Description

Contents
1. INTRODUCTORY FRAMEWORKS (1) | Overview of Course 8
‘Ethics: Time to Revisit The Basics’ 8
INTRODUCTION: VALUES IN PRACTICE 10
Professional Conduct 12
Social Ethics 12
An applied ethics approach 14
WHAT IS ‘LAWYERING’? 14
What do we mean by ‘lawyering’? 14
Who are the lawyers? The diversity of the profession 15
PROFESSIONAL MATERIALS 16
Solicitors’ Rules 16
Barristers’ Rules 18
2. CLINICAL COMPONENT: INTERVIEWING CLIENTS IN A COMMUNITY LEGAL CENTRE 20
R Hyams, S Campbell & A Evans, Practice Legal Skills 20
Introduction 20
Factors to consider before commencing dialogue with client 20
The three-stage process of interviewing 21
Ethical matters 22
K Lauchland, ‘The Importance of Good Communication’ 23
Introduction 23
Client satisfaction 23
Avoiding the law society complaint 23
Don’t miss the point 23
Establishing rapport and building client comfort 23
Physical environment 23
Communication facilitators 23
Avoid gobbledygook - use plain English 24
J. Barkai, ‘How to develop the skill of active listening’ 25
Discrimination and communication 25
Content and feelings 25
Purposes 25
Clients’ emotions 25
Economic benefits 25
Accuracy, intensity and form 25
Avoiding roadblocks 26
S Fryer-Smith, Aboriginal Benchbook for WA Courts 26
Aboriginal languages and dialects 26
Modern Aboriginal languages and dialects 27
Communication styles 27
Communication effectively with speakers of Aboriginal English 27
3. INTRO TO THEORETICAL FRAMEWORKS AND CONCEPTS 28
Giving Voice to Values: A Tale of Two Stories 28
Part 1 28
PROCESS OF ETHICS DECISION-MAKING AND REFLECTION 28
Step One: Awareness of Ethical Issues 28
Step Two: Application of Ethical Standards or Principles 29
Step Three: Moral Imagination and Practical Implementation 30
ADVERSARIAL ADVOCACY: THE TRADITIONAL CONCEPTION OF LEGAL ETHICS 30
LIMITATIONS OF ADVERSARIAL ADVOCACY 30
ALTERNATIVES TO ADVERSARIAL ADVOCACY 31
Different approaches to lawyers’ ethics 31
Responsible lawyering: Officer of the court and trustee of the legal system 32
Moral activism: Agents for justice with clients and the law 33
Ethics of care: relationship lawyering 33
Conclusion 34
Gentile, ‘Values-Driven Leadership Development: where we have been and where we could go’ 34
4. BEHAVIOURAL ETHICS 35
FOUR CORNERS, “THE DISHONOURING OF MARCUS EINFELD” 35
PROCESS OF ETHICAL REFLECTION AND DECISION-MAKING 36
Case Study: The lawyer who drafted corrupt contracts with Iraq 36
RATIONALISATION 36
J R Sternlight & JK Robbennolt, ‘Behavioural Legal Ethics’ 37
Part 1: Ethical blind spots, slippery slopes and ‘ethical fading’ 38
Part 2: Ethics in Law Practice 39
Part 3: Why don’t we recognise and learn from ethical failures? 42
PERSONALITY, EXTRINSIC FACTORS AND SOME PSYCHOLOGICAL THEORY 43
5. THE LEGAL PROFESSION AND THE REGULATORY SYSTEM 44
THE RESPONSIBILITY CLIMATE: PROFESSIONALISM AND THE REGULATION OF LAWYERS' ETHICS 44
SELF-REGULATION: PROFESSIONAL COMMUNITY AND SOCIAL TRUSTEE PROFESSIONALISM 45
Barristers and the history of professional moral community 45
The social bargain: social trustee professionalism 45
Traditional self-regulation 46
The character of a member of a self-regulating profession: suitability for admission and renewal of practicing certificates 47
CO-REGULATION AND INDEPENDENT REGULATION OF THE LEGAL PROFESSION TODAY: COMPLAINTS HANDLING AND DISCIPLINE 48
The legal profession as a conspiracy against the laity 48
Regulation of the legal profession as a business 48
National regulation? 49
Co-regulation and independent regulation: Complaints handling and disciplinary investigations and prosecutions 50
New South Wales 51
THE PROFESSION V BUSINESS DEBATE 51
The implications of the profession v business debate for conduct 52
The change environment 53
James Allsop, ‘Professionalism and commercialism: Conflict or harmony in modern legal practice?’ 54
Legal Profession Uniform Law (NSW) 56
6. ENTRY TO THE PROFESSION: ADMISSION AND SELECTION 61
