Duty not to Abuse Process – Lawyer must respect the law and prevent any abuse of process or procedure. Insufficient Evidence – PCPR 16.3; Vic Bar 35 – A lawyer must not be a knowing party to the presentation of evidence or making of statements for which there is insufficient evidentiary foundation to submit such evidence. 3rd Parties – This includes the submission of evidence relating to third parties for which there is no evidence per Rondel v Worsely. Baseless aspersions or allegations – PCPR 16.1; Vic Bar 35 – A lawyer must not be party to the presentation of any statement or allegation for which there is insufficient evidence [per above] or which is not appropriate to the advancement of the clients case. Clyne v NSW Bar Association Allegations of Criminality – Lawyers should not make any allegations of criminal activity – such as fraud – and should not make such claims lightly per Saltoon v Lake. Large evidentiary burden – Lawyers must have appropriate evidentiary foundations prior to alleging or pleading fraud and be aware of disciplinary consequences if they are wrong. Holborow v McDonald Barristers cannot make allegations lightly – Vic Bar 37 – Cannot make allegations which are ‘scandalous or calculated to vilify insult or insure the commercial or personal reputation of any person or corporation’ Frivolous Cases – Lawyers must acknowledge their duty to the administration of justice requires efficient and effective resolution of cases with economic efficiency. Duty to Inform – Lawyers must realistically assess client cases and not pursue frivolous cases and if they pursue weak cases – inform the client the case is weak and the likely consequences. Steindl Nominees v Laghaifar Speedy & Efficiency – Lawyers who squander Court time and resources face cost orders and disciplinary procedures for wastage. Giannarelli v Wraith; CT Bowring & Co v Corsi Partners Lawyer imposed Costs Orders – Lawyers who instruct their clients to pursue frivolous cases or unduly delay litigation can have Court imposed cost orders. White Industries v Flower & Hart ***Duty not to Corrupt Administration of Justice [next page]
Misconduct General Scope – Lawyers who engage in misconduct are most are in breach of their duty as a legal practitioner and can face disciplinary procedures [see Disciplinary Procedures] Course of Practice – The proper administration of justice requires that the public, courts and tribunals are able to rely on what a lawyer says and does. Law Society of NSW v Foreman. Outside of Practice – Particular types of personal misconduct outside of practice can directly influence a lawyer’s capacity to act and may require disciplinary proceedings. Unsatisfactory professional misconduct– s4.4.2LPA –Any conduct in connection with the practicing of law that falls short of the standard of competence and diligence that a member of public reasonably expects. Must be in connection with the ‘practicing of law’ Professional misconduct – S4.4.3 – Conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. S4.4.3(1)(b) – Conduct inside or outside the practicing of law which justifies the finding that the lawyer is not a ‘fit and proper person’ Unsatisfactory professional conduct & Professional Misconduct – s4.4.4 LPA – s4.4.4(a) – Contravention of LPA or Professional Rules s4.4.4(b) – Charing excessive legal costs s4.4.4(c) – s4.4.4(c)(i) – Serious offence – s1.2.1 LPA – Serious offence is an indictable offence in Australia, indictable offence against any other jurisdiction, indictable offence against the law of foreign country which would be indictable in Australia. s4.4.4(c)(ii) – Tax offence s4.4.4(c)(iii) – Dishonesty – Any conduct which is dishonest is conduct which is an offence under this section. s4.4.4(d) – Becoming insolvent under administration s4.4.4(e) – Disqualified from managing any corporation s4.4.4(f) – Failing to comply with any Tribunal order s4.4.4(g) – Failing to comply with Compensation order s4.4.6 LPA – Wilful or reckless failure to comply with a condition or undertaking on
Disclose of communication looses privilege – Where a client or party or party disclose, by purpose or consent, confident communications then the privilege is generally lost as per Baker v Campbell (1983) 153 CLR 52. It does not extend to material which has an existence apart from the advice process as per Baker v Campbell (1983) 153 CLR 52. Legal professional privilege can be waived at any time by the client. This infers that the privilege cannot operate beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of litigation as per Grant v Downs (1976) 135 CLR 674. There is no privilege for: Documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation. Communications which would otherwise be privileged lose their immunity disclosure if they amount to a participation in a crime or a fraud. Documents were the client has expressly waived the privilege. as per Baker v Campbell (1983) 153 CLR 52. **3 Main Exceptions To commit a crime generally There is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily require that result as per Potter v Minahan (1908) 7 277. If a client seeks advice from a lawyer intended to assist in the commission of a crime or engagement of fraud, the legal adviser being ignorant of the purpose of the advice, the communication between the two attracts no privilege. This is regardless of whether the legal adviser knows of the unlawful purpose being intended or not as per Baker v Evans . It includes the furtherance of some illegal activity that the client is intending or is engaged upon as per Baker v Campbell (1983) 153 CLR 52 The person alleging the illegal activity bears the proof that such an illegal activity was occurring in order to be sufficiently capable of removing the privilege as per Baker v Evans . As stated by Stephen J in R v Cox, it this wasn’t the case then a man intending to ‘commit murder or treason might easily take legal advice for the purpose of enabling himself to do so with impunity and to frustrate criminal purposes’ If a party is alleging that legal privilege doesn’t attach, this party must displace the privilege by demonstrating more than a mere allegation of fraud or crime or illegal purpose. In AFP v Propend Finance Pty Ltd –
