Legal Profession Study Notes WEEK TWO ADMISSION In Qld the admitting authority is the SC when sitting as the

Court of A eal! s35 LPA "enerally thee #CA will refuse to grant lea$e to a eal! QLD Law Society v Taylor A li%ants are re%ommended &y the admissions &oard er ss39-40 LPA There are two re'uirements rele$ant for admission (and also %ertifi%ation)! *+ ELI"I,ILITa) Per the Su re!e "ourt #A$!issio%s &ules' s( a li%ants must ha$e %om leted the .Priestley **/ and a re%ognised a%ademi% %ourse &) Com leted PLT (s) A$!issio%s &ules' or Su er$ised Training for one year (s9* A$!issio%s &ules' 0+ S1ITA,ILIT2ust &e a .fit and ro er erson/ to &e a lawyer 3 s3+#+' LPA (also s45(*) for %ertifi%ation) The %ourt %an ro&e into a erson/s intrinsic character er ,a%us v Ql$ Law Society The admissions &oard %an re'uest oli%e re ort on %on$i%tions6 s-( LPA. if they %onsider it .a ro riate/ s-/#/'+ 2ay re'uire a health assessment s-)0 The &asi% goal for de%iding whether an a li%ant is suita&le to &e a lawyer is rote%tion of the u&li%! I%cor orate$ Law I%stitute o1 NS2 v Mea34er S9 LPA sets out the issues rele$ant to suita&ility+ These matters 21ST &e dis%losed &ut are not e7hausti$e+ Is of good fame and character6 Is or has &een a &an8ru t6 #as &een %on$i%ted of an offen%e in Australia or elsewhere6 #as ra%tised law in Australia or elsewhere when not entitled to6 Is &eing9 or has &een9 the su&:e%t of an unresol$ed %om laint %on%erning legal ra%ti%e or dis%i line in another rofession6 #as &een remo$ed from the legal ra%titioner/s roll9 the old &arristers/ or soli%itors/ roll9 or an interstate or foreign roll of lawyers6 #as had rights of legal ra%ti%e %an%elled or sus ended6 #as &ro8en any Australian or foreign law a&out trust a%%ounts6 #as &een in a legal ra%ti%e that was la%ed under su er$ision9 management or re%ei$ershi 6 #as e$er &een ordered not to wor8 in a legal ra%ti%e6 or Is the erson una&le to %arry out the inherent re'uirements of ra%ti%e+ The element of .good fame and %hara%ter/ re'uires a high degree of honesty and %andour+ &e 5a! to%6 this was the %ase a&out the nurse9 if it emerges that an a li%ant has not &een fran8 with the %ourt then their a li%ation is to &e rendered as dou&tful at the least Note with %riminal offen%es s9 the %ourt should in'uire into the nature of offen%e9 how long ago the offen%e was %ommitted9 ersons age when the offen%e was %ommitted And s++ defines a .%on$i%tion/ to in%lude a finding of guilt9 a%%e tan%e of a guilty lea and a %on$i%tion &efore the %ommen%ement of this a%t Continuing o&ligation to dis%lose %on$i%tions and other rele$ant matters under s;< within se$en days Note a%ademi% mis%ondu%t is not a matter listed for dis%losure &ut it has &een %onsidered rele$ant to good %hara%ter &e A,* 7/0048 Q"A -=a%ts! a%ademi% mis%ondu%t9 during PLT he %o ied wor8 &y another student+ Alleged his %o ying was material a$aila&le in the u&li% forum when in fa%t a letter from the >ean said it was su&stantial %o ying+ The student was studying finan%ial stress at the time (had lost his :o&)9 although the >ean said the a ro riate %ourse would ha$e &een to see8 an e7tension+ The %ourts re%ognised this &eha$iour was a one off+

#eld6 %ourt stressed that stress %annot &e an e7%use for dishonesty and that the %rts were %ra%8ing down on this 8ind of &eha$iour+ Also stressed that the student was aware of their strong stan%e against a%ademi% mis%ondu%t+ Told to rea ly in 5 months+ &e Liveri 7/00(8 Q"A +5/ =a%ts! A li%ant in$ol$ed in a%ademi% mis%ondu%t at ?ames Coo8 1ni$ersity+ Initially a lied for a de%laration of her suita&ility under s@5 LPA and they refused to issue a de%laration+ The a li%ant had su&mitted in Trusts9 an arti%le she found on the internet with minor ad:ustments (%hange of heading9 remo$al of aragra hs) as her own wor8+ She alleged that she had su&mitted the .wrong/ assignment although this was not &elie$ed &y the uni$ersity+ =ollowing this finding9 other wor8 &y the a li%ant was re$iewed and the uni$ersity found two other e7am les of lagiarism+ In her a li%ation for admission she %ontinued to %laim that the trusts assignment had &een su&mitted inad$ertently and did not ma8e any admission of mis%ondu%t+ Then in su&missions to the &oard she did ma8e admissions for the three %ounts of a%ademi% mis%ondu%t+ #eld6 as she did not dis%lose the mis%ondu%t ade'uately and seemed to not understand the gra$ity of her a%tions the %ourt found she was not a fit and ro er erson+ They said she %ould &e %ounselled &y senior lawyers to understand the seriousness of her a%tions and a ly at a mu%h later date+ &e 5a! to% 7/00/8 Q"A +/9 =a%ts! was re$iously a nurse and had had his registration re$o8ed for dealing ina ro riately with three females under his %are+ #e had also erformed nursing ser$i%es whilst unregistered and had leaded guilty to this %harge and no %on$i%tion was re%orded+ When Logan #os ital were in$estigating allegations he had $isited a atients home he initially denied &eing there and then %laimed he was there &y a%%ident ha$ing &elie$ed he had hit a %at with his %ar+ In an affida$it to the Nursing Coun%il he admitted going to the home and not &eing in$ited and leaded guilty to using %onfidential info to $isit the home of a atient+ Although the 'uestion on the form as8ed whether he had any %on$i%tions and he answered no9 although te%hni%ally %orre%t9 this should ha$e alerted to the a li%ant to the a ro riateness of further dis%losure The a li%ant did %om lete a %ourse of %ounselling whi%h the %ourt said was to his %redit9 and his em loyers (a law firm) su orted his a li%ation+ #eld6 whilst a erson of mature years he demonstrated a la%8 of rofessional :udgement and dis%retion and misused rofessional ower+ >rew arallels &twn nurses and lawyers &oth wor8ing %losely with %lients+ =o%used on his failure to initially dis%lose his rofessional mis%ondu%t+ Although re:e%ting his a li%ation would %ause hardshi 3 rimary fo%us is on the u&li% interest+ With more %ounselling %ould erha s re a ly in a few years+ ,a%us v Quee%sla%$ Law Society I%c 7/00+8 Q"A +-0 =a%ts! After *; years ra%ti%ing a soli%itor was stru%8 off the roll for three %ounts of using trust money for his ersonal use+ At the time he had &een suffering from se$ere de ression+ #eld! when he re a lied to &e admitted he still failed to see that his %ondu%t was wrong and there was no remorse+ =ailure to understand the gra$ity of his %ondu%t meant that he was not fit and ro er erson+ &e Le3al Pro1essio% Act /0049 re O*. a lawyer 7/00)8 :S" 5/0 Another %ase of a student failing to dis%lose a%ademi% mis%ondu%t and su&se'uently not &eing admitted &e ;ell 7/0058 Q"A +5+ 2r ,ell was &an8ru t &ut dis%losed this+ ,oard was more %on%erned a&out his &rea%hes of >A orders+ #e also made threats to the =amily Court in a dis ute %on%erning %ustody of his %hildren+ When 'uestioned he initially did not feel the threats were im ro er+ Then admitted they were im ro er &ut he was emotional &e%ause it %on%erned his %hildren+ The %ourt allowed 2r ,ell to re a ly at a later date &ut he wished to do so without ad$ertising+ #e failed to follow the %ourt order to ad$ertise and for this it was a arent he was not at the time of hearing a fit and ro er erson+ =urther his initial form was not a full and fran8 dis%losure of his &rea%hes of >A+ Zbiegien 3 Traffi% $iolations not %onsidered serious Ziems

3 3 3 3

Bemo$ed from ,arristers roll+ Con$i%ted of manslaughter and senten%ed to 0 years im risonment+ Car a%%ident and under the influen%e of al%ohol+ Order to stri8e off was set aside+ Instead9 sus ended from ra%tise during time of im risonment+ Per =ullagar ? o ne%essary to loo8 &eyond a mere %on$i%tion and %onsider the whole osition o ersonal mis%ondu%t should &e $iewed differently from rofessional mis%ondu%t Per Kitto ? o not all %on$i%tions lead to dis'ualifi%ation

Re Hampton 3 Need to ma8e full and %om rehensi$e dis%losure and %onsider whether it is a one off or o$er an e7tended eriod of time Re Bell 3 Con$i%tion for fraud under Meat Industry Act9 >A &rea%hes 3 &oth dis%losed and &oth no issues+ 3 #owe$er made allegations a&out the %ourt whi%h amounted to %ontem t 3 was unha y with how %ourt dealt with him+ 3 Nothing dis%losed affe%ted his a&ility to ra%ti%e+ ,1T! 3 >emonstrated ina&ility to distinguish &etween $igorous &ut legitimate ad$o%a%y of a osition 3 Condu%t in%onsistent with the indis ensa&le fun%tions of a legal ra%titioner in the administration of :usti%e LSC v Quinn 3 Serious %riminal %on$i%tion in 0CC< 3 %hild orn+ 3 Stru%8 off+ E$en though there was nothing in the %harge suggesting he %ouldn/t do his :o&+ ,ut this was a gra$e $iolation of the law+ Karla Jacksons Case D 2ade a%%usations against the %ourt 3 they were out to get her D Not suita&le for admission ,y demonstrating she did not ha$e res e%t for the %ourt 3 was not fit to ra%ti%e "o%$itio%al A$!issio% Su reme Court %an admit someone on %onditions the %ourt %onsiders a ro riate! s@;(@) LPA This is generally em loyed for readmission! Re Taylor It seems unli8ely they would e$er im ose these %onditions at an initial admission Edu%ation %onditions Rei !ortensen" #La$yers C%aracter" !oral &nsig%t an 't%ical Blin ness In admission %ases9 edu%ational %onditions ha$e &een atta%hed to the admission ERe Bell; Re Currie; Re Taylor; Gregory; JanusF 3 &ut sim ler G safer ro%edure is to refuse admission until the :udges are satisfied that the %andidate has the minimum ethi%al insight re'uired of a lawyer+ Certifi%ation S4(#+' LPA must &e a fit and ro er erson to hold a ra%ti%ing %ertifi%ate S/4 LPA it is an O==ENCE to ra%ti%e without a ra%ti%ing %ertifi%ate Can only hold one ra%ti%ing %ertifi%ate s4) LPA Law So%iety or ,ar Asso% %an im ose any %ondition whi%h is .reasona&le and rele$ant/ (s;@ LPA) or %an refuse9 sus end9 %an%el or amend a %ertifi%ate (must &e gi$en 0H days noti%e to show %ause s(+ LPA unless it is ne%essary in the u&li% interest s(3)

WEEK T#BEE 25AT IS T5< &OL< O= T5< LA2><&? AND 25O D<"ID<S? +0 ;arristers v Solicitors /0 Mo%o oly o1 wor@ A Ble3al racticeC

.Australian Legal Pra%titioner/ s( LPA is a erson who is admitted and holds a ra%ti%ing %ertifi%ate+ S%hd 0 defines .soli%itor/ and .&arrister/ as a su&Dset of a legal ra%titioner for the ur oses of the rules ,arrister/s are distinguisha&le from soli%itor/s &e%ause ,arrister/s are only allowed to erform a limited ty e of legal ser$i%es Le3al Pro1essio% #;arristers' &ule /00) Bule <<+ ,arristers/ wor8 %onsists of! a) a earing as an ad$o%ate &efore a Court (in%luding in a mediation)6 &) re aring to a ear as an ad$o%ate &efore a Court (in%luding in a mediation)6 %) negotiating for the %lient with an o onent to %om romise the %ase6 d) re resenting the %lient in a %ase a raisal6 e) gi$ing legal ad$i%e6 f) re aring or ad$ising on do%uments to &e used &y the %lient or &y others in the %lient/s affairs6 g) a%ting as a referee9 ar&itrator9 mediator9 mem&er of a tri&unal9 or mem&er of a anel or %ommittee %onstituted under the Legal Profession A%t9 or %ondu%ting a Commission of In'uiry6 and h) %arrying out wor8 ro erly in%idental to the 8inds of wor8 referred to in (a)D(g)+ Bule <H+ A &arrister must not! a) a%t as a erson/s general agent or attorney in that erson/s &usiness or dealings with others6 &) %ondu%t %ontentious %orres onden%e in the &arrister/s name on &ehalf of any erson with others (in%luding u&li% authorities) with whom that erson is dealing9 otherwise than the o onent6 %) la%e herself or himself at ris8 of &e%oming a witness9 &y in$estigating fa%ts for the ur oses of a earing as an ad$o%ate or gi$ing legal ad$i%e9 otherwise than &y i+ %onferring with the %lient9 the instru%ting soli%itor9 ros e%ti$e witnesses or e7 erts6 ii+ e7amining do%uments ro$ided &y the instru%ting soli%itor or the %lient9 as the %ase may &e9 or rodu%ed to the %ourt6 iii+ $iewing a la%e or things &y arrangement with the instru%ting soli%itor or the %lient9 as the %ase may &e6 or i$+ li&rary resear%h6 d) %ommen%e ro%eedings or file ro%ess in any %ourt on &ehalf of the %lient in the &arrister/s name6 e) a%t as a erson/s only re resentati$e in dealings with any %ourt9 otherwise than when a%tually a earing as an ad$o%ate6 f) ser$e any ro%ess of any %ourt6 g) %ondu%t the %on$eyan%e of any ro erty for any other erson6 h) administer any trust estate or fund for any other erson6 i) o&tain ro&ate or letters of administration for any other erson6 :) in%or orate %om anies or ro$ide shelf %om anies for any other erson6 8) re are or lodge returns for any other erson9 unless the &arrister is registered or a%%redited to do so under the a li%a&le ta7ation legislation6 or hold9 in$est or dis&urse any fund for any other erson+ &ule -5 3 a ,arrister must o erate as a sole ra%titioner D D D D ,arristers ty i%ally ta8e &riefs from soli%itors #istori%ally they did not ha$e the legal right to sue for fees Ty i%ally only ha$e a 8tl rlsh with soli%itors 2u%h of their wor8 is immune from suit

2ONOPOL- O= WOBK 1nder s04 it is a %riminal offen%e to engage in Ble3al racticeC without a ra%ti%ing %ertifi%ate+ There are some e7%e tions eg+ "o$ernment legal offi%ers engaged in go$t wor8 and trustee %om anies re aring wills #owe$er9 the meaning of .legal ra%ti%e/ is defined &y %ase law Quee%sla%$ Law Society v Sa%$e #%o/'

2r Sande is a highly 'ualified %on$eyan%er who now o erates in Tweed #eads9 NSW &e%ause the Queensland Law So%iety too8 re eated a%tion against him to maintain their mono oly Sande was rose%uted for not ha$ing a ra%ti%ing %ertifi%ate "or%all v Na3le set out a test . ra%ti%ing as a soli%itor/ D something whi%h is usually done &y a soli%itor D doing something that is ositi$ely ros%ri&ed &y the a%t or rules of %ourt unless done &y a soli%itor D doing something that should only &e done &y a legal ra%titioner to rote%t the u&li% Law i%stitute v Maric 7/00(8 :S" 3(+ The %ourt did not thin8 that a statement on details of mortgages9 %harges and other fa%tors affe%ting land was legal ad$i%e N,! though that if the ad$i%e is in%idental to another lawful ra%ti%e it may not &e .legal ra%ti%e/ under the a%t Law Society v 2i%%i%3 Criminal soli%itor+ One %lient was a &i8ey gang9 had a long history with+ Ti ed the gang off a&out a oli%e raid and the %ourt held that this was ermissi&ly because it is not the role of the lawyer to be a policeman and the lawyer must a%t for the %lient within the law+

BE"1LATOB- ,O>IES The Su reme Court D is rimarily res onsi&le for the su er$ision and dis%i line of the rofession D it has an inherent :urisdi%tion to dis%i line9 %omes from its duty to administer the law in the interests of :usti%e and as art of its authority to admit lawyers! Myers v <l!a% D LPA s+3 the statutory authority of dis%i linary tri&unals does not re%lude the inherent :urisdi%tion of the SC D Note that all %ourts ha$e a ower to dis%i line lawyers &efore them9 "aDoolture Par@ S4o i%3 "e%tre v 24ite I%$ustries! it was argued that the =ed %rt did not ha$e a ower to dis%i line &e%ause it did not admit lawyers to ra%ti%e or ha$e the ower to stri8e off lawyers+ This was irrele$ant9 %ould still dis%i line a lawyer who a%ted in &rea%h of hisIher duty to the %ourt QCAT and Legal Pra%ti%e Committee D more serious matters are heard &y QCAT D QCAT has a full range of owers9 %an remo$e names from the roll and %an%el or sus end ra%ti%ing %ertifi%ates D 2a7 fine is J*CC CCC D See L" ages @@D@4 Legal Ser$i%es Commission D All %om laints are re%ei$ed here and the %ommissioner de%ides whether to in$estigate himself or as8 the rele$ant rofessional &ody to in$estigate D ,ody is inde endent of legal rofession/ State Professional Asso%iations Queensland Law So%iety 3 e7er%ises owers under the LPA Pur oses! issuing ra%ti%ing %ertifi%ates9 ro$iding %ontinuing legal edu%ation9 ro$iding ser$i%es and su ort to soli%itors9 ma8ing su&missions to go$enments on matters of legal im ortan%e9 administering the fidelity fund+ It is a statutory &ody ,ar Asso%iation of Queensland 3 ri$ate %om any limited &y guarantee Now has statutory owers under the legal rofession (&arristers) rule 0CC< National Organisations and In%or orated Legal Pra%ti%es were also %o$ered in this wee8 3 SEE L" @5D @<9 4CD4@

