Module 2 - Professional Ethics

 Practice Notes
o Ethical Issues
 Types of Ethical Dilemma
 Duties owed to the Bench
 Ethics in the Legal Practitioner-Client Relationship
 Duties to Clients
o Duties to the Law and the Courts
 the duty to obey the law;
 the duty of honesty and candour;
 the duty of disclosure;
 the duty not to abuse the process of justice; and
 the duty to be efficient and expeditious in conducting cases.
o Duties to Clients
 The duty of loyalty and conflicts of interest
 The duties of confidentiality and legal professional privilege
 The duties of Competence & Care, and to Act &
Communicate
 The duty to Act & Communicate
o Duties to Colleagues

Once you are admitted and a member of the profession you then have ethical obligations to
fulfil in relation to the law, the courts, your clients and your colleagues. These obligations overlap and
intersect and occasionally they conflict.

In this Module you will develop your understanding of the source of each duty (statute, practice rules
and/or common law) and the classification of that duty (contract, tort or fiduciary). You will also look at
the range of identifiable duties owed by you as a legal practitioner to the law, the courts, your clients
and your fellow-practitioners.

At the successful completion of Module 2 you should be able to

 Explain the parameters of your duties; and

 Determine which duty takes priority when a conflict does occur.

PRACTICE NOTES

NOTE: The material below is accurate at the time of teaching (ie July 2012)
but the legislative regime detailed below may be replaced by the proposed
Legal Profession National Law and Rules. See the National Legal Profession
Reform site for details.

As Christine Parker has outlined in 'A Critical Morality for Lawyers: Four Approaches to Lawyers'
Ethics' (attached to your worksite), there are multiple conceptions of lawyers' ethics. However, most
lawyers would agree that the proper administration of justice in our society requires lawyers to behave
ethically and competently.

The legal profession takes ethics very seriously. Lawyers who behave unethically will rapidly lose
their professional reputation, find that judges and other practitioners do not trust them and ultimately
will face professional discipline.

For an outline of your duties, please read the following notes

  Ethical Issues
 Duties to the Law and the Courts
 Duties to Clients
 Duties to Colleagues

Ethical Issues

TYPES OF ETHICAL DILEMMA

Situations that raise ethical issues are commonplace in legal practice, but the issues themselves are
not always easily recognised, or understood. Ethical issues are sometimes overlooked by legal
practitioners, or even ignored in the pursuit of commercial gain. The perception that many legal
practitioners are unethical is the main reason why many members of the public do not hold the legal
profession in too much esteem.

The most common, and recognisable, ethical issues occur as a result of a conflict between
professional duties. Because of their frequency, conflict issues tend to be more comprehensively
addressed by ethical rules and codes of conduct and most case law on ethical duties concerns
conflict.

A conflict of duties occurs when a legal practitioner cannot completely fulfill his or her professional
obligations to one client without breaching a duty owed to another client, or former client. Another
example is when a legal practitioner's duty to a client conflicts with his or her duty to the court.

Ethical dilemmas can also arise in less obvious ways. For example:

 Where there are alternative means of asserting a client's legal rights, is it wrong of the legal
practitioner to employ the means that may result in greater detriment to the opposing party
when the same end may be achieved by using the other means? Should a legal practitioner,
for example, eschew tactics that are retributive, rather than necessary for the legitimate
assertion of his or her client's rights, even though such tactics are perfectly legitimate and
entirely within the law? Is the legal practitioner required to look into the morality of employing
such tactics?
 Where an outcome sought by a client is lawful but has moral implications, for example, when
it is contrary to the public interest, or is seriously detrimental to other parties, should legal
practitioners advise their clients of the moral implications of such instructions? Should legal
practitioners discourage, or avoid, the pursuit of ends that are unnecessarily or unfairly
adverse to the interests of others?
 To what extent may conscientious legal practitioners demur to clients instructions without
breaching the duty to use their best endeavours to advance the interests of the client?

Ethical principles and rules established over the years provide legal practitioners with direction, or at
least guidance, on how to resolve ethical dilemmas of the first type - conflict of duties. However, the
application of these principles and rules does not always lead to a clear-cut answer to the question:
what course of conduct is ethically correct? There are some ethical dilemmas for which there is no
single 'right' solution. In these circumstances, legal practitioners must exercise individual judgment,
based on their knowledge of the relevant principles and rules and their personal moral values, to
decide on the propriety of their proposed course of action.