General Purpose – Negligence will cause concurrent liability in tort and contract (retainer), and may be liable in tort independently of an action in contract Henderson v Merrett Syndicates Ltd (HofL) Astley & Ors v Austrust (HCA) Contract – The law implies into contracts for services a promise to exercise reasonable care and skill The existence of concurrent liability in tort and contract may be ‘untidy’ but it is not objectionable because tortious duty is imposed by law and contractual duty by the will (express of implied) of the parties: Henderson v Merrett Syndicates Ltd (HofL) Astley & Ors v Austrust (HCA) Retainer – Whoever is listed in the retainer agreement is a party to the contract with the client and is therefore relevantly liable. Vicarious Liability – Solicitors are vicariously liable in tort for negligent work done for a client by an employee in the course of employment. Joint Tortfeasors – Solicitors remain liable, jointly and severally with other involved professionals (eg accountants) for any loss occasioned by bad advice Appointing counsel: Duty of Care when appoint Counsel – A solicitor’s duty of care does not end when appointing a counsel in the case. Solictor cannot blindly follow counsel – A solicitor lacking specialist expertise in a field is entitled to rely more heavily on counsel’s advice, but cannot blindly follow the advice. Turn their mind to the case – The solicitor must still turn her or his mind to the issue under consideration and exercise independent judgment – Yates Property Corporation (in liq) and Anor v Boland Standard is raised for Expert Solicitors – Solicitors with expertise in the area of law concerned cannot rely on counsel to the same extent as solicitors lacking that expertise – Yates Property Corporation (in liq) and Anor v Boland Solicitors can be joint tortfeasors of barristers – If barrister makes error solicitor does not loose liability – Yates Property Corporation (in liq) and Anor v Boland
Special Duties in Criminal | Civil Context Duties of Prosecution Counsel Duties of prosecution counsel – PCPR 20.1–20.4, 20.10 and 20.12, Vic Bar Duty of fairness and impartiality – PCPR 20.1; BR 134 –Prosecutors are representing the State and must act with fairness and detachment / impartiality and with the objective of establishing the truth in accordance with the procedures and standards required by law. Sex Offences – Particularly in sex offence cases where the jury may already be prejudiced against the defendant. Avoidance of Bias against the Accused – BR18; PCPR 20.3 – Prosecutors must avoid giving their own reaction to the evidence led on behalf of the accused as these are irrelevant. Such as On personal opinions or convictions on issues of fact; On the credibility of witnesses and On the guilt and character of the accused Cannot press ‘hard’ for a conviction – PCPR 20.2; BR135 – The prosecutor must not press too hard for a conviction Must believe on reasonable grounds – PCPR r 20.4; BR 137 – The rules preclude prosecutors from arguing any proposition of fact or law that they do not believe on reasonable grounds is capable of contributing to a finding of guilt and of carrying weight Must not ignore credible evidence – PCPR 20.1–20.7; BR141 – Prosecutors must not ignore credible evidence which could be of importance to the accused’s case Sole discretion to call prosecution witness – PCPR 20.7 – A prosecutor has sole discretion about who to call as prosecution witnesses. Only in exceptional circumstances may a trial judge call a person to give evidence and a judge cannot direct the prosecutor to call a witness – R v Apostilides Relevant Witness Testimony – PCPR 20.7; Bar Rule 139 – Consistent with 7 above, requires a prosecutor to call all witnesses whose testimony is admissible and necessary for the presentation of the full picture Duty of disclosure – PCPR 20.5 & 20.6; BR 141 – Prosecutors must disclose any relevant and credible evidence that the jury could reasonably regard as credible and that could be of importance to the accused’s case, such that could constitute relevance to the guilt or innocence of the accused. Miscarriage of Justice – if not disclose it can result in miscarriage of justice
Concurrent Conflicts General Purpose – The duty of undivided loyalty cannot be fulfilled if it is owed to two or more parties whose interests are in opposition. The presence of conflicting duties between the two parties undermines the ability to adequately provide the requisite degree of loyalty to each. Concurrent interests – The representation of multiple clients with conflict interests whereby the fiduciary duties owed to each party is put in question and require lawyers to withdraw themselves from one party unless cured by client consent per PCPR 8.4. Concurrent conflicts can arise in contentious [litigation] and work [transactional] but a stricter rule applies to contentious work. ‘Require Alertness’ – Potential of consequences regarding conflicts mean that lawyers must be ‘alerted to the possibility of conflict arising’ Council of Law Institute Vic v Solicitor No conflicts with separate clients and separate interests – No such problem arises where there is an identity of interests or separate clients with unrelated interests, and for this reason there is no outright legal or professional prohibition on concurrent representation Must Avoid Conflict – A lawyer must avoid conflict of interest between two or more clients – PCPR 8.2 Applies to: Entire firm – irrespective of its size: Mallesons Stephen Jaques v KPMG; Village Roadshow Ltd v Blake Dawson Waldron Client retain the firm not an individual lawyer – Kelly v Jowett Entire Firm owes the Fiduciary Duty – Mallesons Stephen Jaques v KPMG; R v Neil Partners of the Firm – knowledge of one partner is the knowledge of the other because partners are obliged to seek advice from one another; associate and employees. Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd Firm acted for a client in one proceeding in Qld and against the client in unrelated proceedings in Victoria. The proceedings were ‘entirely and truly unrelated’ and handled by differences offices of the firm. Coupled with assurances that appropriate safeguards were in place. Held: Court was satisfied and rejected an application to restrain the firm from continuing to act conditional on the basis the Melbourne Office did not seek information from the Brisbane office about the proceeding.