WEEK =O1B <STA;LIS5IN* T5< LA2><& A "LI<NT &<LATIONS5IP EN"A"E2ENT 3 ta8ing on a %lient Soli%itors D %an %hose whether or not to a%t D &ule / Solicitors &ules 3 should agree to a%t in a matter only when he or she reasona&ly e7 e%ts to ser$e the %lient honestly and fairly and with %om eten%e and diligen%e D Prima fa%ie unlawful to dis%riminate ,arristers .Ca& ran8 rule/ D 2ust wor8 so long as the &rief is in a field in whi%h they ra%ti%e9 within their e7 ertise and offered at an a%%e ta&le fee (not CL &ut was regarded &y rofession as essential) D & v T4o!as Pai%e 3 Ers8ine defended the %a& ran8 rule saying e$eryone was entitled to re resentation and failure to re resent im lied that the &arrister had .:udged/ the %lient D This has &een su lemented &y &ule -9 ;arristers &ules! 2ust a%%e t &rief if %ommands and a%%e ta&le fee9 within &arrister/s %a a%ity and su&:e%t to ,arrister/s a$aila&ility EKCEPTIONS TO T#E B1LE Bule L*! A &arrister !ust refuse a &rief if! (a) the &arrister has information whi%h is %onfidential to any other erson in the %ase other than the ros e%ti$e %lient9 and! (i) the information may9 as a real ossi&ility9 &e hel ful to the ros e%ti$e %lient/s %ase6 and (ii) the erson entitled to the %onfidentiality has not %onsented to the &arrister using the information as the &arrister thin8s fit in the %ase6 (&) the &arrister has a general or s e%ial retainer whi%h gi$es9 and gi$es only9 a right of first refusal of the &arrister/s ser$i%es to another arty in the %ase and the &arrister is offered a &rief to a ear in the %ase for the other arty within the terms of the retainer6 (%) the &arrister has reasona&le grounds to &elie$e that the &arrister may9 as a real ossi&ility9 &e a witness in the %ase6 (d) the &rief is to a ear on an a eal and the &arrister was a witness in the %ase at first instan%e6 (e) the &arrister has reasona&le grounds to &elie$e that the &arrister/s own ersonal or rofessional %ondu%t may &e atta%8ed in the %ase6 (f) the &arrister has a material finan%ial or ro erty interest in the out%ome of the %ase9 a art from the ros e%t of a fee in the %ase of a &rief under a s e%ulati$e fee agreement6 (g) the &rief is on the assessment of %osts whi%h in%lude a dis ute as to the ro riety of the fee aid or aya&le to the &arrister9 or is for the re%o$ery from a former %lient of %osts in relation to a %ase in whi%h the &arrister a eared for the %lient6 (h) the &rief is for a arty to an ar&itration in %onne7ion with the ar&itration and the &arrister has re$iously ad$ised or a eared for the ar&itrator in %onne7ion with the ar&itration6 (i) the &rief is to a ear in a %ontested hearing &efore the &arrister/s arent9 si&ling9 s ouse or %hild or a mem&er of the &arrister/s household9 or &efore a &en%h of whi%h su%h a erson is a mem&er (unless the hearing is &efore the #igh Court of Australia sitting all a$aila&le :udges)6 (:) there are reasona&le grounds for the &arrister to &elie$e that the failure of the %lient to retain an instru%ting soli%itor would9 as a real ossi&ility9 seriously re:udi%e the &arrister/s a&ility to ad$an%e and rote%t the %lient/s interests in a%%ordan%e with the law in%luding these Bules+ Bule L<! A &arrister !ay refuse a &rief if! (a) the &rief is not offered &y a soli%itor6 (&) the &arrister %onsiders on reasona&le grounds that the time or effort re'uired for the &rief threatens seriously to re:udi%e the &arrister/s ra%ti%e or other rofessional or ersonal engagements6 (%) the &arrister has reasona&le grounds to dou&t that the fee will &e aid reasona&ly rom tly or in a%%ordan%e with the %osts agreement6

(d) the &rief may9 as a real ossi&ility9 re'uire the &arrister to %rossDe7amine or %riti%ise a friend or relation6 (e) the soli%itor does not agree to a re'uest &y the &arrister that a ro riate attendan%es &y the instru%ting soli%itor9 soli%itor/s %ler8 or %lient re resentati$e will &e arranged from time to time M 6 (f) the ros e%ti$e %lient is also the ros e%ti$e instru%ting soli%itor9 or a artner9 em loyer or em loyee of the ros e%ti$e instru%ting soli%itor9 and has refused the &arrister/s re'uest to &e instru%ted &y a soli%itor inde endent of the ros e%ti$e %lient and the ros e%ti$e %lient/s firm6 or (g) the &arrister9 &eing Senior Counsel9 %onsiders on reasona&le grounds that the &rief does not re'uire the ser$i%es of Senior Counsel+ W#AT IS T#E LE"AL BELATIONS#IPN BETAINEB Soli%itors D The retainer is a 8t for ser$i%es D 2ost retainers are resumed to &e entire9 i+e+ %om lete the wor8 for whi%h you were engaged! Baker D Instru%tions from the %lient %an %ome in any form of %ommuni%ation (LPA s@C;) D ,ut instru%tions must &e %onfirmed in writing Bule 0+0 The Soli%itors rules D Cost agreements must also &e in writing ss@CH9@*C LPA D E$en if these rules are not %om lied with (eg+ Writing) a %ontra%tual rlsh %an still arise orally or im lied from %ondu%t! *roo! v "roc@er D The retained always leads to the %reation of a fidu%iary relationshi ! &e A =ir! o1 Solicitors D EKCL1SION CLA1SESN 3 see age 45 of L" for more detailed dis%ussion+ Traditionally soli%itors %ould not a$ail themsel$es of e7%lusion %lauses this was reiterated in the old Qld Law So% A%t *L;0+ ,1T when the LPA %ame in9 the Qld Law So% A%t was re ealed and the LPA did not in%lude a rohi&ition on e7%lusion %lauses in the retainer+ It is now un%lear whether soli%itors %an ha$e e7%lusion %lauses in the retainer D Any im lied terms relating to the s8ill and diligen%e of a lawyer under a retainer are %oD e7tensi$e with the im lied duty of %are under tort! 5aw@i%s v "layto% D Note a s e%ial retainer is for a arti%ular legal matter and a general retainer is when a %lient em loys a lawyer for all matters %oming within the %lients &usiness D A soli%itor must a%t within the s%o e of the retainer! %ould &e lia&le for &rea%h of warranty of authority D If a soli%itor does not wish to a%t for a erson it is $ery im ortant that nonDengagement is made %lear to that erson+ This %an &e done &y a sim le non engagement letter in am&iguous situations! 2at@i%s v De :er$a ,arristers In a 'uestion always note if the %ontra%t is &etween the ,arrister and Soli%itor or the ,arrister and the %lient+ ,arrister/s ha$e always &een a&le to &e &riefed &y soli%itors+ So then no 8t with %lient and no dis%losure re's to %lient+ If it is a dire%t a%%ess %lient ma8e sure you tal8 a&out how the traditional osition was that a ,arrister %ould only &e &riefed &y a soli%itor (may&e e$en %hu%8 in a %omment a&out how this was a rofessional arrangement e$en though some :udges said it was in the u&li% interest9 see for e7am le Doe $0 ;e%%et v 5ale9 %ould also mention ,arrister6/s would &e &la%8listed &y soli%itors if they too8 dire%t a%%ess %lients)+ This all %hanged with ;arristers &ule -3+ When a%%e ting a dire%t a%%ess %lient 21ST >ISCLOSE =O1B T#IN"S IN WBITIN"! O what the &arrister %an and %annot do under rr <<D<H O that the %lient may need to retain an instru%ting soli%itor O any other disad$antage that may arise if they don/t o&tain an instru%ting soli%itor O %a a%ity of the &arrister to erform their wor8 %om ared with their a&ility to do so with an instru%ting soli%itor Also under LPA s3// a .law ra%ti%e/ whi%h in%ludes a ,arrister9 %an !a@e a costs a3ree!e%t wit4 a clie%t or a%ot4er law ractice0 Note9 ,arristers %ould not re$iously sue for %osts and would add soli%itor/s who did not ay to a ri$ate list 3 un%lear whether it is still ne%essary for these to e7ist sin%e s@00

EN>IN" T#E BETAINEB Normally terminated u on %om letion of the wor8 re'uired &y the retainer+ ,y Client O SB 5+*+0 %lient may terminate relationshi at any time 3 although may &e lia&le for %osts in%urred to date+ ,y Soli%itor O SB 5+*+@ soli%itor must show Eust cause and 3ive reaso%aDle %otice to terminate relationshi O S e%ifi%ally where there is an entire %ontra%t! C= when only as8ed to %om lete s e%ifi% tas8s and do not see matter through to %om letion o In serious %riminal ro%eedings they must gi$e9 in writing9 < days/ noti%e to the %lient and notify the %ourt (5+0+*) o frustration does not amount to termination (eg+ %onfli%ting duties) the %onfli%t ma8es it unlawful for the soli%itor to a%t+ Therefore unli8ely soli%itor will re%o$er fees F <Ga! les o1 3oo$ cause o %lient fails to ay %osts and outlays o %lient ma8es material re resentation o ra%titioner has a %onfli%t of interest o %ontinuing to a%t would &e a &rea%h of duty to the Court O soli%itor must %onfirm in writing when the retainer has %ome to an end ,y ,arrister O ,BB LLD*CH 3 these mostly mirror the %ir%umstan%es when a &arrister must refuse a &rief in the first la%e O A &arrister may return a &rief ursuant to rules LLD*CH after a &rief has &een a%%e ted O See also r@4 3 &arrister must refuse to ta8e any further art in a matter where the %lient has instru%ted them that they ha$e lied to the Court awyers as Agents D rin%i le and agent relationshi with soli%itor and %lient D &arristers more limited (ad$o%ate9 negotiating9 mediation et%) o &arrister is not a general agent6 r<H D Authority determined &y s%o e of the retainer O instru%tions should limit agent a%tion o e7 ress authority %an &e e7 anded &y im lied authority L";* O does not e7tend to starting ro%eedings6 Wright $ Castle O does not e7tend to entering or altering %ontra%t on %lients &ehalf O PiPata $ National =inan%e and Trustees Ltd O im lied and a%tual authority for lawyer.%ondu%ting litigation/ e7tends to %om romisingIma8ing a deal O &ut rudent to get instru%tions O >onellan $ Watson o im lied authority that >onellan was a%ting as agent for %lient when em loying 0nd set of lawyers o ostensi&le authority ossi&le O lawyer hold out that the lawyer has authority9 the la%8 of a%tual authority is o$erridden+ See romissory esto el6 Legione $ #ateley e+g+ e7tending %ontra%t date O Also a lies to %om romising litigation Lawyers =ees D Lawyers %an re%ei$e fees des ite their general duty to a%t in %lient &est interest D Soli%itor o >es ite tension &etween fidu%iary duty (%annot rofit from osition) and earning a fee6 lawyer ,arrister

o o o o o D

Now su&:e%t to same dis%losure re'uirements et% as soli%itor6 ss@0LD@@@ Su&:e%t to statutory limitations on fees to &e %harged in%l+ fee sin relation to ersonal in:uries %laims rr**HD**L6 fees must &e ro er and reasona&le in all the %ir%umstan%es O **H! as agreed9 &ut reasona&le O **L! where no agreement9 ro er and reasona&le su&:e%t to %osts assessor6 s@4* Can ro&a&ly sue to re%o$er fees6 s@00 LPA O a %osts agreement %an &e sued u on li8e any other agreement

Costs >is%losures o Certain information must &e dis%losed in writing (s@00) regarding %osts when dealing dire%tly with u&li%6 s@*C O doesn/t a ly to fees &elow J<;C O No dis%losure to other law firms re'uired6 s@**(*)(%) o s@CH dis%losure re'uirements O The &asis on whi%h fees will &e %al%ulated and %harged O See a&o$e O An estimate of li8ely total fee O The inter$als at whi%h &ills will &e sent O In litigious matters9 a range of %osts that %ould &e re%o$era&le if the a%tion is su%%essful or aid if unsu%%essful O Limitation eriods for a%tions O Bight to a %osts assessment when dis uting a &ill+ O Cost assessor %an loo8 at &ill and de%ide if it is .reasona&le/ O Assessment is &inding (see &elow) O 1 lift fee and method of %al%ulation must &e dis%losed6 s@*@ O If matter is settled9 %osts %onse'uen%es dis%losed6 s@*0 O If another law firm is retained their fees must &edis%losed6 s@CL O A lies where soli%itor &riefs a &arrister6 &arrister doesn/t dis%lose9 soli%itor does o =ailure to dis%lose O %lient %an refuse to ay9 %ost agreement %an &e set aside9 sum %harged %an &e redu%ed &y %ost assessor6 s@*5 Costs Agreements o Legal fees re%o$ered in a%%ordan%e with %ost agreement (or %ourt s%ale)6 s@*L o %lient O sol9 sol O &arrister on %lients instru%tion9 %lient O &ar9 @rd arty aying fees O lawyer6 s@00 o %ost agreement fulfils dis%losure re'uirements and ma8es dis utes at later date more diffi%ult ,illing and Be%o$ery o 2ust deli$er &ill to %lient &efore re%o$ery fees6 s@0L o ,ill must %om ly with s@@C O lum sum or itemised9 signed O statement of %lients right to assessment6 s@@* o Assessment of %ostsIBe$iew O L";5 o Prin%i le is legally res onsi&le for &illing a%tions under their files O LS" v Du11ile$ O Sol Bule @< =idu%iary duties $s %lients &est interest o NS2 LS v =ore!a% O Soli%itor has fidu%iary o&ligations to otential %lient in the ma!ing of a %lient agreement9 and %lient %annot &e reliant on soli%itor in entering the agreement+ Inde endent ad$i%e %an &e sought+ O There must &e full and fran8 dis%losure of the %harging arrangements O The %lient must 8now who in the firm might a%t in9 and %harge for9 the matter

In timeD%osting9 there is otential for a %onfli%t &etween the soli%itorQs duty to the %lient (to minimise fees) and the soli%itor/s ersonal interest (in ma7imising fees and the time s ent on the matter) o QLS v &oc4e O If soli%itor wants to %hange the arrangements for %harging fees should ad$ise %lient to o&tain inde endent legal ad$i%e O If soli%itor intends to %harge for nonD rofessional staff9 %om elling e7 lanation should &e gi$en Cal%ulating =ees o Cannot ha$e a %ontingent fee &ased on a er%entage of l gain6 s@0; o Cannot agree with %lient that lawyer will &e aid out of %ourt earnings6 s@0; o No winDno fee is OK9 &ut time must &e %harged in lum sum9 %ourt s%ale or timeD%osted See Coun%il of the QLS v &oc4e o Conditional %osts agreement ossi&le! 7 fee and y fee if su%%essful O u lift %annot e7%eed 0;R of %osts6 s@04 o "ly%e $ NS2 O s e%ulati$e a%tion (no win no fee) OK9 &ut a er%entage of winnings is im ermissi&le o ,or3e%se% v ;a@er ,o4%so% O E7%essi$e %harge in no win no fee %ase was o$erruled &y %ourt O introdu%tion of ;CI;C rule6 s@4< LPA o ASI" v "iti3rou *loDal Mar@ets Aust PHL O =ull dis%losure of timeD%osting re'uired due to fidu%iary relationshi 6 %lient must understand full im li%ations et% >is%i line for %harging e7%essi$e fees o Pro1essio%al !isco%$uct at "L O Are the fees %harged grossly in e7%ess of what a soli%itor of good re ute and %om eten%y would %hargeN &oc4e "ase O As8ing %lient to sign a 0nd %lient agreement to drasti%ally in%rease aralegal rate was serious &rea%h O Charging unusually high rates for mundane wor8 &y aralegals was &rea%h O >ishonest to %harge for fees they ha$e no right to re%o$er9 LS" v De! sey O Lia&ility e7tended to managing artner6 NSW %ase Ni@olai$is v LS"

WEEK =IAE AD:O"AT<S DITI<S The >1T- NOT TO 2ISLEA> T#E CO1BT ta8es riority o$er the duty to the %lient and it may &e ne%essary for the lawyer to terminate the retainer! New Sout4 2ales ;ar Assoc v Livesey It is PBO=ESSIONAL 2ISCON>1CT to &rea%h this duty and the usual san%tion is dis&arment or stri8ing off! ;arristers ;oar$ v >ou%3 ;arristers &ules6 r 0@ a &arrister must not 8nowingly ma8e a misleading statement to a %ourt on any matter Also Solicitors &ules +40+ Could add in e7am6 that this rule is im ortant &e%ause histori%ally the %ourts were so in%lined to ta8e any statements of fa%t &y a &arrister fa%e $alue and so any allegations of fa%t made &y a &arrister were treated as e$iden%e! NS2 ;ar Assoc v T4o!as #%o /' A er Kir&y ? %iting histori%al te7ts ,e%ause a lawyer has di$ided loyalties and where these duties %onfli%t the duty to the %ourt re$ails and so lawyer/s immunity is artly :ustified to rote%t the ad$o%ates duty to fearlessly %arry out their duty to the %ourt This idea was dis%ussed &y 2ason ? in *ia%%arelli v 2rait4 see L" 54

