Social Role of Lawyers & Relationship to General Ethics

Relationship to Client and Law

Adversarial Advocate (The traditional conception)

Lawyers' ethics governed by role as advocate in adversarial legal process and complex legal system: partisanship, loyalty and non-accountability.

Lawyers' duty is to advocate client's interests as vigorously as possible within the bounds of the law (barest obligation to legality) - let the chips fall where they may. Extends beyond adversary role to ensuring client autonomy in a complex legal system as required by the rule of law.

ResponsibleLawyer(Officer of thecourt and trusteeof the legalsystem)

Lawyers' ethics governed by role of facilitating the publicadministration of justice according to law in the public interest.

Duties of advocacy are tempered by duty to ensure integrity of and compliance with the spirit of the law;to ensure that issues are not decided on purely procedural or formal grounds but substantive merits.Lawyer is responsible to make law work as fairly and justly as possible. May need to act as gatekeeper of law and advocate of legal system against client.

Moral Activist(Agents forjustice throughlaw reform,public interestlawyering andclientcounselling)

General ethics, particularly social and political conceptions of justice, moral philosophy and promotion ofsubstantive justice define lawyers' responsibilities.

Lawyers should take advantage of their position to improve justice in two ways:(l) Public interest lawyering and law reform activities to improve access to justice and change the law and legal institutions to make the law more substantively just (in the public interest).(2) Client counselling to seek to persuade clients of the moral thing to do or withdraw if client wants something else.

Ethics of Care(Relationallawyering)

Social role of lawyers is irrelevant. Responsibilities to people, communities and relationships should guide lawyers (and clients) as everybody else.

Preserving relationships and avoiding harm are more important than impersonal justice. The value of law,legal institutions and institutional roles of lawyers and others are derivative of relationships. Peopleand relationships are more important than institutions such as law. The goal of the lawyer-client relationship (like all relationships) should be the moral worth· and goodness of both lawyer and client, or at least the nurturing of relationships and community. '

Adversarial Advocate (The traditional conception) 2009 Exam

IntroductionBased on the Christine Parker, “A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’, four approaches will be considered in turn, namely:

1. Adversarial Advocate2. Responsible Lawyer3. Moral Activist4. Ethics of Care

Adversarial AdvocateIt is the simplest, clearest and most absolute of the four approaches. In this approach, client is placed at the first place and the sole task for a lawyer is to act for client’s interest. You should do whatever you can and to discover all the loopholes in the law. Lawyer should take advantage of every one of their opponents’ tactical mistakes or oversights and to stretch or to present every factual interpretation to favour their clients.There is no moral responsible with the barest obligation to legality. Lawyer should not concern themselves with public interest or justice. To them a pre-judgment may deny justice to the clients.In McCabe v British American Tobacco Australia Services Ltd,1 the solicitors representing the Tobacco had advised the company on a ‘document retention policy’ which lead to deliberately destruction of thousands of documents, it defending their position, the solicitors said moral judgement has no place in the advice of a lawyer provides to a client. A lawyer is appropriate to advice on different strategies and was wrong for a lawyer to make any moral judgment.The advantage of this approach can have to motivate a deliberate choice to work for clients who might not have a choice to be represented as other lawyers may find them distasteful. See the example of the Nazi war criminal in Parker, Brick P457.On an adversarial advocate approach, any personal loyalties, religious background and values are irrelevant to his role as a lawyer and not to bring any discrimination to his client.It would be his ethical duty to his client to not allow those loyalties to affect the quality of his representation. Lawyer’s duty to the law in this approach is usually left vaguely defined.

ProblemProblem for this approach is that the rich can buy up most legal services and creates a culture in which good advocacy means a culture of excessive adversarialism that raises the costs and length of litigation, making it more and more unaffordable

Responsible LawyerLawyer in this approach aimed at to make law work as fairly and justly as possible. Unlike adversarial advocate, which focuses on the lawyer’s role as the representative of the client in the legal system, the responsible lawyer approach focus on lawyer’s role as an officer of the court and their role as guardian of the legal system. The responsible lawyer is still an advocate for their client but here, they have an overriding obligation to maintain in justice and integrity of the legal system in light of the public interest, even this will mean a sacrifice of client’s interest. According to Esau,2 loyalty to the fair process of law is primary.