The way legal practitioners resolve ethical dilemmas of the second type is no less important, but these
ethical waters are less well charted. Apart from some rather vague statutory principles there is little
guidance available and legal practitioners may hold widely divergent views on the appropriate course
of conduct to adopt in these situations. Legal practitioners must therefore act according to their
personal moral values and how they conceive their professional roles and obligations.
 WHO CAN HELP?

How do you resolve an ethical dilemma? Who can help?

The QLS Ethical Deliberation Questionnaire on ethical decision making processes may assist you to
make ethical decisions. However, there will be times when you should consult others to assist you in
ethical decision making.

Unless they have caused the problem, you should consult your supervisor. At the start of your career,
you will usually not have the power to terminate a client retainer without supervisor approval. You
should take problems with clients to your supervisor, if you can. It may be appropriate to tell a client
that you can't give them an instant answer to their requests and that you have to consult your
supervisor.

Your firm or organisation may also have a designated ethics partner or officer. If so, they will be an
expert on ethics and will generally be interested in maintaining high ethical standards in the
workplace. They will often be able to assist you.

If you can't see someone in your firm, you may consult someone in your professional body. For
example, the Queensland Law Society has an anonymous ethics advice service which may be able to
help you. The QLS also has a dedicated ethics website which offers resources to practitioners. It is
strongly recommended that you seek their assistance if your firm is unwilling or unable to give you
appropriate ethics advice.

Remember your ethical rules and try to comply not only with the letter of the rules, but with the spirit of
them!

DUTIES OWED TO THE BENCH

When you read the Australian Solicitors Conduct Rules, you will see that the first substantive rule is a
reminder that your paramount duty is to the court and the administration of justice. The court depends
on practitioners, particularly those appearing as advocates, in its administration of justice. As an
officer of the Court, a legal practitioner is obliged to assist the Court to achieve a fair and just
determination of the dispute before it based on the evidence and the law. This necessarily involves
placing before the Court all relevant material (subject to the rules on admissibility, confidentiality and
privilege), including those adverse to the client. It also means that the practitioner should use the
process of the courts legitimately in vindication of the client's rights and not for some other ulterior
purpose.

As you progress in your career, you will find that having a good reputation with the judiciary facilitates
the conduct of your cases in court. The reverse is also true - if you are notorious for being sly and
underhanded the Court may not easily grant what you seek.

ETHICS IN THE LEGAL PRACTITIONER-CLIENT RELATIONSHIP

Apart from looking at ethical issues arising out of the legal practitioner's standing as an officer of the
court and as a member of the legal profession, we shall examine the duties owed by legal
practitioners to clients and the rules that regulate these duties.

In the event of conflict, duties owed to clients are overridden by the duty to obey the law and (subject
to the exception of legal professional privilege) to the court. The wider public interest demands that
duties owed to clients be subordinate to the proper administration of justice.

Legal practitioners stand in a fiduciary relationship with their clients. As fiduciaries, they have a duty of
undivided loyalty to act in the utmost good faith in the interests of their clients and to carry out by all
proper means their clients' instructions. This duty includes using all relevant information in the legal
practitioner's possession to advance the client's interests.

The duty of loyalty further requires a legal practitioner to avoid acting in situations where there is, or
may potentially be, a conflict between the interests of a client and other interests which a legal
practitioner has a duty, or is inclined by some personal interest, to advance. While this may sound
fairly straightforward, in practice it is often difficult to know where to draw the line.

DUTIES TO CLIENTS

The following two tables set out important features of the duties you owe your clients as a
professional legal practitioner.

1. Duties to Clients - poses some of the questions you need to consider in the professional
relationship with your client
2. Classification of Duties - outlines the following for each duty that you owe to your clients as a
professional legal practitioner
 Source/Classification of duties
 Elements of the duties
 Extensions, and Exceptions

Duties to clients:

Duty Considerations

Loyalty  Who is your client?

 Are you to act for an individual or the
organisation that employs him/her?
 Do they have the same interests?
 Is it likely that you will earn more money
from a case than your client will receive
and does your client accept this
possibility? Would this be allowed under
relevant legislation?
 Is your client's case likely to make more
money for you if you refuse to negotiate
until you get to the door of the court?
 Are you tempted to borrow money from
the client, or accept gifts?
 Are your own interests or your financial
affairs likely to become involved with
those of the client?
 If the case is one where you can legally
act for two parties in a conveyance, will
you be able to keep their interests totally
independent of one another?

