What is special about lawyers?

• A view of legal professional ethics Frank Riley December 2010

What will this presentation aim to do?

•

Consider

what is special about lawyers that warrants the application to them of complex ethical precepts • and principles and elaborate statutory regulation

Review

lawyers’ fundamental professional duties and • responsibilities and regulatory legislation

Assess

the value of lawyers’ professional independence and integrity to their clients, their own survival and the society in which they make their living 5747353_1.PPT | What is special about lawyers? page | 2

Professional regulation and ethical principles

• An understanding of the rationale and function of professional regulation is an essential base for good practice • A sound knowledge of the professional duties and responsibilities of a lawyer and a conviction as to their validity and worth are fundamental to good practice and professional survival • A lawyer while accredited to engage in legal practice has responsibilities of a high order 5747353_1.PPT | What is special about lawyers? page | 3

The rationale of the Legal Profession Act 2004

• For the protection of the consumers of legal services and the public generally, and in the interests of the just administration of the law, engagement in legal practice and the use of legal titles are reserved to Australian legal practitioners who are

accredited

,

licensed

and

regulated

according to a legislative scheme designed to facilitate legal practice across State and Territory borders.

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National Legal Profession Reform – an aside

• The initiative of the Commonwealth and Australian Governments (COAG) to enable uniform regulation of the legal profession in all Australian States and Territories • Each State or Territory would apply the law enacted by a lead or host jurisdiction – an applied law scheme • Main features and interim report of Taskforce (9 November 2010) 5747353_1.PPT | What is special about lawyers? page | 5

Lawyers are privileged

• Lawyers enjoy the statutory reservation of legal work and legal titles • When admitted a lawyer is an officer of the Supreme Court and is accredited by the Court • as a person worthy of trust Accreditation continues while a lawyer’s name remains on the Court’s Roll 5747353_1.PPT | What is special about lawyers? page | 6

The Social Contract

• All lawyers who accept the privileges of the office assume its obligations • All share responsibility for the integrity of the justice system and the just administration of • the law The standards of conduct required to maintain accreditation are common to all 5747353_1.PPT | What is special about lawyers? page | 7

Fitness to practise and personal misconduct

• • The unique role of the lawyer in the administration of justice – remaining worthy of accreditation Ziems’ case – Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; A Solicitor v Council of • the NSW Law Society [2004] HCA 1 Tax evasion and professional misconduct – NSW Bar Association v Cummins [2001] NSWCA 284 5747353_1.PPT | What is special about lawyers? page | 8

Professionalism and commercialism

•

The true profession of law is based on an ideal of honourable service. The function of the lawyer is to serve the community in the regulation of its social structures, in the conduct of its commerce and in the

•

administration of justice (

NSW Solicitors Manual 1986

)

Professionalism and commercialism – observations of Allsop P (paper delivered to Australian Academy of Law September 2009) 5747353_1.PPT | What is special about lawyers? page | 9

Special features of solicitor and client relationship

• A fiduciary relationship of trust • and confidence A duty of undivided loyalty of service – ‘twin themes’ of avoiding : conflict of duty and interest, or duty and duty, and • misuse of fiduciary position The duty yields to a paramount duty owed to the Court and the administration of justice 5747353_1.PPT | What is special about lawyers? page | 10

Aspects of confidentiality

• The dimensions of the duty of confidence and its enduring quality (

Bolkiah v KPMG, [1992] 2 AC 222

) • Acting against a former client and Chinese walls (

Asia Pacific Telecommunications v Optus [2007] NSWSC

) • • What is confidential information?

Imputed knowledge (

Newman v Phillips Fox [1999] WASC 171)

• Acting for 2 or more parties, managing conflict and informed consent (ASIC v Citigroup [2007] FCA 963) 5747353_1.PPT | What is special about lawyers? page | 11

Maintaining loyal service and professional independence

• • PCP rule A 18 – “ A practitioner must not act as the mere mouthpiece of the client …” Lying or subverting the law is not excused by compliance with a client’s instructions (

Myers v Elman [1940] AC 282

); (

McCabe v BAT [2002] VSC 73 and [2002] VSCA 197 – see cl 177 LP Reg 2005

) • Lawyers owe duties to fellow practitioners and the community to act fairly and honestly (

LPCC and Fleming [2006] WASAT 352)

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Regulation of the legal profession in NSW

• The Legal Profession Act 2004 and the National Model law – a big picture view • admission and licensing, trust money, costs disclosure and assessment, complaints and discipline, professional indemnity insurance and • • fidelity fund Legal Profession Regulation 2005 PC and P Rules 5747353_1.PPT | What is special about lawyers? page | 13

Embarrassment to ignominy and disgrace!

