such as barristers, government legal practitioner, corporate

legal practitioner
 Section 122 UL
 States the purpose of fidelity funds
 Section 234 UL
 How to make a claim?
o Must be writing and in accordance with the Uniform Rules

 Rule 86 of general rules

 Making a claim
- Costs
o Costs include legal fees and disbursements.
o Generally right to claim costs from client is based in contract – i.e. in retainer
itself or in a separate contract (costs agreement).
o Section 172: Legal costs must be fair and reasonable Uniform Law
 (1) A law practice must, in charging legal costs, charge costs that are no
more than fair and reasonable in all the circumstances and that in particular
are—
 (a) proportionately and reasonably incurred; and
 (b) proportionate and reasonable in amount.
 (2) In considering whether legal costs satisfy subsection (1), regard must
be had to whether the legal costs reasonably reflect—
 (a) the level of skill, experience, specialisation and seniority of
the lawyers concerned; and
 (b) the level of complexity, novelty or difficulty of the issues
involved, and the extent to which the matter involved a matter of
public interest; and
 (c) the labour and responsibility involved; and
 (d) the circumstances in acting on the matter, including (for
example) any or all of the following—
o (i) the urgency of the matter;
o (ii) the time spent on the matter;

o (iii) the time when business was transacted in the matter;

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o (iv) the place where business was transacted in the

matter;
o (v) the number and importance of any documents
involved; and
 (e) the quality of the work done; and
 (f) the retainer and the instructions (express or implied) given in
the matter.
 (3) In considering whether legal costs are fair and reasonable, regard
must also be had to whether the legal costs conform to any applicable
requirements of this Part, the Uniform Rules and any fixed costs legislative
provisions.
 (4) A costs agreement is prima facie evidence that legal costs disclosed
in the agreement are fair and reasonable if—
 (a) the provisions of Division 3 relating to costs disclosure have
been complied with; and
 (b) the costs agreement does not contravene, and was not entered
into in contravention of, any provision of Division 4.
o Divided into two parts

 Professional costs
 Fees charges for lawyers’ time effort expertise
 Providing advice, writing letter, appearing in court, drafting court
documents
 Disbursements
 Costs that the lawyer must pay to a third party on behalf of the
client
 i.e. court fees, expert fees, barrister fees
o Section 172: UL
 Law firms must charge what is fair
 Factors to determine what is reasonable and proportionate are found in
172(2) and 172(3) UL
 Over laps with the Civil Procedure Act
 Section 24
o Talks about overarching responsibility to keep costs low

o If you breach s 172 you are most likely breaching s 24 as well

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o Section 173 UL

 Avoidance of increased legal costs

 If it applies rule 63.70 of the Supreme Court (General Civil Procedure)
Rules 2005
 (3) lawyer in the wrong may have pay the other party’s cost in
having to argue that they shouldn’t have to pay the costs
- Disclosure obligations
o Comprehensively set out in Uniform Law but general law still relevant in some
respects – e.g. principle that fiduciary cannot profit from lawyer-client
relationship without informed client consent.
o Disclosure must be made in writing (s 174(6) UL) to the client when or as soon as
practicable after instructions are initially given in a matter.
o Section 174: Disclosure obligations
 (1) Main disclosure requirement
 A law practice—
o (a) must, when or as soon as practicable after instructions
are initially given in a matter, provide the client with
information disclosing the basis on which legal costs will
be calculated in the matter and an estimate of the total legal
costs; and
o (b) must, when or as soon as practicable after there is any
significant change to anything previously disclosed under
this subsection, provide the client with information
disclosing the change, including information about any
significant change to the legal costs that will be payable by
the client—
o together with the information referred to in subsection (2).

 (2) Additional information to be provided

 Information provided under—
o (a) subsection (1)(a) must include information about the
client's rights—
 (i) to negotiate a costs agreement with the law
practice; and
 (ii) to negotiate the billing method (for example,
by reference to timing or task); and

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 (iii) to receive a bill from the law practice and to

request an itemised bill after receiving a bill that is
not itemised or is only partially itemised; and
 (iv) to seek the assistance of the designated local
regulatory authority in the event of a dispute about
legal costs; or
o (b) subsection (1)(b) must include a sufficient and
reasonable amount of information about the impact of the
change on the legal costs that will be payable to allow the
client to make informed decisions about the future conduct
of the matter.
 (3) Client's consent and understanding
 If a disclosure is made under subsection (1), the law practice must
take all reasonable steps to satisfy itself that the client has
understood and given consent to the proposed course of action for
the conduct of the matter and the proposed costs.
 (4) Exception for legal costs below lower threshold
 A disclosure is not required to be made under subsection (1) if the
total legal costs in the matter (excluding GST and disbursements)
are not likely to exceed the amount specified in the Uniform Rules
for the purposes of this subsection (the lower threshold ), but the
law practice may nevertheless choose to provide the client with the
uniform standard disclosure form referred to in subsection (5).
 (5) Alternative disclosure for legal costs below higher threshold
 If the total legal costs in a matter (excluding GST and
disbursements) are not likely to exceed the amount specified in the
Uniform Rules for the purposes of this subsection (the higher
threshold ), the law practice may, instead of making a disclosure
under subsection (1), make a disclosure under this subsection by
providing the client with the uniform standard disclosure form
prescribed by the Uniform Rules for the purposes of this
subsection.
 (5A) To avoid doubt, the uniform standard disclosure form prescribed by
the Uniform Rules for the purposes of subsection (5) may require the
disclosure of GST or disbursements or both.
 (6) Disclosure to be written
 A disclosure under this section must be made in writing, but the
requirement for writing does not affect the law practice's obligations under
subsection (3).

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 (7) Change in amount of total costs—where previously below lower

threshold
 If the law practice has not made a disclosure, whether under subsection (1)
or (5), because the total legal costs in the matter are not likely to exceed
the lower threshold, the law practice must, when or as soon as practicable
after the law practice becomes aware (or ought reasonably become aware)
that the total legal costs (excluding GST and disbursements) are likely to
exceed the lower threshold—
 (a) inform the client in writing of that expectation; and
 (b) make the disclosure required by subsection (1) or (if
applicable) subsection (5).
 (8) Change in amount of total costs—where previously below higher
threshold
 If the law practice has not made a disclosure under subsection (1)
but has made a disclosure under subsection (5) because the total
legal costs in the matter are not likely to exceed the higher
threshold, the law practice must, when or as soon as practicable
after the law practice becomes aware (or ought reasonably become
aware) that the total legal costs (excluding GST and disbursements)
are likely to exceed the higher threshold—
o (a) inform the client in writing of that expectation; and

o (b) make the disclosure required by subsection (1).

o Client’s must consent to lawyer’s cost

 Hence the need for cost disclosures

 Section 174-178 UL
 The lawyer has an obligation to disclosure costs i.e. estimate
 Must tell client’s how you are going to charge and what work you
are going to do and how you are going to do it
 Section 174
o High standard of disclosure by the lawyer
o Acts like a consumer protection

o Section 174(1)
 A lawyer must provide an estimate of total costs and provide timely
updates when the estimate changes significantly
 Must provide a one figure estimate e.g. $10,000 or $25,000
 To overcome this

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o You provide an estimate at each stage

 i.e. able to settle claim before trial: legal costs are X

o Section 174(2)
 Additional information to be provided in the cost disclosure
 You need to tell them
 Their rights (s174(2)(a))
o (i) i.e. they have a right to negotiate the cost agreement

o (iv) the legal service board can assist the client in the event
of a cost dispute
 Their right to have an itemised bill
o Section 174(2)(a)iii)
o Do you charge for an itemised bill?

 No, you can’t

 Becktess v Legal Service Board
 Section 174(2)(b)(ii)
 Lawyers must notify client’s right to negotiate billing method
 E.g. 6 minute blocks, hourly rate
o Section 174(6)
 Must be in writing
 Must be in clear plain English
o Must take reasonable steps to ensure client understands and consents to proposed
course of action in the matter and the proposed costs (s 174(3) UL).
o Cost estimates are tricky but must be provided (s 174(1)(a) UL) and also
continually reviewed and updated (s 174(1)(b) UL).
o Section 174(3) and (6)

 Requires “the law practice must take all reasonable steps to satisfy itself
that the client has understood and given consent to the proposed course of
action for the conduct of the matter and the proposed costs.”
 S 174(3)
 What is “reasonable steps” will depend on the case
 Judged by an objective standard
 If the client has understood

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o Section 174(1)(a)

 Must be a reasonable approximate for the costs agreement

 Total legal costs
 Professional cost, disbursements
 Uplift fee must be included
 $10 plus uplift fee of 1%
o i.e. total amount is $11
 Maximum of 25%
o Anything above 25% is not binding

o Section 174(1)(b)
 Client must be notified of any significant changes to the cost agreement
o Purposes

 It allows the client to shop around

 Price competition between lawyers
o Cost agreement must be tailored to the client
- Cost disclosure not required when?
o Disclosure is not required where the total legal costs (excluding GST and
disbursements) are not likely to exceed $750 (s 174(4) and Sch 4, cl 18(3) UL).
o Disclosure can be by way of standard disclosure form (rule 72 UGR, Form 1 in
Schedule 1) where total legal costs are unlikely to exceed $3,000.
o If law practice becomes aware costs will exceed $750 or $3,000 (as applicable),
must notify client in writing and make required disclosure (s 174(7) and (8) UL).
o There is an exception to cost disclosure

 Lower threshold
 $750
 Higher threshold
 $3000
 A standard disclosure can be given instead if it is between $750 and $3000
 If it is under $750 no disclosure needs to be given
 Both thresholds
 The disclosure requirements do not apply

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 Government authority or commercial authority (BHP)

 No disclosure needs to be given
- Non-compliance with disclosure obligations
o Section 178: Non-compliance with disclosure obligations

 (1) If a law practice contravenes the disclosure obligations of this Part—

 (a) the costs agreement concerned (if any) is void; and
 (b) the client or an associated third party payer is not required to
pay the legal costs until they have been assessed or any costs
dispute has been determined by the designated local regulatory
authority; and
 (c) the law practice must not commence or maintain proceedings
for the recovery of any or all of the legal costs until they have been
assessed or any costs dispute has been determined by the
designated local regulatory authority or under jurisdictional
legislation; and
 (d) the contravention is capable of constituting unsatisfactory
professional conduct or professional misconduct on the part of any
principal of the law practice or any legal practitioner associate or
foreign lawyer associate involved in the contravention.
 (2) In a matter involving both a client and an associated third party
payer where disclosure has been made to one of them but not the other,
this section—
 (a) does not affect the liability of the one to whom disclosure
was made to pay the legal costs; and
 (b) does not prevent proceedings being maintained against the
one to whom the disclosure was made for the recovery of those
legal costs.
 (3) The Uniform Rules may provide that subsections (1) and (2)—
 (a) do not apply; or
 (b) apply with specified modifications—
 in specified circumstances or kinds of circumstances.
o But note rule 72A(2) UGR which provides that these consequences do not apply
where:
 law practice took reasonable steps to comply with its disclosure
obligations before becoming aware of the contravention; and
 rectified the contravention within 14 days thereof; and

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 the contravention was not substantial and it would not be reasonable to

expect that the client would have made a different decision in any relevant
respect.
o Section 177 UL
 Disclosure obligations regarding settlement of litigious matters
 Before settlement is executed you have to tell the client what the estimate
of costs is
 As well as the amount of legal costs paid by third parties (work
safe etc)
o Section 178 UL
 Deals with consequences of failure to fulfil disclosure requirements
 S 178(1)(a)
 Cost agreement is void
 S 178(1)(b)
o Costs needs to be assessed before costs are paid

- Costs agreements
o A contract – must meet general law requirements and also statutory formalities.
 I.e. must be written or evidence in writing (s 180(2) UL).
o Lawyer can still recover costs without a costs agreement – e.g. where
unenforceable or void.
 Costs must be assessed (s 178, Div 7 UL) – requirement that these be fair,
reasonable and proportionate (s 172 UL).
o Section 180: Making costs agreements

 (1) A costs agreement may be made—

 (a) between a client and a law practice retained by the client; or
 (b) between a client and a law practice retained on behalf of the
client by another law practice; or
 (c) between a law practice and another law practice that retained
that law practice on behalf of a client; or
 (d) between a law practice and an associated third party payer.
 (2) A costs agreement must be written or evidenced in writing.
 (3) A costs agreement may consist of a written offer that is accepted in
writing or (except in the case of a conditional costs agreement) by other
conduct.

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 (4) A costs agreement cannot provide that the legal costs to which it
relates are not subject to a costs assessment.
o Section 180(1)(c) UL

 Refers to the law firm hiring a barrister

o Section 180(2)
 Cost agreement must be in writing
 Swaab v Sayed [2013] NSWSC 887, [28]
 It was held that a reasonable bystander would regard the
defendant’s conduct, in continuing to instruct the plaintiff law
practice and paying some of its invoices, as an acceptance of the
offer set out in the terms of the costs, agreement, notwithstanding
that the defendant never returned an executed copy to the practice
o Section 180(3)

 ‘or by other conduct’

 Does not apply to conditional costs agreement
o Must include
 Law firm’s details
 Clients details
 Type of matter and scope of work to be completed
 Aka a retainer
 Costs and costs methods used
 Hourly, 6 minutes
 Disbursements
 Court fees
 Distribution of bill, times
 Interim bills if they are issued
 Interest payable
 Offer to the client that they have the right to have an itemised
 An acknowledge to sign and that they have read the document
 Who they can complaint to
o Section 185(1)
 Declares a cost agreement void if there is any contravention of statute

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o Section 183(3)

 Contingency fees are prohibited

 i.e. X% of any moneys award (i.e. compensation received)
- Conditional costs agreements
o Payment of legal costs is conditional on the successful outcome of the matter to
which the costs relate – see s 181 UL.
o Must be signed by client and include statement that client has been advised can
seek independent legal advice (s 181(3) UL).
o Must set out the circumstances which constitute the ‘successful outcome’ of the
matter (s 181(2)(b) UL).
o Cannot be used in relation to criminal or family matters (s 181(7) UL) – note
availability of Legal Aid.
o Contravention of provisions relating to conditional costs agreements can amount
to unsatisfactory professional conduct or professional misconduct (s 181(8) UL).
o No win no fee
o Section 181

 Entitles a lawyer to make a conditional cost agreement

 Section 181(2)(b)
 Successful outcome must be defined
 Must be signed
 Must tell client that
 they have the right to obtain independent legal advice
 Cooling off period, 5 days
o Written notice can terminate cost agreement
o Lawyer may recover costs up until the termination of cost
agreement that are reasonable
o Section 181(2)

 (a) be in writing and in plain language

 (b) define successful outcome
o Section 181(4)
 No cooling off period between law practices
o Section 181(7)

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 Conditional cost agreement cannot be given for Criminal and family law
act matters
o Section 181(8)