Competence and care  Do you know how to handle this type of

work?
 Are you up to date with the relevant law?
 Are you involved in continuing legal
education?
 Are your office systems functioning
efficiently?
To act and continue to act  Have you enough time to carry out the
retainer promptly?
 Are you likely to be able to complete it
yourself and avoid referral to another
firm?

To Communicate  Have you told the client as much about

the legal situation and the options as s/he
will need to know in order to make
informed decisions?
 Have you confirmed your instructions and
advice in writing?

Confidentiality  Can you keep quiet about this matter?

 Are you likely to be under pressure to
disclose information to the DSS, the
Taxation Office, the police or even the
court?
 Will you act in a way that may make you
a witness (as in a police investigation)
against your client's interests
 Do you understand the limits of legal
professional privilege?
 Are all your 'without prejudice' letters in
fact covered by privilege?

Candour and fairness to the  Is the case hopeless and does the client
court, client, and other know it?
practitioners  If yes, will you confirm your advice to the
client in writing?
 Are you being asked to lie or hide
information to protect the client's
interests?
 Will you be assisting what may become
an illegal or improper activity?
 Do you have evidence, as opposed to a
suspicion, that your client is guilty of the
criminal offence with which s/he is
charged?
 Are you contemplating being in direct
communication with another party or their
witnesses?

To charge fairly  Does your client know the difference

between party & party and solicitor &
client costs?
 Does s/he know how much you charge
each time s/he telephones you?
Classification of duties:

Source/
Extensions &
Classification of Duties
Exceptions
Duties

1. Contract and tort Implied Terms: LEGAL PROFESSIONAL

PRIVILEGE -the obligation
CONFIDENTIALITY to keep secrets

DILIGENCE, (which is PUBLIC INTEREST

also an aspect of the duty EXCEPTION to the Duty of
of care ) Diligence

COMMUNICATION THE ADVOCATE'S

IMMUNITY

DISCIPLINE:
A BREACH of these
terms is also a 'unsatisfactory conduct'
DISCIPLINARY MATTER
'misconduct'
2. The fiduciary relationship TRUST AN EQUITABLE
CONCEPT
LOYALTY
Exists where two people
FIDELITY (Disclose all expressly, or by
information to the implication, agree for one
Fiduciary) to act as the agent of the
other
CONFIDENTIALITY -
Authority derives from the
client's representation that
AVOIDANCE OF the practitioner has
CONFLICT (OF authority to act.
INTEREST)

TO ACCOUNT TO A
CLIENT FOR MONIES -
EXCEPTION:

The duty to the court

(society) requires honesty/
candour in dealing with the
court.
3.Statute Legal Profession Act
2007

(Soon to be National
Legal Profession Law)

Supreme Court
(Admission) Rule 2004

Also consider the Australian Solicitors Conduct Rules.

 Duties to the Law and the Court

The traditional focus of ethics courses is on a legal practitioner's duties to his or her clients. In this
course however, you are going to start this module by reviewing and analysing the overarching duties
you have to the court and the administration of justice. With the sole exception of legal professional
privilege, these duties override all other duties. They have been placed at the start of the Australian
Solicitors Conduct Rules, which demonstrates the primacy and importance of your duty to the court
and administration of justice.

The duties you have to the law and the courts are:

 the duty to obey relevant ethical rules and the law;

 the duties of honesty, courtesy and candour;
 the duty of disclosure (though this does not override client instructions to keep confidentiality);
 the duty to avoid any compromise to your integrity and professional independence;
 the duty not to act in any way prejudicial to or to diminish public confidence in the
administration of justice;
 the duty not to bring the profession into disrepute;
 the duty to comply with undertakings;
 the duty not to abuse the process of justice; and
 the duty to be efficient and expeditious in conducting cases.

Further information about these duties can be found in the Australian Solicitors Conduct Rules which
are available from the Queensland Law Society web page, and the 2011 Barristers Rule which can be
found online at the Bar Association of Queensland website under the link on the front page called
'Practising Requirements'.