Risk is Borne by Solicitor – If a solicitor is unwise enough to undertake irreconcilable duties, it has been judicially observed “it is his own fault, and he cannot use his discomfiture as a reason why his duty to either client should be taken to have been modified.’ Hilton v Barker Booth **Duty of Consent & Prevention – PCPR 8.3 – The lawyer must inform the client and ensure that each client is aware that the lawyer is intending to act for the other party and consents to the lawyer so acting in the knowledge that the lawyer Must ensure that – PCPR 8.3(a) Prevent disclosure to other party – May be thereby prevented from disclosing to each party all information relevant to the matter within the lawyers’ knowledge or giving advise to one party that is contrary to the interests of another; and Terminate retainer if Contrary Interests – Will cease to act for all parties if the lawyer would otherwise be obliged to act in a manner contrary to the interests of one or more of them. Disclose nature of personal relationships – If representing lawyers for each party are ‘parents, children, siblings or spouses’ in a contentious matter then the clients must be informed and only after client consultation should the matter proceed. Limitations on Client Consent – The nature of fiduciary relationships relevant places restraints on the degree to which a client can consent to the modification or ‘removal’ of such duties. Marron v J Catham Daunt Pty Ltd Limiting the Scope of the Retainer – By limiting the scope of the retainer, the lawyer can seek to entirely avoid the conflict that may otherwise arise. Client must be aware – of the limitations on the retainer scope, and is relevantly position to obtain independent legal or financial advice on the matters outside the scope. Consent to existing or future conflict – The client can consent to the concurrent conflict whether from the outset or when the conflict arises at a later point. Lawyer bears onus – The lawyer always bears the onus of proving that each client has consented to the multiple representation with a full understanding of the existence and potential ramifications of the conflict of interest. Marron v J Chatham Duant Pty Ltd Lawyer should encourage independent advice – If the lawyer requests consent then they should also encourage the client to seek independent advice on the matter. Clark Boyce v Mouat Independent professional judgement – A lawyer should not be entirely driven by their clients demands and must assess – on a true and correct basis –
Facilitation – Facilitation is a process whereby both parties use the assistance of an impartial third party to identify their core issues with one another and attempt to resolve these issues. [non–binding] Mediation – Similar to facilitation, mediation is the process in which the parties to a dispute use an impartial third party to consider their issues and reasoning behind the dispute, and attempt to consider alternatives to litigation and/or resolve the dispute in its entirety. Ombudsman – In Australia, the ombudsman provides another impartial third party body who can investigate and attempt to resolve complaints against an institution by a customer, client and employee. Duties during ADR processes – Law Council of Australia Guidelines for Mediations Duty of confidentiality [see confidentiality] Non–disclose – any information during mediation unless parties agree Same obligations in mediation as in Court – Vic Bar r199 Never false or misleading statements –– PCPR 18; Vic Bar 53 – [see candour in presentation of fact] Williams v Commonwealth Bank of Australia ‘Where parties are dealing at arms' length in a commercial situation in which they have conflicting interests it will often be the case that one party will be aware of information which, if known to the other, would or might cause that other party to take a different negotiating stance. This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice’. Good Faith – Lawyers and clients must act, at all times, in good faith and attempt to achieve settlement of the dispute. Act in good faith – Lawyer must approach ADR in good faith and with an open and transparent mind. Western Australia v Taylor provided the relevant list of indicators as to whether a tribunal had been carried out in Good Faith Unreasonable delay in initiating communications in the first instance Failure to make proposals in the first place The unexplained failure to communicate with the other parties within a reasonable time Failure to contact one or more of the parties Failure to follow up a lcak of response from the other parties Failure to take reasonable steps to facilitate and engage in discussions between the parties Failing to respond to reasonable requests for relevant information within a reasonable time