1 [2002] VSC 73 (Unreported, Eames J, 22 March 2002). 2 Alvin Esau, ‘What should we teach? Three Approaches to Professional Responsibility’ in Donald Buckingham,

As Parker notices that there are so many grey areas on whether one should act solely based on the purpose of law or on client’s interest. Lawyer here should not be too dependent on or too close to clients. Lawyer here will not use loopholes, procedural rules or barely arguable points to frustrate the substance and spirit of the law. Responsible lawyers treat their practice of law as a ‘public profession’ in which they are performing a mediating function between law and clients. 3

As Gordon says, ‘Responsible lawyers are prepared to say no to those who are prepared to use their economic power to compromise the integrity of the justice system.’ (contrast with adversarial advocacy)Like adversarial advocacy, personal moral, value or beliefs are generally irrelevant. The responsible lawyer will look to the ethics inherent in their role as officer of the court and in the law itself. Lawyers should perform their role as helping the clients to pursue justice according to law, no more and no less. The aim is to look for fair solution to the problem and not just technical legal ones.

This approach helps to avoid the abuse of process. This approach maintains a self-check system to ensure that the law is not used to unfairly disadvantage.

Problem The lawyer may accuse of not adequately serving clients’ goals and interests.As Parker comments, this approach is still conservative as it is does not take the social justice into account. Disputes for this approach are how to balance between lawyers’ duty to the client with lawyers’ duty to court.

Moral Activism (Moral Activists)Lawyers should do good according to whichever general ethical theory the individual lawyer finds attractive. Moral activism encourage lawyer to use their own belief of the meaning of justice.Unlike the responsible lawyer which is to maintain the justice inherent in the legal system, for moral activism, lawyers are responsible to change or challenge the legal system if it result in more justice. When a moral activist lawyer believes in the justice of a particular client’s cause, they will behaviour like an adversarial advocate which mean they will find every loophole in the law and test the limits of the law to establish their client’s case. Similarly, a moral activist will not do so, if they believe the client’s case is unjust. For example like the Nazi Criminal war trial, a moral activists lawyer may find it impossible to act for Kalejs as it is against global injustice, whereas, another moral activists may find that the event has been over 50 years and Kalejs is ill, he may wish to represent Kalejs to prevent trial to take place. (Brick P493)Another examples are those lawyers who choose to do legal aid work.This type of lawyer may engage in representing people with an aim to create legal and social change. Such ‘public interest’ lawyering.

Problem for moral activist is that, they seek to challenge and persuade clients to do what the

Jerome Bickenbach, Richard Bronaugh and Bertha Wilson, Legal Ethics in Canada: Theory and Practice (1996) 178, 178-9. 3 Robert W Gordon, 'Corporate Law Practice as a Public Calling' (1990) 49 Marvland Law Review 255.

lawyer considers that just thing and also vice versa. As Arbraham Lincoln’s advice, some things may have a legal right but it may not be morally right. 4

Problem (Brick, P495)As Parker points out, moral activism neglect the wisdom of adversarial advocacy that anyone should be entitled to legal representation and to argue their case in court without first having t persuade a lawyer that their case is worthwhile. (2009)Another risk (Brick, P495) as Parker points out, is that moral activism encourages the lawyers to do whatever they can without regard to law and procedural fairness when they do find a client they believe is just.

Ethics of Care: Relational LawyeringFocus on the integration of personal ethics with legal practices. Ethics of care concern with personal and relational ethics rather than the social and political justice as for moral activists.The ethics of care focuses on lawyers’ responsibility to people, communities and relationships. This approach tries to incorporate the moral, emotional and relational dimensions of a problem into the legal solution. It aimed at restoring/preserving relationships and avoiding harm.Lawyers will spends more time listen and discuss the concerns of the clients and the way that legal issues are likely to impact on their other aspects of lives and relationships. So that the legal solution can fits in with other aspect of the client’s life. This approach encourage lawyers and clients to consider the non-legal and non-financial consequences (e.g relational, psychological and to reputation). Some lawyers may advise their client to consult for non-legal aspects.

