Week

1 Lawyers and Lawyering Who are

Lawyers? The Lawyering Framework

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Who are lawyers?

Social Perceptions of Lawyers
Distorter of truth
Paper generator
Sorcerer (wordsmith of legal jargon)
Hero

Formal Distinction of Lawyers from the Profession
Those persons, known as barristers, solicitors or legal practitioners, who
have met the qualifications for admission into practice- that is being
granted priveleges of appearance in the courts and a monopoly in the
delivery of legal work (Lamb and Littrich)

No definitive definition of the legal profession Law Council
legal practitioners or qualified lawyers working within the legal
services industry Law Council of Australia 2010

What is legal work?

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Broad terms of legal work
Lawyers advise and represent clients, for fees for service

Essentially problem solving
Resolving disputes
Negotiate settlements
Investigating claims
Grafting legal documents
Avoid disadvantage
Expand opportunities
Recover losses or obtain
Assist in managing financial
compensation
affairs

Key to problem solving
Integration of professional
advising and strategic
knowledge with the skills of
planning
legal and fact investigation
interviewing skills
and analysis
drafting skills
clear communication
negotiation skilld
advocacy skills
Lawyers work can be divided into litigious and non-litigious

Legal Practice is categorized into:
property
criminal
commercial
family
contract

What is the influence of lawyers in society?

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Legal practitioners are influential in society because of their relationship

with the legal system and the administration of justice, which arises from
their position of officers of the court. There is a duty of legal practitioners
to uphold the rule of law in the defence of a just and democratic society
and promoting the interests of their clients within the framework.
Though this may not apply at all times, lawyers practice law on behalf of
specific clients and will utilise the law to the best interests of the client
and must remain aware of their responsibilities to the legal system, the
courts and their clients within an ethical and moral framework to
preserve the integrity of the system.
Lawyers have an opportunity to contribute to a just and democratic
society by representing clients who may not have access to justice. Thus,
lawyers perform both a professional and a social role in the community.
Judges and magistrates who have been legal practitioners are also
considered to be part of the legal profession although their roles dictate
they must act impartially and independently in determining the facts and
issues that come before them. They can, however, make similar
contributions in law reform and justness in the system.
Lawyers who engage in the development of public policy or the drafting
of legislation are equally important to the role of law and the legal system
in society
Lawyers can work as journalists, reporting on legal issues or investigating
and exposing breaches of the law or other problems with the legal system,
or as commentators on legal and political issues. Their knowledge of the
law and the legal system equips them well for these tasks.
The process of law reform can be initiated in a number of ways, where the
application by a court of law in compliance with the law resulting in a
clear injustice or an undesirable social outcome may lead to a political
response that results in legislative reform.
Academic lawyers can have an influence on law in society in two principal
aspects. Their research encourages scrutiny of the law and the system by
showing the effects of legislation and decisions and the social effects of
the operation of law. Another influence of academic lawyers is the
students they teach where they can fashion students view of the law and
the system through their subjects.

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Legal Education In Australia

What was the Traditional Approach to teaching law?

Originally Law was taught as an apprenticeship

Law Schools when established focused on Black Letter views of law
1852 Sydney Law School opened aimed at teaching academic theory of
law

Development of Law School Curriculum
Law Schools focused mostly on the theory of law, placing little emphasis
on skills
Pearce Report 1986 Recommended change

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o Legal education should focus less on black letter law

o Curriculums should acknowledge and accommodate for changes to the
law
o Curriculums should acknowledge and accommodate for political,
economic and cultural factors within the law
Development of a minimum 3 years study (full time)
Priestly 11 set standards of minimum academic attainment
o administrative law
o civil procedure
o company law
o constitutional law
o contracts
o criminal law and
procedures
o equity (including trusts)
o evidence
o professional conduct
o property (real and
personal)
o torts

 specialist subjects evolved to accommodate for the globalisation of legal

practice
Sackville Report 1994 recommended the wider incorporation of Alternate
Dispute Resolution ADR into the legal system which led to a flow on effect
to the curriculum
Council for Aboriginal Reconciliation 1996 recommended that lawyers be
trained in Aboriginal cultural issues
Australian Law Reform Commissions report 2000 Managing Justice
recommended increase emphasis on ethics training

Practical Legal Training (PLT)
Mandatory training to be admitted to practice
Each state has a different program
Reason for PLT To overcome the inadequacy of articles training in the

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essential skills and major areas of practice so as to ensure that a person

entering the legal profession can function at the standard of competency
which can reasonably be expected of a first year practitioner (Australian
Professional Legal Education Conference)

Week 2 The Ethical Framework

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What are ethics?

The term applied to the moral philosophy or moral principles adopted as a
code or framework or behaviour in a particular context Lamb & Littrich,
Lawyers in Australian Society

What are legal ethics?

Legal ethics are not a stand alone moral construct but rather a series of
normative values that translate into standards for legal practice
Legal ethics is a combination of a persons moral standards and the law and
rules of the profession
Legal ethics seeks to shift the emphasis from what can I get away with to
what should I do

What are the ethical philosophies?

Teleological
o Requires an understanding of what constitutes the right outcome
o Maximising public good

Deontological
o Rule based theory
o There are absolute duties that must be obeyed regardless of the
circumstances
o Means v Ends (actions are right or wrong)

Virtue Ethics
o Theory of altruism
o Focus is on personal motivation, based upon a desire to see society
embody those virtues the individual believes it should
o Good ethics = personal flourishing and public good
o If, for example, honesty should be a virtue of society then the
individual who believes as much should be honest
o Decisions of ethics should be based upon a desire to see society
embody those virtues the individual believes it should

Economics theory of ethics

o Decisions must be a combination of moral judgements, tempered with
the idea of economic rationalism and cost benefit analysis

What are the approaches to legal ethics? (Christine Parker 2004)

Adversarial Advocates
o Lawyers role as an advocate is governed by the adversarial system
and responsibility to the client.

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o Abide by the clients instructions, aside from legal codes of

professionalism, ethical choices are essentially a matter for the client

Responsible Lawyers
o Lawyers who consider their independence and commit to their role as
a facilitator of justice
o Responsible lawyers will refuse instructions if they are contrary to the
responsible courses
o Make the law fair and just

Moral activist lawyers
o Proactive regarding morality and the role of ethics in decision making
o Counseling a client involves emphasizing moral paths and the
interests of justice, law reform and society as a whole
o Law reform activities

Ethically caring Lawyer
o Will nurture, preserve and protect the relationships that exist within
the community, by avoiding disputes and advocating for settlements
that cause the least division

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The Duty Matrix: Ethics in Legal Practice

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A lawyers professional responsibility are those ethical standards that arise in

the context of the retainer between the lawyer and the client,
Which included adherence to codes as established by professional
associations
Lawyers must have an ethic of integrity. A responsibility to say Noat some

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point, the excellence of a lawyers service to a client necessarily entails

delivering advice that the client would rather not hearprofessionalism
demands a recognition offorthright acknowledgment of the limits of the law
(Terrell and Wildman)

What are legal ethics?

Legal ethics are not a stand alone moral construct but rather a series of
normative values that translate into standards for legal practice
Legal ethics is a combination of a persons moral standards and the law and
rules of the profession
Legal ethics seeks to shift the emphasis from what can I get away with to
what should I do

What drives a persons ethics?

Personal upbringing
Individual morals/values
Society
Profession/legal culture
Client
Firm

What is the STATEMENT OF ETHICS?

Council of the Law Society of New South Wales; 11 December 2003
The true profession of law is based on an ideal of honourable service.

We acknowledge the role of our profession in serving our community in

the administration of justice.

We recognize that the law should protect the rights and freedoms of
members of society.

We understand that we are responsible to our community to observe

high standards of conduct and behaviour when we perform our duties to
the courts, our clients and our fellow practitioners.

Our conduct and behaviour should reflect the character we aspire to have
as a profession.

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This means that as individuals engaged in the profession and as a profession:

We primarily serve the interests of justice.

We act competently and diligently in the service of our clients.

We advance our clients' interests above our own.

We act confidentially and in the protection of all client information.

We act together for the mutual benefit of our profession.

We avoid any conflict of interest and duties.

We observe strictly our duty to the Court of which we are officers to

ensure the proper and efficient administration of justice.

We seek to maintain the highest standards of integrity, honesty and

fairness in all our dealings.

Quoted Sources: see Week 2 Lecture Slides

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(2004) 78(7) LIJ page 60

Week 3 Admission to the Profession

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Professionalism

"Professionem" (Latin): Making Public Declaration
Historically, entry to a profession was based upon a declaration to serve the
public using the elite skills acquired from study.
Professions Australias definition:
o A profession is a disciplined group of individuals who adhere to ethical
standards and who hold themselves out as, and are accepted by the public
as possessing special knowledge and skills in a widely recognized body of
learning derived from research, education and training at a high level, in
the interests of others.

Decline in professionalism: Profession v Business
A trade or business is an occupation or calling in which the primary object is
the pursuit of pecuniary gain. Honesty and honorable dealing are, of course,
expected from every man, whether he be engaged in professional practice or in
any other gainful occupation. But in a profession, pecuniary success is not the
only goal. Service is the ideal and the earning of remuneration must always be
subservient to the main purpose - Street CJ in Re Foster (1950) 50 SR (NSW)
149 at 151

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What is a legal practitioner?

A Legal Practitioner is fused with two distinct branches (Mutual
Recognition Act 1992 (Cth):
1. Barrister
o Specialist advocates who traditionally practice as sole practitioners to
maintain independence
o Barristers cannot form partnerships but may share expenses such as
chambers
o Barristers may accept work directly from a client, but traditionally briefed
by a solicitor
2. Solicitor
o Wide range of work
o Can work in partnerships or firms
o Solicitors are the first port of call for clients and thus their work is client
based

What are the advantages and disadvantages of the divided structure?
Advantages
o specialist advocates
o ready access for solicitors
o independence/objectivity
o choice of work
from the client
Disadvantages
o need to use both
o additional cost and delay
o duplication, omission,
o effect upon the court of
confusion
inexperience advocatde

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What is meant by admission into practice in the legal profession?

The right to practice as a barrister or solicitor is conferred by the
Supreme Court of each jurisdiction to be suitably qualified and
honourable persons to appear before those courts in the interests of the
administration of justice. These persons become Officers of the Court and
are duty bound to assist the courts with integrity. The conferring of that
right is referred to as admission to practice. The admitted lawyers duty
to the court transcends their professional duties to clients and other
members of the legal profession.
The rights of admission gives admitted lawyers several privileges,
however, the primary benefit is the ability to provide legal services. Most
current legislation defines legal services as work done, or business
transacted, in the ordinary course of legal practice, and provides that a
person cannot engage in legal practice unless they are a legal practitioner
holding a current practising certificate.
The right to practice as an admitted legal practitioner carries with it
responsibilities to the court and to the community. These responsibilities
emphasise the importance of an ethical framework as one of the
characteristics of a profession, arising from the privilege which the
monopoly over the provision of legal services confers on the legal
profession in its relationship with the community.

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REQUIREMENTS FOR ADMISSION

Section 4: Legal Profession Act 2004 (NSW) Admission to the legal

profession" means admission by a Supreme Court as: (a) a lawyer, or (b) a
legal practitioner, or (c) a barrister, or (d) a solicitor, or (e) a barrister and
solicitor, or (f) a solicitor and barrister...

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Is the candidate ELIGIBLE for admission?

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Does the person have APPROVED ACADEMIC QUALIFICATIONS?
S24 Legal Profession Act 2004
3 year degree or an equivalent in law from an accredited Australian
university. Must incorporate the priestley 11 academic subjects

Is the candidate SUITABLE for admission GOOD CHARACTER AND FITNESS
TO PRACTICE?
Applicant must demonstrate that he or she is a fit and proper person to
be admitted

Suitability for admission see s25 LPA 2004

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Suitability Matters see s9 LPA 2004

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Applicable cases


Previous improper conduct litigation / court
Wentworth v NSW Bar Association (1994) NSW The making, in the course of
litigation, of baseless or insupportable allegations of serious misconduct on
the part of others, whoever those others may be, is conduct which, in a
barrister, would be inconsistent with a fundamental aspect of the
professional standards required of barristers. ... If it is proper to conclude
that, were she to be admitted as a barrister, she would be likely to conduct
herself in a similar way, then she is not a suitable person to be so admitted.

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Previous improper conduct- misconduct

Re AJG [2004] QCA 88

Cheating in the academic course which leads to the qualification central to

practice and at a time so close to the application for admission must preclude
our presently being satisfied of the applicants fitness

Re Liveri [2006] QCA 152

Repeat offender /serious plagiarism /failure to appreciate

It should go without saying that an applicant seeking admission to the
legal profession should not have to be warned about the unacceptability
of cheating in the course of securing the pre-requisite academic
qualification.

