Transcript Document

Dancing in the Dragon’s Jaws
Ethics CPD - AustLaw
7 March 2014
*With apologies to Bruce Cockburn
Dancing in the Dragon’s Jaws*
Handling those difficult clients with ethics and style
Or…
My client is a
Pain
in the…
Everybody Talks about BAD Lawyers
But sometimes our clients make being good
Hard Work
They don’t
Always
mean it
Lawyers’ Compass
But they can in blissful ignorance
trigger a complexity of conflicting duties for us.
Critical Questions…
1. Fidelity: Am I being true to myself and the
2.
duties I owe to the 4 C’s?
Honesty: Am I being honest, or avoiding
deceit, in my professional relationships?
3. Propriety: Am I being professional and civil
in the way I conduct myself?
4. Competency: Am I able to apply the
expertise and the time required to provide the
best outcome for those I represent?
Supplementary Questions
Consistent with my commitment to justice &
service…
1. Who do I owe duties to (& what are they)?
2. Who is going to be affected by what I do?
3. Are any duties in conflict?
4. Can the conflict be resolved?
5. Is my self-interest in play?
6. Which ethical principles are guiding my duties?
7. What do the Rules/Law say?
8. What is my conscience/values telling me?
A Heads-up for our NSW Solicitors
New South Wales Professional Conduct and
Practice Rules 2013 (Solicitors’ Rules)
Late last year the NSW Law Society announced that the ASCR
will be adopted on 1 January 2014, bringing NSW into line
with SA and Qld.
These Rules comprise:
a) the Australian Solicitors’ Conduct Rules adopted by the
Law Council of Australia on 18 June 2011 (Rules 1-43), and
b) those Rules in the Revised Professional Conduct and
Practice Rules 1995 which deal with practice matters relating
to the practice of law in NSW under the Legal Profession Act
2004 and are therefore outside the coverage of the Australian
Solicitors’ Conduct Rules (Rules 44-58).
So…
Dear
Colleagues
…
What if my client is
An idiot?
The kind that simply doesn’t
help themselves
Not necessarily like this…
Here’s what happens
when you
accept Facebook friend
requests
from people
you don’t know…
Updated: Thu., May. 31, 2012, 6:45 AM
Cop tracked Brooklyn gang Brower Boys by 'friending' them online
By JOSE MARTINEZ
Last Updated: 6:45 AM, May 31, 2012
Posted: 3:05 AM, May 31, 2012
Status update: Busted!
Fourteen members of a Brooklyn gang ended up in handcuffs after idiots in their ranks accepted Facebook
“friend” requests from a cop who was tipped off to their year-long Crown Heights burglary wave, authorities
said yesterday.
“They signed off on their messages with LOL — laughing out loud,” Police Commissioner Ray Kelly said.
“Well, there was a person who was laughing out loud. That was Police Officer Michael Rodrigues of the 77th
Precinct.”
The anti-crime officer friended several alleged members of the Brower Boys gang through the socialnetworking site, then quietly kept an eye on posts where they recklessly crowed that it was “break-in day on
the avenue.”
“He was able to track their next moves,” Kelly said.
The Facebook posts, Rodrigues said, “were basically about going out to make money.”
“They were members of the Brower gang, sometimes just saying how the gang was more than a gang — it was
family,” Rodrigues said of the usual Facebook chatter among gang members.
Police wouldn’t divulge what handle Rodrigues used as his Facebook name.
Breaking through the gang’s coded online chatter, cops were then able to set up surveillance of the thieves
stepping out onto fire escapes and up to rooftops to make their escape. “The Brower Boys became brazen with
their criminal activity,” said Brooklyn District Attorney Charles Hynes.
Read more: http://www.nypost.com/p/news/local/brooklyn/facebook_em_gang_busted_5ZTTJeeMG2U5BJVztT4CjN#ixzz1wsusO0gl
The internet has created
Whole new realms of idiocy!
• The PI client who FaceBooks holiday pics from
the ski fields
• The Family Law client who Instagrams himself
naked and magotted just before the custody
hearing
Quick! Hide it!
But can we?
