LAWS1230 – LAWYERS, ETHICS AND JUSTICE�

Olivia He​

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Disclaimer – This presentation is for revision only and should not serve as a substitute for student’s own study. Presentation is based upon my own studies of the course in the year and trimester which I studied.

If there is a discrepancy between this presentation and what was said in the lectures, please follow what your lecturer said.

AGENDA

Overview of Exam Format​

Law of Lawyering

​Accountability

Critical Analysis

​Implementation/Reform​

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EXAM OVERVIEW

THE LAW OF LAWYERING

Legal analysis of problem scenario using Solicitor Rules, Barrister Rules, LPUL, case law etc

ACCOUNTABILITY

Concerns client recourse against the lawyer if there was a breach of the law of lawyering

Includes mainly complaint procedures but can also include other forms of liability (e.g. contracts, tort etc)

CRITICAL ANALYSIS

Factual analysis on behavioural legal ethics, ethics philosophy etc

Considers why did the characters act the way they did

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IMPLEMENTATION + REFORM

Focused upon practical implementation and potential reform to improve the ethics in the scenario

LAW OF LAWYERING

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WHAT’S INVOLVED

Read scenario carefully to identify all issues

Apply the law to the facts

Be specific

Don’t forget case law!

LAW OF LAWYERING

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Fidelity to the law

• Duty of candour & honesty (e.g. SR rr. 4.1.2, 20, 22; BR rr. 4(c), 50-51, 79-80)
• Duty of integrity (e.g. SR rr. 4.1.2, 4.4.1, 12, 17, 18, 21, 30, 42; BR rr. 4(3), 4(b), 23, 33,42, 43, 45, 60-61, 123)
• Duty to educate clients (e.g. SR rr. 7.1, 7.2; BR rr. 3, 37)

Disclaimer – what’s on this slide is not an exhaustive list of examinable rules/provisions. Please refer to course readings for your revision.

Representing and advising client (SR rr. 4, 7-17; BR rr. 4, 8, 35-38, 42, 79-82, 114-120)

• Competence and care
• Good faith

Money matters (LPUL Part 4.3, s. 174)

Client loyalty & trust

• Duty of confidentiality (SR r. 9; BR r. 114)
• Legal professional privilege (Esso Australia Resources v Commissioner of Taxation (Cth) (1999) 201 CLR 49)

Conflicting loyalties

• Lawyer client conflict (SR r. 12; BR rr. 46-48, 120)
• Client client conflicts
• Concurrent conflicts SR r. 11
• Successive conflicts SR rr. 10

Civility (e.g. SR rr. 32, 33, 34; BR rr. 52, 62-63)

ACCOUNTABILITY – COMPLAINT PROCEDURE

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ACCOUNTABILITY

• Individuals would generally first make a complaint to the Office of NSW Legal Services Commissioner (OLSC)
• OLSC can refer complaints to the Law Society or Bar Association
• Accountability measures differ depending on if consumer or disciplinary matters

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Consumer matters

• Relatively minor disputes
• Complaints relating to the way which the lawyer/firm provided legal services
• LPUL s286 – Prerequisite to resolution action by local regulatory authority
• LPUL s288 – Local regulatory authority can order parties to attend mediation
• If mediation unsuccessful, OLSC can make orders under s290 including:
• Caution
• Requesting an apology
• Redoing work subject to the complaint at no cost
• Undertaking training, education etc
• Compensation

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Disciplinary matters

• Unsatisfactory professional conduct (UPC) or professional misconduct (PM)
• UPC
• Defined under LPUL s 296
• PM
• Defined under LPUL s 297
• Use rules/case law for admission into the legal profession to inform the ‘fit and proper’ element under s 297(2)
• Mere negligence is insufficient to fall under PM, but gross negligence and reckless might; Myers v Elman [1940] AC 282
• OLSC can determine UPC allegations but must refer PM allegations to NCAT
• For disciplinary matters, OLSC (and NCAT) may make orders under LPUL s 299 but only NCAT can make orders specified in LPUL s 302

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Don’t forget to consider possible liability in contract, equity and torts!

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For torts/negligence:

• Rogers v Whitaker (1992) 175 CLR 49 – establishes common law standard of care – ‘that of ordinary skilled person exercising and professing to have that special skill’
• Civil Liability Act s 5O – contains a defence where a professional would not incur liability in negligence if their conduct is widely accepted by ‘peer professional[s]’ as ‘competent professional practice’
• Also consider advocate immunity

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CRITICAL ANALYSIS

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WHAT’S INVOLVED

Behavioural analysis of fact scenario

• ASK why did the characters act the way they did

Consider various ethical theories, ethical lapses, behavioural tendencies, situational pressures etc.

Use evidence (e.g. articles, cases) to support your answer

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Always link back to your fact scenario!

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CRITICAL ANALYSIS

Some things to consider:

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• Breakey’s enablers and disablers
• Enablers – ‘supports’ that enables us to act based on our values and do the right thing
• e.g. moral sensitivity, moral intent etc.
• Disablers – ‘obstacles’ that makes it difficult for us to act according to our values
• e.g. compassion fatigue, over confidence bias, rationalisations etc.
• In article ‘Building Ethics Regimes: Capabilities, Obstacles and Supports for Professional Ethical Decision-Making’

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• Sternlight & Robbennolt’s decision-making errors’, including
• Confirmation bias
• Omission bias
• Pluralistic ignorance
• Framing
• Self-serving bias
• In article ‘Behavioural Legal Ethics’

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• Situational factors
• E.g. high stress level, KPI requirements, tight deadlines, workplace culture

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IMPLEMENTATION / REFORM

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WHAT’S INVOLVED

Think about how what you are proposing and/or the hypothetical proposed by the question would impact the way the characters behaved

Reference evidence (literature, cases etc.)

Be specific – weak answers tend to use blanket or general statements

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Where relevant, consider the 4 lawyering types (pros and cons) and how these different lawyering types would impact the implementation/effectiveness of the proposal

GOOD LUCK EVERYONE!