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Thomas v Legal Practitioners Admission Bd (2005) Qld fraudulent

misappropriation on that scale...suggests present unsuitability to practice in a
profession in which absolute trust must be of the essence.
Re Owens (2005) NZ HC Numerous offences including burglary at 25 & 27
Reformed at 30, got a law degree, applied for admission at 38 Recognized
complete reformation and positive behavior
Re Davis (1947) 75 CLR 409 Took nearly 30 years to get admitted after non-
disclosure. It would seem to go without saying that conviction of a crime of
dishonesty of so grave a kind as housebreaking and stealing is incompatible
with admission to the bar.

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Previous Criminal Behaviour

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Re OG (a Lawyer) (2007) Vic The need for honesty has never been in doubt.
Admission to practise is conditioned upon an applicant having a complete
realization ... of his obligation of candour to the court in which he desire[s] to
serve as an agent of justice. An applicant must at least disclose anything which
he or she honestly believes should not be left out...

The role of bar councils and law societies:

Making rules for professional conduct

Issuing, granting, renewing practicing certificates to legal practitioners
Amending, suspending or cancelling practicing certificates
Audits of trust accounts ECT.

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Mitigating Factors

Age
Ex parte Lenehan (1948) 77 CLR 403
[20s 45] the false steps of youth and early manhood are not always
final proof of defective character and unfitness...

Redemption
Time interval
Appreciation of seriousness of misconduct
External stressors

Prothonotary v Del Castillo [2001] NSWCA 75 at [81]

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Avoidance of lying is not a morale absolute. Lying can be wrong, but it is not
always wrong. Bearing false witness against ones neighbour is forbidden, but
not necessarily uttering untruths otherwise than as a witness, which protect
ones neighbour. If the opponent was trying to protect his wife, his culpability
must be judged in the light of the fact that many people think that lying to
protect ones family is, in many circumstances, not blameworthy

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Week 4 Regulation and Discipline

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Regulation

Law Society and Bar Association

Grant practising certificates
Represent their members
Regulate the profession professional rules
Educate their members

SELF-REGULATION

Rules or conventions intended to provide a professional and ethical framework
were designed to protect the profession rather than to provide an efficient and
cost-effective access to legal services for the community:
Clear division b/t the work of barristers and solicitors
When a senior barrister QC was briefed to appear in a matter there must
also be a junior barrister briefed regardless of the complexity. Fee of
junior fixed to 2/3 of senior barrister
Barristers fixed their own fees
Solicitors fees fixed according to scales adopted by Law Societies. Scales
did not differentiate b/t the complexity of the matter. Although some
differentiated b/w paralegal or a solicitor.
Solicitors were not permitted to advertise that they would accept lower
fees than the scales that were set.
Remuneration from legal work could not be shared with others (except as
employees wages and bonuses)
Legal firms must be run as sole practices or partnerships so Law Society
can regulate
Legal work was a monopoly restricted by legislation to be performed by
admitted lawyers. Cant make competitive services e.g. tax accountants

CO-REGULATION
Divide resources
Gives objectivity
Client is aware that there is a body to protect their rights
Provides checks and balances
Professional councils: NSW Law Society, NSW Bar Association
Independent bodies: Office of legal services commissioner, administrative
decisions tribunal, Supreme Court


NSW Regulation
Legal Profession Act 2004 (NSW)
Legal Profession Regulation 2005 (NSW)
LS NSW Professional Conduct and Practice Rules
NSW Barristers Rules

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What is the Basis of Discipline?

The rationale for discipline is said to be protection
o the primary focus for the orders in this area of the laws operationis
the protection of the community from persons unworthy to practice
(Council of Law Society v Foreman)
The standards of conduct are high- discipline uphold those:
o high standards are expected of legal practitionersThis Court is the
guardian of the maintenance of those standards (Council of Law
Society v Foreman)

Professional Misconduct

Common Law Definition

a charge of misconduct as relating to a solicitor need not fall within any legal
definition of wrongdoing. It need not amount to an offence under the law; it is
enough that it amounted to grave impropriety affecting the solicitors
professional character, and was indicative of a failure either to understand or
to practise the precepts of honesty or fair dealing in relation to the courts, his
or her clients or the public.... His fitness to continue on the roll must be
judged by his conduct and conduct must be judged by the rules and standards
of his profession. (Kennedy v Council of Incorporated Law Institute of NSW
(1939) 13 ALJ 563 at 564)
would be reasonably regarded as disgraceful or dishonourable by [the
practitioners] professional brethren of good repute and competency
(Allinson v General Council of Medical Ed and Regn [1984]

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Supplemented by statute
Statutory legislation for professional misconduct
Section 497 Legal Profession Act 2004 (NSW)
Professional Misconduct includes
a) unsatisfactory professional conduct ..., where the conduct involves a
substantial or consistent failure to reach or maintain a reasonable standard of
competence and diligence, and
b) conduct ... whether occurring in connection with the practice of law or
occurring otherwise than in connection with the practice of law that would, if
established, justify a finding that the practitioner is not a fit and proper person...
2. Refers to section 25 suitability factors
Statutory legislation for unsatisfactory professional conduct
General Council of Medical Ed and Regn [1984] would be reasonably
regarded as disgraceful or dishonourable by [the practitioners] professional
brethren of good repute and competency

Section 496 Legal Profession Act 2004 (NSW)

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a) "unsatisfactory professional conduct" includes conduct ... occurring in

connection with the practice of law that falls short of the standard of
competence and diligence that a member of the public is entitled to
expect of a reasonably competent Australian legal practitioner

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Section 498 Legal Profession Act 2004 (NSW)

1) Without limiting section 496 or 497, the following conduct is capable of
being unsatisfactory professional conduct or professional misconduct:
a) conduct consisting of a contravention of this Act, the regulations or
legal profession rules
b) charging of excessive legal costs in connection with the practice of law
c) conduct in respect of which there is a conviction for:
i)
a serious offence, or
ii)
a tax offence, or
iii)
an offence involving dishonesty
d) conduct of an Australian legal practitioner as or in becoming an
insolvent under administration
e) conduct of an Australia legal practitioner as or in becoming
disqualified from managing or being involved in the management of
any corporation under the Coporations Act 2001 of the
Commonwealth
f) conduct consisting of a failure to comply with the requirements of a
notice under this Act or the regulations
g) conduct of an Australian legal practitioner failing to comply with an
order of the Disciplinary Trubunal made under this Act or an order of
a corresponding disciplinary body made under a corresponding law
(including but not limited to a failure to pay wholly or partly a fine
impose under this Act or a corresponding law)

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h) conduct of an Australian legal practitioner in failing to comply with a

compensation order made under this Act or a corresponding law.
conduct of a person consisting of a contravention referred to in subsection (1)
(a) is capable of being unsatisfactory professional conduct or professional
misconduct whether or not the person is convicted of an offence in relation to
the contravention
Ziems v Prothonotary of the Supreme Court of NSW Killed someone while
driving but was suspended only while he served his prison sentence because the
offence wasnt one of dishonesty and was outside his professional work.

Penalties

Clyne v NSW bar association Penalty... is in no sense punitive in character.

When such an order is made, it is made, from the public point of view, for the
protection of those who require protection, and from the professional point
of view, in order that abuse of privilege may not lead to loss of privilege

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Public protection
Reputation of the profession
Rehabilitate practitioner

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S540 LPA Summary Conclusion of complaint procedure by caution,

reprimand, compensation or impositions of conditions
This section applies if the commissioner completes an investigation
and is satisfied that
i) the practitioner would be found to engage in unsatisfactory
professional misconduct but NOT professional misconduct
ii) practitioner is generally competent and diligent
iii) is the conduct concerned serious and whether there are any other
substantiated complaints of the practitioner
The commissioner can then:
(a) caution the practitioner,
(b) reprimand the practitioner,
(c) make a compensation order under Part 4.9 if the complainant
requested a compensation order in respect of the complaint,
(d) determine that a specified condition be imposed on the practitioners
practising certificate.

S562 Determinations of Tribunal
Orders generally If, after it has completed a hearing under this Part in relation to
a complaint against an Australian legal practitioner, the Tribunal is satisfied that
the practitioner has engaged in unsatisfactory professional conduct or
professional misconduct, the Tribunal may make such orders as it thinks fit,
including any one or more of the orders specified in this section:
a) Struck off roll
b) Suspension of practicing certificate
c) Conditions on practicing certificate

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d)
e)
f)
g)

Reprimand
Fine
Further legal education
Supervision conselling

S566 Costs
(1) The Tribunal must make orders requiring an Australian legal practitioner
whom it has found to have engaged in unsatisfactory professional conduct
or professional misconduct to pay costs (including costs of the
Commissioner, a Council and the complainant), unless the Tribunal is
satisfied that exceptional circumstances exist.

Costs were the penalty received in Council of Law Society of NSW v

Foreman (1994) OVERCHARGING

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S577 Registration of Disciplinary Action

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When application is made to the Court to strike a solicitor off the roll for
professional misconduct the question for the Court is whetherit is any
longer justified in holding out the solicitor in question as a fit and proper
person to be entrusted with the important duties and grave responsibilities
of a solicitor (Re Veron; Ex parte LS of NSW)

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Name removed from the roll

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OLSC is to keep a register of disciplinary action taken against legal

practitioners
The register is available for public inspection

What are the mitigating factors for penalties?

Prior disciplinary record

Community and professional reputation
Cooperation with discipline process
Remorse
Illness/mental illness
Substance abuse

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Lawyers Focused Actions

Lawyers Duties

Breach of duties gives rise to these actions:

Client Focused Actions:

Remedies under Common Law
o Damages in contract breach or Tort

Remedies in Equity o Restitution
o Injunction
o Account of Profits
o Specific Performance
Remedies pursuant to Statute
o LPA
o LPR

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Week 5 Lawyer Client Relationship

Duty Matrix

A legal practitioner has a concurrent set of duties owed to the court and to
the administration of justice, to the client and third parties. Each individual
component of the matrix is essential, yet at time they may come into conflict.
The duty to the client is fundamental to the duty matrix. This duty itself is
made up of several components.

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The Retainer

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What is the retainer?

The retainer is a contract between the lawyer and a client for the
provision of legal services by the lawyer
The duties and liability arise from the existence of the retainer
The retainer governs the scope of the lawyer-client contract
o Upon whose instructions the lawyer is to act
o The scope of authority in how to carry out the instruction
o The scope of the lawyers duties

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A retainer may be made

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Proof of retainer

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Writinen Retainer
o Not essential but best practice

Oral Retainer
o Person alleging the retainer bears the burden of proof
o The word of the client is to be preferred over the word of the
solicitor...and a lawyer who does not obtain a written retainer has only
himself to thank for being at variance with his client over it and must
take the consequences Griffiths v Evans

Inferred from the conduct of the parties/Implied Retainer
o Follows basic contract rules of formation
o The court will look at the surrounding circumstances in order to
determine if a retainer exists (McGeoch v Hendricks)
o Onus of proof rests on person who alleges the existence of a retainer
Lawyers file and diary notes
Nature of work conducted
Who instructed the lawyer - the most obvious case exists
where a legal practice is instructed by a client s306 LPA
Who is liable for the lawyers charges
Where a contractual relationship has existed in the past

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Acceptance of responsibility amount to acceptance ...when a solicitor

accepts responsibility to do professional work requiring special knowledge
and skill and there is in fact a reliance on him to apply his expert knowledge
and skill in the performance of that work, there exist the elements which lie
at the heart of the ordinary relationship between a solicitor and
client...Pegrum v Fatharly (1996)

Arguing there is no retainer

The question whether [M] expressly retained [H] as his solicitor depends
upon findings of fact sufficient to constitute a contract between the two
The extent of the fiduciary obligations owed by a solicitor to his or her
client depends upon the scope of the applicable retainer
A professional engagement may be implied if the relevant relationship is
established
He [H] did not advise them to seek independent advice. And when asked
for advice...by [M]... freely gave it. ... He thereby assumed a responsibility
for that advice. He knew [M] was relying on him to provide appropriate
advice and in doing so to look after his interests. (McGeoch v Hendricks)

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Retainer can be formed with any client, barrister or solicitor

s 83 LPA (2004) Deals with client access to both solictors and barristers

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Who?

Usually the law practice will know exactly for whom they are acting, however the
following are examples of where that may not be the case:

Instructions to act for a business client
o Sole trader, partnership or via a company?
Instructions to act for a corporate client
o Written authority needed for authorisation and status of corporate
client needs to be known.
Instructions from an unincorporated association
Acting as in-house counsel
- Same duty.
Receiving instructions from an insure
- Insurer instructs solicitor.
Instructions to act for a child
- Same duty.
Representation of children under the Family Law Act 1975 (Cth)
o Must not take childs best interests over parents family lawyers

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o Must advise the client of the courts obligations under the Act (to act in
the childs best interest)

When does the retainer come into effect?