The QLS’ view…
http://ethics.qls.com.au/sites/all/files/Dirty%20laun
dry%20online%20by%20Stafford%20Shepherd_%20
Proctor%20March%202012.pdf
Legal Profession Reg 2005 s177 (NSW)
(1) An Australian legal practitioner must not give advice to a client to the effect that a
document should be destroyed, or should be moved from the place at which it is kept
or from the person who has possession or control of it, if the practitioner is aware
that:
(a) it is likely that legal proceedings will be commenced in relation to which the
document may be required, and
(b) following the advice will result in the document being unavailable or
unusable for the purposes of those proceedings.
(2) An Australian legal practitioner must not destroy a document or move it from the
place at which it is kept or from the person who has possession or control of it, or aid
or abet a person in the destruction of a document or in moving it from the place at
which it is kept or from the person who has possession or control of it, if legal
practitioner is aware that:
(a) it is likely that legal proceedings will be commenced in relation to which the
document may be required, and
(b) the destruction or moving of the document will result in the document
being unavailable or unusable for the purposes of those proceedings.
(3) Subclauses (1) and (2) apply even if there has been no indication that a specific
person intends to commence proceedings in relation to which the document
concerned may be required.
When we’re dancing in the dragon’s jaws
There’s good and bad ways to respond
This is the bad kind…
LSC v Baker [2005] LPT 002
[211] Charge 17 was particularised and the particulars may be summarised as follows:
(a) In the course of dictating a note to his secretary in the presence of
Sheppard, the respondent said words to the secretary: “I can’t deal with
### morons. Get out of my office.” He later said to the client:
“You’re an absolute moron to have signed the contract without knowing
what you were doing.”
(b) Later in the course of a telephone conversation with Sheppard, the
respondent said: “the whole thing has got out of hand. A lot of bullshit is
going in with this contract.”
(c) On or about 7 August 2002 the client attended at the firm’s offices at the
Gold Coast. While he was sitting in the reception area the respondent
approached him and said: “what the #### are you doing here?” Sheppard:
“I am here to see Julie Sommerville”. Baker: “You don’t have the right to
waste our ####ing time. I have spent enough ####ing time on the ####ing
file. You are a ####ing moron. If you had signed the ####ing contract
properly in the first place, we wouldn’t be in the ####ing mess. #### off
out of my reception area.
LSC v Baker [2005] LPT 002
[212] Charge 18 is that between April 2001 and
April 2002 the practitioner frequently used insulting
and offensive language in communication with or in
the presence of employees. This is particularised as
having been done in direct verbal communication,
on dictation tapes, verbal communications with
clients and others in the presence or hearing of
employees. It is unnecessary to repeat the
particulars of the language used, the particulars of
Charge 17 give the flavour, it is sufficient to say that
it was vulgar, abusive, derogatory and demeaning of
the staff member.
LSC v Baker [2005] LPT 002
[213] There is no doubt that this conduct
occurred. It is inconceivable that the behaviour
the subject of Charges 17 and 18 could ever be
regarded as acceptable behaviour by a solicitor
towards a client or an employee. It is bound to
bring the profession into disrepute. The
practitioner has been slow to recognise that and
apparently does not accept it.
LSC v Baker [2005] LPT 002
[215] Charge 18 deals with staff as did Charge 17(a).
These are more serious charges, a client has the
option of taking their business elsewhere. An
employee is in a much more difficult position.
Moreover the workplace environment reflected by
such conduct is not conducive of an atmosphere of
effective supervision or reflect an environment in
which staff could feel confident they would be
supported and guided in their work; it is in fact
antipathetical to that situation.
LSC v Baker [2005] LPT 002
[224] Each of Charges 17 and 18 is made out.
The conduct, particularly in relation to staff,
given the vulnerable position of staff, the
potential effect on the conduct of the practice
from the perspective of support and
supervision, the practitioner’s persistence and
reluctance to accept the implications of his
behaviour constitutes a high degree of
unprofessional conduct.
Rules - ASCR
4 Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any
matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the
course of legal practice;
4.1.3 deliver legal services competently, diligently
and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and
professional independence; and
4.1.5 comply with these Rules and the law..
Rules - ASCR
5 Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in
the course of practice or otherwise, which
demonstrates that the solicitor is not a fit and
proper person to practise law, or which is likely
to a material degree to:
5.1.1 be prejudicial to, or diminish the public
confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
Rules - ASCR
34 Dealing with other persons
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.
But aren’t we meant to be zealous
advocates??
Where is the line between assertive advocacy
and bullying/intimidation?