The lawyer-client relationship is built on mutual trust and shared knowledge. Both lawyer and client have to agree to any course of action, thus the lawyer-client relationship is seen as a partnership with equal responsibility. Lawyers have a responsibility to make sure that clients understand the consequences, costs and uncertainties associated with alternative courses of action available to them so that the client can choose which option to pursue in an informed way.This approach requires the lawyer to understand the feelings and experiences of others within the relationships, they are likely to look for non-adversarial ways to resolve disputes and preserve relationships if possible.Encourage more dialogic between the parties, respect of each other interests, more creative solution. Like Parker points out, the ethics of care approach can have a quite conservative impact. Because the emphasis is on the goodness and worth of the individual client and on preserving relationships, it is not strong on identifying and addressing social and political injustice.

4 David Luban, Lawyers and Justice, An Ethical Study (1988) 7, 174.

Book Lamb and Littrich P183-7 Week 11Making ethical choices

Pressures will be exerted on lawyers from a range of sources- clients, the commercial environment of legal practice, or even from peers or employers. (Lamb P186)Ethical behaviour requires that a lawyer diligently and competently carry out the client’s instruction. 5 Ethical considerations also require that lawyers exercise independent forensic judgment,6 and conduct their dealings with honesty and fairness in a manner consistent with the public interest. 7 (P186)The Law Council’s Model Rules of Professional Conduct and practice make clear that:Practitioners should not, in the service of their clients, engage in or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law. 8

There is always conflict of social interest i.e between business decisions and legal ethics. Thus, the lawyer is required to uphold the law and to decline to engage in or permit a client to break the law. However as Lamb points out (P187) there is a ‘twilight zone’ where the lawyers can use their skills and experiences to find some creative solution, while there is no technical ethical breach, the effect of those applications may detriment and unjustly affect the rights of other citizens or deny the State a benefit. (2009 Answer for Adversarial advocacy)

Peer and employer pressuresFor example, fear of losing one job or being discriminated against in one’s employment are big motivate to turn a blind eye on any mal-practice or ethical transgressions. Conclusion (can be used)The argument that ‘everyone does it’ or ‘superior orders’ to abrogate the rights and responsibilities of a lawyer is not accepted. All admitted lawyers are personally bound to the code of legal ethics.

Additional points on personal viewsCorporate social responsibility is associated with the conduct of corporationsShould firms sacrifice profits for positive environmental impacts?

Week 12DutiesDuties to clients

Duty to advise Duty to Competence and care Duty of Loyalty

Duties to the Court and the Proper Administration of JusticeDuties to other members of the Profession and to Third Parties

Roberts v Cashman 2000Fact: Plaintiff sue law firm (Cashmen & Partners) for fail to advise a potential cause of action which later became statute barred. The plaintiff signed retainer concerning the drug problem, but law firm fail to advise her on that she may have a claim to her original injury (chair manufacturer). (fall down from a chair and use drug to cure which worsen her injury)Result: the law firm did not take reasonable care in the discharge of the implied obligation in the retainer to consider the circumstances surrounding the original fall. A reasonable competent practitioner should have noticed/alerted.

Asia Pacific Telecom’s v Optus 2005

5 Law Council of Australia, Model Rules of Professional Conduct and Practice rr1.1 and 12.1. 6 Law Council of Australia, Model Rules of Professional Conduct and Practice rr13.1 and 2.7 Law Council of Australia, Model Rules of Professional Conduct and Practice, Introductions to ‘Relations with Third Parties’ and ‘Legal Practice’.8 Model Rules of Professional Conduct and Practice, Law Council of Australia, March 2002, introduction to ‘Relations with Clients’.

The plaintiff claims that the Retainer prevents Clayton Utz from acting for the defendant in these proceedings. The plaintiff makes its claim on three bases. The first is a right to protect certain confidential information provided to Clayton Utz in the course of the Retainer. The second is a claim that Clayton Utz should be restrained from accepting instructions from the defendant because it would be in breach of its duty of loyalty to the plaintiff. The third is a claim that Clayton Utz should be restrained from accepting instructions from the defendant on the basis of public policy.Specific Publications P/L v Clayton Long and Ors [1997] NSWSC 364A case concern of Anton Piller orders which the solicitor made undertaking that he would be responsible for the seized goods. Mr Clayton Long was in a position which no other of those who carried out the order could possibly occupy, in that he could understand fully the purpose of the seizure and the use likely to be made of the things seized, the need for further resort to the inventory and the need for control over access to and use of the things seized. He gave an undertaking dealing comprehensively with the part he was to take, including preparation of an inventory and remaining in charge of the exercise of rights conferred by the order. – solicitor was fined. White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998]  FCA 806 The law firm started proceeding which has no prospect of success. The firm has breach duty it owed to the conduct, abuse of process and has defeated the administration of justice.