Section 306 of the LPA
o A client first instructs a law practice in relation to a matter in a
particular jurisdiction if the law practice first receives instructions from
or on behalf of the client in relation to the matter in that jurisdiction,
whether in person or by post, telephone, fax, email or other form of
communication
o Emphasis on the firm receiving instructions in a manner rather than
the client giving those instructions.

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Must decline brief when

It is possible to choose not to retain a client
In principle a solicitor should not decline to accept on the basis of the
unpopular client
o it is expected of course of every solicitor that he shall act up to proper
standards of conductfor all manner of clients, good, bad or indifferent,
honest or dishonest, and he is not called upon to sit in judgement (R v
Tighe and Maher)
o A lawyer MUST decline a retainer if he or she is not competent or can
attend to the work with reasonable promptness
o Unless he is able to obtain those skills without delay or has warned
the client without objection
o Refer the client to another solicitor (Un v Schroter)
A lawyer MUST decline a retainer if there exists a conflict of interest
See Rule 4:
4 Other fundamental ethical duties
4.1 A solicitor must also:

4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;

4.1.2 be honest and courteous in all dealings in the course of legal practice;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4 avoid any compromise to their integrity and professional independence; and

4.1.5 comply with these Rules and the law.

Barristers
Are governed by the cab rank rule

23

BR r21. A barrister must accept a brief from a solicitor to appear before a court in a field
in which the barrister practises or professes to practise if:
A. The brief is within the barristers capacity, skill and experience;
B. The barrister would be available to work as a barrister when the brief would
require the barrister to appear or to prepare, and the barrister is not already
committed to other professional or personal engagements which may, as a real
possibility, prevent the barrister from being able to advance a clients interests
to the best of the barristers skill and diligence;
C. The fee offered on the brief is acceptable to the barrister; and
D. The barrister is not obliged or permitted to refuse the brief under Rules 95, 97 to
99.

Costs

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Once you have determined that you are able to act for the client you must
disclose costs as soon as possible

Costs include: fees, charges, disbursements, expenses and remuneration

s302 (1) LPA
GST must be taken into account s302(B) LPA

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What are costs?

According to s309(1) LPA Disclosure must include:

a) Basis on which legal costs will be calculated
b) The rights of the client
c) Estimate of total costs
d) Details of intervals when the client will be billed
e) The rate of interest
f) If the matter is litigious an estimate of:
i)range of costs that may be recovered if successful
ii) costs the client may be ordered to pay if unsuccessful
g) Clients right to progress reports
h) Details of the person whom the client may contact to discuss legal
costs

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When must costs be disclosed?

According to s311(1) LPA disclosure must be made to the client:
o Before ore as soon as practicable after, the law practice is retained in
the matter
According to s311(1) LPA disclosure must be made
o In writing

When is disclosure not necessary?

Disclosure is not required according to LPA in the following

24

circumstances:
o Total costs are less then $750 s312(1)(a)
o Client has received a disclosure in the last 12 months s312(1)(b)(i)
o Client has, in writing, waived the right of disclosure s312(1)(b)(ii)
o The client is a legal practitioner s312(1)(c)(i)
o Costs have been agreed by tender process s312(1)(d)
o The client is not going to have to pay the costs s312(1)(e)
What are the consequences for failing to disclose?

Cannot claim costs or take action to recover costs until costs assessor has
assessed the costs s317(1) LPA
Costs can be reduced as penalty s317(4) LPA
Capable of being unsatisfactory professional misconduct or professional
misconduct s317(7) LPA

Is there a cost agreement?

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Not required but strongly advised

Must be in writing or void s322(2)
Contract enforced like any other s326
Can form part of retainer or be separate
Good practice to get it signed by the client

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Identify client and lawyer

Scope of work to be performed by lawyer for client
Method of costing such work and clients responsibility to pay for work
NOTE: where disputes arise- interpreted contra proferentum (against the
lawyer)
NOTE: lawyer-client = relationship of influence

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What are the EXPRESS terms of the retainer?

What are the IMPLIED terms of the retainer?

Use best endeavours to protect clients interests and exercise reasonable
care and skill in carrying out the clients instructions (Groom v Crocker)
Perform work efficiently
o It usually is an implied term of the engagement of a legal practitioner,
at hourly rates, that the work will be performed efficiently. It is an
implied term of the kind that goes without saying, to adopt the
phrase used by the Privy Council in B.P. Refinery (Westernport) Pty
Ltd v Shire of Hastings ... It goes without saying that a client does not
agree to a practitioner acting inefficiently, by spending an excessive
amount of time performing legal work, only to be rewarded for every
hour of inefficiency. (Michaels v Daley)
Authority to do things incidental to the retainer
Duty of confidentiality

25

Client is free to withdraw at any time

When a lawyer wants to withdraw must be a just cause/reasonable
notice

Duty to Advise

Where the client instructs a lawyer to perform specialist legal services

involving the exercise of professional skill, this attracts a duty, absent an
express exclusion or restriction in the retainer itself, on the lawyer to give
advice reasonably necessary to protect the clients interests whether or not
expressly requested (Dalleagles Pty Ltd v Australian Securties Commission per
Anderson)

7 Communication of advice
7.1 A solicitor must provide clear and timely advice to assist a client to
understand relevant legal issues and to make informed choices about action
to be taken during the course of a matter, consistent with the terms of the
engagement.

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8.1 A solicitor must follow a clients lawful, proper and competent

instructions.

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8 Client instructions

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Law Society of NSW, Client Care Guideline to Best Practice

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Lawyers must disclose to clients, before or as soon as practicable after accepting

the retainer:
A description of the work the lawyer expects will be done, its principal
features and likely duration;
The names of the persons who will do the work or be responsible for its
supervision; and
The name and address of another lawyer, or other suitably qualified person,
from whom the client can obtain help or advice in the event that the client
cannot satisfactorily resolve a problem or dispute with the persons
responsible for the work or its supervision.

A failure to communicate sufficiently constitutes a breach of the duty to

advise and can give rise to an action in negligence (Micos v Diamond)
Whilst not technically a requirement, advising the client about Alternative
Dispute Resolution (ADR) is consistent with the duty to act in the clients best
interest and the duty to advise
Duty to advise is directly linked to the retainer
Duty to advise can be limited by the retained

26

The retainer determines to whom and the extent of the duty to advise
Duty to disclose costs ss309-317 LPA
Consequences of breaching a duty to advise results in disciplinary action

Duty to Advise Clients of Non Litigious Alternatives
Rule 7.2

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A solicitor must inform the client or the instructing solicitor about the
alternatives to fully contested adjudication of the case which are reasonably
available to the client, unless the solicitor believes on reasonable grounds that
the client already has such an understanding of those alternatives as to permit
the client to make decisions about the clients best interests in relation to the
litigation.
Non-legal Implications

... a solicitors primary obligation is to give effect to the instructions of his

or her client. It is not, unless specifically retained and agreeing to do so, to
provide financial advice or psychological counselling. It would be
undesirable for the law to impose burdens on solicitors which go far
beyond the duties of their retainer and what might reasonably be
expected within the scope of that retainer. (Cousins v Cousins)

wa

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Ensure the client understands the advice

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legal advice, like any other communication, should be in terms

appropriate to the comprehension and experience of the particular
recipient. (County Personnel v Alan)
By ensuring a client understands take into account
Age
Disability
Business inexperience
Lack of education or ignorance

o
o
o
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Take and act on clients instructions

It is implied that a solicitor will follow a clients instructions as long as the
instruction:
o Is one which is proper for the client to give
o No express term to the contrary
(Equuscorp v Wilmoth)
EXCEPT were a clients instruction contravenes with a solicitors supervening
duty to the court or the solicitors ethical responsibilities (Equuscorp v
Wilmoth)

Rule 8

27

8.1 A solicitor must follow a clients lawful, proper and competent

instructions.
A solicitor must not be a mere mouthpiece of their client

Rule 17.1
17.1 A solicitor representing a client in a matter that is before the court must not
act as the mere mouthpiece of the client or of the instructing solicitor (if any) and
must exercise the forensic judgments called for during the case independently,
after the appropriate consideration of the clients and the instructing solicitors
instructions where applicable.

Reasonable Prospects of Success

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A legal practice must not provide legal services with respect to a claim or
defence to a claim for damages unless...
o a legal practitioner associate responsible for the provision of the services
concerned reasonably believes on the basis of provable facts and a
reasonable arguable view of the law that the claim or defence (as
appropriate) has reasonable prospects of success Legal Profession Act
2004 (NSW) s 345
Law practices must not file any claim or defence unless the practice has
certified that it meets the reasonable prospects test in s 345. Legal
Profession Act 2004 (NSW) s 347
If a court forms the view that a defence or claim is raised with no reasonable
prospect of success, the onus is on the practice to rebut that presumption
Legal Profession Act 2004 (NSW) s 349
Advising a client of a claim or defence which the court subsequently finds to
have no reasonable prospect of success is capable of being unsatisfactory
professional conduct or professional misconduct Legal Profession Act 2004
(NSW) s 347 (1)
There is a distinction between taking a difficult case and a hopeless one. A
lawyer who takes on difficult actions will not be penalised for doing so. That
is, the rules above must look to the circumstances to differentiate between a
lawyer undertaking a difficult action and one that takes on hopeless
litigation (Lemoto v Able Technical Pty Ltd [2005] NSWCA 153)

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Remember

Duty to the client is subordinate to the duty to the court (Rule 3)

Where a clients instructions are to engage in illegal and or unethical conduct,
a lawyer can terminate the retainer by:
o Just cause
o Reasonable notice

28


Rule 13

13 Completion or termination of engagement

13.1 A solicitor with designated responsibility for a clients matter must

ensure completion of the legal services for that matter UNLESS:
13.1.1 the client has otherwise agreed;
13.1.2 the law practice is discharged from the engagement by the client;
13.1.3 the law practice terminates the engagement for just cause and on
reasonable notice;
13.1.4 or the engagement comes to an end by operation of law.

Generally, a practitioner must complete the entire contract before rendering a
bill (but this can be changed by the terms of the retainer)
Client should not be disadvantaged by termination by lawyer
On termination of retainer and satisfaction of any solicitors lien, clients
documentation should be returned
Responsibilities under contract, tort and equity generally come to an end
However, NOT all duties end with the termination of the retainer, e.g.
confidentiality

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Solicitors Lien

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Right to resist a demand for the payment of money or the performance of an

obligation until some counter obligation is paid or performed
Can retain clients documents until costs paid (Rule 15)
On termination of retainer and satisfaction of any solicitors lien, clients
documentation should be returned (Rule 14)

29

Week 6 Duty of Competence and Care

How is competence controlled?
Competence is controlled through admission

s24 LPA
o Academic training (3yrs)
o PLT (6 months minimum)
s53 LPA
o Restricted practicing certificate
o Supervision for 2yrs

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Duty to be competent

Rule 4

Other fundamental ethical duties

wa

A solicitor must also:

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4.1

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4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;

in

4.1.2 be honest and courteous in all dealings in the course of legal practice;

Th

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and

What are the consequences of conduct that falls short of competence?

Breaches of the following sections of LPA will amount to misconduct and

as a result the practitioner will be disciplined accordingly.
o s496 LPA conduct ...that falls short of the standard of competence and
diligence that a member of the public is entitled to expect of a
reasonably competent Australian legal practitioner
o s497 LPA substantial or consistent failure to reach or maintain a
reasonable standard of competence and diligence

Competency requires communication

Lawyers have a duty to communicate with the client and gain all relevant
information
o The plaintiff goes to a lawyer for advice, it is not for the plaintiff, so to

30

speak, to define the cause of action, it is for the solicitor to get the facts
and advise the plaintiff and that was not done (Roberts v Cashman)
Mere difficulty in obtaining relevant information is not an excuse (Roberts
v Cashman)
It is within the scope of a solicitors duty to obtain proper instructions
from the client so that advice could be given in respect of all possible
actions arising from the incident. Failing to do so makes a solicitor
incompetent (Roberts v Cashman)

Duty to the client: Client-focussed action in

Contract retainer

Implied term
NB.