The first duty listed in the Australian Solicitors Conduct Rule is Rule 3.1, which states:

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

For Barristers, ule 5, which states the Principles underlying the Queensland Barristers Rules states:

5. These Rules are made in the belief that:

(a) barristers owe their paramount duty to the administration of justice;

(b) barristers must maintain high standards of professional conduct;

(c) barristers as specialist advocates in the administration of justice, must act

honestly, fairly, skilfully and with competence and diligence;

(d) barristers owe duties to the courts, to their clients and to their barrister and
solicitor colleagues;

(e) barristers should exercise their forensic judgments and give their advice
independently and for the proper administration of justice, notwithstanding
any contrary desires of their clients; and

(f) the provision of advocates for those who need legal representation is better
secured if there is a Bar whose members:
(i) must accept briefs to appear regardless of their personal beliefs;
(ii) must not refuse briefs to appear except on proper professional
grounds; and
 (iii) compete as specialist advocates with each other and with other legal
practitioners as widely and as often as practicable.

THE DUTY TO OBEY THE LAW

The following material summarizes your duty to obey the law:

1. You must not knowingly breach the law or allow, assist or condone its breach by others;
2. You have a duty to counsel a client against a breach of the law, and not to turn a blind eye.

For example, when a client hands cash to you for deposit in trust in suspicious circumstances, you
have an obligation to question whether the money was obtained legally and to decline to accept the
money if you are not satisfied that it is above board.

You are criminally liable for aiding and abetting if you advise clients on how to act illegally. However
there are limited exceptions: Your advice may be given in good faith to test the scope of the law: your
client must be told of the possibility of the conduct being found to be illegal, and of the consequences.

The relevant provisions are to be found in the Australian Solicitors Conduct Rules and the Barrister
Rule 2011. These rules can be found online at the Bar Association of Queensland website under the
link on the front page called 'Practising Requirements'.

Warning: Any failure to advise a client of the risk of criminal liability could make you liable to the client
in negligence!

THE DUTY OF HONESTY AND CANDOUR

You have a duty to act with honesty and candour when dealing with the courts. You must not
knowingly make a misleading statement to the courts.

Where defence counsel is aware that prior offences have not been mentioned to the court by the
prosecution, you must not disclose them if that would harm your client, provided that you do not
mislead the court by:

 giving tacit weight to an assertion that there are no priors or no relevant priors; or
 asking a witness about priors in the expectation of receiving a negative answer.

For notes about this duty you can refer to the

 Australian Solicitors Conduct Rules

 Barristers Rule 2011
 Case of Meek v Fleming [1961] 2 Q.B. 366.

An Example

The duties of loyalty, confidentiality and competence with respect to the client will be explored in a
later section of this module. For purposes of this exercise you may assume that as a practitioner,
whatever your client tells you is confidential and that you have a duty to use your utmost endeavours
to advance or to defend your client's best interests.

1. Would you have done what counsel in that case did?

2. Do you think the court would have decided differently had the plaintiff had other evidence
which supported his case?
Now you need to think about how this Duty to the client compares to the Duty to the Court.

DUTY OF DISCLOSURE

Under the duty of disclosure:

1. You must be candid as to the law. This means that you must:
 represent the law correctly; and
 disclose all authorities immediately on point.
2. You must be candid as to presentation of the facts. This means you must:
 correct any misleading statement as soon as you become aware of it (Ask your client
for instructions to do so. If they refuse, cease to act for the client, but do not breach
confidentiality);
 avoid the use of false documents - the prohibition includes affidavits (as opposed to
pleadings) that are untrue by either commission or omission; and
 avoid half-truths.

For notes about this duty you can refer to the

 Australian Solicitors Conduct Rule

An Example

As an officer of the court, you have a duty to assist the court to reach a determination of the dispute
before it on the best evidence available. This includes the duty to verify your client's instructions, as
best you can, so that you do not inadvertently or recklessly present 'facts' which a little investigation
may prove to be blatantly untrue or insupportable.

In other words, you cannot assume that just because your client has confided in you, that s/he is
necessarily telling the whole truth. Clients often present a version of events based on their personal
perception of what actually transpired; in doing so they sometimes overemphasise the part of the
story that is important to them and downplay other aspects that may be critical to your advice and
course of action. Verifying may be as simple as waiting until you have found out what the other side
has to say, but also includes your making enquiries of relevant people, such as doctors and police
officers.

Consider the following statement extracted from the case of Vernon v Bosley (No 2) [1997] 1 All E R
614 in the English Court of Appeal.