Why do lawyers take on the emotional baggage
of their clients?
And seriously folks
Sometimes we get requests we really
should refuse…
Be careful what you say…
You are a family lawyer whose client is afraid of her ex husband. She
asks if you would collect some of her belongings from her former
home. You agree.
While preparing to leave the premises you find yourself in a discussion
with the ex. He is less than polite and you respond:
“You are a grotesquely ugly man! I can’t believe that she would ever
have been with someone as ugly as you!”
The ex complains to the Legal Services Commissioner about your
unprofessional conduct.
• Does he have a case?
• What would the Regulator consider?
LSC v Johnson LPC 006/05
What if my clients
Haunt Me?
The trouble with some former clients…
They keep turning up…
Like this…
15 years ago Fergas & Fiona McTavish were involved in
a motor accident in which Fergas was driving and Fiona
was a passenger.
You represented Fergas in the ensuing charges for
driving without due care and caution, and Fergas and
Fiona in claims for personal injury.
Fergas and Fiona are now divorcing and Fiona has
asked you to represent her in matters relating to the
property settlement and child custody.
Can you?
HOUSE & ALTIMAS [2012] FamCA 625
Consider: Court’s inherent jurisdiction &
Ethical issues re confidentiality (which survives the
retainer (Rule 10)
Brereton J Kallinicos and Anor v Hunt and
Others[2005] NSWSC 1181 at 76
The test is … whether a fair-minded,
reasonably informed member of the public
would conclude that the proper
administration of justice requires that a legal
practitioner should be prevented from acting,
in the interests of the protection of the
integrity of the judicial process and the due
administration of justice, including the
appearance of justice: Asia Pacific
Telecommunications Limited v Optus Networks
Pty Limited [2005] NSWSC 550.
Conflict or Confidentiality?
With the ending of the
former retainer it becomes
less of a conflict issue than
a confidentiality issue.
Lord Millett & the strict duty of
Confidentiality…
“It is a duty to keep the information confidential,
not merely to take all reasonable steps to do so.
Moreover, it is not merely a duty to not communicate the information
to a third party. It is a duty not to misuse it, that is to say, without the
consent of the former client to make any use of it or to cause any use to
be made of it by others otherwise than for his benefit.”
Lord Millett Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
What happens when…
One of your former clients appears as a witness for the
other side … and you are involved in cross
examination?
Acting against a former client?
IF you hold
• Confidential information
• Relevant to the current matter
• That your former client could reasonably believe
would be used to his/her detriment
You cannot act (Bolkiah v KPMG & see NSW Rule 10)
But is this acting against a former client?
ASCR - Solicitors’ Rules
10 Conflicts concerning former clients
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
confidential information of 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.
Enter Fordham
Fordham v Legal Practitioners Complaints Committee (1997)
WAR 467
No breach of confidentiality, but
Cross-examination involved facts common
to her own representation of the former
client
Fordham
The court found that:
• her actions amounted to a breach of loyalty to her
client irrespective of any breach of confidentiality;
• her actions could have led a reasonable observer to
conclude that she had indeed used confidential
information to the detriment of her former client.
• she had breached a duty not to adopt a position
hostile to a former client in the same or a related
matter.
So
• Public perception and
• Risk to public confidence in the legal
profession
played a significant part in the outcome
Those duties to the community are important!
No absolute prohibition on acting BUT
bear these things in mind:
• Confidentiality: Clearly there is a prohibition
on using confidential information gained
during the retainer against your former client.
• “Getting-to-know-you” factors: Not all
confidential information is found in your files.
In criminal and family matters in particular,
the court considers the impressions you
gained about the person – their character,
habits, strengths, weaknesses, attitudes – as
also being “information” gained during the
retainer, and places restrictions on its use due
to concerns over its prejudicial effect.
(Mallesons Stephen Jaques v KPMG Peat
Marwick (1990) 4 WAR 357 at 368)
No absolute prohibition on acting BUT
bear these things in mind:
• Relevance to the current matter: If you are representing a
client in a matter arising from the same set of facts for which
you represented the former client, then cross-examining the
former client becomes problematic. The challenges of
navigating a course through your duties to your current client
and your duties of confidentiality to your former client would
likely place you in an irretrievable conflict of duties. Learn
from Fordham and steer clear.