Now &e%ause of %ourt ri$ilege a erson whose re utation is damaged &y an ad$o%ate in %ourt %annot ta8e %i$il a%tion+ This is why it is so im ortant that a lawyer ta8e great %are in ma8ing allegations against a arty+ ;arristers &ule 3) If an ad$o%ate is to ma8e allegations against any erson they must ma8e sure that they are reasona&ly :ustified &y material a$aila&le to the &arrister9 that they are a ro riate for the ro&ust ad$an%ement of the %lient/s %ase on its merits9 are not made rin%i ally to harass or em&arrass that erson and are not made to rin%i ally gain some %ollateral ad$antage for the %lient9 &arrister or soli%itor out of %ourt9 &ule 3- tal8s a&out how a &arrister must ha$e e$iden%e of allegation and also there is a art a&out if the %lient still wants to ma8e the allegation e$en if they/$e &een ad$ised of the seriousness of ma8ing itM see L" 5; Note the distin%tion &twn allegations in do%uments (filed in %ourt and may &e i%8ed u &y the media &efore trial) and %ross e7amination (when a witness %an deny allegations) "ly%e v NS2 ;ar Associatio% Clyne was the &arrister for 2r ? who had &een in$ol$ed in twenty different ro%eedings relating to the se aration from his wife+ 2r ? was loo8ing for a way to frustrate his wife/s legal a%tion+ Clyne suggested &ringing a ri$ate rose%ution against the wife/s soli%itor9 2ann+ Clyne made a sa$age address against 2ann alleging fraud9 &la%8mail and er:ury+ #e had no e$iden%e of any of this+ This was an A,1SE O= CO1BT PBIAILE"E+ Cannot ma8e allegations if there is no e$iden%e+ Clyne had already %ondu%ted himself on%e &efore in a similar manner and had re%ei$ed a :udi%ial warning+ #e was stru%8 off+ =lower J 5art #a 1ir!' v 24ite I%$ustries A &arrister alleged fraud and there was no &asis for the allegation+ The firm then tried to a eal the wasted %osts order they were gi$en &e%ause of their &arristers a%tions+ The %ourt held that a firm %ould not shelter &ehind the o inion of %ounsel on su%h a &asi% issue as to when it was ro er to ma8e an allegation of fraud Me$cal1 v 2eat4erill The #L did o$erturn a wasted %osts order against two &arristers who had alleged fraud &e%ause the %lient had refused to wai$e ri$ilege ma8ing it im ossi&le for the %ounsel to dis%lose the material they had relied u on in ma8ing the allegations+ Note there may &e an a%tion against the &arrister for mali%ious rose%ution9 mali%ious a&use of ro%ess and %ollateral a&use of ro%ess+ OT#EB >1TIES TO T#E CO1BT Le3al suD!issio%s to %ourt6 informing %ourt of a li%a&le legislation and rele$ant de%isions 3 e$en if they are against lawyers %lient o r*4+5 and Clyne $ NSW ,ar Asso%+ o r 0< &ar e$en if not in %lients &est interest any &inding authority6 any authority de%ided &y an intermediate %ourt of a eal in Australia6 any authority9 in%luding9 any authority on the same or materially similar legislation as that in 'uestion in the %ase9 de%ided at first instan%e un the =ederal Court or a Su reme Court9 or &y su erior a ellate %ourts9 whi%h has not &een disa ro$ed6 or any a li%a&le legislation =actual suD!issio%s to %ourt6 %annot mislead %ourt o 2ust %orre%t any a%%idental misstatement as soon as ossi&le6 r@4 and r*;+*(sol) o Practically6 >uty to not 8nowingly misled the %ourt and to %orre%t any a%%idental misstatement

Practically6 This e7tends to a duty to terminate the relationshi when the lawyer is aware that the %lient has misled the %ourt o Practically6 This duty does not %om el a &arrister to dis%lose fa%ts on the %lient/s %hara%ter or ast9 as long as other statements made on these matters are not misleading! rule @* Mislea$i%3H$is4o%esty outsi$e court o Soli%itor r@C6 SA soli%itor must not engage in %ondu%t9 whether in the %ourse of ra%ti%e or otherwise whi%h is dishonest9 %al%ulated or li8ely to a material degree to a) &e re:udi%ial to the administration of :usti%e9 &) diminish u&li% %onfiden%e in the administration of :usti%e or %) ad$ersely re:udi%e a soli%itor/s a&ility to ra%ti%e a%%ording to these rules+T o A" G 2inister for ?usti%e $ "regory Su&ornI&ri&ed a witness Stru%8 off9 a li%ation for readmission ; years later refused Docu!e%ts ca% !islea$ t4e court o Affida$its %annot %ontain false statements o Soli%itor must ensure %om lete dis%o$ery &y %lient Soli%itor must %ertify to %ourt that the o&ligation of ro er dis%losure has &een e7 lained to %lient6 r005(*) 1CPB <G Parte a licatio%s o E7tremely onerous duty of a%%urate dis%losure of fa%tual maters e$en if not in %lients &est interest where su&:e%t to %lient ri$ilege9 must as8 %lient to wai$e o ,ar r0;6 Sol r*4+4 o Be E&&ett Case! stru%8 off for misleading the %ourt in an e7 arte a li%ation Disclosi%3 4al1-trut4s is a Dreac4 o 2ee8 $ =leming =ailure to dis%lose demotion within Poli%e for%e &efore trial ?ury and :udge left with false im ression that witness was a Chief Ins e%tor 24e% a% a$vocate @%ows 4is clie%ts 3uilt o r@; ,arrister rules may return &rief if enough time for another to &e &riefed If 8ee ing &rief! L"5H o r*;+0 Sol o The line of defen%e is %onstrained for ad$o%ates that 8now the truth9 they %annot run a line that they 8now is in%onsistent with the truth they 8now o Tu%8iar $ B S ress su%h rational %onsiderations as the e$iden%e fairly ga$e rise toT Previous "o%victio%s o r@0 ,ar %annot as8 rose%ution witness if their %lient has rior %on$i%tions in the ho e of negati$e answer 8nowing the truth is the o osite Assista%ce i% ille3al co%$uct o .aiding and a&etting9 %ounselling or ro%uring %ommission of offen%e/6 s< Criminal Code o a %lient diso&eying %ourt order must &e dissuaded against doing so9 &ut no ositi$e duty to inform %ourt unless ersons safety at ris86 r*;+@ 2ea@ or 5o eless "ase o Criminal defendants ha$e right to defend no matter what o Lawyer must dis%ourage ursuit of ho eless %i$il %ase Cannot inform unless threat to someone/s safety6 r*;+@ o Traditional $iew! if lawyer has ad$ised of ho elessness9 &ut still re%ei$es instru%tions9 must issue ro%eedings o >a$ies ?A $iew Steindl Nominees! a &arrister rofessional duty to e7er%ise inde endent :udgment in de%iding whi%h legal oints will &e argued re$ented ho eless %ases &eing started+ If you %an/t argue ho eless oints9 you %an/t argue ho eless %ases+ o A wasted %osts order %an &e made against a firmI artners as o osed to the indi$idual (see rofessional dis%i line %ases) o

o -

Can &e su&:e%t of negligen%e %laim &y %lient6 Kola$o $ Pitsa8is

"ossible Court #rders Wasted Cost Orders against Lawyers o 1CPB allows %ourts to summarily dismiss a %ase without ros e%t of su%%ess o Court has inherent ower to order %osts against any erson9 not only arties to a dis ute soli%itor9 &arrister9 laintiff et% Ca&oolture Par8 Sho ing Centre $ White o Wide enough to allow %ourt to award %osts against a lawyer in &rea%h of his duty to %ourt &y instituting %ourt ro%eedings for ulterior moti$es other than settling dis ute =lower G #art $ White Industries o Professional dis%i line will usually follow for indi$idual lawyer o 2ilu $ Smith Costs on indemnity &asis against &arrister9 no &asis for a eal whatsoe$er+ Argument of la%8 of e7 erien%e doesn/t hel + Contem t of Court o %riminal %ontem t im risonment9 fine or other order o Inherent ower in su reme %ourt statutory ower for other %ourts L"<* o reser$e administration of :usti%e

WEEK SEAEN AN> EI"#T <QIITA;L< DITI<S O= LO>ALT> The rlsh &twn a lawyer and %lient is a fidu%iary one! 5os ital Pro$ucts This means that there is a re&utta&le resum tion that a lawyer has e7er%ised undue influen%e o$er a %lient Some of the duties a lawyer owes to a %lient in%lude6 - duty to maintain %onfidentiality - duty to a$oid a otential %onfli%t of the duty to the %lient and a lawyer/s ersonal interest o duty not to ma8e a ersonal rofit from the fidu%iary osition (other than fees)! ;oar$!a% v P4i s o the duty not to earn a se%ret %ommission or &ri&e! A* 5o%3 Ko%3 o the duty not to &orrow from or lend to a %lient without dis%losure and the %lient/s full9 free and informed %onsent &ut note that SolicitorCs rule ++ ro4iDits Dorrowi%3 !o%ey 1ro! a clie%t o duty not to sell or ur%hase from a %lient without the %lient/s full9 free and informed %onsent - duty to a$oid %onfli%t &twn the duty to a %lient and another &ule 9 SolicitorCs rules (If there is su%h a %onfli%t must sto a%ting for %lient) >uty of %onfidentiality Contra%tual duty! duty to 8ee %lient/s affairs se%ret may &e an e7 ress term &ut is usually im lied! Parry-,o%es v Law Society E'uita&le duty! for %urrent %lients the duty of %onfidentially arises from the fidu%iary relationshi eg+ Can/t use %onfidential info to ma8e a rofit

- What if it is a =OB2EB CLIENTN Cases ro$ided further on+ ,ut &e aware that in %ases su%h as *illies v DiDDetts the SC followed the de%ision of Pri%ce ,e1ri ;ol@ia4 v KPM* and held that no duty of loyalty sur$i$es the end of the retainer+ So the duty of %onfiden%e to former %lients %omes from a general duty 3 any erson who re%ei$es %onfidential information %annot use or dis%lose that info for any ur ose in%onsistent with the reason why the information was im arted! Marria3e o1 *ri11is

ON TOP O= the osition at law there are also additional rofessional ethi%al rules ;arristers &ules r+09 Cannot dis%lose info without %onsent (see L" <;) Solicitors &ule 3 (or %am v Legal )ractitioners Complaints Committee =acts6 = sought s e%ial lea$e to a eal to #CA against finding of rofessional mis%ondu%t+ She argued none of the information she %ould ha$e used %ould &e des%ri&ed as %onfidential9 &e%ause te%hni%ally s ea8ing it had sin%e &een u&lished9 therefore her former %lient %ould not ha$e o&tained an in:un%tion+ Note in this %ase she wanted to %ross e7amine her former %lient 3 and Kir&y ? tal8ed a&out how this is :ust rima fa%ie un rofessional 5el$6 2al%om C? %ast the test for determining if the lawyer was un rofessionally in a osition of %onfli%t (%onfli%t &tw former and %urrent %lients) as .whether a reasona&le o&ser$er9 aware of the rele$ant fa%ts9 would %onsider that the %onfidential information gi$en to the soli%itor &y the former %lient was &eing used &y the soli%itor to ad$an%e the interests of the new %lient to the detriment of the former %lient/+ San%tion was a re rimand Per etual Trustee v "owley6 although there is a duty of %onfidentiality to the %lient9 when the lawyer dis%o$ered that the %lient had a rodu%ed a fraudulent do%ument the lawyer &rea%hed his duty to the %ourt &y lying to the %ourt Permissi&le ,rea%h of Confidentiality To Pre$ent #arm o ,arrister r@5 or Soli%itor r*;+@ &vP A soli%itors reasona&le %on%ern for the welfare of the %lient allowed dis%losure of information to the minimal e7tent ne%essary (lawyer sort to la%e affairs of %lient in %are of Prote%ti$e Commissioner) Lawful >is%losures (SEE NOTES Pg0<) o Knowledge and %onsent of %lient6 ,ar rr*CL(%)9 **C9 **56 sol r@+* o %om elled &y law or to a$oid ro&a&ly %ommission of serious offen%e6 sol rr@+@9 @+4 o Client intends to diso&ey %ourt order and reasona&le grounds to &elie$e serious threat to another6 ,ar r@56 sol r@+< o Legal o&ligation to dis%lose %onfidential &ut not ri$ilege do%uments to &e dis%losed under warrant &e%ause the A%t (legal o&ligation) did not e7 ressly state ri$ilege was ignored6 ,a8er $ Cam &ell o >is%losure in %ourse of ra%ti%e o information &e%omes u&li%9 see a&o$e =ordham Cannot a%%ess %onfidential or ri$ileged information merely to defend yourself o %arter $ 2anaging Partners

U I2POBTANT CASES! *illies v DiDDets The se%ond >s a lied for an order that the soli%itors a%ting for the first >s &e restrained from a%ting &e%ause of a otential %onfli%t+ ,e%ause the se%ond > on%e $isited the offi%es of the first >s lawyers for them to o&tain legal ad$i%e :ointly+ Although the soli%itor %ould not re%all the meeting #elman ? said that &e%ause there was some real ris8 that a su&%ons%ious memory %ould trigger a train of thought that will &e to the detriment of the se%ond > so his #onour granted an in:un%tion restraining the soli%itor from a%ting for the first >+ The lateness of the a li%ation was noted &ut held to &e regretta&le that the first > would only ha$e a short time to o&tain new %ounsel+ It is a $ery stri%t duty+ Potts v ,o%es Mitc4ell In this instan%e the %onfli%t was &e%ause the arty see8ing the in:un%tion had re$iously &een re resented &y a firm whi%h had a rofessional asso%iation with the other arty/s lawyer+ #owe$er9 2%2urdo ? found that &e%ause the asso%iation (only 8e t her name to the artnershi as she handed o$er her %lients) was as a .%onsultant/ and &e%ause she had no o ortunity to see the a li%ants files and had re%ei$ed no information a&out their files there was no real ris8 that she had re%ei$ed any %onfidential information+

Bemedies for ,rea%hing Confidentiality IN?1NCTION 3 must show a real ossi&ility of dis%losure for issue of in:un%tion >A2A"ES (in 8t) or CO2PENSATION (in tort) D Professional dis%i le %an in%lude a %om ensation order from QCAT or Legal Pra%ti%e Committee S e%ifi% remedies o an a%%ount of rofit where lawyer has gained from osition6 P4i o damages6 Sea3er v "o y$eG o deli$ery u and %an%ellation of do%ument6 !arria3e o1 *ri11is o In:un%tion6 Mills v Day Daw% ;loc@ Mi%i%3 "o! a%y "ON=ID<NTIALIT> AND P&I:IL<*< All information is %onfidential &ut some information is ri$ileged Baker v Campbell In$ol$ed the issue of a sear%h warrant+ >o%uments that are ri$ileged CANNOT &e handed o$er to oli%e e$en if they are mention in the sear%h warrant+ The ri$ilege o$errides the warrant+ #OWEAEB9 do%uments not su&:e%t to ri$ilege &ut su&:e%t to the general duty of %onfidentiality must &e handed o$er to the oli%e if they are mentioned in the warrant+ L" lists three elements for %onfidentiality! *+ .dominant ur ose test/ 0+ info is %onfidential @+ the info must &e &twn the %lient and his lawyer a%ting in rofessional %a a%ity 'sso *ustralia Resources Lt v (e eral Commissioner o+ Ta,ation The gi$ing of ad$i%e or litigation must &e the dominant ur ose of the %ommuni%ation+ A %ommuni%ation is ri$ileged if its dominant ur ose was for ad$i%e or litigation+ 5"A %ommented that the ri$ilege e7ists to ser$e the u&li% interest in the administration of :usti%e &y en%ouraging full and fran8 dis%losure &y %lients to their lawyers+ Contrast with the old .sole ur ose/ test in *ra%t v Dow%s whi%h was narrower R v -illiams =acts6 Legal aid lawyer met man trhough introdu%tion agen%y+ Lawyer was aware he had legal ro&lems9 so when she went to meet him9 she too8 some forms from her offi%e+ At the meeting9 the man told the lawyer he felt li8e 8illing his wife 3 he later did+ The lawyer told her su erior9 who made a statement to the oli%e+ The 'uestion was whether the man/s %on$ersation with the lawyer was a %ommuni%ation with her in her rofessional %a a%ity+ 5el$6 Con$ersation was not ri$ileged+ The information was not %ommuni%ated to her while she was a%ting in her rofessional %a a%ity as a legal aid lawyer+ Only the %lient %an wai$e ri$ilege+ Note in =or$!a% the fa%t that the ri$ilege had &een wai$ed for one ur ose did not mean it was wai$ed for another ur ose If a lawyer &rea%hes ri$ilege the %lient has an a%tion for damages9 and there is NO A>AOCATES I221NIT- from lia&ility for words s o8en in &rea%h of ri$ilege ! Do%ella% v 2atso% "5IN<S< 2ALLS ,asi%ally within a law firm it is lawful to dis%lose %onfidential info a&out a %lient9 and the ;ar &ules rr+++-++/ ,ut for %ommer%ial ad$antage law firms might se%tion off some areas of their ra%ti%e from other areas 3 allows them to ta8e on more %lients Bule 4+* of the egal "rofession $%olicitors& Rule '(() states! s v ;oar$!a%