Spaulding v. ZimmermanThe plaintiff, a minor, is injured in a car accident.  The defendant orders a physical examination, which reveals that the plaintiff has a potentially fatal heart condition.  Plaintiff’s counsel does not ask for a copy of the exam report, to which plaintiff is entitled.  The case settles, the court approves the settlement (because the plaintiff is a minor), and life goes on.  An Army doctor later spots the condition, and the plaintiff sues to re-open the case, arguing that he should get more money because the accident might have caused the condition.  The court gives the plaintiff more money, but manages to clear all the lawyers on the ground that defense counsel had no duty to warn the other side.Should protecting confidentiality be a higher value than saving life?The important points are that there was genuine incompetence in the case—plaintiff’s counsel should have asked for a copy of the report--and should have paid for failing to do so.The second point stems from the suggestion, in an excellent article on the case by Roger Crampton and Lori Knowles, 83 MN L. Rev. 63, that defense counsel did not tell his client about the plaintiff’s injuries because counsel was looking out for the insurer, which paid for the representation and settlement.  The parties were apparently friendly, so if defense counsel had kept his client properly informed (and in this case that means telling the client about the report), the client probably would have ordered counsel to share the information, even if it cost the insurer money.  That story is not in the case report, but it suggests that both lawyers acted badly, but neither paid. 

Week 13 BookProfessional misconduct and Unsatisfactory professional conductBreach of legal ethics can result in a legal practitioner being ‘struck off the Roll of Practitioners’ ie loss the right to practise gained on admission. Some lesser misdemeanours will result in penalties while still allowing the errant practitioner to practise. Standard‘Professional misconduct’ is a common law concept I,e something done by a professional practitioner ‘which would be reasonably regarded as disgraceful or dishonourable by the ‘practitioner’s professional brethren of food repute and competency’. 9

‘Unsatisfactory professional conduct’ is a concept of legislation. Definition is in Model BillExamples: See Book

2009 Describe how the complaints would be dealt with by the Law SocietyThe Law Society of the ACT will has an independent Tribunal or Commission to hear charges of professional misconduct or unsatisfactory professional conduct against practitioners. The aim to set up such independent body is to avoid the conflict of interest which on the one hand the body, they act like a trade union to protect the rights of its members and on the other hand, they were keeper o the professional standard.

As Lamb (P198) pointed out, due to insufficient fund, complaints cannot be deal with independently, the independent watchdog will need the staff support from the Law Society.

Complaint can made by any person other than the client It must be in writing and specify the conduct and the particular lawyer. The time bar limit is within 3 years of the occurrence of the conduct being complained

about. Some complaints may be without ground. E.g client simply dissatisfy of the judgement

despite their lawyers’ best efforts or just take revenge on their own and opposing party’s lawyer.

Some complaints may be dismissed at the outset. 10

If complaint is accepted, the investigating body with notifies the layer of the complaint and requests a response within certain time period. A failure to response, however irrational or ill found or fail to attend a mediation may itself constitute professional misconduct. 11

If the complaint is classified as a ‘consumer dispute’, the first step is to seek for potential to resolution to achieve consumer satisfaction rather than for disciplinary proceedings. For examples, misunderstandings about advice, costs and miscommunication. This may also involve simple errors which can be easily rectified or some uncharacteristic lapse of courtesy. These are not classified as professional misconduct or unsatisfactory professional conduct, and can usually be redressed through mediation. 12

Dispute on cost?Usually resolved with a process of costs assessment. Charging excessive legal costs may constitute professional misconduct. 13

The council not only monitor single events of complaints but also monitors both the overall picture of complaints about lawyers and the number and type of complaints about individual lawyers. Noted that a lawyer who is regularly complained about and consistently commits relatively minor errors of behaviour, may found guilty of professional misconduct.14

For complaints related to loss or detriment suffered by a client as a result of the lack of competence or diligence in conduct in the client’s affairs. These complaints raise the issue of ‘professional negligence’, may give the client a right for civil action against the lawyer. All practise lawyers are obliged to hold professional indemnity insurance. And this type of

9 Allinson v General Council of Medical Education and Registration [1984] 1 QB 750, 763 (Lopes LJ).10 Model Bill s4.4.7.11 Legal Profession Act 2004 (NSW) s517. 12 Legal Profession Act 2004 (NSW) Part 4.3.13 Law Society of NSW v Foreman (1994) 34 NSWLR 408.14 Model Bill s4.4.2(1)(a).