• Proximity to the current matter: Obviously this is related to
the point above but focuses on the period of time since you
represented the former client. Someone you represented 10
years ago in an unrelated matter is less likely to raise ethical
barriers to cross-examination than someone you represented
a short time ago.
• Strength of the relationship with the former client: If you
were this person’s lawyer over an extended period, your
former client may well regard you as “their lawyer” far more
than someone you represented fleetingly as a duty lawyer. In
such a situation you would also have built up a sizeable bank
of ‘impressions’ that may preclude you from cross-examining
a former client even if the matters are unrelated
The Bread-and-Butter Problem Client
You’re in a pub on a Friday evening and you
overhear some local coppers discussing a
police raid for the following morning.
Your ears prick up when you hear the raid is on
one of your bikie clients.
Do you warn the clients?
What ethical principles guide you?
• LSC v Winning
[2008] LPT 13
What if my client
LIES!?
To me
…and the
Court
Which happened here
Perpetual Trustee v Cowley [2010] QSC 65
McClelland & Anor v Perpetual Trustee Co. Ltd
[2010] QCA 281
2 Issues
Issue 1: The client submitted fraudulent
documents to the Court
Issue 2: The solicitor provided an affidavit
supporting his client’s application.
In doing so her Honour held that "he expressed
a personal opinion which appeared to provide
independent confirmation" of the client's
assertions (para 57 1st inst)
So what you gonna do?
Client lies to the Court?
Lawyer misleads
the Court, be it
inadvertently or not?
Client Lies - Rule 20.1 (ASCR)
20 Delinquent or guilty clients
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:
20.1.1 has lied in a material particular to the court or has
procured another person to lie to the court;
20.1.2 has falsified or procured another person to falsify in any
way a document which has been tendered; or
Client Lies - Rule 20.1 (ASCR)
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;
must –
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
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..
So what you gonna do?
Lawyer misleads
the Court, be it
inadvertently or not?
Lawyer Misspeaks – Rule 19
19 Frankness in court
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.
What about this one?
You are 8 weeks into a trial and your client has maintained that
he was nowhere near the scene of the crime at the time in
question. For 8 weeks you have pursued this defence.
The Crown now produces new evidence of your client’s
presence at the scene during the time in question.
Faced with the new evidence your client changes his story. Yes
he now remembers he was there but did not commit the crime.
What do you do?
Is it just cause for withdrawal?
R v Nerbas [2011] QCA 199
Solicitors advised their client, Mr Nerbas,
• to plead guilty and
• that they had to withdraw as they were now conflicted.
Nerbas continued unrepresented, pleaded guilty as advised and then
appealed the decision.
The Supreme Court upheld the appeal.
“However in my view, this change in his instructions would not have required
or permitted his counsel and solicitor to withdraw from the case. They were
precluded from conducting his case upon any factual basis which they knew to
be false. But they would not have been placed in that position by this change
of instructions. They would have been understandably sceptical about the
applicant’s new instructions. But it was not for them to adjudicate upon their
truth.” McMurdo J at 50
Prof Conduct & Practice Rules 2013
(NSW) ASCR
13.1 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.
What if My Client
threatens
their ex –
Or their boss
Or himself
(or me!)
Or all of us!!
With harm?
Exceptions to confidentiality
ASCR
9.2
A solicitor may disclose confidential client information 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;
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;
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.
Exceptions to confidentiality
LEGAL PROFESSION ACT 2004 - SECT 604
s604 Waiver of privilege or duty of confidentiality
(1) If a client of an Australian legal practitioner makes a
complaint about the practitioner, the complainant is
taken to have waived client legal privilege, or the
benefit of any duty of confidentiality, to enable the
practitioner 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.
9.2.5 Reflected in Bar Rules 80 & 81
80. A barrister whose client informs the barrister that the client
intends to disobey a court’s order must:
(a) advise the client against that course and warn the client of its
dangers;
(b) not advise the client how to carry out or conceal that course;
but
(c) not inform the court or the opponent of the client’s intention
unless (i) the client has authorised the barrister to do so beforehand; or
(ii) the barrister believes on reasonable grounds that the
client’s conduct constitutes a threat to any person’s safety.
Reflected in Bar Rules 80 & 81
81. A barrister whose client threatens the safety of any person
may, notwithstanding Rule 108, if the barrister believes on
reasonable grounds that there is a risk to any person’s safety,
advise the police or other appropriate authorities.