 A breach of rules relating to conditional costs agreements is capable of

constituting unsatisfactory professional conduct or professional
misconduct
o May include an uplift fee – see s 182 UL.
 Entitles lawyer to receive their usual fee and an additional agreed amount
if the client succeeds in the matter.
 If it is a litigious matter: cannot include uplift fee unless reasonable belief
that success is reasonably likely and additional amount cannot exceed 25%
of the legal costs otherwise payable (s 182(2) UL).
o Must include estimate or range of estimates (and explanation of major variables)
(s 182(3) UL).
o Note that contingency fees (based on amount of award, settlement or property
recovered) are prohibited (s 183 UL).
o If you are going to charge an uplift fee, you must tell them the uplift fee ($X)

 Uplift fee can be a range

 Must be a figure not a percentage
 $1000-10000
o Section 182(2)
 Can only charge an uplift fee when there is a chance of winning
 (b) Uplift fee does not apply to disbursements
- Setting aside and varying
o The focus is on the costs themselves (rather than the cost agreement) – are these
‘fair’ and ‘reasonable’?
 Fairness: client should fully understand and appreciate costs agreement
(Re Stuart (1893)) – e.g. through costs disclosure.
 BUT must ensure understanding of nature and effect of costs
agreement – e.g. unusual basis for charging.
 Nature and scope of explanation depends on client’s knowledge,
experience and position (Computer Accounting & Tax Pty Ltd v
Bowen Buchbinder Vilensky (2009)).
o Section 172: Legal costs must be fair and reasonable

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 (1) A law practice must, in charging legal costs, charge costs that are no
more than fair and reasonable in all the circumstances and that in particular
are—
 (a) proportionately and reasonably incurred; and
 (b) proportionate and reasonable in amount.
o Fairness refers to the mode of obtaining the agreement

 The client needs to understand and appreciate the agreement

 It is a lot easier a lower educator person to argue that the agreement was
not fair
o Reasonableness: focus on rate of and approach to charging.
 What is reasonable is determined at time agreement entered into, on
objective basis and with regard to all the circumstances (Schiliro &
Gadens Ridgeway (1995)).
 A cost agreement, accompanied by the required costs disclosure, is prima
facie evidence that the costs are far and reasonable (s 172(4) UL).
o Section 172(2)

 (2) In considering whether legal costs satisfy subsection (1), regard must
be had to whether the legal costs reasonably reflect—
 (a) the level of skill, experience, specialisation and seniority of
the lawyers concerned; and
 (b) the level of complexity, novelty or difficulty of the issues
involved, and the extent to which the matter involved a matter of
public interest; and
 (c) the labour and responsibility involved; and
 (d) the circumstances in acting on the matter, including (for
example) any or all of the following—
o (i) the urgency of the matter;
o (ii) the time spent on the matter;

o (iii) the time when business was transacted in the matter;

o (iv) the place where business was transacted in the
matter;
o (v) the number and importance of any documents
involved; and
 (e) the quality of the work done; and

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 (f) the retainer and the instructions (express or implied) given in

the matter.
- Recovery of costs from clients
o Section 194(2)

 (2) A law practice must not commence legal proceedings to recover

legal costs from a person who has been given a bill until—
 (a) where the legal costs are the subject of a costs dispute before
the designated local regulatory authority—the authority has closed
or resolved the dispute; and
 (b) at least 30 days after the later of—
o (i) the date on which the person is given the bill; or
o (ii) the date on which the person receives an itemised bill
following a request made in accordance with section 187.
o Based on retainer – i.e. contractual obligation to pay costs.

o Common to request money in advance to be held in trust account (by way of

security for costs).
o Cannot recover costs unless have first provided client with bill of costs.
 Legal proceedings to recover costs cannot be brought until (s 194(2) UL) –
o Lump sum bill

 An itemised bill must be provided within 30 days

 Section 194(2)
o If have costs disputes

 Cost disputes go to the cost court (Supreme Court)

- Costs assessment
o Section 198: Applications for costs assessment

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 (1) Applications for an assessment of the whole or any part of legal

costs payable to a law practice may be made by any of the following—
 (a) a client who has paid or is liable to pay them to the law
practice;
 (b) a third party payer who has paid or is liable to pay them to
the law practice or the client;
 (c) the law practice;
 (d) another law practice, where the other law practice retained
the law practice to act on behalf of a client and the law practice has
given the other law practice a bill for doing so.
o Bill can be reduced through cost assessment (see Part 4.3, Div 7 UL).

o Applications are made pursuant to s 198 UL.

 Must be made within 12 months from when bill rendered or request for
payment made or, if neither occurred, from when the legal costs were paid
(s 198(3) UL).
o If an application has been made, proceedings to recover costs cannot be made
until cost assessment is complete (s 198(7)(b) UL).
o Section 196

 Solicitor-client
 Costs paid by the client to you
o Party-party (supreme court), standard basic (county court)
 Costs paid by the defendant to the plaintiff
o Section 196-205

 You the client, or the law firm can apply for a costs assessment if there is a
dispute which is done by a costs lawyer
o Must be made within 12 months of the relevant bill being received
 Section 198(3)
o An application can be made after 12 months if the court deems it ‘just and fair’

 Section 194(4)
o Section 200(2): Factors in a costs assessment
 (2) In considering whether legal costs for legal work are fair and
reasonable, the costs assessor may have regard to the following matters—

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 (a) whether the law practice and any legal practitioner associate
or foreign lawyer associate involved in the work complied with this
Law and the Uniform Rules;
 (b) any disclosures made, including whether it would have been
reasonably practicable for the law practice to disclose the total
costs of the work at the outset (rather than simply disclosing
charging rates);
 (c) any relevant advertisement as to the law practice's costs or
the skills of the law practice or any legal practitioner associate or
foreign lawyer associate involved in the work;
 (d) any other relevant matter.
o Costs assessments are carried out by the Victorian Supreme Court in the dedicated
Costs Court.
 Must determine whether costs are fair and reasonable (s 200(1) UL)
determined with reference to factors in s 172(2) UL and s 200(2) UL.
o Section 199(2): Costs assessment

 (2) On a costs assessment, the costs assessor must—

 (a) determine whether or not a valid costs agreement exists; and
 (b) determine whether legal costs are fair and reasonable and, to
the extent they are not fair and reasonable, determine the amount of
legal costs (if any) that are to be payable.
o Where costs are to be determined in accordance with a fixed costs legislative
provision (e.g. Practitioner Remuneration Order, 1 January 2017) must take into
account conformance with such provisions (s 200(1) and s 172(3) UL).
o A cost agreement cannot provide that costs are not subject to a cost assessment (s
180(4) UL).
o Section 199
 The cost assessor must determine what is fair and reasonable
o Section 202

 The costs court can refer you for disciplinary action

o Section 204: Costs of cost assessment
 (1) Without affecting the powers of a court or tribunal to award costs in
relation to a costs assessment, a costs assessor is, subject to this section, to
determine the costs of a costs assessment and by whom they are payable.

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 (2) Unless the costs assessor believes that in all the circumstances it is
not fair and reasonable for the costs to be paid otherwise, the costs of a
costs assessment are payable by a law practice if—
 (a) the law practice has failed to disclose a matter required to be
disclosed by Division 3; or
 (b) the law practice has failed to disclose a matter required to be
disclosed in the manner required by Division 3; or
 (c) the law practice's costs have been reduced by 15% or more
on assessment.
o Who bears the costs of the assessment is up to the Costs Court.

o If unhappy with cost assessment, have right to appeal or review (s 205 UL and s
97 Application Act) in accordance with Supreme Court Rules.

- Liens
o Types:
 Retaining lien
 That is exercised over client belongings including money in trust
(we discussed this lien over documents in Week 3).
 Retaining lien allows a solicitor to hold onto the file until costs
have been paid
 Particular lien
 In relation to any client property recovered or preserved, or any
judgment obtained, for the client by the lawyer’s work in litigation.
o Must have legally enforceable claim to costs.

o Retaining lien
 Is a right to refuse to transfer an item of property to which the client would
otherwise be entitled (Re A Barrister and Solicitor (1979)).

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 Important: the lawyer does not obtain any ownership or other

property right in relation to the client items by way of a retaining
lien.
 ‘General’ – extends to all costs owed by the client to the lawyer.
 ‘Possessory’ – dependent on lawyer having actual physical possession of
whatever client property they are exercising the lien over.
 Cannot exist over property not in lawyer’s possession (Ex parte
Patience (1940)).
 Once possession is lost, the general rule is that the lien is loss (Re
Ly (1995)) – but note situation where property is given to another
lawyer subject to undertaking or agreement.
 Aka general lien or possessory lien
 Something physical that you can retain
 E.g. Client’s file
 What can be subject to a lien
 Anything that comes into the solicitor’s possession
 It does not include property owned by third parties
 Once costs have been paid, the solicitor cannot claim a lien anymore
 Can be exercised in relation to any client property which came into
lawyer’s possession in course of retainer in capacity as lawyer with the
approval of the client (Leeper v Primary Producers’ Bank of Australia
Ltd (in voluntary liq) (1935)).
 EXAMPLE – money held in trust account.
 Once legal costs are paid (or secured in some other way), lien expires and
property must be given to client (Bolger v Bolger (1985)).
 Section 144: Withdrawal of trust money
 (2) A law practice may do any of the following, in relation to
trust money held in the practice's general trust account or
controlled money account—
o (a) exercise a lien, including a general retaining lien, for
the amount of legal costs reasonably due and owing by the
person to the law practice, where the law practice is
otherwise entitled to do so;
o (b) withdraw money for payment to the law practice's
account for legal costs owing to the practice if the relevant
procedures or requirements specified in the Uniform Rules
for the purposes of this Division are complied with;

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o (c) deal with the balance as unclaimed money, after—

 (i) deducting any legal costs properly owing to

the practice; and
 (ii) exhausting any other means of distributing it
in accordance with the client's instructions.
 COMMENTARY
o Allows you to hold monies held in trust to a lien
o For example, $10,000 in trust. Costs of $1000 has not been
paid. What you can do is return the $9,000 and hold the
$1000 as a lien
o Particular lien

 Lien gives lawyer an equitable interest (i.e. a security or charge) in

property recovered or preserved or in judgment obtained for client by
lawyer proportionate to the fees owed (Ex parte Patience (1940)).
 ‘Particular’ – only relates to costs incurred in relation to work related to
the litigation which led to the property being recovered or judgment being
obtained (Re a Barrister and Solicitor (1979)).
 ‘Non-possessory’/‘fruits of the action’ – lawyer generally will not be in
possession of these property or judgment amount.
 Arises over any particular property that occurs in litigation
 ***APPLIES ONLY TO LITIGATION
 Interest based on order of the court so must be actively enforced (Re A
Barrister and Solicitor (1979)).
 Where is probable or appreciable risk that the client will not pay
the legal costs (Ex parte Patience (1940)).
 E.g. where client denies any costs are owing, refuses to give an
undertaking in relation to payment of costs, etc.
 Order made for amount of lien to be paid into court not to the
lawyer.
 Where have ceased acting for client prior to recovery, must show link
between the money or property so recovered and the work performed
(Doyles Construction Lawyers v Harsands Pty Ltd (1996)).
 Lien functions over an equitable interest conferred by the court
Lecture 5 (Duty to the court: Chapter 17)
- Duty to the court

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o A lawyer must, in all dealings with the court, act with competence, honesty and
candour (Re Foster (1950)).
o Must:

 Exercise independent judgment in conduct of case (R v O’Connell

(1844)).
 Present both the facts and the law to the court with total candour.
 Not mislead the court.
o A lawyer has a duty to facilitate justice of the court
o ***A lawyer’s number one duty is to the court

o Basis of duty to court?

 Lawyers as officers of the court.
 Section 25: Australian lawyer is officer of Supreme Court
o An Australian lawyer is an officer of the Supreme Court of
this jurisdiction for as long as his or her name remains on
the Supreme Court roll for any jurisdiction.
 Upon admission to practice you become an ‘officer of the court’
 The duty to the court is paramount
 NSW bar association v Thomas (no 2) (1989) 18 nswlr 193
 “The rank of barrister is one of status. With it go obligations which
cannot be shaken off or forgotten simply because the holder of the
office has not been practising in the daily work of a barrister. If a
person does not wish to assume the obligations to the courts of a
barrister, that person should not seek admission by the Court as
such. Once admitted, the additional duties of invariable candour as
well as honesty to a court prevail.”
 Applies to practising solicitors as well
o Duty is also owed to tribunals, royal commissions, etc.

 Court definition per Solicitor Conduct Rules

 "court" means:
o (a) any body described as such;
o (b) any tribunal exercising judicial, or quasi-judicial,
functions;
o (c) a professional disciplinary tribunal;

o (d) an industrial tribunal;

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o (e) an administrative tribunal;

o (f) an investigation or inquiry established or conducted

under statute or by a Parliament;
o (g) a Royal Commission;
o (h) an arbitration or mediation or any other form of dispute
resolution.
o Duty to court is paramount and prevails over any duty owed to a client in the
event of a conflict (Giannarelli v Wraith (1988)).
 Rule 3: Paramount duty to the court and the administration of justice
Solicitor Conduct Rules
 3.1 A solicitor’s duty to the court and the administration of justice
is paramount and prevails to the extent of inconsistency with any
other duty.
o Cardinal rule: a lawyer must not mislead the court (Rondel v Worsley (1969)).