Concurrent with duty of loyalty

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Equity fiduciary obligations

Negligence

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Tort

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Tort negligence
o Duty of care
Established by solicitor client relationship
o Breach of duty
Failed to do what reasonable person would do to prevent
foreseeable risk
o Caused loss
Cannot be too remote
o DEFENCES
Contributory negligence and voluntary assumption of risk

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Client Focussed Action

Client is able to choose action in contract or tort

Plaintiff free to choose the cause of action (in tort or contract) that is most to
their advantage (Astley v Austrust Ltd)

Consider
Damages
o Contract = expectation Tort = reliance

31

Proof of elements, particularly loss

o Contract = breach of term; Tort = causation
Limitation of statutes
o Contract = starts at breach Tort= starts at loss
3rd parties
o Contract = Privity Negligence extends to 3rd parties
Standard of care

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Competence:
o A general definition of competence in the practice of law means the
ability to perform a range of legal tasks, and solve a range of legal
problems according to measurable standards within the framework of the
rules of the conduct and ethics of the legal profession.
o In other words, the ability to use the law as a tool to help clients.
Cannot be excluded by clause in retainer
o Can be limited (see below)

Duty may be higher if held out as specialist
o That of an ordinary skilled person exercising and professing to have that
special skill (Rogers v Whitaker 1992)
o In the case of a solicitor who is an expert in a particular branch of the law
the requirement should be that the solicitor must carry out his retainer as
would a reasonably competent solicitor who is an expert in that particular
area of law (Yates Property Corp Ltd v Boland (1998)
o There is also a duty to warn (Curnuck v Nitschke [2001]; Vulic v Bilinsky
[1983]; Roberts v Cashman [2000]).
o There exist, for all lawyers, a minimum standard that cannot be lowered
by inexperience or other factor.
o Lawyers who purport to be a specialist are held to a higher standard as a
result (Heydon v NRMA)

Beyond the retainer

The relationship of solicitor and client ... is a relationship of proximity of a

kind which may well give rise to a duty of care on the part of the solicitor
which requires the taking of positive steps, beyond the specifically agreed
professional task or function, to avoid a real and foreseeable risk of economic
loss being sustained by the client. (Hawkins v Clayton 1988)
Kirby P It would be undesirable for the law to impose burdens on solicitors
which go far beyond the duties of their retainer and what might reasonably
be expected within the scope of that retainer
... except in the rarest cases, if a solicitor can claim to have performed his

32

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retainer and executed his mandate, he is immune from liability in tort. He

holds himself out as skilled in performing his professional duties, at being
able to comply with his client's instructions. He does not hold himself out as
having the additional qualifications of a soothsayer and a nanny. (Cousins v
Cousins [1991)

Duty to Warn

There is a requirement that a practitioner go beyond the retainer where it
is necessary to alert the client of risks or associated matters (Curnuck v
Nitsche [2001] NSWCA 176)
Alternative avenues available to the client should be identified/advised of
(Vulic v Bilinsky )
The duty of competence also requires a practitioner to advise a client of
possibilities and options even where it is not expressly required by the
retainer (Roberts v Cashman)
The duty to go outside the retainer is relevant at any time the clients best
interests warrant it (Roberts v Cashman)
It is said the duty transcends the retainer (Citicorp Australia Ltd v
OBrien)

Do

Limits

Lawyer only has to advise in relation to the law (Citicorp v Obrian)

A lawyer does not have to predicting any changes to the law etc are,
unless they are likely to imminently occur. (Heydon v NRMA)

Liability to 3rd parties
o A solicitors liability in tort has also been held to extend beyond the lawyer-
client relationship in certain situations where failure to carry out a clients
instructions may give rise to loss to a third party (Hill v Van Erp)

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Civil Liability Act 2002 (NSW) s50

(1) A person practising a profession ( "a professional") does not incur a
liability in negligence arising from the provision of a professional service if it
is established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by peer professional
opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes
of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely
accepted in Australia concerning a matter does not prevent any one or more
(or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.

33

This statutory standard of care for professional has been adopted in most
jurisdictions, representing a departure from the common law standard
developed in result (Rogers v Whittaker)
Cases indicate the statute works as a defence
o Section 5O has the effect that, if the defendants conduct accorded with
professional practice regarded as acceptable by some (more fully, if he
acted in a manner that ... was widely accepted ... by peer professional
opinion as competent professional practice), then subject to rationality
that professional practice sets the standard of care. In this sense, s 5O
provides a defence.
o the standard of care will be that determined by the court with guidance
from evidence of acceptable professional practice unless it is established
(in practice, by the defendant) that the defendant acted according to
professional practice widely accepted by (rational) peer professional
opinion. [emphasis added] (Dobler v Halverson)

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To maintain a level of competence lawyers must keep up to date with

developments in areas of law relevant to their practice (including
management and conduct of their practice) and both maintain and update
the skills they employ in practice.
In order to retain a practicing certificate lawyers are required in some
Australian jurisdictions to undergo an annual MCLE or CPD course.
Barristers must undergo 10 hours/units of either MCLE or CPD each year
A lawyer fit to remain on the roll must make reasonable efforts to keep up
with current developments in his field of practice - LS NSW v Moulton

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Has the lawyer maintained competence through mandatory continuing

legal education (MCLE) or continuing professional development (CPD)?

Th

Is the practitioner insured?

To avoid a claim for professional negligence, it is compulsory for all
jurisdictions to have profession indemnity insurance schemes in place for
legal practitioners.
For a practicing certificate to be issued or renewed the solicitor must
have professional indemnity insurance from an approved insurer. S406
LPA
The practitioner is a risk of not being insured, if the practitioner fails to
notify the insurer promptly of any claim made against him or her, or of
any matter that may influence the insurer in its decision whether or not
to provide insurance cover.
There is a risk of personal liability. The solicitor must advise honestly
about potential claims (CGU Insurance Ltd v Porthouse)

Are advocates immune from negligence?

A barrister or solicitor advocate cannot be sued by his or her client for

negligence in the conduct of a case, in court or in work out of court which
leads to a decision affecting the conduct of a case in court (Rondel v
Worsley) also applies to solicitor advocates
34

Week 7 Duty of Loyalty: Confidentiality and

Privilege

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What is the scope of the duty of loyalty?

The duty of loyalty includes
o A lawyer must no permit their own interests to override those of their
client
o A lawyer must avoid a conflict of interest wherever possible
o Where a conflict of interest emerges, a lawyer must make full frank
disclosure of the conflict to the client (Law Society of NSW v Harvey)
The duty of loyalty covers both:
o Confidentiality
o Legal Professional Privilege
Fiduciary principle lawyers must give undivided loyalty to their client
without being distracted by other interests including personal interests (R v
Neil (2002)).

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Duty of Confidentiality

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Legal practitioners owe a duty of confidentiality to their cleints

o A person should be entitled to seek and obtain legal advice without the
apprehension of subsequent disclosure of the communication (Esso v
Commissioner of Taxation)
It is implied by the retainer and the fiduciary relationship b/t a client and a
legal practitioner that all communications are confidential.
Confidentiality is protected by law Evidence Act 1995 (NSW) s 118
Rule 9

Th

Do practitioners have a duty of confidentiality to their clients?

9 Confidentiality
9.1 A solicitor must not disclose any information which is confidential to a client
and acquired by the solicitor during the clients engagement to any person who
is not:
9.1.1 a solicitor who is a partner, principal, director, or employee of the
solicitors law practice; or
9.1.2 a barrister or an employee of, or person otherwise engaged by, the
solicitors law practice or by an associated entity for the purposes of
delivering or administering legal services in relation to the client,
EXCEPT as permitted in Rule 9.2. 9.2 A solicitor may disclose confidential
client information if:
. 9.2.1 the client expressly or impliedly authorises disclosure;

35

. 9.2.2 the solicitor is permitted or is compelled by law to disclose;

. 9.2.3 the solicitor discloses the information in a confidential setting, for the
sole purpose of obtaining advice in connection with the solicitors legal or
ethical obligations;
. 9.2.4 the solicitor discloses the information for the sole purpose of avoiding
the probable commission of a serious criminal offence;
. 9.2.5 the solicitor discloses the information for the purpose of preventing
imminent serious physical harm to the client or to another person; or
. 9.2.6 the information is disclosed to the insurer of the solicitor, law practice or
associated entity.

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CRIMES ACT 1900 - SECT 316

Concealing serious indictable offence
316 Concealing serious indictable offence

1. If a person has committed a serious indictable offence and another person
who knows or believes that the offence has been committed and that he or
she has information which might be of material assistance in securing the
apprehension of the offender or the prosecution or conviction of the offender
for it fails without reasonable excuse to bring that information to the
attention of a member of the Police Force or other appropriate authority, that
other person is liable to imprisonment for 2 years.

2. A person who solicits, accepts or agrees to accept any benefit for himself or
herself or any other person in consideration for doing anything that would be
an offence under subsection (1) is liable to imprisonment for 5 years.

3. It is not an offence against subsection (2) merely to solicit, accept or agree to
accept the making good of loss or injury caused by an offence or the making
of reasonable compensation for that loss or injury.

4. A prosecution for an offence against subsection (1) is not to be commenced
against a person without the approval of the Attorney General if the
knowledge or belief that an offence has been committed was formed or the
information referred to in the subsection was obtained by the person in the
course of practising or following a profession, calling or vocation prescribed
by the regulations for the purposes of this subsection.

5. The regulations may prescribe a profession, calling or vocation as referred to
in subsection (4).

Legal Professional Privilege

What is legal professional privilege?

36

Legal professional privilege is the right of the client to protection from

disclosure of confidential information and advice passing b/t lawyer and
client.
Legal professional privilegeprotects the confidentiality of certain
communications made in connection with giving or obtaining legal advice
or the provision of legal services including representation in proceedings in
a court (Esso v Taxation)

Who has the legal professional privilege?

Privilege belongs to the client and only the client can waive the privilege
The party claiming privilege bears the onus of proving it

What is the purpose of legal professional privilege?

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The privilege ensures the unreserved freedom of communication with

lawyers who can advise [clients] of their rights under the law and...
defend or enforce those rights. Carter v Northmore Hale Davy & Leake
[it] exists to serve the public interest in the administration of justice
by encouraging full and frank disclosure by clients to their lawyers
(Esso v Commissioner of Taxation )
A person should be entitled to seek and obtain legal advice...and legal
assistance...without the apprehension of being prejudiced by
subsequent disclosure (Esso case)

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What are the two types of privilege?

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Advice privilege
o Confidential communications for the dominant purpose of giving or
receiving legal advice
o Confidential communications between client and lawyer
Litigation privilege
o Confidential communications for the dominant purpose of litigation or
reasonably expected litigation
o May include confidential communications between client or lawyer and a
third party
o Does not need an advice element (AWB)
See s118 and 119 - Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW)
for codification in federal and NSW jurisdictions (applies to the adducing of
evidence)
EVIDENCE ACT 1995 - SECT 118
Legal advice
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that
adducing the evidence would result in disclosure of:

37

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for
the client, or
(c) the contents of a confidential document (whether delivered or not)
prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers,
providing legal advice to the client.

EVIDENCE ACT 1995 - SECT 119
Litigation

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119 Litigation

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Evidence is not to be adduced if, on objection by a client, the court finds that
adducing the evidence would result in disclosure of:

Do

(a) a confidential communication between the client and another person, or

between a lawyer acting for the client and another person, that was made, or

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(b) the contents of a confidential document (whether delivered or not) that

was prepared,

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for the dominant purpose of the client being provided with professional legal
services relating to an Australian or overseas proceeding (including the
proceeding before the court), or an anticipated or pending Australian or
overseas proceeding, in which the client is or may be, or was or might have
been, a party.

What are the two types of privilege?
Advice privilege
o Confidential communications for the dominant purpose of giving or
receiving legal advice
o Confidential communications between client and lawyer
Litigation privilege
o Confidential communications for the dominant purpose of litigation or
reasonably expected litigation
o May include confidential communications between client or lawyer and a
third party
o Does not need an advice element (AWB)
See s118 and 119 - Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW)
for codification in federal and NSW jurisdictions (applies to the adducing of

38

evidence)

What are the requirements for legal professional privilege?
CONFIDENTIAL

The information a party is seeking to decline to make available to the

other party on the grounds that the material is protected by legal
profession privilege MUST be confidential.

DOMINANT PURPOSE (Esso)

cu

Legal profession privilege operates to resist a claim for the disclosure of

information where the information was provided to the practitioner
for the dominant purpose as opposed to the sole purpose of obtaining
legal advice, thus the duty of confidentiality exists.
The purpose of the communication i.e. whether it is dominate or sole is
determined primarily from the document and circumstances surrounding
the making of the document may be relevant.

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The communication the client seeks to be protected by legal profession

privilege may be oral or written

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COMMUNICATION

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where the privilege applies it inhibits or prevents access to potentially

relevant information (Esso)
Privilege trumps claims for disclosure of documents under discovery
procedure; and
Prevails over obligation to produce documents under subpoena

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What is the effect of protecting legal professional privilege?

What are the limited exceptions to legal professional privilege?