A soli%itor must not a%%e t a retainer to a%t for another erson in any matter against9 or in o osition to9 the interest of a erson (Vthe former %lientV)!D 4+*+* for whom the soli%itor or the soli%itor/s %urrent or former law ra%ti%e or the former law ra%ti%e of a artner or em loyee of the soli%itor or of the soli%itor/s law ra%ti%e has a%ted re$iously and has there&y a%'uired information %onfidential to the former %lient and whi%h may &e material to the matter6 and 4+*+0 if the former %lient might reasona&ly %on%lude that there is a real ossi&ility the information will &e used to the former %lientQs detriment+ A soli%itors/ firm must also9 howe$er9 %om ly with the e$en stri%ter rin%i les of e'uity that rest in the soli%itor/s duty to a$oid a %onfli%t of duties and duty+ Chinese Walls A%%e ted in! (rue%au+ (inance Corp )ty Lt v (ee. Rut%ning /a +irm0 =acts6 ==C instru%ted =B in ro%eedings in *LHH against ?ohn Byle and this wor8 was done in one dis%rete se%tion of =B+ In *LHL ==C sued West a% and West a% instru%ted a artner in another se%tion of =B to defend the a%tion+ ==C sought an in:un%tion against =B to restrain them a%ting for W as he had rior &usiness with W and =B had %onfidential info on how ==C %ondu%ted &usiness+ 5el$6 In:un%tion refused+ Confidential info not rele$ant to the new matter+ There was a redu%ed s%o e for %onfli%t9 as the wor8 was done in different se%tions+ Soli%itors in firm who a%ted for = ga$e underta8ings not dis%lose information a&out = to other in the firm+ The soli%itors had not actually co!!u%icate$ %onfidential info to others in =B+ ,ut %riti%ised in Malleson and Bol!iah where the %ourt em hasised that the duty to a$oid %onfli%ts is a&solute and infle7i&le (it is to actually reserve %onfiden%e) and %annot &e %ured &y an underta8ing or ro%esses to a$oid it+ !alleson Step%en Jac1ues v K)!2 )eat !ar$ick =acts6 #ungerfords9 a firm merged with KP2" engaged 2 for ta7ation ad$i%e that was later in$estigated &y Coro orate Affairs+ CA later retained 2 for rose%ution of 2r Carter9 a artner of KP2" re the same matters+ KP2" alleged 2 had info su&:e%t to ri$ilege and sought an in:un%tion to restrain 2 from a%ting for CA+ 1nderta8ings were gi$en &y soli%itors at 29 romising KP2" they would not dis%lose info+ 5el$6 In:un%tion granted+ I ? %ommented the term Chinese wall was o&sure9 Srelati$ely no$el and otentially orousT6 Sde$ised as an attem t to :ustify re resentation of %onfli%ting interests at the same timeT+ The duty to a$oid a %onfli%t of duty and duty was a&solute and infle7i&le and %oult NOT &e %ured &y an underta8ing+ This rin%i le is arti%ularly im ortant to cri!i%al %ases su%h as this+ )rince Je+ri Bolkia% v K)!2 In this %ase9 Chinese walls were not regarded as effe%ti$e insulation of a firm/s duty of %onfiden%e 1NLESS de artments were ermanently9 o erationally and hysi%ally se3re3ate$+ Note the 8ey oints made &y Lord 2illett! The duties of an a%%ountant to rote%t %onfidential information may &e less than those of a soli%itor &e%ause a soli%itor may also &e &ound &y %lient ri$ilege+ It is im ortant to distinguish the duty of %onfidentiality owed to an e*isting %lient from the duty owed to a former %lient+ The duty owed to the former %lient %annot &e &ased on the fidu%iary relationshi &e%ause this has %ome to an end+ EIs this trueNF There is no duty to defend or ad$an%e the interests of the former %lient9 only to reser$e the %onfidentiality of information gained during the retainer+

It should &e noted9 though9 that the essen%e of the ro&lem with the Chinese wall is %onfli%ting duties+ Therefore9 e$en if the issue is not one urely of a %onfiden%e owed to a former %lient9 &ut a osition of %onfli%t arises9 a firm %an &e en:oined from a%ting for a new %lient with in%om ati&le interests+ It is not ne%essary that the %onfli%t arise in the one transa%tion+ It %ould s ring from different transa%tions! Mar!s and %pencer Group "lc + ,reshfields Bruc!haus -eringer E0CC4F EWCA Ci$ <4*+ The duty is an un'ualified one to preser+e the %onfidentiality9 not merely to ta8e reasonable steps to reser$e it+ That %onfidentiality is reser$ed not only &y not communicating the information to a third arty &ut also &y not allowing any use of it e7%e t for the benefit of the former %lient+ M the former %lient must ro$e that the soli%itor has %onfidential information9 and that the information may &e rele$ant to the new matter in whi%h the interests of the new %lient may &e ad$erse to those of the former %lient+ "i$en that the ris8 is an a$oida&le one (ie9 the firm need not ta8e on the later %lient) it is diffi%ult to :ustify e7 osing the former %lient to any ris8+ #e stated at 00<! .o solicitor should/ without the consent of his former client/ accept instructions unless/ +iewed ob0ecti+ely/ his doing so will not increase the ris! that information which is confidential to the former client may come into the possession of a party with an ad+erse interest1 )otts v Jones !itc%ell 2%2urdo ? de%lined to grant an in:un%tion to restrain a soli%itor from a%ting for a arty in litigation &e%ause the other arty had &een re resented &y a firm with whi%h the soli%itor had had a rofessional asso%iation+ There must &e a real ossi&ility of unlawful dis%losure+ In QL>! a former %lient who see8s an in:un%tion to re$ent a lawyer from a%ting for a new %lient would need to show that the lawyer is in ossession of %onfidential information and that there is a real a%$ %ot !erely a 1a%ci1ul ris@ o1 $isclosure of %onfidential information if the lawyer a%ted for the %lient+ !arks an Spencer v (res%+iel s Lia&ility may &e in%urred e$en where %onfli%t %omes from different transa%tions+ The 'uestion is whether info gained in the transa%tion(s) might &e rele$ant to another+ ,1T NOTE QL> A1T#OBIT- IS =B1E#A1=WW WEEK TEN AN> ELEAEN T&IST A""OINTIN* Lawyers as a =i$uciary Trustee The signifi%an%e of trust a%%ounting A Contains $alues whi%h are essential in understanding the lawyerD%lient relationshi + As a soli%itor9 s e%ifi%ally a rin%i le9 management of trust money is an ine$ita&le fa%et of ra%ti%e+ QPrin%i lesQ are ultimately res onsi&le for the management of a firmQs trust a%%ounts+ The 8ey fo%us of assessment is an understanding of the &asi% rin%i les of trust management+ *over%i%3 Lawyer Trust Accou%ts While a lawyer/s duties in relation to the handling of money are still su&:e%t to rin%i les of e'uity relating to trusts and rofessional duties relating to legal ra%ti%e9 duties relating to the trust a%%ount are largely regulated &y statute+ Current legislation is essentially the %odifi%ation of re$ious %ommon law rin%i les and su&sidiary legislation+

Part @+@ of the egal "rofession Act '(() deals with trust money and trust a%%ounts+

The A%t also em owers go$ernment to ma8e detailed rules a&out how a%%ounts must &e 8e t and so on+ These are set out in Part @+@ of the egal "rofession Regulation '(() ;arristers as Trustees An un%ommon ra%ti%e+

As &arristers ha$e a limited duties and in most %ases it is &oth unlawful (s 045 "A) and unethi%al (r <<(h) and(l) Barristers Rule) for a &arrister to handle other eo le/s money ,arristers are in a fidu%iary relationshi with their %lients In .%2 Bar + i+esey E*LH0F 0 NSWLB 0@*A &arrister too8 trust money (theirs at law)+ The %ourt indi%ated that if a &arrister re%ei$es money9 they must immediately ass it to a soli%itor otherwise a &rea%h of duty has o%%urred under &oth the a%t and the rules+ Smith $+ 2%Custer 3 A disgruntled %lient who had failed in a %i$il a%tion sued their &arrister and soli%itor arguing that the %ase itself was a %hose in a%tion and that negligen%e had o%%urred and that the &arrister and soli%itor were trustees of that a%tions+ It was held that an a%tion is a %hose in a%tion &ut not held on trust for a %lient+ ,arristers are not a general agent for a %lient+ A &arrister may a%t as agent or trustee in a ri$ate %a a%ity! r HC Barristers Rule Barristers Rule r H4(a)! a &arrister may re%ei$e ad$an%e ayment of fees &ut must hold in se arate a%%ountD an attra%ti$e o tion (ie %C + Griffiths E0CCHF LPT *< 3 a &arrister 8e t %ash in a wall safe+ The %ourt held that this was not ermissi&le)+ Solicitors The nature and e7tent of the duties owed to the %lient will &e largely di%tated &y the retainer Aery similar to a trustee relationshi as there is a delegation of ower in order to erform a tas8+

,ail!a% v0 ;ow 3 A large amount of money was re%ei$ed &y a soli%itor a%ting for ?ailman LT>+ The dire%tor of the %om any instru%ted a ortion of the money &e aid to him and the remained %ould &e used &y the soli%itor as ayment+ ,oth arties 8new of the %om anyQs im ending &an8ru t%y and the money was effe%ti$ely &eing stolen+ The li'uidator9 in e7amining the &oo8s9 &rought an a%tion against the air+ This was su%%essful on the remise that the soli%itor was in &rea%h of soli%itor and trustee duties+ The %ourt said that a soli%itor u on the re%ei t of money is the trustee of the %lient9 a &enefi%iary+ If this hadnQt ha$e e7isted the relationshi of the soli%itor and the %om any9 &eing of a fidu%iary nature9 was suffi%ient enough+ There is am ly authority to suggest that the relationshi is a fidu%iary one+ 2ost money re%ei$ed &y a soli%itor will &e trust money6 &ut usually held as a &are trust Thus a soli%itor will &e in a relationshi as a trustee and fidu%iary A soli%itor may re%ei$e money in the following ways!

D To ay their own a%%ount6 D To %ondu%t &usiness on &ehalf of the %lient+ Payment of a soli%itor/s a%%ount is not trust money (it is the soli%itorQs) and therefore %an &e de osited in the office account Any other money re%ei$ed is %onsidered the %lient/s money (although it might not &e) and is held &y the soli%itor as a trustee+ >e ending on its intended use it will either &e held in a trust account or a controlled account Money that is not the solicitor3s must .454R be deposited in the office account

E7am les of where lawyer will re%ei$e trust money 3 %on$eyan%ing G family dis utes %on%erning assets+

LTrust Mo%eyL The egal "rofession Act '(() s 0@< defines trust money as!

M money entrusted to a law ra%ti%e in the %ourse of or in %onne%tion with the ro$ision of legal ser$i%es &y the ra%ti%e9 and in%ludesX (a) money re%ei$ed &y the ra%ti%e on a%%ount of legal %osts in ad$an%e of ro$iding the ser$i%es6 and (&) (%) %ontrolled money re%ei$ed &y the ra%ti%e6 and transit money re%ei$ed &y the ra%ti%e6 and

money re%ei$ed &y the ra%ti%e9 that is the su&:e%t of a ower9 e7er%isa&le &y the ra%ti%e or an asso%iate of the ra%ti%e9 to deal with the money for another erson+

Trust A%%ounts The egal "rofession Act '(() s 04H(*) re'uires that in most %ases all money &e de osited into the trust a%%ount On%e money has &een de osited into the trust a%%ount9 a soli%itor %an only transfer money out on %lient instru%tions or %ourt order (s 04L) Controlled 2oney If trust money is to earn interest for the client9 this is only ossi&le if the trust money is also co%trolle$ !o%ey+ This is defined in s 0@< egal "rofession Act '(() as! M money re%ei$ed or held &y a law ra%ti%e for whi%h the ra%ti%e has a written dire%tion to de osit the money in an a%%ount9 other than a general trust a%%ount9 o$er whi%h the ra%ti%e has or will ha$e e7%lusi$e %ontrol+ A se arate %ontrolled a%%ount must &e set u for ea%h %lient 3 s 0;* Trust a%%ounts do not a%%rue interest9 there is no duty e7tending ast 8ee ing the money9 unless the %lient instru%ts otherwise+ 1nsur risingly a %lient may dire%t that money is in$ested so as to allow interest to a%%rue+ Lawyers are not o&ligated to ad$ise on the &enefits of ro erly in$esting money so as to maintain the $alue+ >iffi%ulties may arise where money is in$ested and %an generate lia&ility es e%ially where there is a failure to ro erly ma8e an a%%ount of any in$estments+ In$ested money does not lose its %hara%ter as trust money+ Transit 2oney A relati$ely new rin%i le dressing a routine $iolation of trust9 i+e+ where %on$eyan%ing o%%urs+ Stri%tly what ought ha en was that lawyers should &an8 %he'ues and ha$e them reissued as trust %he'ue9 howe$er9 in ra%ti%e this was often ignored+ The egal "rofession Act s 0@< defines trust money that is also .tra%sit !o%ey/ as!

M money re%ei$ed &y a law ra%ti%e su&:e%t to instru%tions to ay or deli$er it to a third arty9 other than an asso%iate of the ra%ti%e+ Transit money (while it is still held on trust) need not &e de osited in a &an8 a%%ount of any 8ind+ If transit money is re%ei$ed in %ash9 it must still &e de osited in the trust a%%ount D s 0;; Dso as to re$ent laundering of money <staDlis4i%3 a Trust Accou%t

 A soli%itor who re%ei$es trust money must ha$e a general trust account with an a ro$ed (&y the Law So%iety) .authorised de ositDta8ing institution/9 and &e held under the name of the ra%ti%e with the words .law ra%ti%e trust a%%ount/ added6 ss 04<(*)9 0@<9 0HC and @@(0) egal "rofession Act '(() While in e'uity mi7ing trust money is for&idden9 lawyer trustees are re'uired to de osit all trust funds into a single a%%ount in %on:un%tion of stringent &oo8D8ee ing+ + =or regulations on setting u a trust a%%ount see 0CD00 Managing Client Money

All money re%ei$ed on trust %an &e de osited into the general trust a%%ount

1nder general rin%i les of e'uity9 a trustee is not to mi7 money held under one trust with money held under another trust D Therefore/ it is imperati+e that the solicitor account for all money recei+ed &ecor$s 1nder se%tion 05* of the egal "rofession Act9 a law ra%ti%e is to 8ee trust re%ords in a ermanent form+ Currently this means they are rodu%ed in rinted form i+e+ re%ei ts and &an8 re%ei ts in hard %o y+ The egal "rofession Regulation '(() res%ri&es in some detail how these re%ords are to &e 8e t+ Be%ei ts for all the money must &e rodu%ed as well as re%ords of transa%tions+ Se%tion 05* also demands that the re%ords indi%ate the true osition in relation to trust a%%ount money re%ei$ed from any erson9 and that they are 8e t in a way that allows for easy in$estigation+ "enerally to &e 8e t for < years D ss;LD5C "R

Se%tion 0@< of the egal "rofession Act defines a range of trust re%ords+ These in%lude different 8inds of $ou%hers9 a%%ounts and re%on%iliations9 as well as registers and statements+ 3 4ouc%ers5 The $ou%hers that are to &e 8e t are! Be%ei ts+ Che'ue &utts or %he'ue re'uisitions+ Authorities to withdraw &y ele%troni% funds transfer (E=T)+ >e osit re%ords+ 3 *ccounts5 The a%%ounts that must &e 8e t are! Cash re%ei ts &oo8+ Cash ayments &oo8s+ Trust ledger a%%ounts+ Transfer :ournal+ 3 Reconciliations5 These in%lude! Trial &alan%es+ 2onthly re%on%iliations+ 3 Statements an registers5 The most im ortant of these is! Trust account A-I $or 7ban!3& statements1 &es o%siDility 1or a% Accou%t The rin%i al soli%itor9 whether a artner or a sole ra%titioner9 is held res onsi&le for inade'uate re%ordD8ee ing e$en if the dayDtoDday a%%ounting is handled &y an a%%ounts %ler8 or a se%retary+ =or soli%itors/ firms9 all of the artners are :ointly and se$erally lia&le for the failure to manage %lient money in a%%ordan%e with the A%t or a regulation D 044 egal "rofession Act '(() 8 A hea$y duty in o&ser$ing management of trust funds+

&eceivi%3 Trust Mo%ey #Solicitors'

 "enerally9 money will &e re%ei$ed as a ersonal %he'ue (this must go straight into the trust a%%ount s04H) 2oney %an &e re%ei$ed as %ash+ #owe$er9 note! if this is .transit money/ it must &e &an8ed in the trust a%%ount and then transferred out as a trust %he'ue if the %ash amount is J*C9CCC of more9 the soli%itor must re ort the details to Australian Transa%tion Be orts and Analysis Centre under ,inancial Transactions Reports Act *LHH (Cth)+ In some %ir%umstan%es money %an &e re%ei$ed into the trust a%%ount through the use of %redit %ard fa%ilities (s 040(0) "A) Where money is re%ei$ed into the trust a%%ount &y ele%troni% funds transfer (E=T)9 the soli%itor must also re%ei$e a do%ument from his finan%ial institution that a%8nowledges the re%ei t of the money into the a%%ount+ Note s e%ial a%%ounting re'uired for E=T+ Credit %ards may &e em loyed if s e%ifi%ally a ro$es &y the QL> Law So%iety+ Mo%ey 24e% &eceive$ >e ending on the form and ur ose9 in most %ases the following ro%edure will &e re'uired!