 Rule 19: Frankness in court Solicitor Conduct Rules

 19.1 A solicitor must not deceive or knowingly or recklessly
mislead the court.
o Rule 3
 Duty to the Court
 Number one duty
o Where there is a conflict between the duties owed to the client and to court

 The lawyer must disregard the client’s duty

 For example, if the client instructions the lawyer to deceive the
court
o Giannarelli v Wraith [1988] HCA 52
 “The duty to the court is paramount and must be performed, even if the
client gives instructions to the contrary.”
o Meek v Fleming [1961] 2 QB 366, 379

 “Where a party deliberately misleads the court in a material matter, and

that deception has probably tipped the scale in his favour … it would be
wrong to allow him to retain the judgement thus unfairly procured. …
Moreover, to allow the victor to keep the spoils so unworthy obtained
would be an encouragement to such behaviour and do even greater harm
than the multiplication of trials
o Ziems v Prothonotary Supreme Court NSW (1957) 97 CLR 279

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 Must not make a misleading statement to the court

o The Council of the Qld Law Society Inc v Wright [2001] QCA 58

 [67] A practitioner's duty to the court arises out of the practitioner's special
relationship with the court; it overrides the duties owed by a practitioner to
clients or others. The lawyer's duty to the court includes candour, honesty
and fairness. The appellant abused her role as an officer of the court in
relying on material she knew to be false and in deliberately and recklessly
misleading the court in an attempt to further the interests of her clients and
family. Her conduct was made more serious by its repetition. The effective
administration of the justice system and public confidence in it
substantially depends on the honesty and reliability of practitioners'
submissions to the court. This duty of candour and fairness is
quintessential to the lawyer's role as officer of the court; the court and the
public expect and rely upon it, no matter how new or inexperienced the
practitioner
o Rondel v Worsely [1969] 1 AC 191
 “Every counsel has a duty to his client fearlessly to raise every issue,
advance every argument, and ask every question, however distasteful,
which he thinks will help his client's case. As an officer of the court
concerned in the administration of justice, he has an overriding duty to the
court, to the standards of his profession, and to the public, which may and
often does lead to a conflict with his client's wishes or with what the client
thinks are his personal interests. Counsel must not mislead the court”
o Enforcing duties

 The court has an inherent jurisdiction

 Jurisdiction to restraint lawyers from practising
 Court’s jurisdiction to sanction a lawyer
 Abuse of process
o A lawyer can be ordered to pay the costs personally
 Removal of counsel
o E.g. disrespect of the court

 Misleading the court

 Settle aside a judgement in a civil case
o Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
 It was held that in the course of a civil jury trial for damages for personal
injuries, repeated misconduct by the defendant’s counsel – involving
unjustified allegations of fraud and the introduction of extraneous matters

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in the closing address – likely had a prejudicial effect on the jury and so
precipitated a miscarriage of justice
 The company barrister was the one that mislead the court
 Mr Scallion
 The course of justice was substantially effected
- Independence
o Essential for public confidence in the justice system, otherwise integrity of
judicial process may be undermined (Kooky Garments Ltd v Charlton (1994)).
o Lawyers must exercise their own independent judgement regarding the running of
a case.
 Should refrain from advancing arguments that are not reasonably open –
i.e. should not be a mere ‘mouthpiece’ for the client.
o Giannarelli v Wright (1988):

 [T]he course of litigation depends on the exercise by counsel of an

independent discretion or judgment in the conduct and management of a
case in which he has an eye, not only to his client’s success, but also to the
speedy and efficient administration of justice. In selecting and limiting the
number of witnesses to be called, in deciding what questions will be asked
in cross-examination, what topics will be covered in address and what
points of law will be raised, counsel exercises an independent judgment so
that the time of the court is not taken up unnecessarily, notwithstanding
that the client may wish to chase every rabbit down its burrow.
o Rule 17 Conduct Rules
 17.1 A solicitor representing a client in a matter that is before the court
must not act as the mere mouthpiece of the client or of the instructing
solicitor (if any) and must exercise the forensic judgments called for
during the case independently, after the appropriate consideration of the
client’s and the instructing solicitor’s instructions where applicable.
 17.2 A solicitor will not have breached the solicitor's duty to the client, and
will not have failed to give appropriate consideration to the client's or the
instructing solicitor's instructions, simply by choosing, contrary to those
instructions, to exercise the forensic judgments called for during the case
so as to:
 17.2.1 confine any hearing to those issues which the solicitor
believes to be the real issues;
 17.2.2 present the client's case as quickly and simply as may be
consistent with its robust advancement; or

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 7.2.3 inform the court of any persuasive authority against the

client's case.
 17.3 A solicitor must not make submissions or express views to a
court on any material evidence or issue in the case in terms which
convey or appear to convey the solicitor's personal opinion on the
merits of that evidence or issue.
 17.4 A solicitor must not become the surety for the client's bail.
o Henderson Borough Council v Auckland Regional Authority [1984] NZ

 The court suggested that whether an in house counsel should do litigation

re independence as they are an employee of the firm
o Spouse or de-facto partner
 Lawyers that are S or DP should not represent opposing parties
o R v Szabo [2001] 2 Qd R 214

 The Counsel and prosecution had been in a close personal relationship

 The Counsel was under an obligation to tell his client about the
relationship
 A new trial was ordered despite the counsel running the trial competent
 There was a perception that the counsel was not independent
o When you commence proceeding you must have a proper basis
 Civil Procedure Act, section 18
o The following may affect actual or perceived independence:

 The lawyer is an in-house lawyer.

 The lawyer is a witness.
 The lawyer has a personal interest in the outcome.
 The lawyer has a relationship with the client.
 The spouse/partner of the lawyer is representing the other side.
 The lawyer is relaxed and familiar with opposing counsel and/or the judge.
- Lawyer as a witness
o Independence may be undermined where a lawyer is required to appear as a
witness.
 Will confuse the role of the lawyer in the matter!
o Should not accept retainer if believe may be required to give evidence.

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 If accept retainer and are then required to appear as witness, should cease
to act and arrange for independent lawyer to take over.
 Why? Questions of objectivity, character of lawyer, etc.
o Proscription extends to counsel and instructing lawyers.

o Rule 27 Conduct Rules

 27.1 In a case in which it is known, or becomes apparent, that a solicitor
will be required to give evidence material to the determination of contested
issues before the court, the solicitor may not appear as advocate for the
client in the hearing.
 27.2 In a case in which it is known, or becomes apparent, that a solicitor
will be required to give evidence material to the determination of contested
issues before the court the solicitor, an associate of the solicitor or a law
practice of which the solicitor is a member may act or continue to act for
the client unless doing so would prejudice the administration of justice.
 COMMENTARY
 A lawyer must not continue to act in a matter if they are called to
give evidence
o Cease to act if called as a witness

 It will confuse the role if the lawyer is called to give evidence

 A conflict would occur
 Pittorino v Meynert [2001] WASC 245, [10]
 ‘[t]he vice if a lawyer acting as both witness and instructing
solicitor (or counsel) in a case is that he may be tempted to tailor
his evidence to suppose his client’
o Court can disqualify lawyer from acting where they may be called as witness
(Beggs v Attorney-General (2006)).
 Likelihood of lawyer being called and impact on integrity of trial
(Mitchell v Burell (2008)) AND public interest (should be able to choose
lawyer, etc: Scallan v Scallan (2001)).
 Examples – lawyer’s integrity called into question, lawyer may be seen as
having personal interest in outcome of case.
 The lawyer’s disqualification may be justified where a fair-minded
reasonably informed observer would perceive a potential for misuse of
confidential information (Executive Homes Pty Ltd v First Haven Pty Ltd
[1999] VSC 61) a prospect that the lawyer is seen as having a personal
interest in the outcome of the case, (Paino v MDN Mortgages Pty Ltd
[2009] NSWSC 898) or for another reason that the administration of

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justice would be imperilled (Geelong School Supplies Pty Ltd v Dean

(2006) 237 ALR 612)
o Exceptions

 Exceptions (i.e. where lawyer can act despite possibly/being a witness):

 Lawyer-litigant.
 Uncontested matters – no reason to think evidence will be opposed
(Emanuel Management Pty Ltd (in liq) v Foster’s Brewing
Group Ltd (2003)).
 Where ceasing to act would jeopardise client interest – e.g. no time
to arrange alternate representation.
- Conflict of interest
o Lawyer has previously been involved in the matter which they are now
representing the client in relation to.
o E.g. drafted Will, now representing beneficiary against claim that deceased was
not of sound mind.
 Lawyer inclined to put a ‘slant’ on their evidence to both assist their client
and defend their previous work?
o Kooky Garments Ltd v Charlton [1994] 1 NZLR 587
 “Independence is a function of counsel. The Court is entitled to assume
that solicitors and counsel appearing before it possess that independence.
Solicitors not only owe a duty to their clients to do the best for them but
also owe an overriding duty to the Court. The same overriding duty is
owed by counsel who have been granted a right of audience to appear in
this Court. As part of their professional responsibility, therefore, solicitors
and counsel must ensure that they do not appear in a matter in which they
have an actual or potential conflict of interest or where, by reason of their
relationship with their client, their professional independence can be called
in question”
 NZ
 Problem for the solicitor
 Dispute between Landlord and Tenant
 The letter’s accuracy came into dispute
 The LL relied on the letter
 The lawyers were in court defending the professional confidence of their
work and defending their client
o Clay v Karlson (1997) 17 WAR 493

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 Conflict of interest
 Solicitor drew a will
 Coducil- an amendment to a will
 The professional work of the solicitor was called into question
 The law firm need to defend their own work and the client’s duty
 Held
 The court has part of its jurisdiction supervise restraining a solicitor
to act
 The court has the power to supervise the conduct of its officers
o If you are defending yourself and acting for your client, you need to tell the client
to go somewhere as
o Where a conflict arises, the lawyer must case to act their objective might be
compromised
- Relationship: with the client
o Lawyer should not appear where relationship with client means it will be hard to
maintain required independence.
o Personal and business relationships.

o Need to remain professional otherwise risk:

 not exercising professional judgment in best interests of clients
(Prothonotary v Jackson (1976))
 participating in less than ethical behaviour (New South Wales Bar
Association v Livesey (1982))
o Example – bail:

 Rule 17.4 Conduct Rules

 A solicitor must not become the surety for the client’s bail
o Difficult situation for in-house lawyers – truly ‘independent’?
o Be wary of acting for friends and family.

- Relationship: with opposing lawyer

o Lawyer should avoid acting for client where the lawyer’s spouse or de facto is
acting for the opposing party.
o Even if independence not actually compromised, appearance of lack of
independence damaging to public confidence in judicial system.

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 E.g. belief that one (or both?) of the parties have not had truly independent
representation.
o Note also the risk of disclosure of confidential information!

o Rule 4.1.4 Conduct Rules

 4.1 A solicitor must also:
 4.1.4 avoid any compromise to their integrity and professional
independence;
 Therefore, if you are in a relationship with the opposing lawyer, you are
breaching rule 4.1.4
- Relationship: with the court
o Lawyer to disclose any relationship with a judge.

o Should not be too familiar with judges – appearance of favour with the court.
o Rule 18 Conduct Rules

 18.1 A solicitor must not, in the presence of any of the parties or solicitors,
deal with a court on terms of informal personal familiarity which may
reasonably give the appearance that the solicitor has special favour with
the court.
o Any relationship with a judge must be disclosed
o Special treatment

o Marriage of Kennedy v Carhil 95 116 Family Law Reports 60

 Judgement was set aside
 New trial was ordered
- Candour/frankness
o Lawyers must not mislead court, including by misrepresenting the law (Clyne v
New South Wales Bar Association (1960)).
o Overriding duty to court – must honestly inform the court of the law and the facts.

o Rule 19 Conduct Rules

 19.1 A solicitor must not deceive or knowingly or recklessly mislead the
court.
 19.2 A solicitor must take all necessary steps to correct any misleading
statement made by the solicitor to a court as soon as possible after the
solicitor becomes aware that the statement was misleading.

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 19.3 A solicitor will not have made a misleading statement to a court

simply by failing to correct an error in a statement made to the court by the
opponent or any other person.
 19.4-19.12 see print out
o Copeland v Smith [2000] 1 WLR 1371

 The barrister did not tell the court about a relevant judgement even though
he was explicitly asked
 It resulted in a waste of time because the issue was argued on appeal and
that judgement would have solved the issue
o Must tell the court about relevant appellant judgements when waiting for
judgement
 Binding new authority
 Change in facts/circumstances
 i.e. received new medical report
o Rondel v Worsely [1969] 1 AC 191
 Must not withhold relevant authority that goies against them
o Rule 19.6

 19.6 A solicitor must, at the appropriate time in the hearing of the case if
the court has not yet been informed of that matter, inform the court of:
 19.6.1 any binding authority;
 19.6.2 where there is no binding authority, any authority decided
by an Australian appellate court; and
 19.6.3 any applicable legislation, known to the solicitor and which
the solicitor has reasonable grounds to believe to be directly in
point, against the client's case.
o Rule 17.2.3 Conduct Rules
 17.2 A solicitor will not have breached the solicitor's duty to the client, and
will not have failed to give appropriate consideration to the client's or the
instructing solicitor's instructions, simply by choosing, contrary to those
instructions, to exercise the forensic judgments called for during the case
so as to:
 17.2.3 inform the court of any persuasive authority against the
client's case.
o Rule 17.2.3 and 19.6

 The lawyer must ensure that the law is applied correctly

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 Must have copies of judgements

 Must have read the case
o Regarding the duty to correct misunderstandings:

 Rule 19.2, 19.3 and 19.12

- In the presentation of the law
o Duty to assist the court regarding the applicable law: must properly research the
law and bring to the court’s attention any relevant matters, both substantive and
procedural law.
 Even if unhelpful to lawyer’s client (Rondel v Worsley (1969))!
 So have:
 duty to assist the court regarding the applicable law; and
 duty not to withhold relevant law.
 Case example: Copeland v Smith (2000).
o A Financial v coco flax
 Where a party certain legal point it is approp as much trial assistant
determining the issue submission tot eh provision of relevant authorit
assertion articulating without any places impossible burden on the trial
judge
o If the authority becomes known after judgment/decision has been reserved but
before it is handed down?
 Rule 19.8 Conduct Rules
- In the presentation of the facts
o Obligation on lawyers as assistants in the administration of justice (Re Davis
(1947)) to not mislead the court in relation to the facts of a matter
 Cannot be a party to the making of any statement which to the lawyer’s
knowledge is false or misleading (Re Gruzman (1968)).
o Extends to all stages of a matter, including e.g. the preparation of pleadings
(Rondel v Worsley (1969)).
o Must correct misleading statements unknowingly made to court (rule 19.2 SCR;
Vernon v Bosley (No 2) (1992)) but need not correct an error stated to the court
by the other side or another person (rule 19.3 SCR).
 BUT note rule 19.12 SCR regarding express concessions in civil trials
relating to evidence, case law or legislation.
o Rule 25 Conduct Rules

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 25.1 A solicitor must not confer with, or condone another solicitor

conferring with, more than one lay witness (including a party or client) at
the same time:
 25.1.1 about any issue which there are reasonable grounds for the
solicitor to believe may be contentious at a hearing; and
 25.1.2 where such conferral could affect evidence to be given by
any of those witnesses, unless the solicitor believes on reasonable
grounds that special circumstances require such a conference.
 25.2 A solicitor will not have breached Rule 25.1 by conferring with, or
condoning another solicitor conferring with, more than one client about
undertakings to a court, admissions or concessions of fact, amendments of
pleadings or compromise.
o Vernon v Bosley (No 2) [1999] QB 18

 The plaintiff (V) PTSD trying to rescue children from a car

 Personal injury matter and a family law custody matter
 Person injury
o Claimed that he has nervous shock
 Custody dispute
o His mental condition had greatly improved

 Lawyer claimed that the later medical report was privileged and thus did
not have to disclose it to other matters
 The court held that it was mislead
 Failed to correct an incorrect assertion
o Legal Services Commissioner v Puryer [2012[ QCA 48
 You need to point out to the judge important documents
 The solicitor was found to have mislead the court
 Because the he failed to draw the courts attention to a relevant
document
 Rather than the court need to read through all the documents
 The lawyer needs to be frank
o Lawyer must not:

 Knowingly submit a false document, such as an affidavit, to the court

(Rajasooria v Disciplinary Committee (1955));