Abrogation by statute
o A statute may override the legal professional privilege
o The statue must exclusively state that it intends to displace the privilege
(Baker v Campbell)

Public Interest
o Where it is not in the publics interest to allow the documents to remain
confidential, the privilege may be displaced (AWB v Cole) e.g. fraud and
criminal activity
o This may include child protection (Re Bell; Ex Parte Lees)
Professional privilege and discovery

Documents may be considered protected by privilege, although their

39

existence must be disclosed in the Affidavit of Discovery and noted as

privileged
Practitioners can not engage in destroying, concealing or otherwise
circumventing the discovery process (McCabe v British and American
Tabacco Australian Services )
A practitioner is prohibited from destroying, removing or advising a client
a destroy or conceal documents subject to discovery or likely to be the
subject of future proceedings (Clause 177 of the Legal Profession
Regulation 2005)

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LEGAL PROFESSION REGULATION 2005 - REG 177

Advice on and handling of documents
177 Advice on and handling of documents

(1) An Australian legal practitioner must not give advice to a client to the
effect that a document should be destroyed, or should be moved from the
place at which it is kept or from the person who has possession or control of
it, if the practitioner is aware that:
(a) it is likely that legal proceedings will be commenced in relation to which
the document may be required, and
(b) following the advice will result in the document being unavailable or
unusable for the purposes of those proceedings.
(2) An Australian legal practitioner must not destroy a document or move it
from the place at which it is kept or from the person who has possession or
control of it, or aid or abet a person in the destruction of a document or in
moving it from the place at which it is kept or from the person who has
possession or control of it, if legal practitioner is aware that:
(a) it is likely that legal proceedings will be commenced in relation to which
the document may be required, and
(b) the destruction or moving of the document will result in the document
being unavailable or unusable for the purposes of those proceedings.
(3) Subclauses (1) and (2) apply even if there has been no indication that a
specific person intends to commence proceedings in relation to which the
document concerned may be required.
(4) A contravention of this clause is declared to be professional misconduct.
(5) Despite the other provisions of this clause, it is not professional
misconduct for an Australian legal practitioner merely to move a document
in the possession or control of the practitioner to a person who is lawfully
entitled to possession or control of the document if the person requests the
practitioner to do so.
(6) In this clause,
"destroy" a document includes make the document illegible.

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Week 8 Duty of Loyalty: Conflict of interest

Does a lawyer have a duty to disclose conflict of interests to the client?

Lawyers must disclose any conflict of interest to the client

o Where there is any conflict between the interest of the client and that of
the solicitor, the duty of the solicitor is to act in perfect good faith and to
make full disclosure of his interest (Law Society of NSW v Harvey)
Reflective of fiduciary duties
Fiduciary principle lawyers must give undivided loyalty to their client
without being distracted by other interests including personal interests (R v
Neil (2002) 218 DLR (4th) 671 (Canadian case))

A lawyer should not use his retainer to advance his own interests
A solicitor ought not to intermingle his personal affairs in a sense
including the affairs of companies, ventures or others, with whose
financial position he has personal connection with the affairs of his client
(Law Society of NSW v Harvey)
Where there is any conflict b/t the interest of the client and that of the
solicitor, the duty of the solicitor is to act in perfect good faith and to make
full disclosure of his interest (Law Society of NSW v Harvey)
Fiduciary Principle is a practitioner must act without being distracted by
other interest including personal interests (R v Neil)
A lawyer should not use his retainer to advance his own interests

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Conflicts of interest involve the solicitors own interests

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How can this conflict be avoided?

As the duty to loyalty is owed to a client, the client can relax the rule by giving
informed consent to the action of the solicitor
The informed consent must be full candour and appropriately complete
disclosure to the client by the lawyer ( OReilly v Law Society NSW)

12 Conflict concerning a solicitors own interests

12.1 A solicitor must not act for a client where there is a conflict
between the duty to serve the best interests of a client and the interests of
the solicitor or an associate of the solicitor, except as permitted by this Rule.

12.2 A solicitor must not exercise any undue influence intended to dispose
the client to benefit the solicitor in excess of the solicitors fair remuneration
for legal services provided to the client.
12.3 A solicitor must not borrow any money, nor assist an associate to
borrow money, from:

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o 12.3.1 a client of the solicitor or of the solicitors law practice; or

o 12.3.2 a former client of the solicitor or of the solicitors law practice
who has indicated a continuing reliance upon the advice of the solicitor
or of the solicitors law practice in relation to the investment of money,
12.4.3 receiving a financial benefit from a third party in relation to any
dealing where the solicitor represents a client, or from another service
provider to whom a client has been referred by the solicitor, provided that
the solicitor advises the client:
o (i) that a commission or benefit is or may be payable to the solicitor in
respect of the dealing or referral and the nature of that commission or
benefit;

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o (ii) that the client may refuse any referral, and the client has given
informed consent to the commission or benefit received or which may be
received.

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12.4.4 acting for a client in any dealing in which a financial benefit may
be payable to a third party for referring the client, provided that the
solicitor has first disclosed the payment or financial benefit to the client.
Personal Relationships

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A solicitor must take special care where acting for friends and family
members
Always insist on independent advice (Woolley v Ritchie)

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Sexual relations with clients

No specific prohibition
May generate conflict
Can adversely impact on representation of client (Legal Practitioners conduct
board v Morel)

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Lending to a client

Practitioners may lend to a client, provided they fully address all relevant
issues involved in lending
This should be in writing (OReilly v Law Society of NSW)

Undue influence

There is a presumption of undue influence in the relationship of trust-

The lawyer client relationship is one where this presumption applies (powell
v powell)
There is a presumption of undue influence in relationships of trust - the
lawyer-client relationship is one where the presumption applies (powell v
powell)

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The lawyer has the burden of showing that the transaction was not the result
of undue influence (Brusewitz v Brown)
Satisfied by independent advice Other wise the transaction will be held void

Current Client Conflicts

A lawyer cannot give his exclusive, undivided attention to the interests of his
client if he is torn between...his clients interests and those of another client
to whom he owes the self-same duty of loyalty (Davey v Woolley, Hames, Dale
& Dingwall (1982) 133 DLR (3d) 647 (Canadian case)

11 Conflict of duties concerning current clients

11.1 A solicitor and a law practice must avoid conflicts between the duties owed
to two or more current clients, except where permitted by this Rule.

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11.2 If a solicitor or a law practice seeks to act for two or more clients in the
same or related matters where the clients interests are adverse and there is a
conflict or potential conflict of the duties to act in the best interests of each client,
the solicitor or law practice must not act, except where permitted by Rule 11.3.

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11.3 Where a solicitor or law practice seeks to act in the circumstances specified
in Rule 11.2, the solicitor may, subject always to each solicitor discharging their
duty to act in the best interests of their client, only act if each client:

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11.3.1 is aware that the solicitor or law practice is also acting for another client;
and

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11.3.2 has given informed consent to the solicitor or law practice so acting.

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Ways to address rule 11.2

Information Barriers

A conflict may arise where practitioners within the same firm act for
multiple parties to the same matter.
Courts are traditionally reluctant to recognize information
barrier/chinese walls (Mallesons v KPMG)
The assumption that each partner within a firm has the same knowledge
that the other partners do should be a rebuttable presumption (Unioil v
Deloitte)
Work carried out by discrete section of firm and under a separate partner
may constitute chinese walls (Fruehauf v Feez)
Courts generally do not recognize Chinese walls/information barriers-
artificial walls of confidentiality b/t lawyers in the same firm acting for
cleints with conflicting interest

Former Client Conflicts

Generally there is no blanket restriction on acting against a former client,

43

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except where:
o Confidentiality duty would be breached and may reasonably be considered
remembered or capable, on the memory being triggered of being recalled
o Originally communicated in confidence
o Relevant to the subject matter of the subsequent proposed retainer
o The only real barrier to accepting instructions to act against a former
client is confidentiality, in particular, whether one is the possession of info
in respect of that former client that is relevant to the new matter and
might be used to the detriment of the former client (Prince Jeffri v KPMG)
A solicitor is liable to be restrained from acting for a new client against a
former client if a reasonable observer, aware of all the relevant facts, would
think that there is a real, opposed to a theroretical possibility that confidential
information given to the solicitor by the former client might be used by the
solicitor to advance the interests of a new client to the detriment of the old
client (Carindale Country Club v Astill)

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Rule 10 Conflicts concerning former clients

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10.1 A solicitor and law practice must avoid conflicts between the duties owed to
current and former clients, except as permitted by Rule 10.2.

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10.2 A solicitor or law practice who or which is in possession of confidential

information of a former client where that information might reasonably be
concluded to be material to the matter of another client and detrimental to the
interests of the former client if disclosed, must not act for the current client in
that matter UNLESS:

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10.2.1 the former client has given informed written consent to the solicitor or
law practice so acting; or
10.2.2 an effective information barrier has been established.

Duty to account

Lawyers receive monies from clients or from third parties to be held for
or on behalf of the client
Lawyer becomes trustee of those funds
Doesnt usually apply to barristers s.252 LPA and r77 BR) prevent
barristers from holding, investing or disbursing funds for any other
person in the course of their professional work
Lawyers who hold trust monies must maintain an accurate, accessible and
ordered account of moneys held on trust.

What are the general law duties of trust?

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General law duty of trustee applies. These duties include:

o Duty to keep and render proper accounts
o Duty not to deal with trust money for own benefit
o Duty not to mix trust funds
o Duty not to delegate powers

In addition to these duties LPA 2004 (NSW) imposes conditions on
accounting for clients money and Legal Profession Regulation 2005 (NSW)
prescribes how this should be done.

What is the Statutory duty to account?

Legal Profession Act 2004 (NSW)
Must deposit trust money as soon as practicable after receiving trust
money, a law practice must deposit the money in a general trust account of
the practice s254 LPA Max penalty: 100 penalty units

Must not use or withdraw trust moneys without client authority s255
LPA Max penalty: 50 penalty units

Not to mix trust with non-trust moneys s 260 LPA Max penalty: 100
penalty units

Trust account not to be overdrawn s262 LPA Max penalty: 200 penalty
units

Duty to report defalcations (misuse of funds) asa practicable s263 LPA

Max penalty: 50 penalty units

Must keep detailed and accurate records to enable external audits s264
LPA Max penalty: 100 penalty units

Prohibition of false names in trust account s265 LPA Max penalty: 100
penalty units

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Legal Profession Regulation 2005 (NSW)

Must provide trust account statement to client cl 82 LPR

Statement must be provided : [Cl 82 (6) LPR

o As soon as practical after completion of work
o Upon reasonable request
o As soon as practicable after 30 June in each year

Must not be deposited in false name or name preventing identification of

real owner - cl 84(3) LPR

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Failure = breach of trust, negligence, civil action or s498 LPA

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LEGAL PROFESSION ACT 2004 - SECT 498
Conduct capable of being unsatisfactory professional conduct or
professional misconduct
498 Conduct capable of being unsatisfactory professional conduct or
professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being
unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal
profession rules,
(b) charging of excessive legal costs in connection with the practice of law,
(c) conduct in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence, or
(iii) an offence involving dishonesty,
(d) conduct of an Australian legal practitioner as or in becoming an insolvent
under administration,
(e) conduct of an Australian legal practitioner in becoming disqualified from
managing or being involved in the management of any corporation under the
Corporations Act 2001 of the Commonwealth,
(f) conduct consisting of a failure to comply with the requirements of a notice
under this Act or the regulations (other than an information notice),
(g) conduct of an Australian legal practitioner in failing to comply with an order
of the Disciplinary Tribunal made under this Act or an order of a corresponding
disciplinary body made under a corresponding law (including but not limited to
a failure to pay wholly or partly a fine imposed under this Act or a corresponding
law),
(h) conduct of an Australian legal practitioner in failing to comply with a
compensation order made under this Act or a corresponding law.
(2) Conduct of a person consisting of a contravention referred to in subsection
(1) (a) is capable of being unsatisfactory professional conduct or professional
misconduct whether or not the person is

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Week 9 Duty to the Court and

Administration of Justice
What is a lawyers responsibility where a conflict arises between their duty
to the client and their duty to the court?

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Where a lawyers primary duty to the client comes into conflict with their
duty to the court, it has been held that the duty to the court is the overriding
duty and thus must prevail over the duty of the client (Giannarelli v Wraith)
Every counsel has a duty to his client fearlessly to raise every issue, advance
every argument, and ask every question, however distasteful, which he thinks
will help his clients case. But, as an officer of the court concerned in the
administration of justice, he has an overriding duty to the court, to the
standards of his profession, and to the public, which may and often does lead
to a conflict with his clients wishes or with what the client thinks are his
personal interests. Counsel must not mislead the court (Rondel v Worsley)

Rule 3 Paramount duty to the court and the administration of justice

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3.1 A solicitors duty to the court and the administration of justice is paramount
and prevails to the extent of inconsistency with any other duty.