Issue a re%ei t to the erson who aid the money to the firm D @4(0) egal "rofession Regulation '(() Record the re%ei t of money in the %ash re%ei ts &oo8 and the rele$ant ledger+ Immediately deposit the money in the &an8+ 2oney must &e de osited .as soon as ra%ti%a&le/ 3 s 04H 3 Little :udi%ial %onsideration although li8ely this is to follow %ommon sense+ Pay!e%t o1 Mo%ey This is only a ro riate where a lawyer has &een instru%ted to do so+

With one e7%e tion9 withdrawals from the trust a%%ount are only to &e made &y trust a%%ount %he'ue or an A>I/s (&an8) %he'ue D s0;C(*)(a) "A A trusteeDsoli%itor must sign the %he'ue9 although the soli%itor/s ra%ti%e %an a ro$e an em loyed soli%itor in the ra%ti%e to sign %he'ues as well+ The soli%itor should ensure the money aid is %leared funds

The only %ir%umstan%es in whi%h a ayment from the trust a%%ount (ie9 a withdrawal) %an &e made are set out in the egal "rofession Act/ in%luding9 2a8ing a ayment under a dire%tion gi$en &y the erson who is &enefi%ially entitled to the money Ds 04L(*)(&) 2a8ing an authorised ayment of the soli%itor/s %osts (if the money is their for that ur ose)3 s 0;H(*) (&) 2a8ing a statutory de osit 3 s 0H;(*)(&)6 s <C(*) Regulations In any other %ase a withdrawal of money from the trust a%%ount %onstitutes an offen%e9 the ma7imum enalty &eing a fine of ;C enalty units 3 s 04L(*)

2oney must not &e o$erdrawn as where drawn from a shared a%%ounts it is otentially a misa ro riation of another trusteeQs funds+ Not only does otential %i$il and rofessional lia&ility arise where money is mo$ed in an unauthorised fashion9 %riminal lia&ility also atta%hes+ &eco%ciliatio%s

 A soli%itor/s ra%ti%e is re'uired to underta8e re%on%iliations of the a%%ounts and A>I (or finan%ial institution) &alan%e at the end of e$ery month 3s 44(*) egal "rofession Regulation '(() (Qld)+ Two re%on%iliations are re'uired! a re%on%iliation of the A>I &alan%e and the two %ash &oo8s (s 44(0)(a) Regulation&9 and a re%on%iliation of the %ash &oo8s and the ledgers (s 44(@)(a))+ These must &e 8e t with the trust a%%ount re%ords (s 44(4))+ In effe%t9 this demands three ro%edures to &e followed at the end of e$ery month! D Trial &alan%e D Cash&oo8 summary D =inan%ial institution re%on%iliation

Ma%a3i%3 Trust Mo%ey Interest on Lawyers/ Trust A%%ounts9 Ci$il Lia&ility and >is%i line *+ Payi%3 Accou%t =ro! a Trust D S 0;H Legal Profession A%t allows a soli%itor to withdraw money from the trust a%%ount or a %ontrolled money a%%ount to ay the soli%itor/s own a%%ount9 &ut only if ro%edures set out in a regulation are %om lied with D S ;H of the Legal Profession Begulation ro$ides two alternati$e ro%edures &y whi%h an a%%ount %an &e aid from trust money! *+ A re'uest or noti%e of withdrawal from trust+ 0+ An a%%ount has &een rendered to the %lient+ /0 &eMuests or Notice o1 2it4$rawal D S ;H(@)(&)(i) Legal Profession Begulation re'uires the lawyer to ma8e a written re'uest that ayment &e made from the trust a%%ount D S ;H also re'uires an authorisation of ayment or reim&ursement of money aid on the &enefi%iary/s &ehalf+ 30 Accou%t &e%$ere$ to t4e "lie%t D If the soli%itor has gi$en the &enefi%iary a &ill relating to the trust money9 and the %lient has not o&:e%ted to the &ill within se$en days of ha$ing re%ei$ed it9 the soli%itor %an withdraw the money from trust to ay the &ill 3 ss ;H(4)(a)9 ;H(4)(&)(i) Legal Profession Begulation D O&:e%tions &y the Client D If the %lient does o&:e%t to the &ill within se$en days9 &ut then does not a ly for a %osts assessment of the &ill within 5C days of ha$ing re%ei$ed it9 the soli%itor is again allowed to ay the &ill with money from trust 3;H(4)(&)(ii) Legal Profession Begulation 40 I%terests o% LawyerLs Trust Accou%ts #IOLTA'

D Statutory de osit s%hemes! *+ IOLTA D Common uses 3 why IOLTA is .a Bo&in #ood ta8ing/! * Legal Aid in State matters (o$er J@C million er annum) 0 =idelity funds! administration9 and maintenan%e of %or us @ Community legal %entres9 PLT9 CLE9 law reform9 et% D only) Su reme Court Li&rary (Qld

Legal Profession Begulation 0CC< (Qld) ss <C9 <5

* Annual statutory de osit made to . res%ri&ed a%%ount/ &y 0* ?anuary 0 Statutory de osit Y 0I@ of lowest &alan%e of trust money held in re$ious year (may &e reDa%'uired at re'uest)+ @ Trust money Y money in trust a%%ount Z statutory de osit in res%ri&ed a%%ount >rawing on the res%ri&ed a%%ount s <CD <C If insuffi%ient trust money in trust a%%ount to ma8e %lient ayments and 8ee trust a%%ount .in %redit/ D * 0 Withdraw enough from res%ri&ed a%%ount to 8ee trust a%%ount in %redit 1nli8e re$ious regulatory regime9 the a%%ount %annot &e o$erdrawn

D O&:e%tiona&le as it la%es an onus on the lawyer to dis%ern what funds are to &e aid+ ,an8s are at a loss as a result of money held on trusts so the go$ernment ta8es money from these funds to &e ut towards the greater good of the u&li%+ D Another o&:e%tion is that the trustees ha$e no say in how the money is a lied+ >iffi%ulties also e7ist as lawyers are not re'uired to ad$ise that the money %ould &e more rofita&ly in$ested in &an8s+ 50 24istle ;lowi%3 D In Queensland9 there is an o&ligation on lawyers to re ort irregularities in the handling of %lient money in two %ir%umstan%es D s 05C Legal Profession A%t! when a soli%itor who &e%omes aware that there is an irregularity in any of the trust a%%ounts or trust ledger a%%ounts for the ra%ti%e in whi%h that soli%itor is wor8ing6 or in relation to irregularities in any other soli%itor/s ra%ti%e/s handling of %lient money+ D QLD Law Society v0 Devo%is4 3 A soli%itor had aid to their %lient9 u on re'uest9 in %ontra$ention of lawyerQs trust o&ligations+ The %lient was the wife of her artner whose ermission was re'uired to allow for any withdrawal+

"ivil LiaDility

D "enerally %om ensation for losses must &e ursued through the %ourts+

O$er$iew D The &are trust Tar3et 5ol$i%3s Lt$ v &e$1er%s E*LL5F * AC 40* 3 2isa ro riation &y a third arty+ Target was a lender whose soli%itor 8new the erson to whom money was lent in relation to ur%hasing a resort+ The soli%itor 8new that the ro erty was to &e ur%hased for less than the &orrowed amount+ Target s'uired a mortgage on the ro erty &ut the seller and &orrower went &ro8e+ Target in e7er%ising their mortgage regained half the money+ Target alleged the soli%itor had &rea%hed their trustee o&ligations in aying out to two se arate arties+ They sued for the sum minus what had &een regained+ The soli%itor were not lia&le as they were not %om li%it in any fraudulent a%ts and had sim ly %om lied with instru%tion + Lia&ility D Lia&ility for another/s &rea%h The rule in ;ar%es v A$$y (*H<4) LB L Ch A 0;; 3 Wills %ase 3 ,arnes was the e7e%utor of an estate desired to gi$e e7e%uti$e status to Addy+ ,arneQs soli%itor ad$ised against this9 &ut regardless the soli%itor

was instru%ted to do so+ Addy misa ro riated the funds and went &ro8e+ The soli%itors of all the arties were sued+ The soli%itors did 8now of the otential misa ro riation+ While they had fa%ilitated the transfer9 they were only a%ting u on instru%tion and hen%e no a%%essory lia&ility e7isted+ The %ourt warned that if an agent re%ei$es or &e%omes %hargea&le o$er trust ro erty or assist in fraudulent design lia&ility will attra%t+ #en%e9 8nowledge and &enefi%ial interest are re'uired+

D Be%i ient and a%%essory lia&ility Twi%sectra Li!ite$ v >ar$ley E0CC0F 1K#L *0 D Lia&ility of artners Part%ers4i Act +-9+ #Ql$' ss +3. +4 3 go$erns the relationshi &etween lawyers and is rele$ant in relation to trust a%%ounting9 2isa ro riation or loss &y a mem&er of the firm will %reate lia&ility e7tending to all artners of the firm (s*@)+ &o!a%o v "4a le9 1nre orted9 SC (Qld)9 2oynihan ?9 0;0*I*LHH9 and note Queensland 3 a soli%itor stole money and there was no reason that the artners anti%i ated this+ 1 on %om laint from a %lient the artners re orted this9 &ut were still lia&le as they were the artners of the thief and were as su%h re'uired to ay the money+ #owe$er9 in doing this they a$oided other dis%i line+ Com ensation D 2isa ro riation from the trust a%%ount with no a%%ounting Kee1e v NS2 Law Society #+99-' 44 NSWLB 4;*D #istori%ally trust law %reated the legal assum tion of the Qfirst in first out rin%i leQ this %ase ousted this instead ro osing money is dis ensed as er how it is rated+ E"+ ro ortionately+ D Where there has &een ro er a%%ounting for the misa ro riation! Ma3arey =arla! Lawyers Trust Accou%t (No @) D distinguished Keefe 3 4+; million dollars was stolen &y a %ler8 o$er a long eriod of time+ The %ler8 had 8e t the &oo8s ea%h time they had %hanged money de%e ti$ely9 ma8ing %orres onding entries into trust a%%ounts+ The %ourt de%ided as to whose money was stolen on the theifs a%%ount+ Ass su%h what had &een made out to &e stolen was %onsidered to ha$e &een what was stolen+ DIm ortant in the sense that the way money is retrie$ed follows money &eing sued for &efore a %laim is made9 This o%%urs o$er a %ourse of many years+ ,eforehand %om ensation orders may &e made against the lawyers from QCAT9 howe$er9 this is a limited amount+ D A%%ount of rofits Su%h as either a rofit or a se%ret %ommission ;oar$!a% v P4i s E*L5;F Ch LL09 *C0*6 E*L5<F AC 45D as er this %ase

D #ow to allo%ate rofits if earned on money remo$ed from the trust a%%ount9 without attri&ution to any arti%ular &enefi%iaryN Perha s on Keefe .ratea&le/ a roa%h This has &een an e7am Q in re$ious yearsD distinguish &twn Kee1e and Mar3arey =ar!la! Lawyers D Tri&unal :urisdi%tion %om ensation may &e ordered &y the Legal Pra%ti%e Committee or QCAT as a result of dis%i linary ro%eedings A %om ensation order %annot &e made if ayment has already &een re%ei$ed from a %ourt or fidelity fund 3 s45;(0) LPA+ #owe$er9 a dis%i linary %om ensation order does not %reate an issue esto el for %i$il ro%eedings+ 1 to J<9;CC for ea%h %om lainant (or as agreed &y soli%itor) 3 Legal Profession A%t 0CC< (Qld) ss 4;5(4)(&)9 4;H(0)(%)

Be 2arsden (*LLL) ; ,B>A HD BEA> Cf Legal Ser$i%es Commissioner $ Towers E0CC5F LPT CC@ 3 BEA> Can/t findN <+ "ri!i%al &es o%siDility

Le3al Pro1essio% Act #/00)' o11e%ces D failure to 8ee ro er a%%ounts under se%tion 05* of the A%t attra%ts a num&er of offen%es9 all unisha&le &y a ma7imum fine of *CC enalty units =or instan%e! D =ailure to de osit money into the trust a%%ount in a%%ordan%e with s 04H amounts to an offen%e9 the ma7imum enalty &eing a fine of *CC enalty units D Not de ositing %ontrolled money into a %ontrolled money a%%ount is an offen%e attra%ting a ma7imum fine of ;C enalty units (s 0;*) D =ailure to %om ly with the restri%tions on ma8ing ayments from the trust a%%ount under ss 04L and 0;C or a %ontrolled money a%%ount under s 0;0 also %onstitutes an offen%e9 unisha&le &y a fine of ;C enalty units Li8e most regulatory legislation9 the A%t also %arries %riminal enalties for &rea%h of re orting o&ligations9 in%luding the audit re'uirements+ In Curtis v 6e 2root7 e, parte Curtis the soli%itor was %harged with failing to %om ly with the former audit ro$isions under se%tion *5(0) of the Trust Accounts Act9 in that an audited re ort had not &een ro$ided to the 2inister for ?usti%e+ The soli%itor had9 in the re$ious two years9 relied on his auditor sending the re ort to the 2inister+ It was ro$ed to the magistrates satisfa%tion that the soli%itor &elie$ed the auditor had again su&mitted the re ort on his &ehalf in the rele$ant year+ This was suffi%ient to ma8e out a defen%e of honest and reasona&le &elief under se%tion 04 of the Criminal Code1 D Criminal Code offen%es (*C5 22) Stealing! ss @LC9 @L*9 @L@9 @L; &e a Solicitor 7+90/8 St & Q$ 9 &e M. A Solicitor 7+93-8 St & Q$ 454 Re a %olicitor was a dis%i linary %ase9 in whi%h the soli%itor was gi$en money for a s e%ified ur ose (that is not detailed in the re ort)+ #e did not use the money for that ur ose+ #e also failed to return the money to the %lient and9 although the %lient denied this9 %laimed that he as8ed the %lient if he %ould hold the money as an unse%ured loan+ E7 lanations for his %ondu%t were re'uested &y the Queensland Law Asso%iation and the Su reme Court9 &ut were not forth%oming+ In the latter9 "riffith C? sus ended the soli%itor from ra%ti%e for si7 months9 or until the money was re aid+ In obiter9 he also said this was lainly stealing under the Code+ [I &elie$e it is sim ly a %ase of stealing under se%tion @L@ of the Criminal Code+ Last year it was not te%hni%ally stealing9 though morally :ust as &ad! now9 under the Code it is stealing9 and the man who does it9 soli%itor or not9 is lia&le to &e dealt with %riminally+ Similarly9 in Re M/ A %olicitor a soli%itor was dis%i lined &e%ause9 ha$ing &een aid \HC &y his %lient for %ounsels fees9 he still had not remitted them to the &arrister si7 months later+ The =ull Court of the Su reme Court9 again in obiter dicta9 regarded this as stealing &y $irtue of the e7tended definition of the %rime ena&led &y se%tion @L@+ =raudulent %on$ersion of trust ro erty! s 4@5 B $ ,ell E*LH0F Qd B 0*5 The a ro riate senten%e for a soli%itor %on$i%ted of fraudulent %on$ersion of trust ro erty under se%tion 4@5 was %onsidered &y the Court of Criminal A eal in R + Bell+*; The trial :udge in Bell im osed a senten%e of three years im risonment with at least nine months to &e ser$ed9 and said he felt o&liged to do so &e%ause there was a la%8 of re%edent for any nonD%ustodial senten%e to &e im osed+ On a eal9 >unn ? (with whom Wanstall C? agreed) said! It is erfe%tly true that9 if a soli%itor misuses a %lients money in his trust a%%ount9 a senten%e of im risonment will almost always result if he is rose%uted to %on$i%tion+ It is erfe%tly true that a lengthy senten%e will &e a ro riate &e%ause of the ne%essity to im ose a unishment that will a%t as a strong deterrent against similar %ondu%t on the art of others+ 2a%rossan ? agreed that9 [so seriously are %ases of

%on$ersion &y soli%itors to &e regarded9 that im risonment may &e thought of as a usual and e7 e%ted enalty for transgressions of this 8ind+ #owe$er9 this was an e7%e tional %ase+ The soli%itor leaded guilty+ #e had &een stru%8 off the roll of soli%itors in Queensland9 and su&se'uently mo$ed to Western Australia where he o%%u ied a senior osition of trust and res onsi&ility in the u&li% ser$i%e and had &een a%ti$e in %ommunity organisations+ #e resigned from that osition in Western Australia on &eing told that he would &e rose%uted in Queensland9 and returned to the State+ The soli%itor had %on$erted trust money on two o%%asions9 the first to re$ent the %olla se of a shi ing syndi%ate he was in$ol$ed in and the se%ond to &uy land+ #e was e7 erien%ing marriage ro&lems9 and was o$erwor8ed+ All of the e$iden%e suggested the misa ro riations were out of %hara%ter+ 2ost signifi%antly9 the trial :udge a%%e ted sy%hiatri% e$iden%e that9 at the time the %rimes were %ommitted9 the soli%itors :udgment was im aired &y his &eing in a state of hy erthymia with ro&a&le e isodes of hy ermania+ In the %ase of &oth misa ro riations9 he had restored the money to the trust a%%ount+ The %ourt was unanimous in holding that a nonD%ustodial senten%e should &e su&stituted9 and the a%%used was la%ed on a good &eha$iour &ond for two years+ -0 Pro1essio%al Disci li%e D The right to ra%tise and %ertifi%ation D The ower to grant %ertifi%ation also allows the Law So%iety to refuse to grant or to %an%el or sus end %ertifi%ation D Legal Profession A%t 0CC< (Qld) ss L9 @<D@H9 449 45 D One .suita&ility matter/ is a failure to %om ly with the law relating to management of trust money (sL(*) (:) "4e%ey v Quee%sla%$ Law Society E0CC*F QSC @@H 3 A soli%itor failed to note that a erson (her hus&and) doing the trust a%%ount &oo8s engaged in te%hni%al &rea%hes of the a%t+ They were lia&le as they were a rin%i le and had to underta8e to &ring the trust a%%ount to the ro er amount9 &ut failed to do so+ This lead to them &eing e$entually &eing stru%8 off+ QLD v0 2illia!s 3 Outdated &oo88ee ing o%%urred whi%h resulted in a num&er of &rea%hes des ite any dishonesty+ An order was made to &ring this &oo88ee ing u to date+

ANS2<& T<MPLAT< A "OMP<T<N"< AND "A&<

+0 Is t4ere a $uty owe$ #u%$er tort or co%tract'? Is it owe$ to a t4ir$ arty? /0 Duty o1 "are 30 I1 t4ere is a $uty owe$. w4at is t4e sta%$ar$ o1 care? 40 "ausatio%? 50 Da!a3es? (0 N N N De1e%ces? &elia%ce o% a$vice? "o%triDutory %e3li3e%ce? A$vocateCs i!!u%ity? licaDle?

)0 =air Tra$i%3 Act a

+0 IS T5<&< A DIT> O= "A&< O2<D?