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 Tell ‘half-truths’, i.e. Leave the court with an incorrect impression of the
facts of the matter – case study: Meek v Fleming (1961);
 Unquestioningly accept a client’s account of the matter or their
corresponding instructions (Kavia Holdings Pty Ltd v Werncog Pty Ltd
(1999));
 Advise a client (or third party) to disobey a court order;
 Be a party to the destruction or removal of documents relevant to the
litigation (Crimes Act 1958 (Vic), Pt I, Div 5).
o Rule 17.2 Conduct Rules
 17.2 A solicitor will not have breached the solicitor's duty to the client, and
will not have failed to give appropriate consideration to the client's or the
instructing solicitor's instructions, simply by choosing, contrary to those
instructions, to exercise the forensic judgments called for during the case
so as to:
 17.2.1 confine any hearing to those issues which the solicitor
believes to be the real issues;
 17.2.2 present the client's case as quickly and simply as may be
consistent with its robust advancement; or
 17.2.3 inform the court of any persuasive authority against the
client's case.
o Baseless allegations or accusations
 Rule 19 and rule 20
 False material/claims/allegations
 Rule 19
 Frankness in court
 Rule 20
o Lawyers must not be a party to destruction of relevant documents

 Crimes Act
 Part 1 div 5
 McCabe v British Tabacco Austalia Services Ltd [2002] VSC 73
 Struck out the company’s defence
o Had a deliberate intention of preventing a fair trial
 It was held that the defendant had destroyed or removed documents
that might otherwise have been the subject of discovery, and that
the defendant and its solicitors had subverted the process of

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discovery in the case with the intention of denying a fair trial to the
plaintiff
o Obligations in ex parte proceedings – higher duty to make sure everything is
disclosed to the court.
 Must disclose information with honesty and fairness in all matters for and
against the application (Re Cooke (1889)).
o Rule 19.4 and 19.5

o Perjury:
 Where already committed (e.g. client lied to court, falsified document
submitted as evidence, etc), need to inform client that court should be
informed and request authority to do so.
 If client refuses, lawyer to withdraw from case (Perpetual Trustee
Co Ltd v Cowley (2010)) but cannot inform court.
 Where intended (e.g. client plans on lying to court), cannot assist and must
attempt to convince client (or witness) not to do so.
 Rule 20.1 Conduct Rules
 20.1 A solicitor who, as a result of information provided by the
client or a witness called on behalf of the client, learns during a
hearing or after judgment or the decision is reserved and while it
remains pending, that the client or a witness called on behalf of the
client:
o 20.1.1 has lied in a material particular to the court or has
procured another person to lie to the court;
o 20.1.2 has falsified or procured another person to falsify in
any way a document which has been tendered; or
o 20.1.3 has suppressed or procured another person to
suppress material evidence upon a topic where there was a
positive duty to make disclosure to the court;
o must –

o 20.1.4 advise the client that the court should be informed of

the lie, falsification or suppression and request authority so
to inform the court; and
o 20.1.5 refuse to take any further part in the case unless the
client authorises the solicitor to inform the court of the lie,
falsification or suppression and must promptly inform the
court of the lie, falsification or suppression upon the client
authorising the solicitor to do so but otherwise may not
inform the court of the lie, falsification or suppression.

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o If client tells lawyer they intend to disobey a court order:

 Rule 20.3
 20.3 A solicitor whose client informs the solicitor that the client
intends to disobey a court's order must:
o 20.3.1 advise the client against that course and warn the
client of its dangers;
o 20.3.2 not advise the client how to carry out or conceal that
course; and
o 20.3.3 not inform the court or the opponent of the client's
intention unless:
 (i) the client has authorised the solicitor to do so
beforehand; or
 (ii) the solicitor believes on reasonable grounds that
the client's conduct constitutes a threat to any
person's safety.
- Dealing with witnesses
o Relationship with witnesses must be (and be seen to be) properly professional.
o EXAMPLE – two witnesses together (rule 25 SCR):

 25.1 A solicitor must not confer with, or condone another solicitor

conferring with, more than one lay witness (including a party or client) at
the same time:
 25.1.1 about any issue which there are reasonable grounds for the
solicitor to believe may be contentious at a hearing; and
 25.1.2 where such conferral could affect evidence to be given by
any of those witnesses, unless the solicitor believes on reasonable
grounds that special circumstances require such a conference.
 25.2 A solicitor will not have breached Rule 25.1 by conferring with, or
condoning another solicitor conferring with, more than one client about
undertakings to a court, admissions or concessions of fact, amendments of
pleadings or compromise.
o Rule 23-25 Conduct rules
o Witness should not be encouraged to forget facts
 R v Sweeney (1987)
o Lawyers must interview clients separately
o Lawyer must tell the client to speak the truth

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o Rule 23.1

 You can’t say to the witness that ‘you are my witness’

o Rule 24.1.2
 Must not coach the witness
o Rule 24.2.3

 Drawing the witness’s attention to inconsistent evidence

o Rule 25
 Conferring or condoing with more than one client
o Means you cannot interview witnesses together

o i.e. witnesses to a car accident

o Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731

 Witnesses were coached

 All participated in a telephone conference
 [30] It has long been regarded as proper practice for legal practitioners to
take proofs of evidence from lay witnesses separately and to encourage
such witnesses not to discuss their evidence with others and particularly
not with other potential witnesses. For various reasons, witnesses do not
always abide by those instructions and their credibility suffers
accordingly.
o No coaching
 Day v Perisher Blue Pty Ltd
 The lawyer interviewed a group of witnesses via telephone conference
 Held
 It has been long been regarded for lawyers to take proofs from
witnesses separately
o EXAMPLE – influencing evidence (rule 24 SCR).

 24.1 A solicitor must not:

 24.1.1 advise or suggest to a witness that false or misleading
evidence should be given nor condone another person doing so; or
 24.1.2 coach a witness by advising what answers the witness
should give to questions which might be asked.
 24.2 A solicitor will not have breached Rules 24.1 by:
 24.2.1 expressing a general admonition to tell the truth;

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 24.2.2 questioning and testing in conference the version of

evidence to be given by a prospective witness; or
 24.2.3 drawing the witness's attention to inconsistencies or other
difficulties with the evidence, but the solicitor must not encourage
the witness to give evidence different from the evidence which the
witness believes to be true.
 Roads Corporation v Love [2010] VSC 253
 Meetings of expert to discuss their evidence can impact on the
independence of the expert’s evidence
 Kennedy v Council of the Incorporated Law Institute of New South
Wales (1939) 13 ALJR 563
 Kennedy was struck off the role because he had attempted to
influence a witness’ evidence
 Kennedy was held to have influenced the due administration of
justice
o EXAMPLE – communication with witnesses under cross-examination (rule 26.1
SCR).
 26.1 A solicitor must not confer with any witness (including a party or
client) called by the solicitor on any matter related to the proceedings
while that witness remains under cross-examination, unless:
 26.1.1 the cross-examiner has consented beforehand to the solicitor
doing so; or
 26.1.2 the solicitor:
o (i) believes on reasonable grounds that special
circumstances (including the need for instructions on a
proposed compromise) require such a conference;
o (ii) has, if possible, informed the cross-examiner
beforehand of the solicitor's intention to do so; and
o (iii) otherwise does inform the cross-examiner as soon as
possible of the solicitor having done so.
o EXAMPLE – opposition access to witnesses (rule 23 SCR).

 23.1 A solicitor must not take any step to prevent or discourage a

prospective witness or a witness from conferring with an opponent or
being interviewed by or on behalf of any other person involved in the
proceedings.
 23.2 A solicitor will not have breached Rule 23.1 simply by telling a
prospective witness or a witness that the witness need not agree to confer

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or to be interviewed or by advising about relevant obligations of

confidentiality.
- Communications and relationship with judge
o Lawyer must not be overly familiar with the judge and give the impression that
they are favoured by the court (Porter v Australian Prudential Regulation
Authority (2009)).
o Rule 22 SCR:

 22.5 A solicitor must not, outside an ex parte application or a hearing of

which an opponent has had proper notice, communicate in the opponent's
absence with the court concerning any matter of substance in connection
with current proceedings unless:
 22.5.1 the court has first communicated with the solicitor in such a
way as to require the solicitor to respond to the court; or
 22.5.2 the opponent has consented beforehand to the solicitor
communicating with the court in a specific manner notified to the
opponent by the solicitor.
 22.6 A solicitor must promptly tell the opponent what passes between the
solicitor and a court in a communication referred to in Rule 22.5.
 22.7 A solicitor must not raise any matter with a court in connection with
current proceedings on any occasion to which an opponent has consented
under Rule 22.5.2 other than the matters specifically notified by the
solicitor to the opponent when seeking the opponent's consent.
- Public comment during proceedings
o Rule 28 SCR:
 28.1 A solicitor must not publish or take steps towards the publication of
any material concerning current proceedings which may prejudice a fair
trial or the administration of justice.
o ‘Current proceedings’ (Glossary SCR): proceedings which have not been
determined, including proceedings in which there is still the real possibility of an
appeal or other challenge to a decision being filed, heard or decided.
- Abuse of process
o Lawyers should not be involved in conduct which constitutes an abuse of process
(Civil Procedure Act 2010 (Vic) s 18(c)).
 Overarching obligations
o Court has inherent power to prevent misuse of procedure where this is unfair to a
party or would otherwise bring administration of justice into disrepute (Hunter v
Chief Constable of the West Midlands Police (1982)).

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o EXAMPLE – baseless allegations (rule 21 SCR):

 21.3 A solicitor must not allege any matter of fact in:

 21.3.1 any court document settled by the solicitor;
 21.3.2 any submission during any hearing;
 21.3.3 the course of an opening address; or
 21.3.4 the course of a closing address or submission on the
evidence, unless the solicitor believes on reasonable grounds that
the factual material already available provides a proper basis to do
so.
o Making judgments during the running of a case (rule 21.1 & 21.2 SCR) –
 21.1 A solicitor must take care to ensure that the solicitor’s advice to
invoke the coercive powers of a court:
 21.1.1 is reasonably justified by the material then available to the
solicitor;
 21.1.2 is appropriate for the robust advancement of the client’s case
on its merits;
 21.1.3 is not made principally in order to harass or embarrass a
person; and
 21.1.4 is not made principally in order to gain some collateral
advantage for the client or the solicitor or the instructing solicitor
out of court.
 21.2 A solicitor must take care to ensure that decisions by the solicitor to
make allegations or suggestions under privilege against any person:
 21.2.1 are reasonably justified by the material then available to the
solicitor;
 21.2.2 are appropriate for the robust advancement of the client’s
case on its merits; and
 21.2.3 are not made principally in order to harass or embarrass a
person.
o Allegations of criminality, fraud or serious misconduct (rule 21.4 SCR) –

 21.4 A solicitor must not allege any matter of fact amounting to

criminality, fraud or other serious misconduct against any person unless
the solicitor believes on reasonable grounds that:
 21.4.1 available material by which the allegation could be
supported provides a proper basis for it; and

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 21.4.2 the client wishes the allegation to be made, after having

been advised of the seriousness of the allegation and of the possible
consequences for the client and the case if it is not made out.
 Regulates both solicitor and barristers
o Note also rule 21.5 SCR.

 21.5 A solicitor must not make a suggestion in cross-examination on credit

unless the solicitor believes on reasonable grounds that acceptance of the
suggestion would diminish the credibility of the evidence of the witness.
o EXAMPLE – wasting of time and money in court proceedings:
 Lawyers have a duty to facilitate the just, quick and cheap resolution of the
real issues in a proceeding (Civil Procedure Act 2010 (Vic) s 7).
 Should:
 avoid, e.g. delaying tactics (White Industries (Qld) Pty Ltd v
Flower & Hart (a firm) (1998); Civil Procedure Act 2010 (Vic) s
25);
 consider when preparing or presenting how best to assist the court
(A Team Diamond Headquarters Pty Ltd v Main Road Property
Group Pty Ltd (2009); and
 do everything possible to ensure the matter is soon concluded in a
timely and cost efficient way (Virgtel Ltd v Zabusky (No 2)
(2009)), including taking only reasonably necessary steps (Civil
Procedure Act 2010 (Vic) s 19).
o Can be subject to personal costs orders.

o Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic):

 57. A barrister: (a) must seek to ensure that the barrister does work which
the barrister is briefed to do in sufficient time to enable compliance with
orders, directions, rules or practice notes of the court; and (b) if the
barrister has reasonable grounds to believe that the barrister may not
complete any such work
o EXAMPLE – hopeless cases:

 Instituting civil proceedings lacking any legal foundation is an abuse of

court processes (CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd
(1994)).
 Must undertake own investigations – cannot simply rely on client
instructions.
 Need to distinguish cases that are weak but arguable from those that are
hopeless – can represent client in relation to the former (Re Cooke (1889)).

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- Enforcement of duty
o Court can restrain lawyer from acting – e.g. when doubt lawyer cannot exercise
independent judgment.
 Test: would a fair-minded reasonably informed person find it subversive to
the administration of justice to allow the representation by that lawyer to
continue (Davies v Clough (1837))?
 Rarely exercised (Bransdon v Gilbert (2007)).
o Court can sanction lawyer for breach of duty – will depend of breach.

 Abuse of process – e.g. costs.