‘professional negligence’ may also result in unsatisfactory professional conduct if the extent of the lawyer’s negligence involves ‘a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.’ 15

Several penalties see Lamb P 201. The lawyer can appeal to Supreme Court and ultimately to High Court. A former lawyer can re-instate as legal practitioner may apply to Supreme Court. The court will look at the circumstances of the applicant’s suspension or striking off together with evidence that may help to show his remorse or rehabilitation which may have caused the original offence and to look for evidence that help to re-establish the applicant’s ‘fitness to practice’.

Lawyers’ misbehaviour in court and out, David Ross (Brick P515)The dignity of the court must be preserved. A criminal offence doesn’t itself indicate unfitness to practice. In recent time, tribunals have taken over what used to be the role of court in punishing bad behaviour of practitioners. Conflict in court between opposing barristers is not itself an interference with the proper administration of justice. But see the case of Tony Bellanto (Brick P516) which depend on the manner, he shouted to the victim during cross examination. Also, Queensland case for Colin Lovitt. Not contempt when previously gain leave not to attend in court which later redraw by court. See P 516If the words are mild, no contempt e.g describe the judge as football empire wearing team colors. Brick P516)Mislead the court will amount to striking off from the roll. See example of Mr Clyne (Brick P516)No swore false affidavits Incompetence e.g fail to call evidence, cross examination was unfocused.

Criminal Conviction does not been unfitSee example of Trevor Charles, a barrister, he was convicted for 2 years imprisonment by manslaughter by causing when driving. Court found that there are many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar. (Brick P 518) He was suspended only his release from the jail.

Sex offences committed by practitioners?High Court comments that professional misconduct may occurred years earlier, fitness is to be decided at the time of hearing. However, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal. Other sexual offences e.g indecent assault, indecent act in public place, even occur a decade ago, the practitioners were struck off from the roll.

Bankruptcy? Tax return? Unstated income….YesUnfortunate personal matter but will be struck off (may not be permanent see P 519)or suspend the practising certificate.Noted in the recent cast doubt whether a lawyer will be classified as unfitness. A Solicitor v Council of the Law Society (NSW) (2004), which a lawyer who committed a sexual offence, he was suspended rather than struck off, as the High Court did not think it is unfit.

Drunk in courtroom ---- contempt and fine and suspend.

Racial harassment – Yes (see Brick P521)Application for admission

15 Model Bill s4.4.2(1)(a).

Refused because of making false report e.g rape by someone. Dishonesty long time age?? No problem e.g shop stealing more than 5 years ago.Drugs? Struck off but re-stated subjected to medical clearance.Fail law degree and practice? Yes imprisonment (not struck off, as she never has the certificate)

Common law categories of misconductSuspend and struck off is different ( P 505) though not the main theme in the article.

2009 drunk driving? Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Kitto J : Reason not to strike off barrister name in the roll Look at whether the conviction make him unfit and proper person to remain in the Bar In the present case, it is not for conduct, but because of a conviction, that the appellant

has been disbarred. We need to look at the conduct and look at the circumstances of the offence.

The conviction relates to an isolated occasion, and does not lead to any conclusion as to the man’s general behaviour or inherent qualities.

It is not a conviction of any premeditated crime. Not indicate tendency to vice (bad habit) or violence or any lack of probity. (honesty) It has no connection with any professional function.

Fullagar J Not agree that “The personal and the professional sides of his life cannot be dissociated” More weight should be put on one’s professional misconduct rather than one’s personal misconduct.

Both Dixon CJ, Taylor J and Fullagar J agreed that it was appropriate to look at the circumstances of the offence and the trial, rather than just considering only that there was a conviction. Note: This Ziems case has been applied in many cases. Somerville v The Law Society of the Northern Territory (1995) 119 FLR 22Applicant was convicted of obtaining credit in excess of $500 without disclosing that he was an undischarged bankrupt.