• Professional misconduct – at common law (Allinson’s case, Kennedy v Incorp. Law Institute NSW)) and by statutory definition (ss. 496,497 LP Act 2004) • Unsatisfactory professional conduct and “mere” • • negligence The disciplinary process Inherent jurisdiction of the Supreme Court 5747353_1.PPT | What is special about lawyers? page | 14

An old but a good definition

Professional misconduct need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting a lawyer’s professional character and is indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, the lawyer’s clients or the public. [from the judgment of Rich J, Kennedy v The Council of the Incorporated Law Institute of NSW, Vol 13 ALJR 563] 5747353_1.PPT | What is special about lawyers? page | 15

Council of the Law Society of New South Wales v Foreman

• In 1989 a partner at Clayton Utz and high profile practitioner in Family Law • Maintaining Family Law practice under pressure from partners to close down • • Acting on property settlement in Family Law dispute Rules required a costs agreement to enable higher rate of charge • Contemporaneous diary note and time sheet of client interview omitted any reference to costs agreement 5747353_1.PPT | What is special about lawyers? page | 16

Foreman’s case (contd.)

• Internal memorandum about costs agreement prompted solicitor to re-write time sheet and include note that she had given a costs agreement to client • The client disputed costs charged and denied • receiving costs agreement An entirely “reconstructed timesheet” was substituted for the original and placed by the solicitor with documents to be produced in the costs proceedings in answer to a subpoena 5747353_1.PPT | What is special about lawyers? page | 17

The descent into chaos

• The plan to repair an omission and “cover-up” • Denial and elaborating the deceit • Rationalisation and justification • The denouement (Law Society of NSW v Foreman [1994] 34 NSWLR 408) 5747353_1.PPT | What is special about lawyers? page | 18

A scandal of old Sydney

• In 1895 a solicitor R D Meagher acted for Dean accused of attempted murder of his wife • • • Dean protested innocence but was convicted Meagher questioned fairness of trial His partner Crick MLA suggested he move for an enquiry but first Dean be asked whether he was guilty • • Meagher asked Dean who confided to him his guilt Meagher concealed that from Crick and supported public agitation which resulted in Royal Commission 5747353_1.PPT | What is special about lawyers? page | 19

A scandal of old Sydney (contd.)

• • Meagher acted for Dean in the Royal Commission As a result of the Commission’s findings Dean was pardoned • Meagher later confided in a member of the Legislative Council who disclosed his deceit • • Meagher and Dean were tried for criminal conspiracy The Full Court in later proceedings ordered the removal of Meagher’s name from the Roll 5747353_1.PPT | What is special about lawyers? page | 20

Meagher’s case – a classic warning “ The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure.” (per Isaacs J)

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Davison v Council of the New South Wales Bar Association – a failure to pay income tax

• A barrister who lodged tax returns but was delinquent • about paying the tax Court of Appeal dismissed appeal from ADT’s order for removal of barrister’s name from the Roll • The Court found that from 1990 to 2004 the barrister “deliberately.. failed to pay or make appropriate contributions to his tax liabilities … in complete disregard of his legal and civic obligations;” and the conduct showed he lacked the character and trustworthiness required of a legal practitioner.

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Professional misconduct in “ordinary” dealings

• Falsely attesting signatures on mortgage documents and affidavits • altering the date on a contract, and substituting an updated front page in a contract, to avoid payment of a fine for late lodgement • misrepresenting the purchase money in a contract to • • avoid duty or to assist borrowing taking advantage of an opponent’s mistake breach of undertakings 5747353_1.PPT | What is special about lawyers? page | 23