Before you act, consider
 Is my client capable of carrying out the threat? Any
history of violent behaviour or previous threats should
be considered.
 Other than the current outburst is my client acting or
thinking irrationally?
 Does my client have access to weapons or other means
of carrying out the threat?
 Is my client responsive to the rational advice being
provided?
 Do I believe the threat may be real?
Then ensure any disclosure is limited to those who need
to know.
What about This?
Your client has pleaded guilty to sexual
interference with a minor and is sentenced to 14
days jail. While awaiting the Crown’s appeal
against the leniency of the sentence you
discover that your client is HIV+.
• Do you advise the other side?
• What are the Rules & other issues to
consider?
Ethics Calculus
•
•
•
•
•
•
Who do I owe duties to?
What duties do I owe to each?
Are any duties in conflict?
Can the conflict be resolved? How?
What does the Law/Rules tell us?
What do your values tell you? Should they be
considered?
Would it make any difference if your client had not already
pleaded guilty?
See R v Butt 2012 ONSC 4326 (19.07.2012)
http://canlii.ca/en/on/onsc/doc/2012/2012onsc4326/2012onsc4326.pdf
Article: Law Times (Canada) 6 Aug 2012
http://www.lawtimesnews.com/201208069242/Headline-News/Can-lawyers-revealclients-HIV-status
What if my Client…
Won’t pay up?!
Here’s the deal…
You have a regular client who never pays
on time. Lately he’s stopped paying you
altogether and several matters have
outstanding accounts.
What can you do?
You can exercise a lien
You are entitled in these circumstances to
exercise a possessory lien over your client’s
files until the outstanding accounts are
paid.
What if only some of the files are your
client’s personal matters & others involve
retainers with his business partnership?
But what if
One of his personal files contains an
original will?
We can’t hold a lien over a will (see Brennan J in
Hawkins v Clayton).
One of the files contains a passport
Up until 2009 it was believed that no lien could be
exercised over a passport. BUT see Xu v Council of the
Law Society of NSW [2009] NSWCA 430 at 52 - 57
And still BUT…
What if only ONE of the client’s files was
unpaid and he now wants access to one of
the finalised (and paid for) files?
Your possessory lien extends to all client files and
property held by you in your capacity as a solicitor. The
lien also attaches to trust money held by you in your
trust account beneficially for your client, but not monies
held for a particular purpose or for the benefit of a third
party, but the lien only attaches to the amount of your
costs and not to the whole of the trust funds.
And still another BUT…
What if my client has now engaged
another solicitor to finalise the matter –
and the file is needed urgently for Court
proceedings?
Who owns the file?
Rule 14 (ASCR) Client documents
14.1 A solicitor with designated responsibility for a
client’s matter, must ensure that, upon completion or
termination of the law practice’s engagement:
14.1.1 the client or former client; or
14.1.2 another person authorised by the client or
former client, is given any client documents, (or if they
are electronic documents copies of those documents),
as soon as reasonably possible when requested to do
so by the client, unless there is an effective lien.
Who owns the file?
Rule 14 (ASCR) Client documents
14.2 A solicitor or solicitor’s law practice may destroy
client documents after a period of 7 years has elapsed
since the completion or termination of the
engagement, except where there are client instructions
or legislation to the contrary.
****************
But beware! The file belongs to the client, so ensure a
destruction of file clause is included in your retainer
agreement.
Who owns the file?
LIV
7.2 A practitioner must retain, securely and
confidentially, documents relating to a particular
matter and to which a client is entitled:
7.2.1 during the practitioner's engagement for that
matter and at least seven (7) years thereafter;
7.2.2 until the practitioner gives them to the client or a
person authorised by the client; or
7.2.3 until the client instructs the practitioner to deal
with them in some other lawful manner.
Who owns the file?
LIV
7.5 For the purposes of rule 7, the documents to which
a client of a practitioner is entitled include:7.5.1 documents prepared by a practitioner for the
client, or predominantly for the purposes of the client,
for the purposes of the client's matter; and
7.5.2 documents received by a practitioner from a third
party for or on behalf of the client or intended for the
use or information of the client, for the purposes of a
client’s matter.