Lawyers owe duties to %lients (and sometimes e$en nonD%lients) under! o Contra%t o Tort o Statute (su%h as =air Trading A%t) All of these areas relate to the lawyer/s duty to e7er%ise a minimum degree of %om eten%e and %are in the management of the %lients affairs and the and the ad$ertising of %lients+ N,! An ad$o%ate/s immunity form lia&ility is not limited to immunity from %laims of in%om eten%e+ +0+ "o%tractual Duty

N,! Contra%tual lia&ility less signifi%ant as the law of tort has grown in signifi%an%e+ %# ICIT#R% ] The %ontra%t &etween soli%itor and %lient (%osts agreement under the egal "rofession Act '(() $ "A)) attra%ts a duty to e7er%ise %are and s8ill o The retainer was formerly the sole &asis of the duty (2room v Crocker) o While lia&ility in torts is now more signifi%ant9 the rule in 2room v Crockerremains and a %lient may &ring a negligen%e %laim against a soli%itor in %ontra%t ] This will largely &e go$erned &y the terms of the %osts agreement and su&:e%t to %ommon law rules of %ontra%t (see also s@C; "A)+ ] #owe$er9 note that the "A ro$ides %ertain limitation on what terms must &e %ontained in this %ontra%t! o Contra%t is re'uired to &e in writing D s30o Costs must &e dis%losed 3 (see ;+5) ^ Need to gi$e an estimate of the %osts they might &e in for o Costs may only &e re%o$ered in a s e%ified manner 3 (see ;+H) o Court may set aside %osts agreements if they are not .fair and reasona&le/ 3 s3/BARI%T4R% ] PreDLPA o ,arristers had no ower or %a a%ity to enter a %ontra%t dire%tly with the %lient9 thus no duty to e7er%ise a minimum degree of %are and s8ill ] LPA! o &ule -3 (Barristers Rules& allows %lients to dire%tly &rief &arristers+ ^ >oes not re'uire any written %ontra%t9 sim ly %ertain dis%losures+ ^ S30-. LPA! re'uires dis%losure &y a .law ra%ti%e/9 of whi%h a &arrister is in%luded o s3// L)*8 ermits &arristers to enter into a %ontra%tual relationshi ^ ,arristers may enter into a %osts agreement with the &riefing soli%itor9 dire%tly with a %lient if dire%tly &riefed or with a %lient if &riefed &y a soli%itor on the %lient/s &ehalf+ o S309! if a &arrister is retained &y a soli%itor on &ehalf of the %lient9 dis%losure is only re'uired &y the &arrister to the soli%itor (and soli%itor to %lient) ^ 2ith the e*ception of direct briefs 9 the %ontra%tual relationshi e7ists only &etween the &arrister and the soli%itor+ ^ If a &arrister does not generally enter an enfor%ea&le %ontra%t of retainer with the %lient9 the %lient %annot &ring a %laim for negligen%e against a &arrister in %ontra%t for &rea%h of a %ontra%tual duty to the %lient to e7er%ise %om eten%e and %are+ ^ Instead the client would need to sue in tort9 as a &arrister does ha$e duties in tort to e7er%ise %om eten%e and %are9 as a &arrister %an &e lia&le to a %lient in tort+ +0/ Tortious Duty

,oth &arristers and soli%itors owe duties to %lients under the law of tort! Ha$kins v Clayton This is a duty to e7er%ise %om eten%e and %are in legal ra%ti%e The duty may e7tend to dealings with ersons other than the %lient Note the a li%a&le elements of torts! ] >uty of %are ] Standard of %are (&rea%h) ] Causation ] >amages and Loss ] Contri&utory Negligen%e or Con%urrent Lia&ility /0 Duty o1 "are 95: 6;T< =( C*R' T= CL&'>TS Leading Case on Point! Per >eane ? in Ha$kins v Clayton! ] Case in whi%h %lient made a will with firm+ She died+ ,enefi%iaries and e7e%utor were not notified for a long time+ Assets had gone into disre air+ Also had to ay large fine for not aying death ta7+ E7e%utor sued the law firm for damages+ A%tion was &oth in %ontra%t and torts+ #CA! %ould re%o$er damages in torts form the law firm+ No %ontra%t &etween the arties &ut %ourt said as he was the e7e%utor9 the law firm was o&liged to ad$ise the e7e%utor+ #aw8ins re resented the estate and was therefore the law firms own %lient+ o :The contract of retainer with the client largely/ though not e*hausti+ely/ determines the nature of the ser+ices to be pro+ided by the solicitor and/ therefore/ the scope and e*tent of any duty of care the solicitor owes to others in tort; ] Note! The retainer does not e7%lusi$ely define the duty of %are the soli%itor owes to the %lient+ o There may &e ste s that the soli%itor must ta8e on &ehalf of the %lient (if the duty in tort is to &e dis%harged) that are &eyond the s e%ifi%ally agreed tas8s the soli%itor was to erform 3 -aimon )ty Lt v Byrne The terms of the %ontra%t of retainer may e7%lude or modify the e7isten%e of duty of %are owed to the %lient

959 6;T< =( C*R' T= >=>3CL&'>TS ] "enerally9 lawyers do not owe any duties to nonD%lients+ o #owe$er9 a lawyer can owe a duty of %are to a third arty o Law of tort redefines the lawyerD%lient relationshi and deems a erson who is not arty to the retainer to &e9 in effe%t9 a .%lient/ ThirdD arty lia&ility has de$elo ed in relation to ure e%onomi% loss (generally arises re wills) Duty o1 care arises i16 o Loss is foreseeable6 and o There is Qsomething else+/ (Hill v 4an 'rp) The something more was originally thought to &e . ro7imity/ 3 er >eane ? inHa$kins v Clayton o Where a erson is urely %laiming e%onomi% loss from a soli%itor there must &e the re'uired degree of .pro*imity/ &etween that erson and the soli%itor+ o ProGi!ity is assesse$ Dy two a$$itio%al ele!e%ts6 ^ The reliance or dependence la%ed on the soli%itor6 and ^ The assumption of responsibility &y the soli%itor

] N

In Ha$kins v Clayton9 Clayton 1t_ had assumed res onsi&ility for 2rs ,rasier/s will and that was a ro7imate relationshi gi$ing rise to a duty of %are

Limitation on ro7imity in Hill v 4an 'rp ? 7something else3 o #C a%8nowledged that there must &e .something else/ (aside from assum tion of res onsi&ility and relian%e) ` this .so!et4i%3 elseC is a uDlic res o%siDility for lawyers to do their :o&s reasona&ly well o In Hill v 4an 'rp9 the duty arose &e%ause the u&li% la%ed a general relian%e on soli%itors to re are and e7e%ute wills ro erly Plaintiff may show something more than foreseea&ility &y! o The fa%t that the soli%itor was in a osition of %ontrol6 o The fa%t that the laintiff has lost a wellDdefined legal right6 or o .Poli%y/ would suggest that there is a need for a duty of %are+ It also means that the duty of %are in tort might arise e$en where there is no relian%e or assum tion of res onsi&ility Lia&ility for fraudulent or negligent misstatement o A lawyer may &e lia&le for fraudulent or negligent misstatement if he 8nows that a third arty is relying on his statement 3 'san a (inance Corp Lt v )eat !ar$ick Hunger+or s6 *>Z Banking 2roup Lt v *lire.ai E7 ansion of third arty duties o The duty to third arties should erha s &e wider than traditionally thought 3 Bebonis @ *nor v *ngelos @ =rs er #andley ?A9 with whom #eydon and ,ea_ley ??A agreed o C+f+ 2ran 2elato Lt v Ric%cli++ /2roup0 Lt er Ni%holls AC

/03 "ON"I&&<NT LIA;ILIT> ] ] ] The do%trine from 5aw@i%s v "layto% and *stley v *ustrust allows %on%urrent lia&ility in tort and %ontra%t This will generally allow the %lient to ele%t whi%h %ause of a%tion to ursue+ Claim in tort $+ %laim in %ontra%t o When rights arise 8 Ha$kins v Clayton! ^ Bights for &rea%h of duty in %ontra%t arise when the &rea%h o%%urs (eg Scarcalla v Lettice) ^ Bights in tort arise when the damage is sustained+ o s +0 Limitation o+ *ctions *ct9 ^ Same limitation eriod of si7 years on the %ommen%ement of a%tions in &oth %ontra%t and tort9 where a ersonal in:ury is not in$ol$ed+ ^ Limitation eriod for tort runs from when damage is sustained 3 tort a%tion may sur$i$e after %ontra%t a%tion has e7 ired+ ^ The limitation eriod &egins to run when damage is sustained9 e$en if the laintiff is unaware of it o >amages! ^ >amages in %ontra%t may &e assessed on the &asis of the e7 e%tation lost+ ^ >amages in tort are &ased on normal %om ensation for loss

30 25AT IS T5< STANDA&D O= "A&<? 30+ *<N<&AL STANDA&D ] Standard of %are esta&lished &y s99 Civil Liability *ct (though standard still informed &y %ase law)

o o o o ] ]

(*) No duty &rea%hed if lawyer a%ted in a way widely a%%e ted &y eer rofessional o inion as %om etent rofessional ra%ti%e (0) Peer rofessional o inion %annot &e relied on if the %ourt %onsiders the o inion irrational or %ontrary to a written law+ (@) A wide num&er of rofessional o inions does not re$ent * or more &eing relied on (4) Widely a%%e ted does not re'uire o inion to &e uni$ersally a%%e ted

Per Ha$kins v Clayton! the standard is that of an .ordinarily %om etent and %areful lawyer/ Per 2al%olm A?A in Hey on v >R!*! no im lied underta8ing that the ad$i%e is %orre%t9 &ut only that the re'uisite degree of rofessional s8ill and %are has &een e7er%ised in the gi$ing of the ad$i%e 2inimum re'uirement! ad$i%e Z e7 lanation of gra$ity and %onse'uen%es o Robertson v Cas%man! One as e%t in fulfilling the duty of %are is to as8 all the rele$ant 'uestion+ o Im&alan%ed relationshi &etween lawyer and %lient ` lawyer therefore has res onsi&ility to ma8e sure %lient understands what the ad$i%e means Kolavo v )itsikas8 failure to ad$i%es %lient that her %ase was ho eless was &rea%h of the standard of %are

.4G IG4.C4 I. %4TT 4M4.T .4G#TIATI#.% ] ] N The o&:e%ti$e standard is diffi%ult to a ly in :udgmentD&ased situations (eg settlement negotiations) The %ourt has held that it is $ery unli8ely a lawyer will &e found guilty of rofessional negligen%e in these %ases unless they ha$e totally missed something Negligen%e will arise where the lawyer has ad$ised to settle .in ignoran%e of fa%ts whi%h %ould ha$e &een as%ertained &y ma8ing ro er en'uiries D *lgar v 2all Stan+iel @ Tiley er Chesterman ?

4<"4RT% ] A lawyer holding themsel$es out as an e7 ert may owe a higher standard of %are! >R!* Lt v !organ /accepting <ates v Bolan 07 Hey on v !organ ] 6uc%ess o+ *rgyll v Beuselinck er 2egarry ?! The %lient might &e entitled to e7 e%t more than reasona&le s8ill from a erson who rofesses e7 ertise+ #B IGATI#. #, %# ICIT#R T# ,#RM 4GA 5I42 ] Belian%e on &arristersI%ounsel/s ad$i%e does not remo$e lia&ility of the soli%itor D -akim v !c>ally7 Kolavo v )itsikas ] Soli%itor %annot a&rogate his o&ligation to form a $iew sim ly &y see8ing (and relying on) %ounsel/s o inion ] -akin v !c>ally! The soli%itor was under a duty9 whate$er his le$el of e7 ertise9 to turn his own mind to what he was &eing as8ed and the signifi%an%e of re$ious authority =.#2 4-G4 #, T>4 A29 ] No duty to 8now all the law 3 !ontriou v Je++erys er A&&ott C? ] Lawyers ha$e &een found to &e re'uired to ha$e some 8nowledge of %ertain statutes su%h as! o "ersonal In0uries "roceedings Act '((' (Qld) s L(@)(&) o imitations of Actions Act ?@)A (Qld) s ** o 2or!Co+er Bueensland Act ?@@C (Qld) 8 limitation period starts once solicitor consulted o Motor Accident Insurance Act ?@@A $Bld& ] Knowledge of litigation ro%edures! o Ensure the a%tion is &rought in the name of the correct plaintiff9 and against the correct defendant+ This duty is not rote%ted &y ad$o%ates/ immunity 3 Long v =rsi6 Banks v Rei + o Ensure the a%tion is &rought in the proper court+ This duty is not rote%ted &y ad$o%ates/ immunity 3 -illiams v 2ibbs5

o o o

Ad$ise the %lient of the rele$ant ro$isions of the imitation of Actions Act ?@)A (Qld)9 and issue ro%eedings within the limitation eriod to reser$e the %lient/s rights 3 Scott v 'c%egaray+ Condu%t the matter with due e*pedition 3 *llen v Sir *l+re !c*lpine @ Sons Lt 5 Only %om romise litigation in a%%ordan%e with the %lient/s e7 ress and unam&iguous instru%tions 3 6onellan v -atson+ Ad$ise the %lient of the im a%t of the "ersonal In0uries "roceedings Act '((' (Qld) sL(@) (&) whi%h re'uires a %laimant to gi$e noti%e within one month of %onsulting a lawyer %

%TA.-AR- 2IT> R4GAR-% T# 2I N ] ] ]

,enefi%iary %an e7 e%t that9 under the law of tort9 a so licitor will e*ercise competence and care in ensuring that the will is $alid9 and the gifts made under it effe%ti$e 3 Hill v 4an 'rp+ >uty on soli%itor who holds the will to ad+ise the e*ecutor and any beneficiaries named in the will of its %ontents 3 Ha$kins v Clayton -uring the testator3s lifetime9 the solicitor owes no duty to a prospecti+e beneficiary in relation to the testator/s lans to deal with the ro erty D Clarke v Bruce Lance @ Co5 Soli%itor is lia&le (in%luding to @rd arties) for underta8ings and other re resentations where it %an &e reasona&ly e7 e%ted that that erson will rely on it 3 *llie (inance @ &nvestments Lt v Ha o$ @ Co; Bels%am v *rt%ur+

30/ NO LO2<& STANDA&D O= "A&< A""<PTA;L< ] No statutory re'uirements as to the minimum standard of lawyer %om eten%e and %are9 howe$er9 %ourts ha$e found that lawyers are e7 e%ted to ha$e 8nowledge of the im ortan%e of %ertain statutes9 legal do%trines and %ourt ro%edures+ A lower standard of %are is not a$aila&le for a lawyer who is an ine7 ert (does not 8now a&out an area of law) The ro er solution for a lawyer who feels in%a a&le of dealing with some ty es of wor8 is not to a%%e t the wor8 in the first la%e 3 4ulic v Bilinsky er 2iles ? IMIT4- R4TAI.4R ] ] ] ] While a limited retainer may limit the s%o e of the duty owed (eg following u in writing)9 it does not lower standard of %are with regards to that limited duty3 (ortune v Bevan A limited retainer9 su%h as a 0C minuteIJ0C %onsultation9 may mean that a soli%itor will not &e re'uired &y the law of negligen%e to %onfirm $er&al ad$i%e in writing 3(ortune v Bevan ,1T! still ha$e general things li8e! limitation eriod9 ma8ing of further in'uiries (AS A,OAE) N,! IN some %ir%umstan%es there is an o&ligation to follow u in writing! if the %lient wont understand what is going on9 or if the %lient is under a disa&ility+ Also ha$e an o&ligation to fully e7 lain the effe%t of the limitations eriod and ad$ise them that they are at the end of the eriod+

] ]

"R#%CRI"TI54 -DTI4% N ] The standard of %are %an demand that a soli%itor ta8e some ositi$e ste s9 e$en without instru%tions from the %lient+ In Ha$kins v Clayton9 the Court held that the firm should ha$e ta8en ositi$e ste s to lo%ate the e7e%utor

5AS T5< STANDA&D ;<<N ;&<A"5<D? The issue is whether 111111111111111 constitutes a breach of the standard of care according to s'' of the Ci+il iability Act1

40 "AISATION? -id the breach of the duty of care cause the damageE ] N The &rea%h should %ause the damage for whi%h re%o$ery is &eing %laimed Plai%ti11 clai!i%3 $a!a3es 1or a lawyerCs %e3li3e%ce %or!ally 4as to s4ow t4at 4e woul$ 4ave acte$ $i11ere%tly i1 t4e lawyer 4a$ 3ive% ro er a$vice0

o o

Need e$iden%e that the laintiff would ha$e a%%e ted the ad$i%e9 and that this would ha$e led the laintiff to ha$e ado ted a different %ourse of %ondu%t E+g+ negligent ad$i%e in res e%t of a &usiness $enture might &e gi$en &y a soli%itor to a %lient9 &ut only nominal damages will &e awarded if it is also shown that the %lient would ha$e still underta8en the $enture e$en if the soli%itor had ad$ised against it 3 Han+le, )ty Lt v >S Hope @ *ssociates Also need to show %lient would ha$e had a su%%essful %ase (if %lient would ne$er ha$e su%%eeded in %ourt there is no loss caused regardless of lawyer/s negligen%e)

] ]

Queenslan *rt 2allery Boar o+ Trustees v Hen erson Trout /a +irm08 "allery failed to ro$e that the firm/s delay %aused the loss 3 %ould not show they would ha$e otherwise gotten the aintings Causation was also dis%ussed in Kolavo v )itsikas

50 DAMA*<S ] ] The %lient must also &e a&le to demonstrate that damages flow from the negligen%e of the lawyer "eneral measure of damages is the sum whi%h will ne%essarily restore the %lient to the osition the %lient would ha$e &een in had the &rea%h not o%%urred o In$ol$es assessing %han%e of su%%essful litigation lost due to negligen%e 3S$eeney v *tt$oo !ars%all o >amages often in%lude %om ensation for soli%itorD%lient %osts D Hayes v James @ C%arles 6o