 Duty not to mislead court – serious disciplinary consequences (i.e.
professional misconduct).
 Can lead to miscarriage of justice resulting in retrial (criminal
matters) and setting aside of judgments (civil matters).
 Interference with administration of justice, e.g. being disrespectful to the
court – contempt (Ex parte Bellanto (1963)).
 Power to punish for contempt used sparingly but note disciplinary
consequences!
 Personal costs order
 Means that the lawyer has to pay the court’s cost
Lecture 6 (Application of the duty to the administration of justice: Chapters 18 and 19)
- Prosecuting counsel
o A prosecutor has a duty to be fair and impartial (Whitehorn v R (1983) 152 CLR
657).
o Rule 29.1 and 29.4 Conduct Rules
 29.1 A prosecutor must fairly assist the court to arrive at the truth, must
seek impartially to have the whole of the relevant evidence placed
intelligibly before the court, and must seek to assist the court with
adequate submissions of law to enable the law properly to be applied to the
facts.
 29.4 A prosecutor must not argue any proposition of fact or law which the
prosecutor does not believe on reasonable grounds to be capable of
contributing to a finding of guilt and also to carry weight.
o Whitehorn v R (1983) 152 CLR 657

 [5] Prosecuting counsel in a criminal trial represents the State. The

accused, the court and the community are entitled to expect that, in
performing his function of presenting the case against an accused, he will

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act with fairness and detachment and always with the objectives of
establishing the whole truth in accordance with the procedures and
standards which the law requires to be observed and of helping to ensure
that the accused's trial is a fair one.
- Rationale for prosecutor’s duty to be fair and impartial
o No conflict between the prosecutor’s duty to the court and the duty to the client

o Jury presumes it
- Duty to be fair and impartial: impact on attitude of prosecutor
o Aim is to ensure justice is done, not to secure convictions at any cost (R v
Kennedy (1997) 94 A Crim R 341).
o Rule 29.2 Conduct Rules

 29.2 A prosecutor must not press the prosecution's case for a conviction
beyond a full and firm presentation of that case .
o Essential attitude: professional detachment and self-control (R v B (RB) (2001)
152 CCC (3d) 437
o Rule 17.3 Conduct Rules
 17.3 A solicitor must not make submissions or express views to a court on
any material evidence or issue in the case in terms which convey or appear
to convey the solicitor's personal opinion on the merits of that evidence or
issue.
o Must not:

 seek to inflame or bias the court against the accused (R v DDR [1998] 3
VR 580) or any witnesses called by accused;
 Use emotive language to arouse feelings of disgust and revulsion against
the accused (McCullough v R [1982] Tas R 43); but note: descriptions of
defendant may be appropriate if entirely supported by evidence (R v Deriz
(1999) 109 A Crim R 329)
o McCullough v R [1982] Tas R 43
 Crown counsel in a murder case emphasised the sanctity of life and the
horrible nature of murder, branding the accused as a ‘despicable’ and
‘disgusting’ man who felt no remorse and who was prepared to kill as
another person might ‘swat a fly’ or ‘flick out a match’
 Conviction was quashed
o R v Deriz (1999) 109 A Crim R 329

 The prosecutor described the defendant’s conduct as ‘barbarous’,

involving ‘sexual atrocities’ and ‘hostages’

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 Held that there was no justification to allow an appeal against the

conviction on this ground
 The prosecution case, according to the court, was entirely
supported by the evidence it led, and so these descriptions were,
given the evidence, not inappropriate
- Prosecutor’s duty of disclosure
o The prosecutor’s duty of disclosure rests on the right of the accused to a fair trial
(R v Brown [1998] AC 367; R v Keogh (No 2) [2015] SASC 180)
 Accused must have adequate notice of case against him or her
o Should disclose:

 any evidence that the jury could reasonably regard as credible, and that
could be of importance to the accused case R v Keogh (No 2) [2015];
 names of and means of finding prospective witnesses in connection with
relevant material (SCR 29.5);
 evidence that may undermine the Crown’s case (R v H [2004] 2 AC 134);
 material that may case doubt on credibility of Crown witnesses (Ragg v
Magistrates’ Court of Victoria (2008) 18 VR 300 referring to Kirby J’s
remark in Mallard v R (2005) 224 CLR 125).
o Rule 29.5 Conduct Rules
 29.5 A prosecutor must disclose to the opponent as soon as practicable all
material (including the names of and means of finding prospective
witnesses in connection with such material) available to the prosecutor or
of which the prosecutor becomes aware which could constitute evidence
relevant to the guilt or innocence of the accused other than material subject
to statutory immunity, unless the prosecutor believes on reasonable
grounds that such disclosure, or full disclosure, would seriously threaten
the integrity of the administration of justice in those proceedings or the
safety of any person.
o Rule 29.6 Conduct Rules

 29.6 A prosecutor who has decided not to disclose material to the

opponent under Rule 29.5 must consider whether:
 29.6.1 the charge against the accused to which such material is
relevant should be withdrawn; or
 29.6.2 the accused should be faced only with a lesser charge to
which such material would not be so relevant.
o See also case law on when disclosure is not required (R v Farquharson [2009]
VSCA 307; R v Spiteri (2004) 61 NSWLR 369)

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o Rule 29.8 Conduct Rules

 29.8 A prosecutor who has reasonable grounds to believe that certain

material available to the prosecution may have been unlawfully or
improperly obtained must promptly:
 29.8.1 inform the opponent if the prosecutor intends to use the
material; and
 29.8.2 make available to the opponent a copy of the material if it is
in documentary form.
o Consequences of failure to disclosure
 Grant of appeal based on the justice of justice
 A retrial because the accused was not given a fair trial
o Rule 29.12 Conduct Rules

 29.12 A prosecutor:
 29.12.1 must correct any error made by the opponent in address on
sentence;
 29.12.2 must inform the court of any relevant authority or
legislation bearing on the appropriate sentence;
 29.12.3 must assist the court to avoid appealable error on the issue
of sentence; and
 29.12.4 may submit that a custodial or non-custodial sentence is
appropriate.
o Prosecutor not permitted to inform the court of the available range of sentences
(Barbaro v R (2014) 253 CLR 58)
 Barbaro v R (2014) 253 CLR 58
 The court made it clear that the prosecutor is not allowed to
provide a range for sentences
 Reasoned
o It “may lead to erroneous views about its importance in the
process of sentencing with consequential blurring of what
should be a sharp distinction between the role of the judge
and the role of the prosecution in that process’ [33]
- Criminal defence lawyers
o Duty to defend the accused regardless of belief as to guilt or innocence
 Where accused confesses guilt:
 Must continue to act if confession made during proceedings (SCR 20.2);

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 Must continue to act if insufficient time for another lawyer to take over
(SCR 20.2; Tuckiar v R (1934) 52 CLR 335)
 If acting for guilty client who pleads not guilty, must not mislead the court
(see SCR 20.2.2). Example:
 Cannot suggest another person committed offence
 Cannot call evidence in support of an alibi
 See New South Wales Bar Association v Punch [2008] NSWADT
78
o A client is entitled to say to a lawyer they want the lawyer’s advocacy not their
judgement
 Emerson v Sparrow (1871)
o Rule 80 Barrister Conduct Rules

 Confession of guilt made during proceedings

 80. A barrister briefed to appear in criminal proceedings whose client
confesses guilt to the barrister but maintains a plea of not guilty:
 (a) should, subject to the client accepting the constraints set out in
(b) - (h) but not otherwise, continue to act in the client’s defence;
 (b) must not falsely suggest that some other person committed the
offence charged;
 (c) must not set up an affirmative case inconsistent with the
confession;
 (d) must ensure that the prosecution is put to proof of its case;
 (e) may argue that the evidence as a whole does not prove that the
client is guilty of the offence charged;
 (f) may argue that for some reason of law the client is not guilty of
the offence charged;
 (g) may argue that for any other reason not prohibited by (b) or (c)
the client should not be convicted of the offence charged; and
 (h) must not continue to act if the client insists on giving evidence
denying guilt or requires the making of a statement asserting the
client’s innocence.
o Disclosure of prior convictions
 No duty to disclose to the court material adverse to the client’s interests
(Boyd v Sandercock [1990] 2 Qd 26)

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 No duty to correct information provided by prosecution if correction is

detrimental to client’s case (R v Rumpf [1988] VR 466)
 Cf misleading court by asserting client has no convictions – SCR 19.10:
 19.10 A solicitor who knows or suspects that the prosecution is
unaware of the client's previous conviction must not ask a
prosecution witness whether there are previous convictions, in the
hope of a negative answer.
o Advice on plea and giving evidence

 Client has sole right to decide whether to plead guilty or not guilty, and
whether to give evidence or not (R v Turner [1970] 2 QB 321.
 Prudent to take written instructions if client is indecisive.
 Erroneous advice as the effect of guilty plea may provide grounds for
appeal for miscarriage of justice (R v Turner [1970]; R v Wilkies (2001)
122 A Crim R 310)
o Client who behaves unlawfully
 Duty to advise client against unlawful conduct and avoid any involvement
in that conduct. May even require lawyer to terminate the retainer
(Greenwood, ‘Ethics and Avoidance Advice’ (1991) 65 Law Institute
Journal 724).
 Examples of clients’ unlawful acts:
 Mortgage fraud or money laundering
 Using false name for trust account or plead to a criminal charge in
a false name
 Using premises for illegal purposes
 Potential consequences for lawyer
 Civil liability:
o Personal and unlimited liability if carry out client’s
instructions that involve a breach of trust (Eden Refuge
Trust v Hohepa [2011] 1 NZLR 197
 Criminal liability:
o Lawyer who aids or abets a client’s criminal actions will be
criminally responsible as party to the offence, or for
criminal conspiracy. Examples:
 giving of tax advice to defraud the tax office – R v
Pearce (unreported, SC(WA), 13 July 2004)

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 Conspiracy to pervert the course of justice – Hatty v

Pilkinton (No 2) (1992) 35 FCR 433
 Disciplinary proceedings:
o Involvement in client’s unlawful conduct can lead to
professional sanction such as a fine or being struck off the
roll (R v Freeman [1993] 2 LPDR 3; Law Society of New
South Wales v Dennis (1981) 7 Fam LR 417)
o Note:

 Fact that lawyer did not originate fraud does not

prevent a disciplinary sanction (Re Scarfone [1998]
2 LPDR 26)
 That lawyer was acting in client’s interest and did
not derive personal pecuniary benefit does not
mitigate seriousness of misconduct (Attorney--
General v Bax [1999] 2 Qd R 9)
 Attorney--General v Bax [1999] 2 Qd R 9
o Falsified documents
o Changed dates on documents

o The lawyer obtained no financial advantage

o He was merely trying to ensure that his client was not
declared bankrupt
 Law Society of New South Wales v Dennis (1981) 7 Fam LR 417
o The lawyer obtained financial advantage

- Duty to obey and uphold the law: Approach to the giving of advice
o Duty not to advise a client as to ways unlawful purpose may be achieved or ways
law can be broken, or advise client to behave contrary to a court order (Legal
Practitioners Complaints Committee v Segler (2009) 67 SR (WA) 280; Matter of
R [1998] 3 LPDR 26)
o Need to distinguish between presenting analysis of legal aspects of questionable
conduct and recommending ways by which crime or fraud might be committed
with impunity
 Example: taxation advice – difference between advice to evade tax and
advice to minimise tax (“tax planning”)

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Lecture 7 (Duties owed to the profession and other responsibilities: Chapter 20, 21 and
22)
- Professional duties owed to other lawyers
o Lawyers have a duty to “be honest and courteous in all dealings in the course of
legal practice” (SCR r 4.1.2).
o In Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, it was remarked
that “[t]hose members of the legal profession who seek to win a momentary
advantage for their clients without observing the usual and proper courtesies invite
correction by the court and disapprobation of their colleagues.
 To the extent that solicitors act in this way, they run the risk of destroying
the confidence and mutual respect which generally distinguishes dealings
between members of the legal profession from other dealings in the
community.” [at 667]
- Professionalism, honesty and courtesy
o Avoid offensive or disparaging comments to and about other lawyers
 should argue a client’s case in a reasoned and dispassionate manner,
without descending into personal invective against the lawyers for the
opponent (Towers v Atkins (No 2) [2015] FCCA 3537)
 Disparaging of offensive language – whether to other lawyers or not
(Legal Profession Complaints Committee v in de Braekt [2012] WASAT
58), and whether in or outside the court (R v Felderhof (2004) 68 OR (3d)
481)– is unprofessional, and can attract disciplinary sanction (Legal
Services Commissioner v Winning [2008] LPT 13)
o It can attract disciplinary sanctions
o Animosity between clients not to be reflected in professional relations

 Acrimony between parties should not affect lawyers’ professional relations

with one another
o Exercise honesty and accuracy in representations (including negotiations)
 Rule 22 Conduct Rules
 22.1 A solicitor must not knowingly make a false statement to an
opponent in relation to the case (including its compromise).
 22.2 A solicitor must take all necessary steps to correct any false
statement made by the solicitor to an opponent as soon as possible
after the solicitor becomes aware that the statement was false.
 See Legal Practitioners Complaints Committee v Fleming (2006) 48 SR
(WA) 29

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 Legal Services Commissioner v Mullins [2006] LPT 12

 The offence occurred during mediation
 It was deemed misleading
 Personal injuries mediation
 The plaintiff became a paraplegic
 The plaintiff was diagnosed with cancer
 This was not disclosed to the opponent
 The plaintiff wanted damages until he dies (i.e 90)
o But if he has cancer he obviously won’t live to that age

 If it had been disclosed, the damages would have been significantly

reduced
 It was later found out
o The insurer sought to recover the settlement damages
 Common law deceit was brought by the legal services
commissioner
 Mullings was required to pay a $20,000 fine
 Legal Practitioners Complaints Committee v Fleming (2006) 48 SR
(WA) 29
 Confirms Mullins
 WA case
 A solicitor who in representing a client in a dispute over a deceased
estate, secured from others interests in the estate a covenant not to
challenge the will, had behaved unprofessionally in conveying the
impression that the will in question was legally enforceable
 The deceased have not executed the will in accordance with the
applicable statutory formalities
 By implying the existence of a valid will , and procuring a
covenant from a third party by concealing the status of the will and
the significance and effect of the covenant, was ‘to act dishonestly
and unfairly’
o Avoid discrimination, harassment and bullying

 Rule 42 Conduct Rules

 42.1 A solicitor must not in the course of practice, engage in
conduct which constitutes:

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o 42.1.1 discrimination;

o 42.1.2 sexual harassment; or

o 42.1.3 workplace bullying.

 COMMENTARY
 Includes behavior which is offensive,
degrading and humiliating
o Duty re confidential information
 Lawyers who receive a document – whether by post, by fax or
electronically – sent by opposing lawyers by mistake should avoid reading
the document and immediately return it to the sender – (see SCR rule 31)
o Rule 31 Conduct Rules – Inadvertent disclosure
 31.1 Unless otherwise permitted or compelled by law, a solicitor to whom
material known or reasonably suspected to be confidential is disclosed by
another solicitor, or by some other person and who is aware that the
disclosure was inadvertent must not use the material and must:
 31.1.1 return, destroy or delete the material (as appropriate)
immediately upon becoming aware that disclosure was inadvertent;
and
 31.1.2 notify the other solicitor or the other person of the
disclosure and the steps taken to prevent inappropriate misuse of
the material.
 31.2 A solicitor who reads part or all of the confidential material before
becoming aware of its confidential status must:
 31.2.1 notify the opposing solicitor or the other person
immediately; and
 31.2.2 not read any more of the material.
 31.3 If a solicitor is instructed by a client to read confidential material
received in error, the solicitor must refuse to do so.
o Should not make threats to seek personal costs order unless justifiable
 Threats to seek a personal costs order against opposing lawyer as a trial
tactic may constitute abuse of process (De Groot v Nominal Defendant
[2005] NSWCA 61)
 Personal cost orders
 Means that the lawyer personally pays the legal cost
 A breach of duty may result in the court ordering a personal cost
order

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 Courts are alert to abuse of process (threatening a personal cost

order when there is no basis)
 “It should be done by making an application not by uttering
threats”
o i.e. a personal costs order should be made by …..