Back to Lien’s…ASCR
15 Lien over essential documents
15.1 Notwithstanding Rule 14, when a solicitor claims
to exercise a lien for unpaid legal costs over client
documents which are essential to the client’s defence
or prosecution of current proceedings:
15.1.1 if another solicitor is acting for the client, the
first solicitor must surrender the documents to the
second solicitor:
Rule 15 cont
(i) if the second solicitor undertakes to hold the
documents subject to the lien and with reasonable
security for the unpaid costs; or
(ii) if the first solicitor agrees to the second solicitor
agreeing to pay, or entering into an agreement with the
client to procure payment of, the first solicitor’s costs
upon completion of the relevant proceedings.
15.1.2 alternatively, the solicitor, upon receiving
reasonable security for the unpaid costs, must deliver the
documents to the client.
Tripartite Agreement
http://www.lawsociety.com.au/ForSolictor
s/professionalstandards/Costs/tripartitede
ed/index.htm
LIV
7.4 …a practitioner who claims to exercise a lien for
unpaid costs over a client's documents which are
essential to the client's defence or prosecution of
current proceedings, must:7.4.1 deal with the documents as provided in rule 23.4,
if another practitioner is acting for the client; or
7.4.2 upon receiving satisfactory security for the
unpaid costs, deliver the documents to the client.
LIV
23.4 If the first practitioner has terminated the
engagement and the client's documents are essential
to the defence or prosecution of current proceedings
which are continuing before a Court, the practitioner
must surrender possession of the documents to the
client, upon receiving satisfactory security for the
unpaid costs, or to the second practitioner, if so
directed by the client, and, provided that the second
practitioner -
LIV
23.4.1 holds the documents subject to the first
practitioner's lien, if that is practicable, and provides
reasonable security for the payment of the first
practitioner's costs; or
23.4.2 enters into an agreement with the client and
the first practitioner to procure payment of the first
practitioner's costs upon completion of the relevant
proceedings.
LIV
23.5 A practitioner who receives a client's documents
from another practitioner pursuant to an agreement
between the client and both practitioners, which
provides that the practitioner receiving the documents
will pay the first practitioner's costs from money
recovered on the client's behalf in respect of the matter
to which the documents relate, must do all things
which are reasonably practicable on the practitioner's
part to ensure compliance with the agreement.
What if My Client is
HOPELESS!?
(or at least their case probably is).
Like this…
Your client is a committed conservationist who wishes
to challenge a government decision to allow
construction of domestic dwellings in an
environmentally sensitive area.
On examining the grounds for appeal you realise this is
a hopeless case and instruct your client accordingly.
Your client insists on proceeding.
Is this just cause for terminating the retainer?
What are the issues you need to consider?
The curious case of Buxton v
Mills-Owen
[2008] EWHC 1831 (QB) – Justice Mackay
[2010] EWCA Civ 122; [2010] WLR (D) 49 – Court
of Appeal
Entire contract?
Can you claim your fees?
Duties to the Court v Duties to Client?
What if the case is truly ‘hopeless’?
Hopeless Cases
“[I]t is one thing to present a case which is barely arguable
(but arguable nevertheless) but most likely to fail; it is quite
another to present a case which is plainly unarguable and
ought to be so to the lawyer who presents it. In my opinion,
with respect, it is improper for counsel to present, even on
instructions, a case which he or she regards as bound to fail
because, if he or she so regards it, he or she must also regard
it as unarguable.”
Davies JA, Steindl Nominee Pty Ltd v Laghaifer [2003] 2 Qd R 683 at [24]
See Legal Profession Complaints Committee v Carlose [2012]
WASAT 104 for an example of disciplinary proceedings being
brought against a lawyer as a result of pursuing a hopeless
case.
And never forget….
Our conduct and behaviour should reflect the character we aspire to
have as a profession.
This means that as individuals engaged in the profession and as a
profession:
We primarily serve the interests of justice.
We act competently and diligently in the service of our clients.
We advance our clients' interests above our own.
We act confidentially and in the protection of all client
information.
We act together for the mutual benefit of our profession.
We avoid any conflict of interest and duties
We observe strictly our duty to the Court of which we are officers
to ensure the proper and efficient administration of justice
We seek to maintain the highest standards of integrity, honesty
and fairness in all our dealings.
NSW Law Society Statement of Ethics
“Riley’s” NSW Solicitors Manual