Rule 17 Independence avoidance of personal bias

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17.1 A solicitor representing a client in a matter that is before the court must not
act as the mere mouthpiece of the client or of the instructing solicitor (if any)
and must exercise the forensic judgments called for during the case
independently, after the appropriate consideration of the clients and the
instructing solicitors instructions where applicable.
Rule 29 Prosecutors duties
29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek
impartially to have the whole of the relevant evidence placed intelligibly before
the court, and must seek to assist the court with adequate submissions of law to
enable the law properly to be applied to the facts.
Duty to disclose certain information
19.4 A solicitor seeking any interlocutory relief in an ex parte application must
disclose to the court all factual or legal matters which:
19.4.1 are within the solicitors knowledge;
19.4.2 are not protected by legal professional privilege; and
19.4.3 the solicitor has reasonable grounds to believe would support an
argument against granting the relief or limiting its terms adversely to the
client.

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Duty to the court Act With Honesty and Candor

The court requires a practitioner to present the clients case with honesty,
frankness and candour, so as to not mislead the court or abuse the court
process
If the court cannot trust the lawyers to appear before them with honesty, the
courts are likely to become mere instruments of oppression, and the creator
of greater evils than those they are appointed to cure (Incorporated Law v
Meagher)
The courts are very critical of practitioners who fail to disclose all relevant
information (ERS v Wilson)

Rule 19 Frankness in court

19.1 A solicitor must not deceive or knowingly or recklessly mislead the
court.
19.2 A solicitor must take all necessary steps to correct any misleading
statement made by the solicitor to a court as soon as possible after the
solicitor becomes aware that the statement was misleading.
19.3 A solicitor will not have made a misleading statement to a court simply by
failing to correct an error in a statement made to the court by the opponent
or any other person.

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Not the role of the lawyer to decide if the client is guilty or innocent- it is a
matter for the court (R v Tuckiar)

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Duty of honesty and candour Delinquent or guilty client

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Can lawyers act for guilty clients?

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Rule 20 Delinquent or guilty clients

20.2 A solicitor whose client in criminal proceedings confesses guilt to the solicitor but
maintains a plea of not guilty:
20.2.1 may cease to act, if there is enough time for another solicitor to take
over the case properly before the hearing, and the client does not insist
on the solicitor continuing to appear for the client;
20.2.2 in cases where the solicitor continues to act for the client:
(i) must not falsely suggest that some other person committed the
offence charged;
(ii) must not set up an affirmative case inconsistent with the
confession;
(iii) may argue that the evidence as a whole does not prove that the
client is guilty of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of
the offence charged; and

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(v) may argue that for any other reason not prohibited by (i) and (ii)
the client should not be convicted of the offence charged;

Misleading the court as to the clients innocence despite a confession of guilty

can result in being struck off the role (NSW Bar Association v Punch)

Can a lawyer plead their clients guilt despite innocence?

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There is no prohibition against a lawyer entering a plea of guilty for a client

who is in truth not guilty. This does not amount to misleading the court and a
mischarge of justice.
a person charged with a criminal offence is at liberty to plead guilty or not
guilty, whether or not that person is in truth guilty, or not guilty...A court will
act on a plea of guilty when it is entered in open court by a person who is of
full age and apparently of sound mind and understanding...There is no
miscarriage of justice if a court does act on such a plea (Meissner v R)
Where a practitioner pleads guilty for a client who is innocent they must take
care to explain to the client that by pleading guilty they are admitting to all
elements of the offence and that no submission may be made to the court
inconsistent with that admission. Should be communicated in writing
including conviction and sentencing, although there is no formal requirement
to do so (Meissner v R)
Important to note: you cannot make arguments for mitigation of sentence
that are inconsistent with guilty plea.
Good idea to get this signed in writing so they cant dispute they werent
properly advised

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What must a lawyer do where a client admits to a lie?

Rule 20 Delinquent or guilty clients
20.1 A solicitor who, as a result of information provided by the client or a
witness called on behalf of the client, learns during a hearing or after
judgment or the decision is reserved and while it remains pending, that
the client or a witness called on behalf of the client:
20.1.1 has lied in a material particular to the court or has procured
another person to lie to the court;
20.1.2 has falsified or procured another person to falsify in any way a
document which has been tendered; or
20.1.3 has suppressed or procured another person to suppress
material evidence upon a topic where there was a positive duty to
make disclosure to the court;

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must
20.1.4 advise the client that the court should be informed of the lie,
falsification or suppression and request authority so to inform the
court; and
20.1.5 refuse to take any further part in the case unless the client
authorises the solicitor to inform the court of the lie, falsification
or suppression and must promptly inform the court of the lie,
falsification or suppression upon the client authorising the
solicitor to do so but otherwise may not inform the court of the lie,
falsification or suppression.
What must a lawyer do where a client intends to disobey the court?

Where the client indicated their intention to disobey the court, the
practitioner is nevertheless bound by confidentiality
This confidentiality may be breached where a persons safety is a risk

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Rule 20.3 A solicitor whose client informs the solicitor that the client intends to
disobey a courts order must:

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o 20.3.1 advise the client against that course and warn the client of its
dangers;

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o 20.3.2 not advise the client how to carry out or conceal that course; and

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o 20.3.3 not inform the court or the opponent of the clients intention
unless:
(i) the client has authorised the solicitor to do so beforehand; or

(ii) the solicitor believes on reasonable grounds that the clients
conduct constitutes a threat to any persons safety.
Duty of honesty and candour responsible use of privilege
The court requires a practitioner to present the clients case with honesty
and frankness.
Abusing this privilege is subject to disciplinary proceedings (Clyne v NSW Bar
Association)

If the Court could not trust Counsel to do so, the courts....

o are likely to become mere instruments of oppression, and the creator of

greater evils than those they are appointed to cure (Incorporated Law Institute

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of New South Wales v Meagher)

Rule 21 Responsible use of court process and privilege
21.1 A solicitor must take care to ensure that the solicitors advice to invoke the
coercive powers of a court:
21.1.1 is reasonably justified by the material then available to the
solicitor;
21.1.2 is appropriate for the robust advancement of the clients case on
its merits;

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21.1.3 is not made principally in order to harass or embarrass a

person; and

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21.1.4 is not made principally in order to gain some collateral

advantage for the client or the solicitor or the instructing solicitor
out of court.

Judges have warned against placing a witness under pressure to provide

other than a truthful account of their evidence (D Ipppp, Lawyers Duty to the
Court)
Where an expert witness has been coached, the Court will regard the
credibility of the evidence as negligible (Universal Music v Sharman)

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Duty of honesty and candour integrity of evidence

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24 Integrity of evidence influencing evidence

24.1 A solicitor must not:
24.1.1 advise or suggest to a witness that false or misleading evidence
should be given nor condone another person doing so; or
24.1.2 coach a witness by advising what answers the witness should give
to questions which might be asked.
Duty to the court abuse of process
Rule 21 Responsible use of court process and privilege
21.1 A solicitor must take care to ensure that the solicitors advice to invoke the
coercive powers of a court:
21.1.1 is reasonably justified by the material then available to the
solicitor;

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21.1.2 is appropriate for the robust advancement of the clients case on

its merits;
21.1.3 is not made principally in order to harass or embarrass a
person; and
21.1.4 is not made principally in order to gain some collateral
advantage for the client or the solicitor or the instructing solicitor
out of court.

there is another significant duty that may coincide with the interests of
the client...practitioners must identify, at the earliest possible stage, the
real issues in dispute...It is no longer permissible, if it ever was
permissible, for a lawyer to take every point Spigelman CJ (On his
Swearing In as Chief Justice) 1998

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Delaying tactics may be viewed as an abuse of process (White Industries v

Flower and Hart)
If undue delay is found, the court can award a costs order against the
practitioner (White Industries v Flower and Hart)
Similarly, beginning proceedings without reasonable prospects of success
can be considered misconduct (s348 LPA)

Undue Delay

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Competence when dealing with the court

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Rule 4.1.3 deliver legal services competently, diligently and as promptly as

reasonably possible;
A practitioner must act with competency in dealing with the court
This includes the need for practitioners to prepare documents on time,
prepare properly and generally, act according to proper procedure and
etiquette
This applies to any practitioner, regardless of their experience or whether
they are a barrister or solicitor (ERS v Wilson)

Duty to respect and uphold the law

There is a general duty to foster respect for the law and the administration of
justice (Re B)

Independence of the practitioner

Whilst a practitioner must advance the clients interests, they must remain
independent of their client

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Courtesy and contempt of court

A practitioner must act with civility and courtesy with regards to the court
and court proceedings (Ex parte Bellanto)
Behaviour that insults or is likely to impair the authority of the courts may
lead to disciplinary action (Attorney General (QLD) v Lovitt)

Role of the prosecutor

The overriding duty for a prosecutor is to achieve a fair trial (Whitehorn v R)

Rule 29 Prosecutors duties

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29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek
impartially to have the whole of the relevant evidence placed intelligibly
before the court, and must seek to assist the court
withadequatesubmissionsoflawtoenablethelawproperlytobeappliedtothef
acts.

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Crimes Act 1900 (NSW) -s327 false statement material to proceeding =

perjury10 yrs -s330 false statement5yrs

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What is an affidavit?

An affidavit is a written statement of evidence which the witness has sworn or

affirmed to be true.

A lawyer can help make an affidavit but it must be in the witness own words.

An affidavit must be sworn or affirmed before a person such as a justice of the

peace or a legal practitioner.

Giving written evidence, rather than oral evidence in the witness box, saves a lot
of time. Signing the affidavit

The person making the affidavit must first take an oath or make an affirmation
in front of a solicitor or Justice of the Peace. Only after the oath or affirmation
has been taken can the affidavit be signed. The solicitor or Justice of the Peace
must then also sign and date the affidavit and any annexures to it.

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Week 10 Other Duties Duty to the

profession and duty to third parties
Duty to other lawyers

Rule 4 4.1.2 be honest and courteous in all dealings in the course of legal
practice;
Rule 22 Communication with opponents
22.1 A solicitor must not knowingly make a false statement to an opponent
in relation to the case (including its compromise).

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22.2 A solicitor must take all necessary steps to correct any false statement
made by the solicitor to an opponent as soon as possible after the solicitor
becomes aware that the statement was false.

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22.3 A solicitor will not have made a false statement to the opponent simply
by failing to correct an error on any matter stated to the solicitor by the
opponent.

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Rule 30 Another solicitor or other persons error

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

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Rule 31 Inadvertent disclosure

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31.1 Unless otherwise permitted or compelled by law, a solicitor to whom

material known or reasonably suspected to be confidential is disclosed
by another solicitor, or by some other person and who is aware that the
disclosure was inadvertent must not use the material and must:
31.1.1 return, destroy or delete the material (as appropriate) immediately
upon becoming aware that disclosure was inadvertent; and
31.1.2 notify the other solicitor or the other person of the disclosure and the
steps taken to prevent inappropriate misuse of the material.

Exploiting an opponents mistake may be inappropriate and may be subject to
disciplinary action (Chamberlain v Law Society of Australian Capital Territory)
Those members of the legal profession who seek to win a monetary
advantage for their clients without observing the proper courtesies invite
correction by the court and disapproval of their colleagues.. To the extent
that solicitors act in this way, they run the risk of destroying the confidence
and mutual respect which generally distinguishes dealings between members
of the legal profession from other dealings within the community. (Garrard v
Email Furniture Pty Ltd)

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Rule 32 Unfounded allegations

32.1 A solicitor must not make an allegation against another Australian legal
practitioner of unsatisfactory professional conduct or professional misconduct
unless the allegation is made bona fide and the solicitor believes on reasonable
grounds that available material by which the allegation could be supported
provides a proper basis for it.

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The making, in the course of litigation, of baseless or insupportable allegations

of serious misconduct on the part of others, whoever those others may be, is
conduct which, in a barrister, would be inconsistent with a fundamental
aspect of the professional standards required of barristers. ... If it is proper to
conclude that, were she to be admitted as a barrister, she would be likely to
conduct herself in a similar way, then she is not a suitable person to be so
admitted. (Wentworth v NSW Bar Association (1994) NSW)

Should not communicate with other lawyers clients

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33 Communication with another solicitors client

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33.1 A solicitor must not deal directly with the client or clients of another
practitioner unless:

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33.1.3 the substance of the dealing is solely to enquire whether the other party
or parties to a matter are represented and, if so, by whom; or

Undertakings

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33.1.4 there is notice of the solicitors intention to communicate with the other
party or parties, but the other practitioner has failed, after a reasonable time, to
reply and there is a reasonable basis for proceeding with contact.