 Threats should not be made unless

o o If concerned about the behaviour of another lawyer, complain in a professional

manner
 Before bringing matter to attention of professional or regulatory body or
lodging a formal complaint, should correspond with lawyer in question,
detailing concerns and inviting a response.
 Note SCR r 32.1 – A solicitor must not make an allegation against another
Australian legal practitioner of unsatisfactory professional conduct or
professional misconduct unless the allegation is made bona fide and the
solicitor believes on reasonable grounds that available material by which
the allegation could be supported provides a proper basis for it.
- Taking advantage of an opponent’s mistake
o As a lawyer’s primary duty is owed to the client, there is no duty to assist one’s
opponent. However, exploiting an opponent’s mistake is not always appropriate or
justifiable, and may give rise to disciplinary sanction: Chamberlain v Law
Society of the Australian Capital Territory (1993) 43 FCR 148
(“Chamberlain”).
 To foster or induce a mistake that may involve the opposing client in
unnecessary expense or delay conflicts with lawyer’s duties to the
profession, community and court.
 Conduct that induces or fosters a mistake may involve or is close to
misrepresentation and is incompatible with “the overriding duty of honesty
that practitioners owe to the courts, their clients and to their fellow
practitioners” [at 155].

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o Important legal principle from Chamberlain:

 Active fostering or inducement of mistake constitutes unprofessional

conduct
o Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR
148
 Tax case
 Involves the opponent taking advantage of a mistake
 Lawyers should not assume that taking advantage of a mistake invariably
falls within legitimate tactics
 $255,000 tax bill
 The deputy commissioner claimed $25,000
 Rather than the 250,000
 It was an error
 In doing so
 Exploiting an opponent’s mistake resulted in a 6 months suspended
 On appeal
 The punishment was reduced
 3 main points
 1. Taking advantage of an opponent’s mistake may, in some
circumstances, be unprofessional
o It is the active fostering or inducement of that mistake that
appears to be the main hallmark of unprofessional conduct
 2. That the opponent is well resourced, knowledgeable and a
frequent litigant does not justify a lawyer fostering or inducing the
perpetuation of the mistake
 3. Where the mistake involves the opposing client in unnecessary
expense or delay, the proper course is to inform the opposing
lawyer of the mistake if doing so will not be a client (or the
satisfaction of outwitting an opponent), it highlights that, as
professionals and participants in the administration of justice,
lawyers have responsibilities that extend beyond their client
 NOTE
 If you reference Chamberlain reference rule 30.1
o Rule 30.1 Conduct Rules

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 30.1: A solicitor must not take unfair advantage of the obvious error of
another solicitor or other person, if to do so would obtain for a client a
benefit which has no supportable foundation in law or fact.
o Practical pointers:

 If opponent’s error is something that is likely to result in delay (e.g.

mistake in documents), appropriate to point out mistake. Reason:
consistent with both duty to client (not in their interests to add to costs and
delay) and the duty to the proper and efficient administration of justice.
 Lawyer who takes advantage of opponent’s mistake by disclosing
privileged document may find himself or herself disqualified from acting
in the matter (see Topic 3C for what constitutes privileged documents)
- Professional duties in communicating with third parties
o Need for professionalism in communications
 Rule 34 Conduct Rules
 SCR r 34.1: A solicitor must not in any action or communication
associated with representing a client:
 34.1.1 make any statement which grossly exceeds the legitimate
assertion of the rights or entitlements of the solicitor’s client, and
which misleads or intimidates the other person;
 34.1.2 threaten the institution of criminal or disciplinary
proceedings against the other person if a civil liability to the
solicitor’s client is not satisfied; or
 34.1.3 use tactics that go beyond legitimate advocacy and which
are primarily designed to embarrass or frustrate another person.
 Breach of the rules may lead to disciplinary sanctions and costs ordered
against lawyer personally (Provident Capital Ltd v Anderson (No 3)
[2013] NSWSC 705)
 Rule 34.1.1
 Avoid making statements calculated to mislead a third party
 Breaches
 Disciplinary actions
 Person costs orders
 Should not use offensive language
 Communication from lawyers should be frank and clear
o Communications with a client of another lawyer (no-contact rule)

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 Lawyer acting for one party should not, without the consent of the
opposing lawyer, communicate directly with that lawyer’s client. See SCR
rule 33:
 Rule 33 Conduct Rules
 33.1 A solicitor must not deal directly with the client or clients of
another practitioner unless:
o 33.1.1 the other practitioner has previously consented;

o 33.1.2 the solicitor believes on reasonable grounds that:

 (i) the circumstances are so urgent as to require the
solicitor to do so; and
 (ii) the dealing would not be unfair to the
opponent's client;
o 33.1.3 the substance of the dealing is solely to enquire
whether the other party or parties to a matter are
represented and, if so, by whom; or
o 33.1.4 there is notice of the solicitor’s intention to
communicate with the other party or parties, but the other
practitioner has failed, after a reasonable time, to reply and
there is a reasonable basis for proceeding with contact
 Communication with a client of another lawyer
 This applies to oral and written communication, and via social
media sites
 Extends to employees and agents of the lawyer
 No-contact rule does not apply to clients – litigants have right to
communicate directly with each other (Perfection Fresh Australia Pty Ltd
v Melbourne Market Authority (No 2) [2013] VSC 342)
 No-contact rule may apply to certain indirect communications (Nauru
Phosphate Royalties Trust v Business Australia Capital Mortgage Pty
Ltd (in liq) [2008] NSWSC 833)
 Client-client
 ay assist in the resolution of the matter
 A suggestion can be found in this case that there is nothing unethical in
assisting the client write a letter that will be sent by the client directly to
the other client, if the lawyer reasonably believes that it would resolve the
matter
 Re IPM Group Pty Ltd [2015] NSWC 240, [61]

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 Attempts to undermine the other client’s trust of their lawyer will be

unprofessional
 Nauru Phosphate Royalties Trust v Business Australia Capital Mortgage
Pty Ltd
 He prepared and distributed material
 Calculated attempt to adduce a suspicious of their lawyers’ advice
 Wanted the other party to abandon the proceedings
o Communications with a client of another lawyer – exceptions to the no-contact
rule
 Acceptable to inquire of opposing party as to whether he or she is
represented and by who (SCR r 33.1.3)
 Acceptable to deal directly with opposing party where opposing lawyer
consents (SCR r 33.1.1)
 Acceptable to deal directly with opposing party if circumstances so urgent
and communication not unfair to the opposing party (SCR r 33.1.2)
 Exceptions
 Mere enquiry to determine if the other party is represented and who
by
 Lawyer consents to the contact
o The contact occurs with the consent to the other party

o The lawyer gives permission

 Communication in circumstances where it is urgent and it is not
unfair to the other party
o Consequences of violating the no-contact rule

 May lead to professional disciplinary sanction (Re Pursley [1995] 4

LDDR 5)
 Repeated breaches may lead to a striking off order (Legal Practitioners
Conduct Board v Wharff [2012] SASCFC 116)
 Breach may also lead to legal consequences, e.g., court ordering the
lawyer to be disqualified in the proceedings (Nauru Phosphate Royalties
Trust v Business Australia Capital Mortgage Pty Ltd (in liq) [2008])
 The court can rule any evidence Inadmissible that was gathered during the
communication
- Professional duties to unrepresented parties

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o Lawyer’s professional responsibility to an unrepresented party may be more

onerous than where that person was legally represented. Reason: lawyer could use
knowledge and position to take advantage of the unrepresented party to advance
client’s interest.
o General proposition: treat unrepresented parties with courtesy and fairness, and do
not take unfair advantage of them
 E.g., do not exert undue pressure when negotiating with an unrepresented
party (Novotny v Crophley [2005] NSWCA 26)
o Should avoid giving legal advice to unrepresented parties

 You need to make it clear that you are not acting for the unrepresented
party
- Professional duties to other lawyers – undertakings
o An ‘undertaking’ is effectively a promise to do something or to refrain from doing
something.
o Rule 6 Conduct Rules Undertakings:
 6.1 A solicitor who has given an undertaking in the course of legal
practice must honour that undertaking and ensure the timely and effective
performance of the undertaking, unless released by the recipient or by a
court of competent jurisdiction.
 6.2 A solicitor must not seek from another solicitor, or that solicitor’s
employee, associate, or agent, undertakings in respect of a matter, that
would require the co-operation of a third party who is not party to the
undertaking. (Re McDougall’s Application [1982] 1 NZLR 141)
o An undertaking is viewed very serious

o Breaching an undertaking is deemed misconduct or contempt

o The solicitor is able to give a reason for the breach

o General rule
 An undertaking should not be given unless it can be upheld
 If an undertaking is taken by anyone in the firm, the whole firm is bound
by the undertaking
o When taking an undertaking for a client, it should be clear that it is not a personal
one (i.e. against the lawyer)
- Potential liability for failure to fulfil undertakings
o Judicial remedies, i.e., liable under the court’s jurisdiction

o Undertaking may be enforced by way of a civil claim for breach of contract

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o Failure to honour personal undertaking can result in a professional disciplinary

consequence
o Undertaking to a court

 A court can enforce it

 E.g undertaking to pay costs
 The court will order you pay them
 Special supervisory jurisdiction held by the court
 Can order lawyer to pay costs incurred by the client
 Can order compensation
o Undertaking to a third party/lawyer
 May be sued by civil penalty or under contract
o Complaint with the legal service board

 Will amount to misconduct if undertaking not upheld

- Failure to fulfil undertakings
o Judicial remedies
 S 264 UL preserves the inherent jurisdiction and powers of the Supreme
Court to require its officers to observe a high standard of conduct
 Order that the undertaking be fulfilled (Udall v Capri Lighting Ltd
(in liq) [1988] QB 907)
 Compensating person who suffers loss due to non-fulfilment
(Udall v Capri Lighting Ltd (in liq) [1988])
o Liability in contract

 Lawyer may be liable if assumes personal liability under it, or otherwise

contracts for an undisclosed principal (remember agency principles from
MLL215)
 Courts closely scrutinise the terms of an undertaking to ascertain whether
the lawyer has given it on the client’s behalf. Any ambiguity is normally
construed strictly against the lawyer (see Gorman v Norton (1887) 8 LR
(NSW) L 479)
 Ambiguity
 Construed strictly
 Gorman v Norton (1887) 8 LR (NSW) L 479
o Solicitor gave an undertaking that a debtor would pay

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o The plaintiff successfully sued for an absconding debtor

 Professional disciplinary liability

 Failure to fulfil personal undertaking given in a professional
capacity is unprofessional, and can generate a professional
discipline (Keppie V Law Society Of The Australian Capital
Territory - (1983) 62 ACTR 9)
 S 298(b) UL – contravention of the Uniform Rules constitutes
unsatisfactory professional conduct or professional misconduct.
- Steps to avoid liability on undertakings
o Avoid giving personal undertakings
o Written undertaking should be in be clear and unambiguous terms

o Be careful in accepting undertakings that lack clarity because if not enforceable,

potential breach of duty to protect client’s interests (Re McDougall’s Application
[1982])
o Need to monitor and supervise the giving of undertakings as undertakings given
by an employee solicitor, law clerk or other employees is an undertaking by the
firm regardless of whether the giver secured proper authority from a partner of the
firm (Hawkins v Gaden (1925) 37 CLR 183)
o Prudent lawyers will avoid giving personal undertakings
o A lawyer if asked to undertake a personal undertaking for their client, the lawyer
should get instructions from the client that they will personally undertake not the
lawyer
o Must ensure that you have the proper authority to undertake on behalf of the client

 Instructions should be obtained in writing

o Lawyers should be wary when accepted an unclear/ambiguous undertaking
o If an undertaking turns out to be unenforceable, the lawyer would have breached
their duty
- Legal duties to third parties
o General rule: solicitor owes a duty only to client who employs him (Ward v Lewis
(1896) 22 VLR 410), but there are circumstances lawyers held liable in tort and
contract
o Circumstances where lawyers held liable in tort to third parties:

 1. Lawyer assumed a responsibility to a third party (Watkins v De Varda

[2003] NSWCA 242):

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 Lawyer gave impression to third party he was also looking out for
his interests even though there was no retainer.
 2. Lawyer makes a negligent misstatement to a third party (Dean v Allin &
Watts [2001] 2 Lloyd’s Rep 249):
 Lawyer (acting only for borrowers) incorrectly advising both
lender and borrower that mere deposit of deeds sufficient and
effective security.
 General rule
 A lawyer only owes a duty to their client
 Lawyer assumed a responsibility to a third party
 If you create an impression the you are representing a client, you
will be liable
 Lawyer makes a negligent misstatement to a third party
 Dean v Allin & Watts [2001] 2 Lloyd’s Rep 249
o The lawyer acting for the borrower

o Advised both the borrower and the lender

o Gave incorrect advice

 3. Lawyer gives opposing client an assurance or undertaking (LT King Pty

Ltd v Besser (2002) 172 FLR 140):
 Lawyer (acting for debtor) gave assurance to creditor’s lawyer that
they held sufficient funds to repay debt in full.
 LT King Pty Ltd v Besser (2002) 172 FLR 140
o Debtor did not have sufficient funds to pay debt
o Creditor sued the solicitor for negligent misstatement

o Assurance was made in an email

 Assurance was that the client could pay the debt
 4. Lawyer’s duty to disappointed beneficiaries (Hill v Van Erp (1997) 188
CLR 159):
 Lawyer’s negligence in preparation of Will rendered gift to
beneficiary invalid. Held: duty of care owed to beneficiary.
 Lawyer gives opposing client an assurance or undertaking
 May give rise to persona liability in contract
 J R Brown

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o Respondent’s solicitor was liable because they did not hold

client’s passport
o Breach permitted the husband to abducted his children

 Lawyer’s duty to disappointed beneficiaries

 Lawyer who drafts a will owes a duty of care to the beneficiaries
 May be liable for loss suffered by the beneficiaries if the will was
not drawn up correctly on the client’s instructions
o Circumstances where lawyers held liable in contract to third parties:
 1. Lawyer often acts as agents for clients.
 Prudent to stipulate in contract lawyer not undertaking personal
liability (see slides on lawyers’ undertakings later)
 2. Lawyers liable as principal for the fees of third parties
 e.g. expert witnesses, surveyors etc. Note SCR:
 Rule 35.1: If a solicitor instructs a third party on behalf of the
client, and the solicitor is not intending to accept personal liability
for payment of the third party’s fees, the solicitor must advise the
third party in advance.
- Conduct of practice – Advertising
o Lawyers may advertise their services – SCR rule 36:

 36.1 A solicitor or principal of a law practice must ensure that any

advertising, marketing, or promotion in connection with the solicitor or
law practice is not:
 36.1.1 false;
 36.1.2 misleading or deceptive or likely to mislead or deceive;
 36.1.3 offensive; or
 36.1.4 prohibited by law.
 36.2 A solicitor must not convey a false, misleading or deceptive
impression of specialist expertise and must not advertise or authorise
advertising in a manner that uses the words “accredited specialist” or a
derivative of those words (including post-nominals), unless the solicitor is
a specialist accredited by the relevant professional association.
o “Accredited specialist”
 Means that after you work for 5 years and do a course
 You can the moniker accredited specialist