Gray JIt is true that the ingredients of the crime to which the applicant pleaded guilty do not include any element of fraud. But for the purposes of determining the applicant’s fitness to practise law, the findings are important.The conviction does not involve any proof of dishonest conduct. According to Ziems, the fact of a conviction and sentence is not decisive of the question of a practitioner’s fitness to practise. In this case, the offence is of regulatory character and absence of any evidence of professional misconduct. Judge in this case the misconduct in business dealings revealed in this case is more relevant to the question of fitness for practise than the manslaughter conviction considered in Ziems. NSW Bar Association v Hamman [1999] NSWCA 404, Hamman’s case was cited with approval, struck the barrister off, as he was sentenced to 14 months; periodic detention for offences related to understating og income in his tax return. But note for the dissent cp,,emts tjay Davies AJA which he said need to look at the seriousness of the case, if less serious it may not be appropriate to remove the practitioner from the roll. He found that deliberate breaches of tax law are not so serious. (2:1)

(a) Against Mr Walter for his letter

s386 Legal Profession Act 2006- Unsatisfactory misconduct?

Mr Walter may charge with unsatisfactory misconduct under s386 Legal Profession Act 2006.

The unsatisfactory professional conduct is also governed by Model Bills r4.2.1. The time bar for the complaint is within 3 years of the occurrence of the conduct being

complained. Here, it seems to be satisfied. Assume the complaint is in writing, and the letter has specified the conduct. (part 4.4 of the Model Bill).

The contentious issue is the wordings used in Walter’s letter which accused the government department of “incompetence if not corruption”.

In David Lander v Council of the Law Society of the Australian Capital Territory [2009], court held that the use of insulting language towards members of the public (here, the ACT government planning authority) is harmful to maintenance the good name of the profession. However, court also said even the languages amount to provocation; it was used with intention to serve the interest of the client. The real issue is whether the accusations were false or without foundation.

Also, according to David Ross (Brick P 515), conflict in court between opposing barristers is not an interference with the proper administration of justice which may result in contempt. However, if one makes unsubstantiated allegations of dishonesty against the opposite side, this may amount to unsatisfactory professional conduct.

Further, court will look at the seriousness of the wordings see Tony Lewis case (Brick P516) which the barrister describe the judge as football umpire was not found to be contempt.

Here, we have no information whether Mr Walter has any evidence to support his allegation of corruption. The accusation is much serious which is about the corruption in government and assume there is no evidence to support, thus Mr Walter may amount to unsatisfactory of professional conduct.

S387 Legal Profession Act 2006 – Professional Misconduct? We have no information whether such conduct has been repeatedly committed, if yes,

this may amount to professional misconduct under s387(1)(a).

PenaltyAssume Mr Walter has no evidence to support his accusation for corruption and given that the letter was a clear evidence of Mr Walter’s use of provocative languages, the complaint was sound and thus unlikely to dismiss. The accusation of corruption in

government department is serious; there will be no summary action. Investigation and proceeding will continue.

If Mr Walter is found to be guilty under s386 or s387, the penalties are outlined in s425(3) and s425(5) Legal Profession Act 2006. Compare to the Tony Bellanto example (Brick P516), Mr Walter’s conduct may analogous to contempt to court which the penalty is to pay fine only, thus it is unlikely that he will suspense or strike off the roll. He may be fined or may request to attend additional legal education trainings.

b). Against Mr Walter for his offences

Assume it satisfy the common process for making of complaints. (Part 4.4 of the Model Bill).

Common law

The authority is Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 (‘Ziems’). Here, the case can analogous to Ziems in which it was also concerned with drunk driving. Ziems committed a more serious offence which cause death and the barrister was sentenced to 2 years and his qualification was suspended until he finished the sentenced.

There are several criterions stated by the majority judges in the case:

1. Look at whether the conviction make the legal practitioner unfit and proper person to remain in the Bar

2. Need to look at the conduct and the circumstances of the offence. 3. Whether the conviction relates to an isolated occasion, and does not lead to any

conclusion as to the man’s general behaviour or inherent qualities.4. Whether it is not a conviction of any premeditated crime. 5. Not indicate tendency to vice or violence or any lack of probity. 6. It has no connection with any professional function.

Like Fullagar J said in Ziems, more weight should be put on one’s professional misconduct rather than one’s personal misconduct.

On balance, since the offence here is only regulatory type (see Somerville v The Law Society of the Northern Territory (1995)) and involve no elements of dishonest conduct. Thus, it is unlikely that Mr Walter will be stuck off from the roll. However, given the offence is the high range drink-driving offence and his resistance to arrest, he may still guilty of professional misconduct but the tribunal may impose other penalties which is less serious such as fine or reprimands.