Rule 6 Undertakings
6.1 A solicitor who has given an undertaking in the course of legal practice must
honour that undertaking and ensure the timely and effective performance of the
undertaking, unless released by the recipient or by a court of competent
jurisdiction.
6.2 A solicitor must not seek from another solicitor, or that solicitors employee,
associate, or agent, undertakings in respect of a matter, that would require the
co-operation of a third party who is not party to the undertaking.
A promise made to the court or other practitioner to do, or refrain from doing,
something is referred to as an undertaking.
Can be enforced through contract: If promise is not honoured it can be
enforced against the lawyer personally (Wade v Licardy)
Undertakings made by a practitioners employees must also be honoured

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(Law Society of NSW v Waterhouse)

Failure to honour an undertaking may amount to misconduct Law Society of
NSW v Martin
A lawyer should never give undertaking unless he has full authority over the
situation.
If an undertaking is given to a court there is a breach>misconduct>discipline
Rule 35 deals with interactions with 3rd parties
Solicitors should act prudently in giving personal undertakings and ensure,
as far as possible, they are in writing or confirmed in writing, expressed in
clear, precise and unambiguous terms and are given in accordance with
the clients instructions. Importantly, for a personal undertaking the means of
fulfilment must be in the solicitors complete control; otherwise the
undertaking must be provided or given subject to conditions.
Undertakings are given by legal practitioners for the specific purpose of
enabling legal activities to be carried out. Other persons rely on those
undertakings. The undertakings are personal to the legal practitioner and
bind that practitioner ... as a matter of professional conduct and comity, and
will be enforced by the Courts because legal practitioners are officers of the
Court and because without enforcement undertakings would be worthless,
persons and Courts would be unable to rely on the word of the legal
practitioner and this aspect of legal practice, that demands compliance for
legal efficiency, would collapse. - (Re Vincent Cofini)

Duty to Third Parties

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the need to maintain among members of the public a well-founded confidence

that any solicitor whom they instruct will be a person of unquestionable
integrity, probity and trustworthiness (Bolton v Law Society)

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Not bring the profession into disrepute r5

Not grossly exceed legitimate claim to mislead or intimidate r34.1.1
Not threaten criminal proceedings r34.1.2
Not use tactics to embarrass or frustrate r34.1.3
Self-Represented Litigant:
Practitioners have no specific duty to assist a self-represented litigant.
The duty to the court may require, however, that (in the interests of justice and
expediency) assist where necessary a self-represented litigant.
Increasing number of self-represented litigants in the legal system
Special care required when dealing with unrepresented parties/opponents
Obligations of courtesy, honesty and fairness
Take care not to take unfair advantage
Note: Law Society of New South Wales, Guidelines for solicitors
dealing with self-represented parties (April 2006)

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 Duty to obey and uphold the law

Fostering of respect for the law and its administration Re B [1981] 2

NSWLR 372
Not to engage in conduct that is dishonest, illegal, unprofessional, or
engage in other conduct that may bring the profession into disrepute or is
prejudicial to the administration of justice
Ties back to admission and discipline...

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Week 11-12 Access to Justice and the

profession: Responsibility of the legal
profession
The adversarial system

Two parties adversaries

Legal methodology
o Facts presented > ascertain relevant facts
o Consider the relevant law > legislation/precedent
o Apply the law to the facts > providing reasons for decision
Certainty, equality, efficiency, appearance of justice

Adversarial system and justice

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An individuals idea of justice in relation to a dispute is subjective informed by

that persons own moral and social beliefs. The law and those who administer it,
on the other hand, aim to be objective to reach the right resolution to a dispute
given the legal principles applicable to the case. But when the case raises a
difficult issue even expert lawyers may come to completely different conclusions
and experienced judges may disagree as to the correct outcome. In other words,
there may not be an objective right answer, let alone one which accords with the
individuals view of justice. Not surprisingly, these inadequacies have led to
centuries of serious criticism and rejection of the law by philosophers, members
of religious groups and anarchists. Nevertheless, imperfect though the legal
system may be, in our democratic societies it is acknowledged as being the most
acceptable way of regulating our dealings with one another.(Cook et al, Laying
down the law (LexisNexis, 7th ed, 2009) 7.)

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What is access to justice?

In dictionary terms, justice means just treatment or fairness, and just

in this context means giving proper consideration to the claims of
everyone concerned (Oxford Dictionary).
Access to justice can refer to the processes and conditions which
establish the opportunity for just treatment or fairness.

Access to justice is central to the rule of law and integral to the enjoyment of
basic human rights. It is an essential precondition to social inclusion and a
critical element of a well-functioning democracy... The critical test is whether our
justice system is fair, simple, affordable and accessible. It is also important
that the system provides effective early intervention to help people resolve
problems before they escalate and lead to entrenched disadvantage. People must
be able to understand the law if it is to be effective.(Attorney-General Robert
McClellan Foreword to the Report of the Access to Justice Taskforce September
2009)

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Access to justice issues

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People with disabilities

People from culturally / linguistically diverse backgrounds
Indigenous Australians
Children and young people
Older people
People living in remote, rural and regional areas
o Over the past 50 years, Australia has been in rural decline.
o Almost all barristers in Australia are located in or adjacent to the CBD
of those cities.
o Withdrawal of many government services in smaller towns, and the
closure of local courts at summary levels.
People living in disadvantaged urban environments
People with low levels of education / lower levels of literacy
Gay, lesbian and transgendered people
Women for certain legal interactions
People living in institutions

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1. Equality of access to legal services

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What is access to justice?

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o All Australians, regardless of means, should have access to high quality legal
services or effective dispute resolution mechanisms to protect their rights
and interests

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2. National equity

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o All Australians, regardless of their place of residence, should enjoy, as nearly

as possible, equal access to legal services and to legal services markets that
function competitively.
3.Equality before the law
o All Australians, regardless of race, ethnic origins, gender or disability, are
entitled to equal protection of the laws.
What are the barriers to access to justice?
Economic factors
o Financial resources
o High cost of legal services
o Inadequate funding for legal aid service providers
o Restrictive funding and eligibility guidelines for legal aid

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Geographic
o Insufficient legal practitioners willing to undertake legal aid work, particularly
in family law, in rural/remote areas
o Unavailability of legal aid services - conflict of interest
o Poor co-ordination and availability of legal services
o Privacy and confidentiality
o Lower levels of literacy and numeracy
o Overall lack of services, transport and infrastructure

o Lack of cultural awareness and sensitivity

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Race/cultural differences

o Lack of interpreter services and translated information

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o Lack of community workers and services for newly emerging CALD groups

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Class

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o Poverty

o Self-esteem / ability to access the system / culture of disempowerment

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Gender

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o Failure to respond to particular legal needs of women, especially in family law

and violence against women
o Gender bias, stereotyping in some legal contexts

Indigenous Australians
o Long-term distrust of the legal system
o Racism, lack of cultural awareness and sensitivity
o Intimidation in approaching legal services
Nature of court proceedings
o Formal, intimidating
o Risk of costs orders if unsuccessful
o Delay and cost

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o Inappropriateness of some alternative dispute resolution mechanisms for

certain groups
o Adversarial system / rules of evidence
o Difficulties experienced by self-represented litigants
Structure of the legal system and legal institutions
o Formality, complexity
o Aversarial system
o Increasing commercialisation of the practice of law o Language
o Difficulties accessing interpreter services and translated legal information

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o Lack of representation and services in migration matters

Lack of information/knowledge of legal system

The role of judges

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Where is there a lack of justice?

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o to make the law?

The role of lawyers

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o Judges make mistakes??

o Where law is wrong?

o Decision is wrong?
o Access to justice?

Self-represented litigants/defendants
Becoming an increasingly common figure in the courts.
ALRC: 41% SRL in Family Court.
SRLs make up for 50% of all special leave applications to the HC and 93%
of all such applications involving immigration law.
In the lower courts > common >> legal aid restrictions.
At a disadvantage >> when dealing with the procedural and legal
knowledge that may be required, and especially when opposed to an
experienced counsel >> equality before the law??
SRLs are putting increased strain on the judiciary, court staff,
practitioners and their clients, as well as on the SRLs themselves.

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Lack of knowledge of procedure, court rules and practice directions

and the rules of evidence.
- Adjournments and extended court hearing time.
- Increased costs and delays.
Practitioners should deal with SRLs (as opponents) courteously and
fairly.
Justice Strickland offered suggestions when dealing with an SL as an
opponent:
1. Obtain strict instructions from your client to limit settlement
negotiations
2. Treat the litigant in person as though he or she is the lawyer and not
the other party
3. Avoid discussions alone
4. Give the litigant in person no advice or assistance whatsoever. Refer
to court staff or judge during trial.
5. Take the same objections that you always do during the course of any
hearing.
6. At every opportunity remind the court that your client is represented
and should not thereby be prejudiced.
7. Wherever possible, have everything put to you by the litigant in
person reduced to writing and preferably by the litigant in person.

Discrimination and disability
Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability
Discrimination Act 1992, Age Discrimination Act 2004, Australian Human
Rights Commission Act 1986.
A number of agencies (government and non-government), tribunals and
specialist advocacy services have been established to assist victims of
discrimination, e.g. AHRC.
Economic disadvantage >> rely on legal aid and other services.
Physical disability > non-access to offices, and courtroom is not designed
well.
Mental illness or a physical or intellectual disability that impacts on their
ability to communicate effectively >> disadvantage, particularly where
that person has no legal representation.
Persons from a non-English speaking background also face a special
disadvantage.
- There is no blanket right under Australian law to an interpreter in
legal proceedings. The person will have to bear the cost themselves.

Pro bono

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Pro bono public = for the public good

Provision of legal services on a free or significantly reduced fee basis.
Work on behalf of indigent individuals or non-profit community
organisations, through the provision of legal advice and representation.
Generally, these services are available only to persons who have already
been refused legal aid, and meet a means and merits test.

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Amicus curiae meaning a friend of the court which can arise when a
self-represented person in a court case is perceived by the magistrate to
need some advice or assistance in presenting their case. The bystanding
lawyer, offers or accepts the role.
National Pro Bono Resource Centre
- 2007 - National Pro Bono Aspirational Target
- 35 hours of pro bono work per lawyer per year (min).
ALRC: recommend 50 hours per year.
Advantages for a lawyer for engaging in pro bono work:
- Level of satisfaction
- Foster public image of lawyers
- Commercial benefits
- Give the firm a positive public image
- Boost employee morale >> boost productivity >>> training ground for
junior solicitors to develop communication and advocacy skills
- Other corporations may be drawn to the firm if they have a positive
public interest profile
Disadvantages:
o The potential for conflict of interest
o It would be absolving government of its responsibilities
o Mandatory scheme would be at odds with the voluntary nature of pro
bono work
o Such a scheme would discriminate against small firms with limited
resources
o Such a requirement would be well beyond what is required of any
other profession.
In a speech to the Victoria Bar in April 2009 the Hon. Michael Kirby AC
CMG argued that pro bono makes a unique and essential contribution to
the proper administration of justice, noting particularly the cases of
Mallard and Roach, that respectively led to annulment of a conviction for
murder and prisoners obtaining voting rights. The case of Mallard
concerned Kirby personally as he had been one of 3 judges who refused
the first application made for special leave to the High Court. He noted
that if it not been for the hundreds of pro bono hours which led to the
successful second special leave application to the High Court and the
setting aside of the conviction for murder, Andrew Mallard would still be
in jail and a gross miscarriage of justice would have occurred.
- Taken from the National Pro Bono Resource Centre website.
Report of the Access to Justice Taskforce (2009): Recommendation 12.2:
Undergraduate law degrees should include:
o Access to clinical legal education opportunities, and
o Opportunities to do pro bono work in community and Indigenous
legal services or other similar organisations.

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Pro bono legal services

What is pro bono publico?

Giving legal assistance for free or at a substantially reduced fee to:

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Individuals who can demonstrate a need for legal assistance but cannot
obtain Legal Aid or otherwise access the legal system without incurring
significant financial hardship

Individuals or organisations whose matter raises an issue of public interest

which would not otherwise be pursued

Charities or other non-profit organisations that work on behalf of

marginalised or disadvantaged members of the community or for the public
good

Conducting law reform and policy work on issues affecting low income or
disadvantaged members or on public interest issues

Provision of community legal education National Pro Bono Resource Centre,

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Pro bono legal services

o Mandatory pro bono targets?