'Per Stuart-Smith and Thorpe LJJ. Every litigant is under a duty not to mislead the court or his
opponent until the judge has given judgment, and he does not discharge his duty simply by accepting
the advice of his legal advisers: if the advice is incorrect, he is responsible for it vis-a-vis the other
party to the civil litigation where the legal advisers are acting within the scope of their actual or
ostensible authority. However, where the case has been conducted on the basis of certain material
facts which are an essential part of the party's case, which are discovered before judgment to be
significantly different, and there is a danger that the court will be misled, it is counsel's duty to advise
his client that disclosure should be made, and if the client refuses to accept his advice (per Stuart-
Smith LJ) he should not make the disclosure himself but should withdraw from the case; (per Thorpe
LJ) in those circumstances, he has a duty to disclose the relevant material to his opponent and,
unless there is agreement between the parties to the contrary, to the judge (seep 629 e to h, p
630 f to h, p 631 a, p 647 b and p 654 a b, post).'

Now you need to think about how, if you had to, would you argue against disclosure? There is an
especially strict duty of disclosure in ex parte applications.Why do you think this is so?
You need to refer to the
  case of Vernon v Bosley (No 2) [1997] 1 All E R 614

THE DUTY NOT TO ABUSE THE PROCESS OF JUSTICE

An ethical legal practitioner uses the litigation process fairly; however, it is not unknown for a legal
practitioner to use litigation to gain every advantage for his/her client.

The rule against abuse of process is concerned with drawing the line in the sand; to distinguish
between what are energetic but fair endeavours on behalf of a client, and underhand and unfair
tactics.

The latter is not just unfair to the other party, but is contemptuous of the court in manipulating the
judicial process.

Now you need to refer to the

 Australian Solicitors Conduct Rule

 Barrister Rule 2011

THE DUTY TO BE EFFICIENT AND EXPEDITIOUS IN CONDUCTING CASES

Please refer to the fundamental ethical duties in rule 4 of the Australian Solicitors Conduct Rule which
requires in 4.1.3 that legal services must be delivered competently, diligently and as promptly as
reasonably possible.

Duties to Colleagues

As professionals and members of the same profession practitioners owe the following duties to other
practitioners

 To conduct dealings with other practitioners with honesty, fairness and courtesy and in a
manner conducive to advancing the public interest, including the often-overlooked duty not to
knowingly misrepresent to an opponent the facts, evidence, or law applicable to a client's
case and to correct misstatements on becoming aware of them
 To strictly observe personal undertakings given to other practitioners in a professional
capacity
 Not to disclose communications that are expressed to be 'without prejudice', or are otherwise
privileged
 Not to foster or induce an opponent's mistake where it may involve the opponent's client in
unnecessary expense or delay
 Not to communicate directly with a person they know is represented by another practitioner in
the matter without that practitioner's consent
 Not to use material which was inadvertently disclosed.

For further information about this duty please refer to the

 Australian Solicitors Conduct Rules

 Legal Profession (Solicitors) Rule 2007 (Though repealed, it has some useful examples and
discussions in addition to the repealed rules)
 Barristers Rule 2011.
 Case of Vernon v Bosley (No 2) [1997] 1 All E R 614 - in particular the judgment of Thorpe,
LJ. You need to consider - if you were in the plaintiff's lawyers' position, would you have
disclosed the change in the plaintiff's condition to the defendant's lawyers?
 Case of Legal Service Commission v Mullins [2006] LPT 012 - which was a discipline matter
involving misleading conduct by a barrister in a mediation. The solicitor involved was also
disciplined.

Duties arising from relations with other people

Your role as a solicitor requires that you deal with honestly and appropriately with those who are
not clients, courts or other legal professionals. You should read the chapter on Relatiosn with
Other Persons in the Australian Solicitors Conduct Rules. You must not make claims about your
client’s rights which mislead, grossly exceed their rights, threaten crminial proceedings or
disciplinary proceedings if your client’s claim is not satisfied or use tactics which go beyond
legitimate advocacy and are designed to embarrass or frustrate another person.

You must not pppress or harass others. If you instruct another on behalf of a client (eg a barrister
or expert) but do not intend to accept personal liability to pay the third party, you must make
arrangements with the third party in advance.

Duties arising from law practice

As professionals and members of the same profession practitioners owe various duties relating to
legal practice management. Thought these may not apply to you for several years, you should
read the chapter on Law Practice Management in the Australian Solicitors Conduct Rules.

You should note that some of these rules may apply to you, including rules prohibiting
discrimination, sexual harassment or workplace bullying. You must also be open and frank with
the Queensland Law Society. You must not