S387 Legal Professional Act 2006

Further, according to s387 Legal Professional Act 2006, Mr Walter alleged of professional misconduct. His drunk driving was not connected with the practice of law but satisfied the criteria of s(1)(b) s387 “or happening otherwise”.

The relevant list of conduct is stated in s389. A serious offence refers to an indictable offence against law of the commonwealth (Model Bill s1.2.1). Here, Mr Walter was charged with high range drink-driving offence and offensive language, his conduct satisfy the definition of serious offence as stated s389(c)(i) and he may guilty of professional misconduct. He may need to pay fine. (s425(3) and (5) Legal Professional Act 2006).

c). Against you for your conduct.

Assume it satisfy the common process for making of complaints. (Part 4.4 of the Model Bill).

S388 Legal Profession Act 2006

As stated, I am a solicitor rather than a barrister, this satisfy the requirement of an employee of a solicitor in s388. In Ziems, Fullagar J said more weight should be put on one’s professional misconduct rather than one’s personal misconduct. See Davis that personal misconduct may render a person to not a fit and proper person to practise as a barrister. (Brick P.508) Here, the signing of petition was in personal capacity, it does not provide any evidence to show there is any incompetence when representing George. Also, see the list of examples in LLP194 and P195. The complaint is unlikely to be unsatisfactory professional conduct. This is not a serious offence or conduct listed in S389, thus no professional misconduct.

Consumer dispute?

Consumer dispute is defined in Model Bill s4.5.2. However, there is no evidence to show there is any misunderstanding about advice, costs or miscommunication (LL P199) thus it is likely that the complaints will be dismissed without investigation at the beginning.

Q1 (80%)

The possible ethical approaches are:

-Adversarial advocate

The Lawry’s duty is to advocate the client’s interests as vigorously as possible within the bounds of the law. (Parker p56). Here, this involves following instructions from George and zealously acting upon it in George’s best interests. It would be appropriate to do what he says (obtain injunctions, start court proceedings etc.) to further his legal interests.

However, there are issues of such an approach being a ‘recipe for sabotage’ (Brick 2 Parker). Where there is an existence of a ‘twilight zone’ (LL p187) and it is possible to find ‘creative solutions’ that furthers the clients’ interests, not break the law but have other negative ramifications on maintaining justice and integrity of the legal system. While acting for George, one may have the tendency to resort to overly strict legal sanctions upon the protestors to stifle freedom to militate for a just cause (environmental campaign) using the law.

This may conflict with the basic duty of a lawyer to ensure “administration of justice” y using the law to stifle opposing parties unfairly.

-Responsible lawyering. The lawyer is response to make law work as fairly and justly as possible. (Parker p56). Here, it would involve acting on George’s instructions but maintaining a self-check system to ensure that the law is not used to unfairly disadvantage and stifle the opposing party. This prevents manipulation (control) of the legal system (p285, Brick 2). However, this is still a relatively conservative approach (Parker) as it does not allow critique of the standards of social justice the law complies with.

-Moral activism where lawyers should take advantage of their position to improve justice (more proactive role) by :1. Public interest lawyering, law reform to improve access to justice and make law more substantively just. counsel clients to persuade them of moral thing to do or withdraw if client wants something else (Parker p56)Here, it would be appropriate to counsel George against the development.

However, the policy issue would be the possible deterrence of clients on counselling from an apparently “moral high ground”. It also neglects the wisdom of adversarial advocacy by avoiding the “unpopular client” (Parker, LL)

-Ethics of Care involves preserving relationships and avoiding harm more so than impersonal justice. The focus is on nurturing the goodness of client and nurturing a relationship of trust and confidence to achieve the focus. (Parker, p56). Here, it would involve advising George and making him understand ramifications (consequence) of his actions and persuading him again developing the land in an environmentally hazardous way. However, (as is true for ‘moral activist’ approach),

this approach raises the issue of subjective morality and the capacity to preach from a ‘moral high ground

.

2) I would adopt an approach of ‘moral pluralism’ where I use different approaches according to the different stages of dealing with George. A blanket approach is not advisable as situational changes and changes in opinions and mindsets of the client warrants different attitudes and approaches.

Marker’s Comments

Your description of the 4 models of care and how they would operate in George’s case was excellent. However, you needed to expand on your choice of pluralism – what would this specifically entail?