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o Arguments for and against

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o NPBRC - Aspirational target 35 hours per year

o US position - 50 hours per year

Access to justice

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Esther Lardent, Defining and Quantifying Pro Bono: The Pros and Cons (Paper
delivered to the Second National Pro Bono Conference, October 2003)
http://www.nationalprobono.org.au/ssl/CMS/files_cms/ProBono-
EstherLardent.pdf

Pro bono

o Report of the Access to Justice Taskforce (2009)

o Recommendation 12.2
Undergraduate law degrees should include:
o access to clinical legal education opportunities, and
o opportunities to do pro bono work in community and Indigenous legal
services or other similar organisations.
The Attorney-General should write to the Council of Australian Law Deans to
encourage this as a uniform legal education outcome

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Role of lawyers?
Do lawyers have a role in increasing access to justice?
Self-evidently, it is desirable that Australian law firms should include in
their services a sizeable pro bono component. The advantages of doing so
go far beyond salving the social conscience of lawyers. It affords a
variety of challenges to the highly talented young lawyers who need
occasional rotation from a six trolley commercial dispute. It reminds them
of the imperative demand for justice that may originally have sparked
their interest in the profession of law. The righting of wrongs. The redress
of discrimination. The protection of the underdog. Upholding the law
against the strong and the powerful. Is this not why we were all, one day
long ago, attracted to the law? We must make sure that we do not lose out
direction and forget that original impulse. (The Hon Justice Michael
Kirby, Law Firms and Justice in Australia (Speech delivered at the
Australian Law Awards, Sydney, 7 March 2002).)

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The cost of legal services

The cost of legal services, as provided by the private legal profession, is a
deterrent to those without the means to pay for them.
Public perception > legal costs are too high >> lawyers can charge what
they like.
Civil matters > may lead to an inability to prosecute or defend a claim, or
to protect some right.
Criminal matters > may mean an inability to pay for a defence to criminal
charges > punishes innocent people because they cannot defend
themselves properly.

Contingency fees or no win - no fee litigation
Such agreements usually provided that the firm would carry all costs and
disbursements pending resolution of the matter and that the lawyer could
charge a premium or uplift fee on costs and unpaid disbursements on the
successful completion of the matter (Draft National Law s 4.3.13 > uplift
fee must not exceed 25% of legal costs).
Contingency fee: prohibited > where the fee payable is a percentage of
the value of an award or settlement or property transaction.
Conditional costs agreements benefits:
- Aware of costs at early stage
- Able to engage a lawyer without having money up front
- No fear of having to pay a large amount of money to that lawyer if the
case proved unsuccessful
Disadvantages:
- Create a conflict of interest between the client and lawyer, as the latter
may be tempted to ensure success by encouraging the former to
accept settlements which may no be in their best interests
Clearly, firms do not enter into these agreements without an expectation
that the case will ultimately be successful

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Litigation lending
Litigation funding companies will fund more risky cases, but typically
operate on the basis that they are paid an agreed proportion (usually
substantial) of any award or settlement money in recognition of
acceptance of risk of litigation.
- Known as champerty
Might not be in the public interest? > Encourage third party intervention
and abuse of process in the proper administration of justice (Fostif Pty Ltd
v Campbells Cash & Carry Pty Ltd [2005]).

Class actions and test cases
Class action is a form of contingency arrangement in which individual
clients are grouped together in a shared action against a common
defendant, e.g. a major corporation.
The legal firms that engage in these cases are working at high stakes: it
costs millions of dollars to investigate and pursue cases of this kind,
recoverable only if and when the claim is successful.
Test case is similar, in which a single plaintiff is selected from among
potential clients with a similar legal claim, on the basis that it will set a
precedent on key issues of liability, thus forcing the defendant
corporation to settle similar claims by other claimants.

Legal aid and community legal services
Legal aid refers to government-sponsored systems for the provision of
legal services to indigent persons.
Clients money in a solicitors trust account contributes a substantial part
of legal aid funding > the interest earned.
Access to legal aid is assessed on a combination of factors a means test
and a merits test being fundamental to all schemes.
Most legal aid funding is applied to criminal and family law matters > with
funding towards criminal matters increasing since Dietrich v R (1992) >>
a lack of representation for an accused charged with a serious offence
may result in an unfair trial.
Lawyers in private practice fill the gaps for the lack of solicitors employed
with Legal Aid.
Their services include:
- Advice and referral
- Some limited representation in special test cases
- Research into legal problems for the purpose of law reform
- Community legal education.

The commodification of legal services and self-representation
Commodification: the nature of the legal service is reduced to the
purchase of a commodity little different from purchasing any other do-it-
yourself product.
- Some legal services are rendered simple by use of a procedure and
checklist, so legal kits provide the necessary forms and instructions
on how to do-it-yourself, instead of getting a lawyer >> reduce cost
and hassle.

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They carry the risk that lack of expertise and knowledge of the law can
result in failing to achieve the objective such as the making of a valid
will or in creating legal problems that might have been avoided had a
lawyer been engaged in the first place.
Reasons why people represent themselves:
o Financial reasons
o Do not trust lawyers
o Previous bad experiences with lawyers
o Believe they are sufficiently intelligent to do as well as a lawyer might,
and have the time and energy to do so.
o Equality before the law????

How might lawyers increase access to justice?

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Therapeutic Jurisprudence: ways of lawyering

Legal Aid work
Community Legal Centres
Pro bono assistance
Law reform and Public advocacy

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Therapeutic Jurisprudence

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Therapeutic Jurisprudence (TJ) regards law as a social force that

produces behaviours and consequences. [It recognises that substantive
rules, legal procedures and lawyers roles may have either therapeutic or
anti- therapeutic consequences.] TJ wants us to be aware of this and
wants us to see whether the law can be made or applied in a more
therapeutic way so long as other values, such as justice and due
process, can be fully respected. David Wexler, Therapeutic
Jurisprudence: An Overview (Paper delivered to Thomas Cooley Law
Review Disabilities Law Symposium, October 1999)

TJ acknowledges that the way lawyers practice can either positively or
negatively affect the experience and psychological well being of their
clients (and lawyers themselves). This flows from:
o The trust relationship; and
o High levels of dependency by client on lawyer

Therapeutic Jurisprudence, lawyering and Access to Justice

Reframing the role of lawyer?

o What styles of practice might enhance the therapeutic potential of
lawyering?
o Moral activist; ethic of care Parker & Evans
Might TJ approaches increase access to justice
o Vulnerable clients

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o Socially and economically disadvantaged clients

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In the clients best interests

Do lawyers facilitate dispute resolution or do they instead exacerbate
conflict and pose a barrier to the efficient resolution of disputes?
- RJ Gibson and RH Mnookin, Disputing Through Agents: Cooperation
and Conflict Between Lawyers in Litigation (1994) Columbia Law
Review 509, 509.

Alternative Dispute Resolution
Resolution of disputes without the need to resort to litigation.
Help contain costs >> more accessible.
ADR can take the form of negotiation, mediation, expert appraisal or
arbitration.
In some areas such as family law, ADR is compulsory (except in instances
of child abuse, e.g.)
The use of ADR is supported by the professional obligation of lawyers to
advise their clients on alternative means of resolving disputes.
- PC&PR r A.17A
The Evidence Act 1995 (Cth) provides that, unless expressed as open
offers, all settlement negotiations are without prejudice that is, they
cannot be admissible as evidence, except on the issue of costs (s 131) >>
purpose: negotiate without fear.
Disadvantages/criticisms:
o Lack of court scrutiny of the agreement reached
o Emotional stress > agree to a result less favourable than might be
achieved at court
o Unsuitability for matters such as family disputes
o Lawyers may advise clients in ADR by trying to second-guess what a
court might do. The clients case is not actually tested.
o Less matters before the court > less precedent > less of a chance to
develop principles.

It is in the interests of the profession to resolve as many disputes without
litigation and formal hearings (Jeff Shaw, then NSW A-G, 1999)
Too many lawyers and litigants think it is sexier to say see you in court...
We must foster a meaningful dispute resolution culture within the
legal fraternity and ... the wider Australian community...For the parties
who thought their only option was court, it lets them take a step back,
peer over the battlements and think hard about whether they would
prefer a day of mediation to a week of hearings, and whether they would
like a say in what the outcome could look like instead of leaving it to a
judge. (Nicola Roxon, Attorney-General, 2012)
She further said it was important for lawyers to play a greater role in
helping litigants understand the benefits of alternative dispute
resolution and to find better ways to access the legal system.
Negotiation
No third party decision maker
No third party advisor/facilitator

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Most common method for resolving all types of disputes

Supported negotiation
Mediation
Impartial third party assists:
- Identify disputed issues
- Develop options
- Consider alternatives
- Try reach agreement
Facilitates constructive discussion
Conciliation
Third party has advisory role
Statutory requirement
Early neutral evaluation
Offered by the Law Society
Reasoned, non-binding evaluation from a third party experienced in the
area of dispute
Arbitration
Independent third party CHOSEN by the parties makes a BINDING award
Appeals are statutorily limited
Externally enforceable
Considerations
Costs
Speed
Formality/informality
Participation
Control
Procedural safeguards/protections
Private v public
Scope (claims and remedies)
Success rates

Collaborative Law

Lawyers who practice this work with their clients, the other party and the
other partys legal representative to resolve any dispute between the parties
outside the court system.
participatory negotiation process aimed solely at creative settlements Stu
Webb
Formal settlement process.
Opposing lawyers work cooperatively
More commonly used in family law.
Purpose is to reach a fair agreement while minimising costs, delays and
stress.
BOTH lawyers and clients sign a contract:
o Will not go to court or threaten to go to court
o If process breaks down, lawyers withdraw
Can end up being more expensive if unsuccessful > parties then have to go
to court as well and hire new lawyers.

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Advantages:
o Creative solutions
o Quicker
o More control and power to parties
o Interests-focussed rather than rights-focussed
Advantages for lawyers:
o Less combative
o Incentive to persuade clients to reasonableness
o More money

Differences between collaborative law to other ADR

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Parties and lawyers each sign a participation agreementa written contract to

negotiate in which they agree to: Limit representation and disqualification of
lawyers in the event that settlement is not reached. The disqualification of
lawyers is considered to be the real force behind collaborative la some features
include:
negotiate in good faith to achieve a mutually satisfactory solution

work cooperatively in a non adversarial matter

Make full open and honest disclosure of all relevant info, without request.

Appoint joint neutral experts if any are needed.

Not have recourse to the court

Give written notice of intention to terminate

Enable the lawyers to terminate in some circumstances.

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Features:

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For lawyers:
Creative solutions
More quickly
More control and power to parties
Interests-focussed rather than rights-focussed
Less combative

Incentive to persuade clients to reasonableness

Increases cash flow!

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lawyers enhance communication

facilitate negotiation

Requires commitment

assist in problem solving

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Future challenges for the profession
In 2001, the Law Council of Australia released a discussion paper: 2010
Challenges for the Legal Profession, in which it considered how Australian
legal practitioners will fare in the 21st century. It contended that 5 key
factors would continue to bring significant change over the next decade.
These were:
o Advances in information technology
o The effects of globalisation
o Changes in competition and government regulation
o Changes in demographics and social attitudes
o Advances in science

Future Directions

Trends in the composition of the legal profession have been gradually

changing towards a more corporate model, both in private practice and in
the corporate sector itself.

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While the corporate sector remains the major consumer of legal services,
the trend to specialisation has created a need for small and specialist
practices.
Perceptions of law as specialist areas of practice, e.g. sports law, have also
spawned the growth of small boutique firms.
Predictions that most lawyers will become specialists, as opposed to
generalist lawyers.
Many Australian lawyers are increasingly finding work overseas.
Citizens increasingly moving overseas > globalism > migration affect legal
environments.
International lawyers work done via information and communication >
two important ethical issues raised:
- Confidentiality
- Internet security.

Over the period 2003 to 2015 (Law Society NSW, The Solicitors of New South
Wales in 2015, 2009):

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The number of legal practitioners is projected to increase from 18,092 to

25,750

The proportion of females in the profession is projected to increase from

38.6% to 52.2%

The proportion of the profession working in the corporate sector is

projected to rise from 13.2% to 19.9%

The proportion working as private practitioners is projected to drop from

72.7% to 68.4%.

The distribution of solicitors working in city, suburban and country

locations is projected to remain relatively steady.

The total number of private law firms is projected to rise from 3,725 to
4,430

The number of sole practitioner firms is projected to increase from 81.5%

to 86.3% of all private law firms

The proportion of solicitors working part time is projected to rise from

9.7% to 11.9%.

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Areas of decline:

Personal injury
Corporations law
Small business law
Banking/finance
Advoacy

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Law Society of NSW, The Solicitors of NSW in 2015, 2009

Areas of increase

Commercial law
Wills and Estates
Family law
Industrial relations law
Administrative law
Immigration law

Law Society of NSW, The Solicitors of NSW in 2015, 2009

Future challenges for the legal profession
...lawyers are likely to face continuing change, consistent pressures for the
better delivery of legal services and the reasonable criticism that their
service should be available for the entire population of Australia. Heraclitus
held that everything was in flux. It is preferable to respond positively to such
pressures for reform rather than standing, like King Canute, commanding
the tide to go back.
- Shaw, Jeff QC, Former Attorney General reflects on the practice of
law in the new century, (2000) 38(11) Law Society Journal 72,
quoted in Law Council of Australia, 2010: A Discussion Paper,
Challenges for the Legal Profession, Sept 2001

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