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 You can only use ‘specialist’ if you have undertaken a specialist course
- Restrictions on lawyer advertising
o Section 18 of the Australian Consumer Law (schedule 2 of the Competition
and Consumer Act 2010 (Cth)): misleading or deceptive conduct.
 Section 18: Misleading or deceptive conduct
 (1) A person must not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or deceive.
 (2) Nothing in Part 3-1 (which is about unfair practices) limits by
implication
o Section 18 application

 Lawyers advertising
 Dealings with lawyers and another people
 Pro bono work
o Examples
 Legal Profession Complaints Committee v Love [2014] WASAT 84.
 Advertisements quoting past rates of success can imply to consumers same
chance of success will attach to future cases
 “No win-no fee” may give the impression that the legal service is entirely
free of charge when in fact disbursements and other costs are payable – see
s 181 UL for conditions
 Making unsubstantiated claims as specialists or experts (SCR r 36.2)
o Deliberate or reckless overcharge

 Breach of s 18
 Counsel of the QLD law society v Roche 2003 QCA 469
 No win no fee
 Charged $300 per hour
 Charged for wrapping chocolates to be given to a doctor who
corrected a report
 Charged for talking about buying the chocolates
- Other restrictions on methods of soliciting work
o “Ambulance chasing” prohibited – SCR rule 34.2
 34.2 In the conduct or promotion of a solicitor’s practice, the solicitor must
not seek instructions for the provision of legal services in a manner likely

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to oppress or harass a person who, by reason of some recent trauma or

injury, or other circumstances, is, or might reasonably be expected to be, at
a significant disadvantage in dealing with the solicitor at the time when the
instructions are sought.
o Lawyer must disclose to prospective clients the existence of any referral fee
agreement – SCR 12.4.4
 A solicitor will not have breached this Rule (i.e. conflict concerning a
solicitor’s own interests) merely by acting for a client in any dealing in
which a financial benefit may be payable to a third party for referring the
client, provided the solicitor has first disclosed the payment or financial
benefit to the client.
- Practice names and stationery
o Practice names must not mislead as to the nature or structure of the firm, bring the
profession into disrepute, or be unfair to other lawyers or to the public.
 Must not give incorrect impression as to the firm’s size or structure, e.g. ,
sole practitioner should not use suffix “and partners”.
 Neumegen v Neumegen & Co [1998] 2 NZLR 310 – using similar names
can be misleading and deceptive even if there is no intention to do so.
o The firm’s stationery or other publications must not be misleading or deceptive as
to the firm’s structure or the status of any person named in it. Examples:
 Person without practising certificate should not be represented as
practising lawyer
 Allowing letterhead to be used by persons to create misleading impression
to third parties (Legal Services Commissioner v Nomikos [2013] VCAT
1682)
o Legal Profession Uniform Legal Practice (Solicitors) Rules 2015

 9: Business name
 A solicitor must cause the firm or business name of the solicitor or
firm to be mentioned in legible characters on all communications
written in the course of legal practice by the solicitor
- Lawyer business structures
o Traditionally, legal practices conducted either by a sole principal or as a
partnership.
o Now, legal profession legislation permits incorporation of legal practices (ILP)
and multidisciplinary practices (MDP).
o ILP defined by the Corporations Act 2001 (Cth) as a corporation that engages in
legal practice whether or not it also provides services that are not legal services

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 An ILP must have at least one lawyer-director (s 105 UL) who is (or are)
responsible for the management of the legal services it provides and ensure
that non-lawyer directors and employee lawyers behave in accordance
with legal professional standards (s 34(1) UL)
o Three types of practice

 Sole practitioners
 Partner
 2 or more
 Incorporate legal practice
 PLT
 Barristers
 Self employed
 Not permitted to be part of a practice
o Or a partnership
o Or a company

o Multiple disciplinary practices

 For example
 Accounting and law
o Some advantages of ILP:

 Access to capital from investors;

 Ability to involve non lawyers in management;
 Joint and several liability of partners is replaced by vicarious liability of a
practice for the dishonesty of its lawyers.
o Some disadvantages of ILP:
 Onerous nature of the regulatory framework;
 Some taxation and related concerns;
 Exposure to takeovers;
 Directors’ duties to the company may conflict with their duties to clients.
o MDPs is a partnership whereby a law firm joins with one or more other
professional firms to provide services, including legal services (s 32 UL).
Examples:
 Lawyer-accountant;

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 Lawyer-accountant-financial adviser;
 Lawyer-migration agent;
 Lawyer-town planner-surveyor.
o As with ILP, MDPs must comply with the regulatory framework of the legal
profession, and the lawyer-partner must make certain that there are appropriate
management systems in place to ensure that the integrity of the legal profession is
upheld (see Part 3.2 UL).
Lecture 10 (Complaints and discipline: Chapter 23, 24 and 25)
- Concept of ‘professional misconduct’
o ‘Professional misconduct’ is a common law concept – that something is done by a
lawyer ‘which would be reasonably regarded as disgraceful or dishonourable by
his professional brethren of good repute and competency’ (Allison v General
Council of Medical Education and Registration [1894] 1 QB 750, 763)
o Allison v General Council of Medical Education and Registration [1894] 1 QB
750
 Is a medical misconduct case
 The medical practitioner has an advertising campaign making damning
remarks about other doctors
 In order to persuade them to use his practice instead

o Legislation in all jurisdictions provides a non-exhaustive list of conduct that may
constitute unsatisfactory professional conduct or professional misconduct.
- Section 296 Uniform Law
o 296 Unsatisfactory professional conduct
 For the purposes of this Law, unsatisfactory professional conduct includes
conduct of a lawyer occurring in connection with the practice of law that
falls short of the standard of competence and diligence that a member of
the public is entitled to expect of a reasonably competent lawyer.
o Examples of behaviour amounting to ‘unsatisfactory professional conduct’
include:

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- Section 297 Uniform Law

o (1) For the purposes of this Law, professional misconduct includes—
 (a) unsatisfactory professional conduct of a lawyer, where the conduct
involves a substantial or consistent failure to reach or maintain a
reasonable standard of competence and diligence; and
 (b) conduct of a lawyer whether occurring in connection with the practice
of law or occurring otherwise than in connection with the practice of law
that would, if established, justify a finding that the lawyer is not a fit and
proper person to engage in legal practice.
o (2) For the purpose of deciding whether a lawyer is or is not a fit and proper
person to engage in legal practice as referred to in subsection (1)(b), regard may
be had to the matters that would be considered if the lawyer were an applicant for
admission to the Australian legal profession or for the grant or renewal of an
Australian practising certificate and any other relevant matters.

Disciplinary procedures
o Depends on the seriousness and gravity of the misconduct. Orders extensive,
including:
 Striking off: lawyer found not to be fit and proper person to remain in
practice (e.g. Ziems v Prothonotary of the Supreme Court of New South
Wales (1957) 97 CLR 279)
 The lawyer was struck off after being convicted of manslaughter
 He struck and killed a motorcyclist while he was driving under the
influence of alcohol
o He was beforehand assaulted and was on his way to
hospital for medical attention
 High Court
o Found that the striking off was not justified in the
circumstances
o And changed the order to a suspension whilst the lawyer
was in prison
o This because the high court felt that the connection between
what he did was not related to his professional role as a
lawyer

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 Suspension: absence of dishonesty (Law Society of the Australian Capital

Territory v Gates [2006] ACTSC 126; serves to warn others (Re Drew
(1920) 20 SR (NSW) 463; reform the lawyer (Re Evatt (1967) 67 SR
(NSW) 236)
 Law Society of the Australian Capital Territory v Gates [2006]
ACTSC 12
o The solicitor did not comply with trust account obligations
o Failed to properly deal with trust obligations
o 12 month suspension
o The court said that there was an absence of dishonesty
 Re Drew (1920) 20 SR (NSW) 463
o The court felt an order of suspension must be made as a
warning to others
o The lawyer entered documents with the intention to deceive
 He changed the dates on the documents
 He however did not use them
 Re Evatt (1967) 67 SR (NSW) 236
o A barrister assisted two solicitors in excessive overcharging
clients
o Suspended for two years
 Reprimand: not so substantial as to merit suspension or striking off but
nevertheless a serious matter (Legal Profession Complaints Committee v
Detata [2012] WASCA 214)
 Breach of undertaking
 [42] … A reprimand cannot and should not be viewed as the
equivalent of no penalty at all.
 Fines
 Orders to undertake further profession education
 Imposing conditions on the lawyer’s practising certificate

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- Section 290: Determination of consumer matters by local regulatory authority

o Uniform Law
o (1) The designated local regulatory authority may resolve a consumer matter by
making a determination that, in the designated local regulatory authority's view, is
fair and reasonable in all the circumstances.
o (2) In determining a consumer matter, the designated local regulatory authority
may make any of the following orders—
 (a) an order cautioning the respondent or a legal practitioner associate of
the respondent law practice;
 (b) an order requiring an apology from the respondent or a legal
practitioner associate of the respondent law practice;
 (c) an order requiring the respondent to redo the work that is the subject
of the complaint at no cost or to waive or reduce the fees for the work;
 (d) an order requiring—
 (i) the respondent Australian legal practitioner; or
 (ii) the respondent law practice to arrange for a legal practitioner
associate of the law practice—
 to undertake training, education, counselling or be supervised;
 (e) a compensation order against the respondent in accordance with Part
5.5.
o (3) A failure to comply with an order under this section is capable of
constituting unsatisfactory professional conduct or professional misconduct on the
part of—
 (a) any principal of a respondent law practice; and
 (b) any lawyer involved in the contravention.
o COMMENTARY
 ‘consumer matters’
 E.g. costs disputes
- Section 299: Determination by local regulatory authority—unsatisfactory
professional conduct
o (1) The designated local regulatory authority may, in relation to a disciplinary
matter, find that the respondent lawyer or a legal practitioner associate of the
respondent law practice has engaged in unsatisfactory professional conduct and
may determine the disciplinary matter by making any of the following orders—

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 (a) an order cautioning the respondent or a legal practitioner associate of

the respondent law practice;
 (b) an order reprimanding the respondent or a legal practitioner
associate of the respondent law practice;
 (c) an order requiring an apology from the respondent or a legal
practitioner associate of the respondent law practice;
 (d) an order requiring the respondent or a legal practitioner associate of
the respondent law practice to redo the work that is the subject of the
complaint at no cost or to waive or reduce the fees for the work;
 (e) an order requiring—
 (i) the respondent lawyer; or
 (ii) the respondent law practice to arrange for a legal practitioner
associate of the law practice—
 to undertake training, education or counselling or be supervised;
 (f) an order requiring the respondent or a legal practitioner associate of
the respondent law practice to pay a fine of a specified amount (not
exceeding $25 000) to the fund referred to in section 456;
 (g) an order recommending the imposition of a specified condition on
the Australian practising certificate or Australian registration certificate of
the respondent lawyer or a legal practitioner associate of the respondent
law practice.
o (2) If the designated local regulatory authority proposes to determine a
disciplinary matter under this section—
 (a) the designated local regulatory authority must provide the
respondent or associate and the complainant with details of the proposed
determination and invite them to make written submissions to the
designated local regulatory authority within a specified period; and
 (b) the designated local regulatory authority must take into
consideration any written submissions made to the designated local
regulatory authority within the specified period, and may, but need not,
consider submissions received afterwards; and
 (c) the designated local regulatory authority is not required to repeat the
process if the designated local regulatory authority decides to make a
determination in different terms after taking into account any written
submissions received during the specified period; and
 (d) the rules of procedural fairness are not breached merely because no
submissions are received within the specified period and the designated
local regulatory authority makes a determination in relation to the
complaint, even if submissions are received afterwards.
o (3) If the designated local regulatory authority determines a disciplinary matter
under this section, no further action is to be taken under this Chapter with respect
to the complaint.
o (4) If a complaint contains both a consumer matter and a disciplinary matter
and the designated local regulatory authority has already made a determination of
the consumer matter under section 290, the designated local regulatory authority
may, in subsequently making a determination about the disciplinary matter, take
into account the determination already made about the consumer matter, but not so
as to make further orders under that section.
o COMMENTARY
 ‘consumer matters’

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 E.g. costs disputes

- Factors that impact on disciplinary orders
o Frequency of misconduct and prior misconduct findings
 Where isolated, may justify less severe disciplinary sanction (Attorney-
General v Bax [1999] 2 Qd R 9)
 Recurring misconduct reflect lawyer’s indifference (Legal Practitioners
Conduct Board v Le Poidevin (2001) 83 SASR 443
 Practiced law without a practicing certificate
 Ignored statutory notices
 Was struck off for 2 years
o Lawyer’s attitude
 Timely guilty plea combined with genuine remorse (Attorney-General v
Bax [1999])
 The lawyer was representing a client in dire financial
circumstances
 The lawyer falsified documents
 Intentionally deceived creditors’ meeting
 The lawyer persisted with the deception
o Lawyer’s level of appreciation of wrong doing
 Failure to appreciate seriousness of misconduct indicative of unfitness to
practise (New South Wales Bar Association v Evatt (1968) 117 CLR
177); and
 Increases risk of its recurrence (Legal Profession Complaints Committee
v in de Braekt [2013] WASC 124)
 The lawyer mislead the magistrate into believing that certain
evidence was not provided to her by the prosecutor
 Criminal case
 The lawyer was discourteous to the deputy magistrate
 Sent threatening emails the to police officers
 Important in the context of lawyer-client financial dealings (Legal
Practitioners Complaints Committee v Lashansky [2007] WASC 211)
 The lawyer did not keep proper accounts
 Financial matters
o Lawyer’s level of experience
 May be relevant but “a defect in character such as dishonesty is not
something related to experience” (Legal Practitioner v Council of the
Law Society of the ACT [2014] ACTSC 13)
 The lawyer mislead the court by asserting to appear for a bail
petitioner for a bail application even though the bail petitioner did
not give the lawyer instructions to act for him
o Illness and external stressors
 Mental illness or addiction may mitigate seriousness of misconduct but
general reluctance to allow mental illness to excuse dishonest conduct
(Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467)
 Lawyer suffered from borderline personality discorder
 The court held that this did not explain his dishonesty, lack of
frankness or candour
 Evidence of pressure will not usually mitigate appropriate disciplinary
response to proven misconduct, especially if it involves dishonesty (Legal
Practitioners Conduct Board v Hannaford (2002) 83 SASR 277)

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 Respondent misappropriated client fund

 Failure to make truthful disclosure to a legal aid body
 It could be explained by the stress of the illness suffered by his
partner, but it could not be excused by it

 Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42
 The lawyer suffered from depression
 Was struck off for misappropriating client funds and misleading the
court
 Condon v Legal Practitioners Conduct Board (2004) 234 LSKS 314
 Misappropriation of trust moneys
 The court rejected any suggest that ‘the appellant misappropriated
the monies from the trust account due to his mental state or
alcoholism, or that for some reason he did not appreciate what he
was doing on each occasion’
 Law Society of New South Wales v Foreman (1994) 32 NSWLR 408,
449
 ‘[c]haracter is test not by what one does in good times but in bad’
o Testimonials and opinions by third parties
 Of limited impact unless the evidence goes towards lawyer’s good
reputation and integrity and the breach is a minor and isolated one.
Reason: aim of discipline is to maintain public confidence that lawyers
will be trustworthy (Bolton v Law Society [1994] 1 WLR 512)
o Loss suffered by others as a result of misconduct
 That no client suffered (Law Society of New South Wales v Starky
(unreported, CA(NSW), 1979) or that clients have benefited (Bolster v
Law Society of New South Wales (unreported, CA(NSW), 1982) has
little influence on disciplinary order
 Law Society of New South Wales v Starky (unreported, CA(NSW), 1979
 Solicitor was faced with cash flow crisis
 Used client’s fund to trade out of financial difficulties without
informed consent
 Was struck off
 Bolster v Law Society of New South Wales (unreported, CA(NSW),
1982
 A solicitor over a long period received loans from clients to finance
company in which he had an interest
o He did not fully and properly disclosed
 Clients were not advised to take independent legal advice
 Solicitor claims that the interest paid to the client is not less
favourable to the market rate and that his clients did not lose any
money
 He was held to be unfit for practice and stuck off the roll

o Loss already suffered by lawyer as a result of misconduct
 Irrelevant to the aim of protecting the public (Legal Profession
Complaints Committee v Bachmann [2011] WASC 309)
 She conduct herself dishonestly for a long period of time
 She argued that she had already suffered loss
o E.g. financial loss, loss of reputation

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- Disciplinary procedures
o The Uniform Law (UL) contains dispute resolution and complaints provisions
o Making a complaint
 About conduct of law practices and/or lawyers may be made in writing by
any person or body to the Victorian Legal Services Commissioner (LSC)
(ss 265 to 267 UL)
 May be about ‘consumer matters’ or ‘disciplinary matters’ (ss 265 to 269
UL)
o Investigation of complaints
 Consumer matters – LSC not to take action unless at least one of the
parties has unsuccessfully attempted to resolve the matter, or it would be
unreasonable for complainant to do so (s 286 UL)
 Disciplinary matters – LSC may investigate all or part of complaint, and
appoint suitably qualified person to do so (s 283 UL)
- Types of misconduct
o S 296 UL defines unsatisfactory profession conduct to include:
 Conduct of a lawyer when practising law that falls short of the standard of
competence and diligence that a member of the public is entitled to expect
of a reasonably competent lawyer.
o 297 UL defines professional misconduct to include:
 Unsatisfactory professional misconduct of a lawyer where the conduct
involves a substantial or consistent failure to reach or maintain a
reasonable standard of competence and diligence, and
 Conduct of a lawyer that would justify a finding that the lawyer is not a fit
and proper person to engage in legal practice.
o The issue of misconduct and the appropriate sanction for it is determined on the
facts of each case (Ex parte Lenehan (1948) 77 CLR 403)
 The lawyer 20 years ago was guilty of dishonesty offences
 Since then he has had an exemplary record
 War service
 Disclosed this in his admission
 Was admitted
- Examples of misconduct in the court of practice
o Misleading a court or tribunal
 lawyer who knowingly deceives a court or tribunal commits professional
misconduct, and being struck off is a common consequence (see list of
cases in footnote 8 on p. 805 of textbook)
o Misleading another lawyer or a third party
 Doing so conveys a very poor image of the honesty and integrity of
solicitors and brings the profession into disrepute (Attorney-General v
Bax [1999])
o Misleading a regulatory body
 Lawyers obliged to be frank with their regulatory bodies e.g. Law Society,
Legal Services Commissioner, and misleading that body is usually
misconduct (Legal Practitioners Conduct Board v Kerin (2006) SASC
393)
 Kerin was found guilty of unprofessional conduct with respect to
three charges
 Previously found guilty of unprofessional conduct and suspension

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 Was struck off the roll

o Disrespect to the court or its authority
 lawyer’s conviction for contempt of court can lead to disciplinary
consequences (Ellis v Law Society [2008] EWHC 561)
 Solicitor was suspended for persistently made offensive and
derogative allegations to the law society
o Trust accounting irregularities
 Fraudulent misappropriation of trust money is professional misconduct and
a crime, and usually results in an order striking off the lawyer
(Prothonotary of the Supreme Court of New South Wales v Trimarchi
[2003] NSWCA 385)
 Absconded with $500,000 of client’s money
 Struck off and sentenced 2 years imprisonment
o Lawyer-client conflict; client-client conflict; breach of client confidentiality
 See Topic 3
 Breach of these duties can lead to disciplinary consequences
o Overcharging
 S 298(d) UL – charging more than a fair and reasonable amount for legal
costs in connection with the practice of law is conduct capable of
constituting unsatisfactory professional conduct or professional
misconduct
o Delay or neglect
 Gross neglect and delay can constitute professional misconduct as it
endangers client interests and brings the profession into disrepute (Re
Moseley (1925) 25 SR (NSW) 174)
 Mosley acted for a client in a divorce matter
 He filed the petition
 Waited for 14 months before taking the next step
 In another matter
o Dissolving the marriage
o Took deposit
o Nothing was done for 2 years
o Failure to properly supervise
 Serious omissions to properly supervise employees or be vigilant to
activities of partners may amount to professional misconduct, especially
over trust funds (see e.g. Law Society of New South Wales v Foreman
(1991) 24 NSWLR 238; Bridges v Law Society of New South Wales
[1983] 2 NSWLR 361)
 Law Society of New South Wales v Foreman (1991) 24 NSWLR
238
o Solicitor has clerk
o Clerk lent money to an entity that his wife had an interest in
o The solicitor did not supervise the clerk properly, they were
responsible for the breach
 Bridges v Law Society of New South Wales [1983] 2 NSWLR 361
o Partner had grossly breaches fiduciary duties by making
illegitimate loans
o Another partner found out and took verbal assurances that
the loans would not be given out any more

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o By not actively finding out if that was the case the 2nd
partner had to take the blame
 Your principal lawyer does not properly supervisor and a complaint if
made against you, the principal lawyer is also liable
o Relevance of a criminal conviction
 Conviction for conduct inconsistent with integrity expected of lawyers
prima facie evidence of misconduct, e.g. repeated acts of dishonesty (Law
Society of Tasmania v Matthews [2010] TASSC 60)
 Respondent was convicted before a magistrate of offences arising
out of a false declarations to secure a first home owner’s grant
 Struck off the roll
o Convictions for sex offences or domestic abuse
 Disciplinary tribunal or court relies heavily on finding of criminal court
when pursuing disciplinary action
 Certain sex offences undermine trust in practising lawyers e.g. child sex
offences convictions (Barristers’ Board v Pratt [2002] QCA 532)
 The lawyer pleaded guilty to 12 charges of child sex offences
 Struck off the roll
o Drug-related convictions (e.g. importation and trafficking)
 Usually result in striking off because not consistent with fitness to practise
law (see e.g. Re a Practitioner [2004] WASCA 283; Prothonotary of the
Supreme Court of New South Wales v Sukkar [2007] NSWCA 341)
 Re a Practitioner [2004] WASCA 283
o Lawyer was knowingly importing narcotics, in possession
and trafficking drugs
 Prothonotary of the Supreme Court of New South Wales v
Sukkar [2007] NSWCA 341
o Imported drugs
o Gave false evidence
o Conviction for other offences
 Whether convictions for minor offences not involving dishonesty will lead
to disciplinary consequences depend on:
 Seriousness of offence
 What it displays regarding lawyer’s respect for the law
 Frequency of behaviour
 Lawyer’s attitude to law enforcement authorities
 (see e.g. New South Wales Bar Association v Bryson [2003]
NSWADT 19)
o The barrister was convicted of handling a firearm in a
public place
o Fined $10,000 and reprimanded
o It was a minor offence
 Because he did have a license which allowed him to
use a gun for recreational shooting
o Lawyers’ tax indiscretions
 Defrauding the revenue viewed as a disciplinary matter (New South Wales
Bar Association v Hamman (1997) 217 ALR 553: “no moral distinction
between defrauding an individual and defrauding “the Revenue” [at 85])
 The lawyer failed to pay tax

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o Making misleading statements to a court or tribunal other than as a lawyer

 Lawyer’s duty of candour to a court or tribunal not diminished where
lawyer acts in a personal capacity (e.g. Legal Practitioners Complaints
Committee v Dixon [2006] WASCA 27)
 The lawyer in a contested divorce proceeding did not make full
disclosure of his assets
 And deliberately concealed the true position from his wife
 This was deemed unprofessional conduct

Lecture 11 (Complaints and discipline: Chapter 23, 24 and 25)

- Types of complaints
o 2 type of complaints

 (1) Civil Complaints

 Costs dispute, financial lost
 (2) Professional conduct
 Unsatisfactory conduct (less serious), professional misconduct
(more serious)
o Types of Conduct
 S 296 UL defines unsatisfactory profession conduct to include:
 Conduct of a lawyer when practising law that falls short of the
standard of competence and diligence that a member of the public
is entitled to expect of a reasonably competent lawyer.
 297 UL defines professional misconduct to include:
 Unsatisfactory professional misconduct of a lawyer where the
conduct involves a substantial or consistent failure to reach or
maintain a reasonable standard of competence and diligence, and
 Conduct of a lawyer that would justify a finding that the lawyer is
not a fit and proper person to engage in legal practice.
 The issue of misconduct and the appropriate sanction for it is determined
on the facts of each case (Ex parte Lenehan (1948) 77 CLR 403)
- How to make complaint?
o See s 267 of UL

o Time Limits – s 272 of UL

o Making a complaint

 Section 265-284
o Section 267

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 2 types
 Consumer matters
o Section 285-294

 Disciplinary matters
o Section 295-298
 Combination of both
 Section 271
 Applies to mixed complaints
 Priority may be given to resolve the consumer matter first
o Section 269

 Consumer matters
o Section 268
 60 days
 Costs disputes must be made within 60 days of all costs payable
o Section 272

 Time limits on making complaints

o Disciplinary matters
 Complaints must be made within 3 years
 Section 272
o Section 272: Time limits on making complaints

 (1) Subject to subsection (2), a complaint must be about conduct alleged

to have occurred within the period of 3 years immediately before the
complaint is made, but the designated local regulatory authority may
waive the time requirement if satisfied that—
 (a) it is just and fair to deal with the complaint having regard to
the delay and the reasons for the delay; or
 (b) the complaint involves an allegation of professional
misconduct and it is in the public interest to deal with the
complaint.
 (2) To the extent that a complaint involves a costs dispute, the complaint
must be made within the required period referred to in subsection (3), but
the designated local regulatory authority may waive the time requirement
if satisfied that—

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 (a) the complaint is made within 4 months after the required

period; and
 (b) it is just and fair to deal with the complaint having regard to
the delay and reasons for the delay; and
 (c) the lawyer or law practice has not commenced legal
proceedings in respect of the legal costs.
 (3) For the purposes of subsection (2), the required period is the period
of—
 (a) 60 days after the legal costs become payable, except as
provided by paragraph (b); or
 (b) if an itemised bill was requested in
 respect of those costs in accordance with section 187(2)—30 days
after the request was complied with.
 (4) The designated local regulatory authority's decision to waive or
refuse to waive a time requirement under this section is final and cannot be
challenged in any proceedings by the complainant or the respondent.
o Section 291: General role of local regulatory authority in costs disputes

 LSB
 (1) The designated local regulatory authority is, subject to the other
provisions of this Division, to deal with a costs dispute in the same manner
as other consumer matters if—
 (a) the total bill for legal costs is less than $100 000 (indexed)
payable in respect of any one matter; or
 (b) the total bill for legal costs equals or is more than $100 000
(indexed) payable in respect of any one matter, but the total amount
in dispute is less than $10 000 (indexed).
 (2) If a complaint contains a costs dispute that cannot be dealt with
under subsection (1), the designated local regulatory authority is not to
deal with or continue to deal with the dispute, but is to inform the parties
of the right to apply for a costs assessment or to make an application under
jurisdictional legislation for the matter to be determined.
o Section 290
 LSC may make a determination to resolve a consumer matter
 Orders that can be made
 Subsection (2)
 Failure to comply with an order

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 Constitutes unsatisfactory conduct or unprofessional conduct

 Subsection (3)
- Concept of ‘professional misconduct’
o ‘Professional misconduct’ is a common law concept – that something is done by a
lawyer ‘which would be reasonably regarded as disgraceful or dishonourable by
his professional brethren of good repute and competency’ (Allison v General
Council of Medical Education and Registration [1894] 1 QB 750, 763)
o Legislation in all jurisdictions provides a non-exhaustive list of conduct that may
constitute unsatisfactory professional conduct or professional misconduct.
o Examples
 Fraud, dishonesty, criminal activitiy, false resume, deficiencies in trust
accounts,
 Failure to comply with court or tribunal orders
 Plagirsing
 Accepting trust money when not authority
 Section 298
 Examples of unsatisfactory professional conduct or professional
misconduct
 298: Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct
 Without limitation, the following conduct is capable of constituting
unsatisfactory professional conduct or professional misconduct—
o (a) conduct consisting of a contravention of this Law,
whether or not—
 (i) the contravention is an offence or punishable
by way of a pecuniary penalty order; or
 (ii) the person has been convicted of an offence in
relation to the contravention; or
 (iii) a pecuniary penalty order has been made
against the person under Part 9.7 in relation to the
contravention;
o (b) conduct consisting of a contravention of the Uniform
Rules;
o (c) conduct involving contravention of the Legal
Profession Uniform Law Act of this jurisdiction (other than

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this Law), whether or not the person has been convicted of

an offence in relation to the contravention;
o (d) charging more than a fair and reasonable amount for
legal costs in connection with the practice of law;
o (e) conduct in respect of which there is a conviction for
—
 (i) a serious offence; or
 (ii) a tax offence; or
 (iii) an offence involving dishonesty;
o (f) conduct as or in becoming an insolvent under
administration;
o (g) conduct in becoming disqualified from managing or
being involved in the management of any corporation under
the Corporations Act;
o (h) conduct consisting of a failure to comply with the
requirements of a notice under this Law or the Uniform
Rules;
o (i) conduct in failing to comply with an order of the
designated tribunal made under this Law or an order of a
corresponding authority made under a corresponding law
(including but not limited to a failure to pay wholly or
partly a fine imposed under this Law or a corresponding
law);
o (j) conduct in failing to comply with a compensation

order made under this Chapter.

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- Section 296 Uniform Law

o 296 Unsatisfactory professional conduct

 For the purposes of this Law, unsatisfactory professional conduct includes

conduct of a lawyer occurring in connection with the practice of law that
falls short of the standard of competence and diligence that a member of
the public is entitled to expect of a reasonably competent lawyer.
o Less severe
o Examples

 Not appearing in court for your own matter

 Sending documents to the wrong address
 Being rude or aggressive
 Failure to do work on time
 Acting for both vendor and purchaser
 Not communicating effectively with clients

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