(0+ D<=<N"<S A &<LIAN"< ON AD:I"<? ] ] Not a defen%e (see a&o$e) Belian%e on %ounsel/s ad$i%e does not remo$e lia&ility of the soli%itor D -akim v !c>ally7 Kolavo v )itsikas

(0/ D<=<N"<S A "ONT&I;ITO&> N<*LI*<N"<? ] ] La$ Re+orm /Contributory >egligence0 *men ment *ct 9AA: now allows a defen%e of %ontri&utory negligen%e to &e a$aila&le whether an a%tion is &rought in tort or in %ontra%t+ 2ay a ly where %lient did not follow soli%itor/s ad$i%e (though this is not a strong argument)

(03 D<=<N"<S A AD:O"AT<CS IMMINIT>? Is the lawyer an ad+ocate and does the ad+ocates3 immunity applyE

] ] ]

Ad$o%ates/ immunity is a %ommon law immunity a li%a&le to ad$o%ates only Ad$o%ates immunity is a %om lete defen%e for %i$il lia&ility "enerally a lies to &arristers (in %ourt wor8) &ut %an a ly to soli%itors (atta%hes to fun%tion not status) o #igh Court in 6=rta3'kenaike %onfirmed that the instru%ting soli%itor was also immune o This %ase also %onfirned the strength of the ad$o%ates immunity in Australia

S"OP< O= T5< IMMINIT>6 ] Immunity rote%ts in %ourt %ondu%t and wor8 so intimately %onne%ted with %ondu%t in %ourt to affe%t the way a %ase is %ondu%ted in a rehearing+ The immunity a lies to all ad$o%ates+ N Test 1or out o1 court wor@6 o It is .intimately %onne%ted/ with the wor8 in %ourt (2iannarelli v -rait%)6 or o .Wor8 done out of %ourt whi%h leads to a de%ision affe%ting the %ondu%t of a %ase in %ourt/ (6=rta3'kenaike) ] No .intimate %onne%tion/ where there is no litigation (eg where a %lient merely see8s legal ad$i%e from a legal ra%titioner9 &ut ro%eedings are ne$er issued) BARRI%T4R3% A-5IC4 2#R= ] ] While &arristers ty i%ally will &e rote%ted &y the immunity (for their wor8 in %ourt)9 their ad$i%e wor8 may not always &e rote%ted+ Per 2%#ugh in DCorta! o SM a failure to ad$ise the a$aila&ility of ossi&le a%tions against third arties9 failure to ad$ise %ommen%ing ro%eedings in a arti%ular :urisdi%tion and the negligent %om romise of a eal ro%eedings leading to the loss of &enefits gained at first instan%e ha$e &een held not to fall within the immunity ,arristers/ ad$i%e on settling a matter9 on drafting leadings and %ommen%ing an a%tion will generally &e %o$ered &y the immunity

#DT #, C#DRT ACTI5ITI4% 2>IC> >A54 B44. "R#T4CT4- BF T>4 IMMD.ITF9 N Me%tio% i% eGa! res o%se t4at courts 4ave really stru33le$ wit4 t4is issue o There are a num&er of a li%ation of the immunity do%trine that are 'uestiona&le o T4ere is a real $i11iculty a lyi%3 t4is area o1 law O si! ly %ee$ to !a@e a $eter!i%atio% o% a case-Dy-case Dasis Dase$ o% t4e 1acts Ot4is is t4e way t4e courts are $oi%3 it There are a num&er of out of %ourt a%ti$ities where the immunity has &een re%ognised! o Ad$i%e on settling a matter that is already in %ourt! Biggar v !cLeo B:CDDE : >ZLR F9:5 o A failure to %laim interest on damages! Kee+e v !arks/:CGC0 :H >S-LR D:F o A failure to amend a leading &etween :udgement and a eal! !c(arlane v5 -ilkinson B:CCHE Lloy s Rep IAH Immunity has not &een re%ognised in the following %ases! o Ad$i%e as to whom %ould &e :oined as defendant! Sai+ *li v Sy ney !itc%ell @ Co5 o Ad$i%e that ro%eedings %ould not &e %ommen%ed in a :urisdi%tion where they %ould &e %ommen%ed! !acRae v Stevens5 o Consenting to the wai$er of a %osts order to whi%h the %lient was entitled!6onellan v -atson5 o Negligent re aration of affida$it for %ourt

IMMD.ITF A.- T>4 ,TA

] ]

There remains some 'uestion as to the a li%ation of the immunity to a %laim &ased on statute+ In Bolan v <ates )roperty Corporation /:CCC0 some mem&ers of the #igh Court also %onsidered whether the immunity would a ly to a statutory %laim under fair trading laws+ o "ummow G "uadron thought it ro&a&ly didn/t a ly6 Callinan thought it did a ly

IMMD.ITF A.- "R#,4%%I#.A -I%CI" I.4 ] This immunity does not mean lawyers %annot &e dis%i lined for their %ondu%t+ o This may ta8e the form of %ourt dis%i line su%h as ro%eedings for %ontem t of %ourt or rofessional dis%i line &y the LSC+ o Note9 you %an always &ring %laims against &arristers in terms of rofessional dis%i line ^ The mantra for rofessional dis%i line is rote%tion of the u&li% (it is not there to unish lawyers9 it is :ust there to weed out the &ad lawyers) ^ Ad$o%ate/s immunity thus has no real a li%ation in this area 3 a lawyer might &e %i$illy immune in relation to what they ha$e done to the %lient9 &ut the %lient %ould %om lain to the Legal Ser$i%es Commission that they ha$e :ust &een a &ad lawyer and they %ould &e dis%i lined

)0 LIA;ILIT> IND<& =AI& T&ADIN* A"T +9-9 ] s3- of the (air Tra ing *ct :CGC /Ql 0 re li%ates s 5/ o1 t4e T)* (re misleading and de%e ti$e %ondu%t) o A lies to all natural ersons who are in trade and %ommer%e+ o S5 defines .ser$i%es/ and se%tion 5(*) defines .%onsumers/ so as to %learly in%lude soli%itor/s wor8 ro$ided under a %ontra%t of ser$i%es o 2ust &e an enfor%ea&le %ontra%t Lia&ility of &arristers under =TA o "i$en that &arristers will generally not owe any %ontra%tual duties to %lients9 they a ear not to &e %aught &y the ,TA+ o N,9 ostDLPA &arristers may enter %ontra%ts dire%tly with %lients 3 thus may &e su&:e%t to =TA Bemedies for &rea%h of =TA o S99 allows damages to &e %laimed for in:ury suffered as a result of misleading or de%e ti$e %ondu%t+ o Bolan v <ates )roperty Corporation er "audron ?! damages (under the a%t) are %onfined to a%tual loss and9 thus9 do not in%lude uniti$e damages+ =urther9 it is ossi&le that they are not limited either &y the foreseea&ility of %onse'uential damage or remoteness+

ANS2<& T<MPLAT< A "OMPLAINTS AND DIS"IPLIN<

7Note t4at $isci li%ary rocee$i%3s are se arate a%$ $isti%ct 1ro! a%y civilHcri!i%al actio%s t4at !ay 1ollow 1ro! t4e sa!e De4aviour8 *+ PI&POS< O= DIS"IPLINA&> P&O"<<DIN*S

The o$erriding rationale for im osing dis%i line on lawyers is the rote%tion of the u&li% 3 Mellifont + Bueensland aw %ociety In; s4*5 "A1 T his ser$es to maintain u&li% %onfiden%e in the rofession and the legally system as a whole6 Giems; Clyne + .%2 Bar Association1 It follows that the de%ision to stri8e off may not ne%essarily a%%ord with what a :ust and ro ortionate unishment would &e in the %ir%umstan%es6 2entworth + .%2 Bar Association; %mith + .%2 Bar Association1 >eterren%e is an indire%t result of rofessional dis%i line 3 Mellifont; egal %er+ices Commissioner + Mullins; R + .elson1 '1 T>P<S O= "ONDI"T LIA;L< TO DIS"IPLINA&> A"TION

Pro1essio%al !isco%$uct #whi%h is the most serious form of mis%ondu%t under the new regime) in%ludes .unsatisfa%tory rofessional %ondu%t of an Australian legal ra%titioner9 if the %ondu%t in$ol$es a su&stantial or %onsistent failure to rea%h or 8ee a reasona&le standard of %om eten%e a%$ diligen%e6 and %ondu%t (whether or not in the %ourse of legal ra%ti%e) whi%h would :ustify a finding that the ra%titioner is not a fit and ro er erson to engage in legal ra%ti%e6 s4+9#D'0 N;6 s4+9#/' Droa$e%s t4e a!Dit o1 ro1essio%al !isco%$uct to i%clu$e !atters occurri%3 outsi$e ractice t4at relate to suitaDility0 A nonDe7hausti$e (s4/0#3' list of %ondu%t %a a&le of %onstituting unsatisfa%tory rofessional %ondu%t or rofessional mis%ondu%t is set out in s4/06 N N N N N N ] #a' %ontra$ention of a law #D' %harging of e7%essi$e fees in %onne%tion with the ra%ti%e of law6 #c' %ondu%t for whi%h there is a %on$i%tion for (i) a serious offen%e6 or (ii) a ta7 offen%e6 or (iii) an offen%e in$ol$ing dishonesty+ #$' insol$en%y #e' dis'ualifi%ation from managing a %or oration #1' failure to %om ly with an order of a dis%i linary &ody #3' failure to %om ly with a %om ensation order made under the A%t+

I%satis1actory ro1essio%al co%$uct is not as serious as rofessional mis%ondu%t9 &ut ne$ertheless %onstitutes %ondu%t that .falls short of the standard of %om eten%e and diligen%e that a mem&er of the u&li% is entitled to e7 e%t from a reasona&ly %om etent/ lawyer+ Alt4ou34 t4ese !isco%$uct rovisio%s a ly to i%$ivi$ual lawyers. ri%ci als o1 1ir!s !ay also De $isci li%e$ 1or 1ailure to su ervise6 C%eney v QLS7 La$ Society o+ >S- v (oreman5 H1 P&O"<DI&<

#A'

Prose%ution may &e instigated and ursued &y the Legal Services Commissioner8s44)0 I I The ,ar Assn and Law So%iety must re%ommend whether or not to rose%ute in any re orts they forward to the LSC! s4390 The LSC may %hoose to dismiss a %om laint if in the u&li% interest to do so9 e$en where there is e$iden%e of rofessional mis%ondu%t or unsatisfa%tory rofessional %ondu%t! s44-#+'#D'0 The %urrent LSC u&lishes the names of lawyers found guilty of mis%ondu%t on the LSC we&site under s4)30

#;'

The Su re!e "ourt retains inherent ower to dis%i line its offi%ers to the e7tent of ordering a stri8ing off! s+3 L)*5

#"'

The "ourt o1 A ;<LO280

eal hears a eals from the LP TriDu%al and LP "o!!ittee7 S<<

#D'

Ot4er courts #eg =ederal Courts) ha$e a more limited :urisdi%tion o$er lawyers9 &ut nonetheless ha$e some dis%i linary :urisdi%tion 3 Caboolture "ar! %hopping Centre + 2hite Industires1

J>B8 '*!)L'S =( C=>6;CT L&*BL' T= 6&SC&)L&>' in notes J e1g1 dishonesty/ incompetence/ personal life

A1

LP T&I;INAL AND LP "OMMITT<< J DIS"PLINA&> O&D<&S A:AILA;L<

LPT hears the most serious dis%i linary ro%eedings regarding rofessional mis%ondu%t+ Its e7tensi$e dis%i linary owers are set out in s4;5+ 45( Decisio%s o1 triDu%al aDout a% Australia% le3al ractitio%er (*) If9 after the tri&unal has %om leted a hearing of a dis%i line a li%ation in relation to a %om laint or an in$estigation matter against an Australian legal a%titioner9 the tri&unal is satisfied that the ra%titioner is guilty of unsatisfa%tory rofessional %ondu%t or rofessional mis%ondu%t9 the tri&unal may ma8e any order as it thin8s fit9 in%luding any * or more of the orders stated in this se%tion+ (0) The tri&unal may9 under this su&se%tion9 ma8e * or more of the following in a way it %onsiders a ro riateX (a) an order re%ommending that the name of the Australian legal ra%titioner &e remo$ed from the lo%al roll6 (&) an order that the ra%titioner/s lo%al ra%tising %ertifi%ate &e sus ended for a stated eriod or %an%elled6 (%) an order that a lo%al ra%tising %ertifi%ate not &e granted to the ra%titioner &efore the end of a stated eriod6 (d) an order thatX (i) im oses stated %onditions on the ra%titioner/s ra%tising %ertifi%ate granted or to &e issued under this A%t6 and (ii) im oses the %onditions for a stated eriod6 and (iii) s e%ifies the time9 if any9 after whi%h the ra%titioner may a ly to the tri&unal for the %onditions to &e amended or remo$ed6 (e) an order u&li%ly re rimanding the ra%titioner or9 if there are s e%ial %ir%umstan%es9 ri$ately re rimanding the ra%titioner6 (f) an order that no law ra%ti%e in this :urisdi%tion may9 for a eriod stated in the order of not more than ; yearsX (i) em loy or %ontinue to em loy the ra%titioner in a

law ra%ti%e in this :urisdi%tion6 or (ii) em loy or %ontinue to em loy the ra%titioner in this :urisdi%tion unless the %onditions of em loyment are su&:e%t to %onditions stated in the order+ (@) The tri&unal may9 under this su&se%tion9 ma8e * or more of the followingX (a) an order re%ommending that the name of the Australian legal ra%titioner &e remo$ed under a %orres onding law from an interstate roll6 (&) an order re%ommending that the ra%titioner/s interstate ra%tising %ertifi%ate &e sus ended for a stated eriod or %an%elled under a %orres onding law6 (%) an order re%ommending that an interstate ra%tising %ertifi%ate not &e9 under a %orres onding law9 granted to the ra%titioner until the end of a stated eriod6 (d) an order re%ommendingX (i) that stated %onditions &e im osed on the ra%titioner/s interstate ra%tising %ertifi%ate6 and (ii) that the %onditions &e im osed for a stated eriod6 and (iii) a stated time9 if any9 after whi%h the ra%titioner may a ly to the tri&unal for the %onditions to &e amended or remo$ed+ (4) The tri&unal may9 under this su&se%tion9 ma8e * or more of the followingX (a) an order that the Australian legal ra%titioner ay a enalty of a stated amount9 not more than J*CCCCC6 (&) a %om ensation order6 (%) an order that the ra%titioner underta8e and %om lete a stated %ourse of further legal edu%ation6 (d) an order that9 for a stated eriod9 the ra%titioner engage in legal ra%ti%e under su er$ision as stated in the order6 (e) an order that the ra%titioner do or refrain from doing something in %onne%tion with the ra%titioner engaging in legal ra%ti%e6 (f) an order that the ra%titioner sto a%%e ting instru%tions as a u&li% notary in relation to notarial ser$i%es6 (g) an order that engaging in legal ra%ti%e &y the ra%titioner is to &e managed for a stated eriod in a stated way or su&:e%t to stated %onditions6 (h) an order that engaging in legal ra%ti%e &y the ra%titioner is to &e su&:e%t to eriodi% ins e%tion &y a erson nominated &y the rele$ant regulatory authority for a stated eriod6 (i) an order that the ra%titioner see8 ad$i%e from a stated erson in relation to the ra%titioner/s management of engaging in legal ra%ti%e6 (:) an order that the ra%titioner must not a ly for a lo%al ra%tising %ertifi%ate for a stated eriod+ (;) To remo$e any dou&t9 it is de%lared that the tri&unal may ma8e any num&er of orders mentioned in any or all of su&se%tions (0)9 (@) and (4)+ (5) Also9 the tri&unal may ma8e an%illary orders9 in%luding an order for ayment &y the Australian legal ra%titioner of e7 enses asso%iated with orders under su&se%tion (4)9 as assessed in or under the order or as agreed+ (<) The tri&unal may find a erson guilty of unsatisfa%tory rofessional %ondu%t e$en though the dis%i line a li%ation alleged rofessional mis%ondu%t+ LP" hears dis%i linary ro%eedings for unsatisfa%tory rofessional %ondu%t 3 s4;H(*)(&) + It has no ower to %an%el or sus end ra%tising %ertifi%ates+ Its full owers are set out in s4;H! 45- Decisio%s o1 co!!ittee aDout $isci li%e a licatio% (*) This se%tion a lies if9 after a %ommittee has %om leted a hearing of a dis%i line a li%ation in relation to a %om laint or an in$estigation matter against an Australian legal ra%titioner or law ra%ti%e em loyee9 the %ommittee is satisfiedX (a) for the ra%titionerXthat the ra%titioner is guilty of unsatisfa%tory rofessional %ondu%t6 or (&) for the em loyeeXthat the em loyee is guilty of mis%ondu%t in relation to the rele$ant ra%ti%e+ (0) The %ommittee may ma8e * or more of the following in relation to an Australian legal ra%titionerX (a) an order u&li%ly re rimanding the ra%titioner or9 if there are s e%ial %ir%umstan%es9 ri$ately re rimanding the ra%titioner6 (&) an order that the ra%titioner ay a enalty of a stated amount9 not more than J*CCCC6 (%) a %om ensation order6 (d) an order that the ra%titioner do or refrain from doing something in %onne%tion with the ra%titioner engaging in legal ra%ti%e6 (e) an order that engaging in legal ra%ti%e &y the ra%titioner is to &e managed for a stated eriod in a stated way or su&:e%t to stated %onditions6 (f) an order that engaging in legal ra%ti%e &y the ra%titioner is to &e su&:e%t to eriodi% ins e%tion &y a erson nominated &y the rele$ant regulatory authority

for a stated eriod6 (g) an order that the ra%titioner see8 ad$i%e from a erson nominated &y the rele$ant regulatory authority in relation to the ra%titioner/s management of engaging in legal ra%ti%e+ (@) Also9 the %ommittee may ma8e an%illary orders9 in%luding an order for ayment &y the Australian legal ra%titioner of e7 enses asso%iated with orders under su&se%tion (0)9 as assessed in or under the order or as agreed+ (4) =or a law ra%ti%e em loyee9 the %ommittee may order that the law ra%ti%e %on%erned and all other law ra%ti%es in this :urisdi%tion must not9 for a eriod stated in the order of not more than ; yearsX (a) %ontinue to em loy or em loy the em loyee in a law ra%ti%e in this :urisdi%tion6 or (&) em loy or %ontinue to em loy the em loyee in this :urisdi%tion unless the %onditions of em loyment are su&:e%t to %onditions stated in the order+ (;) In this se%tionX la$ practice employee in%ludes a erson who was a law ra%ti%e em loyee+ &<MO:ALHST&IKIN* O== A S45(#/'#a' A generally a ro riate only when the lawyer is no longer a .fit and ro er erson/ to ra%ti%e+ 1sually ordered where the ra%titioner has engaged in dishonest %ondu%t or has engaged in a attern of %ondu%t showing a disregard for the o&ligations of legal ra%tioners =actors su orti%3 stri@i%3 o11 7note 3 this is far from e7hausti$e 3 I ha$en/t gone &a%8 through all the re$ious wee8s and added %ases in 3 thin8 it will &e easiest to refer to ea%h rele$ant to i%+ These are :ust a few useful general rin%i lesF+ Ethi%al &lindness! =ailure to a re%iate seriousness of ast wrongdoing ro&lemati%9 la%8 of remorse usually determinati$e3 Barrister3s Board + Foung; Council of B % + 2hitman1 A differen%e must &e drawn &etween flawed :udgment a&out ro er way to &eha$e Ea %hara%ter defe%t whi%h may ro$e diffi%ult to address D GregoryK 9 whi%h is essential6 AN> a %a a%ity .to engage in so histi%ated moral dis%ourse/9 whi%h is not+ (2ortensen9 *<0)+ ,ut remorse will not always &e enough where %harges are serious enough 3 Re auchland (admitted %harges of lying to sol/s and the %t9 forgery and misa ro riationD %t though the remorse was deli&erate as aware how serious the mis%ondu%t was) >ishonesty in legal ra%ti%e 3 AG + Ba*; Re Ridge; A %olicitor; Barrister3s Board + Foung1 Note that some sus ensions ha$e &een o$erturned and the ra%titioner stru%8 off in %ases of dishonesty 3 Council of B % + 2a!eling >ishonesty in ersonal life 3 Coes + .%2 Bar Assn >rin8 dri$ing 3 re%ent o&iter in -ar+eniLa/ %f Giems %ase Plagiarism (as demonstrati$e of la%8 of moral will andIor dishonesty) 3 Re AG%; Re i+eri; Re #G In%om eten%e 3 Clough + B % =ailure to meet dis%losure o&ligations 3 Re >ampton E0CC0F9 de ?ersey C?! a li%ants for admission are re'uired to dis lay .utmost good faith and %andour9 %om rehensi$ely dis laying any matter whi%h may reasona&ly &e ta8en to &ear on an aassessment of fitness for ra%ti%e/9 hen%e the a arent .%urrent ra%ti%e for a li%ants for admission to routinely dis%lose e$en reasona&ly minor traffi% offen%es/+ >isres e%t for the in$estigati$e and dis%i linary ro%ess itself is %a a&le of ro$ing that the %andidate doesn/t meet the moral standards needed to &e a lawyer 3 Mellifont; Janus La%8 of %andour is a &ig ro&lem 3 .in admission and dis%i linary ro%eedings9 the :udges are re ared to underta8e a %om rehensi$e mutliDdimensional assessment of moral %hara%ter+ This eems e$en to in%lude insights learned from attitudes the %andidate shows toward the un%omforta&le s%rutiny that sIhe must endure in the %ourse of the in$estigations and the ro%eedings themsel$esT D Gregory; Foung Where .moral im ro$ement/ a ears ossi&le9 an edu%ation order may &e made 3 Re Carberry; Re < 8 5O2<:<& - these wont/ &e suita&le for %andidates who fail to a rehend $ery &asi% moral rin%i les! ie e$ery idiot generally 8nows that stealing J from %lientsIlying ot the %t is & ad 3 Janus; Foung+

SISP<NSION A more suited for indl la ses that don/t %onstitute serious dishonesty! Mellifont1It is not suited if la%8 of integrity needed to ra%tise is demonstrated6 Council of the aw %ociety Inc + 2a!eling1 =IN<S A less %onsistent with dire%t u&li% rote%tion9 &ut argua&ly ser$e that fun%tion through their deterrent effe%t 3 eg %C + Mullins (J0C CCC fine) ;+ MITI*ATIN* =A"TO&S TO ;< TAK<N INTO A""OINT?

2itigating fa%tors that may &e rele$ant in a %riminal %onte7t are less li8ely to &e rele$ant in a dis%i linary ro%eeding+ 2ental insta&ilityN In Barristers3 Board + Foung/ it was held that mental insta&ility and de ression did not mitigate 3 and in fa%t highlighted the need to dis&ar the &arrister on the grounds of u&li% rote%tion+ S #ealth ro&lemsN Traditionally9 the %ommon law test of rofessional mis%ondu%t needed to &e satisfied &efore someone %o%uld &e remo$ed from the roll 3 %ts and tri&unals were sometimes relu%tant to remo$e a erson suffering from serious health issues (who may &e unaware of their a%tions and la%8 moral %ul a&ility) from &eing in disgra%e G dishonour 3 Re B; Re >arrison; Re a practitioner1 #owe$er9 health issues are no longer dealth with in a dis%i linary %onte7t9 &ut &y a health assessment %ondu%ted &y the Admissions ,oardIQLSI,as Assn! sH<(*)+ -outhN La%8 of e7 erien%eN In B % + Ba*/ ,a7/s dishonest %ondu%t %ould not &e e7%used &y resorting to the e7 lanation that he was young and ine7 erien%ed+ See also Re AJG; Janus Stressful timesN In ,oreman/ 2ahoney ?A stated that S%hara%ter is tested not what does in good times &ut in &adT+ =urthermore9 in Foung/ de ?ersey C? noted that it is %ertainly true that underlying %hara%ter flaws and emotional fragilities will only surfa%e under e7treme stress3 &ut ra%tising as a lawyer is also often stressful+ Chara%ter referen%esN Note that fa$oura&le %hara%ter referen%es ha$e limited weight 3 Foung( er 2a%8en_ie ?9 %iting Janus& #owe$er 3 some fa%tors are rele$ant! Serious &eha$iour9 &ut unli8ely to ha en againN 3 Pro&a&ly rele$ant 3 8ee in mind the rote%ti$e ur ose+ In A %olicitor/ a soli%itor was reinstated to the roll in s ite of serious mis%ondu%t (4 %ounts of aggra$ated inde%ent assault in$ol$ing his ste 8ids) on &asis that the offen%es9 whi%h were %ommitted in a short eriod of time9 were of an .isolated nature/ 3 %om elling nature of his %ase Einter$ening good &eha$iour and res e%ta&ility art of thisF influential+ Pretty mu%h the o osite of e$erything in the . roDstri8ing off ta&le/! eg full %andour9 %ontrition9 re%ognition of wrongdoing is of signifi%ant! anything that demonstrates they/re not a ris8 to the u&li%+ 5+ 25<&< IN DOI;T A ST&IK< T5<M O==P Q;<TT<& TO ;< SA=< T5AN SO&&>Q,

2OBE CASE S122ABIES =OB WEEKS *0 AN> *@ 3 ,COS =ACTS ABE I2POBTANT AN> IT/S LIKEL- TO ,E ON T#E EKA2 Case Summaries Lawyers/ duty of %om eten%e and %are Contra%tual >uties The rule in 2room v Crocker D Contra%t of retainer was the sole &asis of the soli%itor/s duty to e7er%ise %are and s8ill on the %lient/s &ehalf+

#OWEAEB9 if the %osts agreement does not define a duty of %are e7 ressly9 the %ommon law i! lies a duty of %are owed &y the soli%itor to the %lient in %ontra%t! *luminium )ro ucts v Hill+ Tortious >uties (it/s a fu%8ing word s ell%he%8W) Ha$kins v Clayton (I don/t thin8 this %ase is im ortant++LOL ?KS I did go to some %lassesW) =acts6 2rs ,rasier e7e%uted a will and entrusted it to the ama_ing notDshitDatDall soli%itors of Clut_+ Kt &tw , and C until her death in *L<;+ It was not until *LH* that C made any effort to find e7e%utor and &enefi%iary 3 2r #aw8ins+ In the meantime9 ,/s rimary asset9 her house9 had falled into disre air and # had to ay large fine for late lodgment of return of the death duties+ # was issed and sued C for damages+ 5el$ (@ (,rennan9 >eane and "audron ??)! 0)! Could re%o$er damages against C+ e$en though no 8t &etween # and C9 8t &etween , and C di%tated nature of firm/s res onsi&ility to estate whi%h i%1erre$ C authorised (if not o&liged) to ad$ise e7e%utor and &/s of will+ A%%ordingly9 the 8t of retainer will largely determine the nature of the ser$i%es to &e ro$ided to &e ro$ided &y the soli%itor and9 therefore9 the sco e a%$ eGte%t o1 a%y $uty o1 care S owes to ot4ers i% tort+ Tortious duties of %are to nonD%lients The additional element of ro7imity %reated &y >eane ? in Ha$kins v Clayton has &een su&se'uently re:e%ted! Sullivan v !oo y+ The im ortan%e of relia%ce or $e e%$e%ce on the soli%itor has &een affirmed! Hill v 4an 'rp+ =acts6 Will e7e%uted with an error 3 not dis%o$ered until after death of %lient+ 5el$6 #CA held lawyer owed a duty of %are to 2rs Aan Er 9 a disentitled &enefi%iary as a result of the lawyer/s mista8e+ ,rennan C?! interests of a %lient who wants a soli%itor to re are a will and the interests of ,s under that will are e7a%tly the same+ Therefore9 duty of %are in tort to a third arty+ =1BT#EB2OBE9 for 2rs Aan Er to re%o$er e%onomi% loss there had to &e Sso!et4i%3 elseT+ >awson and Toohey ??! duty arose &e%ause the u&li% la%ed a general relian%e on soli%itors to re are and e7e%ute wills ro erly+ "ummow ?! duty of %are had to &e enfor%ed if soli%itor/s o&ligation to re are an effe%ti$e will was to &e enfor%ed+ There had to &e a do% to , &e%ause9 when %lient died9 there was no one else who %ould sue if the will was not ro erly e7e%uted+ Bebonis @ *nor v *ngelos @ =rs7 C%ristopoulos @ *nor v *ngelos @ =rs (%on$eyan%ing) >uty to third arties erha s wi$er than traditionally thought+ Belian%e is arti%ularly im ortant in %on$eyan%ing and will matters9 as the other arty to a %on$eyan%e or a , under a will may lose in the e$ent of the soli%itor/s negligen%e+ Standard of Care Hey on v >R!* A lawyer who owes a duty of %are to another must e7er%ise the %are and s8ill re'uired of a 'ualified and ordinarily %om etent and %areful lawyer in the e7er%ise of his or her rofession+ (Also Ha$kins)+ Per 2al%olm A?A des%ri&ed the standard as! Sthat whi%$h may reasona&ly e7 e%ted of ra%titionersM There is no im lied underta8ing that the ad$i%e is %orre%t9 &ut only that the re'uisite degree of rofessional s8ill and %are has &een e7er%ised in the gi$ing of the ad$i%eT+ Standard where lawyer has e7 ertiseIhigher s8ill <ates v )roperty Corp /in li10 v Bolan =acts6 A&&ot Tout Bussel Kennedy9 soli%itors9 romoted themsel$es as e7 erts in land $aluation %ases+ They were ad$ised &y a &arrister9 2r We&ster+ to use one method of $aluing land that they ne$er normally use+ The firm followed W/s ad$i%e9 whi%h was found to &e negligent+ 5el$6 =ull Court of the =ederal Court! *+ A&&ot Tout had clai!e$ eG ertise9 therefore a 4i34er sta%$ar$ o1 care was re'uired of the firm than would &e re'uired of an ordinary soli%itor+ 0+ =a%t that , was sour%e of ad$i%e irrele$ant+ @+ Arises &oth in 8t a%$ tort! "iles ? in >R!* v !organ 3 .In the %ase of ra%titioners rofessing to ha$e a s e%ial s8ill in a arti%ular area of the law9 the standard of %are re'uired is that of the ordinary s8illed erson e7er%ising and rofessing to ha$e that s e%ial s8ill/+ #OWEAEB9

-akim v !c>ally! relian%e on Counsel/s ad$i%e does not remo$e lia&ility of the soli%itor (narrowing the s%o e)+ Causation Han+le, )ty Lt v >S Hope @ *ssociates ,rea%h of standard of %are shiuld cause the damage for whi%h re%o$ery is &eing %laimed+ Negligent ad$i%e in res e%t of a &usiness $enture might &e gi$en &y a soli%itor to a %lient9 &ut only nominal damages will &e awarded if it is also shown that the %lient would ha$e still underta8en the $enture e$en if the soli%itor had ad$ised against it+ P has to show they would ha$e acte$ $i11ere%tly had the lawyer gi$en them the ro er ad$i%e+ Queenslan *rt 2allery Boar o+ Trustees v Hen erson Trout /a +irm0 "allery %ould not re%o$er damages from #T &e%ause " failed to ro$ed #T/s delay %aused the loss+ Lady Trout had not made her mind u on whether " was to &e gi$en the art %olle%tion9 then she died+ Begardless of the firm/s %ondu%t9 delay was not the ultimate reason why " denied artow8rs+ Pin%us ?A! no %ausal lin8 %an &e esta&lished &etween delay on the art of #T and the fa%t that the testatri7 died without ha$ing e7e%uted a will in "/s fa$our+ Kolavo v )itsikas =acts6 A ellant got legal ad$i%e re suing tewo %om anies in$ol$ed in a a%8age holiday tour on whi%h she was in:ured+ She was ad$ised &y lawyers she had a %ause of a%tion in negligen%e against &oth %om anies+ At trial it &e%ame %lear %ase was ho eless+ She then &rought a%tions against lawyers to indemnify %osts+ 5el$6 She was su%%essful+ Bes ondents failure to ad$ise her she did not ha$e a %ause of a%tion in either tort or %ontra%t as against any of the >s amounted to a 1ailure to eGercise reaso%aDle care a%$ s@ill i% t4e rovisio% o1 ro1essio%al a$vice+ Also ho eless %ase! failure to ad$ise of a ho eless %ase may &e %e3li3e%t+ Con%urrent Lia&ility Scarcella v Lettice Limitation eriods %an affe%t the out%ome for P e$en if S was negligent+ Ad$o%ates/ Immunity 6=rta3'kenaike v 4L* #CA! Where a legal ra%titioner gi$es ad$i%e whi%h leads to a de%ision that affe%ts the %ondu%t of a %ase in %ourt9 the ra%titioner %annot &e sued for negligen%e on that a%%ount+ The o$erriding reason for the immunity was $ital interest of the %ommunity at large in the final 'uelling of the %ontro$ersy whi%h led to litigation9 rather than to fa%ilitate the duty to the %ourt+ 2iannarelli v -rait% An ad$o%ate is immune from any %i$il lia&ility for wor8 inD%ourt or wor8 out of %ourt that is .intimately %onne%ted with/ or .leads to a de%ision affe%ting the %ondu%t of/ inD%ourt ro%eedings+

Wee8 *@ 3 Com laints and >is%i line >ishonesty QLS v Ba, =acts6 ,9 soli%itor for 0 years9 &a%8dated a deed of loan and a se%ond mortgage do%ument and had misled a %reditors/ meeting to assist a %lient+ 5el$6 Stru%8 off+ Condu%t %ould not &e layed down as a youthful transgression 3 &asi% honesty is not learnt through e7 erien%e+ =urther this was not an isolated or tem orary la se of :udgment or honesty+ LSC v -alters =acts6 W forged signature of %lient on an a li%ation filed in the =amily Ct9 Also alleged he was negligent in dealing with matter rom tly and lied to his %lient to %o$er his nwgligen%e+ =inally9 he ignored re'uests of QLS for information a&out his %ondu%t+ 5el$6 Stru%8 off+ Court too8 a dim $iew of his dishonest %ondu%t9 &ut s e%ifi%ally noted that this was %om ounded &y his su&se'uent dishonesty+ * Solicitor v Council o+ t%e La$ Society o+ >S=acts6 S %on$ited on 4 %ounts of aggra$ated assault against ste %hildren+ Three years later9 one of the $i%tims made further allegations9 whi%h S failed to dis%lose+ 5el$6 =ailure to dis%lose the se%ond allegations %on$i%tions amounted to rofessional mis%ondu%t for whi%h a eriod of sus ension would ha$e &een a ro riate+ #owe$er9 S should not &e stru%8 off+ The offenses were isolated and there was a . owerful su&:e%ti$e %ase/ in the soli%itor/s fa$our+ Coe v >S-B* , was a arty in =amily Court ro%eedings and swore an affida$it $erifying a Statement of =inan%ial Cir%umstan%es whi%h he 8new were false+ 5el$6 Stru%8 off+ Ziems v )rot%onotary o+ SC o+ >SA %on$i%tion for in$oluntary manslaughter did not im a%t on a/s fitness to ra%ti%e and ordered a to &e sus ended for the eriod of his im risonment &e%ause of the in%ongruity of ra%tising &ehind &ars+ The rote%tion of the u&li% in$ol$es the maintenan%e of u&li% %onfiden%e in the legal rofession and the legal system as a whole+