TRUTH AND HONESTY 61
Dishonesty as a matter of individual character 61
LEGAL PROFESSION UNIFORM LAW (NSW) 64
CASES 66
4. MENTAL WELLBEING 68
CONTRITION 70
EXEMPLARY LIFE 73
7. LAWYERS’ DUTIES AND DISCIPLINE: AN OVERVIEW 74
EXTRINSIC CONTROLS: THE RULES OF PROFESSIONAL RESPONSIBILITY AND RELEVANT LEGISLATION 74
Regulatory schemes - A national scheme? 74
FIDELITY TO THE LAW 77
What do we mean by the duty to the law? 78
The content of the duty 78
The tension between the fundamental duties 82
Who oversees the duty? 83
Conclusion 83
LOYALTY TO THE CLIENT 83
The sources of the obligation of loyalty 84
The nature of the duty 84
Identifying the client: to whom is the duty owed? 86
CIVILITY AND COURTESY 87
Meanings of civility 87
A crisis of civility? 88
The need for reform 89
8. LAWYERS’ ACCOUNTABILITY - COMPLAINTS, DISCIPLINE AND LIABILITY 91
TRUTH AND HONESTY 91
Conduct during practice 91
Conduct outside practice 95
Dishonesty as a matter of systemic practices within the legal system 97
The impact of systemic truth manipulation 98
COMPETENCE 98
The meaning of competence 98
Competence in context 99
Remedies and sanctions for incompetence 100
Causes of incompetence and strategies to improve competence 102
Legal Profession Uniform Laws (NSW) 2014 103
OLSC: COMPLAINTS 104
Types of complaints 104
Complaint process 105
Disciplinary action 107
9. ACCESS TO JUSTICE 108
SERVICE AND ACCESS TO JUSTICE 108
Sources of the service obligation 108
The nature and extent of the service obligation 108
The problem of inequitable access to justice 109
Proposed solutions 111
McAtee et al., ‘Assistance with Legal Problems’ 112
Free legal assistance 112
Legal aid from Legal Aid NSW 113
Lawyers 115
Interpreters 116
Legal Profession Uniform Law (NSW) 2014 117
F Gibson and M A Noone, ‘Going to Court: Access to Legal Assistance in Australia’ 118
Introduction 118
Court based services - self represented litigants 119
Pro bono schemes 119
Legal Aid 120
Current issues 121
10. REPRESENTING AND ADVISING THE CLIENT 121
R Hyams, S Campbell & A Evans, Practical Legal Skills 121
LOYALTY TO THE CLIENT 121
The sources of the obligation of loyalty 122
The nature of the duty 122
CONFLICTING LOYALTIES 124
How far does loyalty to client extend? The values in the conduct rules 124
SOLICITORS’ AND BARRISTERS’ RULES 125
‘When a client’s capacity is in doubt: a practical guide for solicitors’ 128
What is the solicitor’s role in capacity assessment? 128
What is “capacity”? 128
Key principles 129
CASES 129
11. MONEY MATTERS 130
INTRODUCTION: LEGAL FEES AND ACCESS TO JUSTICE 130
ETHICAL PROBLEMS WITH LAWYERS’ FEES AND BILLING PRACTICES 131
Item remuneration billing 131
Time-based billing 132
Time-based billing and law firm values 133
Fees and costs in litigation 133
Conditional and uplift fees 133
NEGOTIATING FAIR, REASONABLE AND REALISTIC COST AGREEMENTS 134
A fair process 134
Disputing lawyers' costs 135
COSTS & BILLING 136
CASES 136
13. CONFLICTING LOYALTIES 138
INTRODUCTION 138
HOW FAR DOES LOYALTY TO CLIENTS EXTEND) THE VALUES IN THE CONDUCT RULES 139
Lawyer-client conflict 139
Clients, confidentiality loyalty and the duty to the administration of justice 139
Current clients 140
Former clients and information barriers 140
ALTERNATIVE ETHICAL APPROACHES TO CLIENT LOYALTY 141
The responsible lawyer 141
Moral activism 141
The ethics of care 141
Pro-Bono conflict guidelines 141
14. ROLE MORALITY AND THE REPUGNANT CLIENT 147
SOLICITOR’S RULE 17 Independence - Avoidance of personal bias 147
BARRISTER’S RULES 148
R Wassertrom (1975) ‘Lawyers as professionals: some moral issues’ 149
W B Wendel, ‘The Standard Conception: for and against’ 151
15. LAW FIRM CULTURE 151
CASES 151
EFFECTS OF LAW FIRM CULTURE 153
CONDUCT RULES 154
M Seligman, P Verkuil & T Kang, ‘Why Lawyers are Unhappy’ 154
MENTAL HEALTH AND WELLBEING RESOURCES 156
Mental health organisations 156
Solicitor’s resources 157
Support for clients 157
16. EVENING ETHICS PANEL 157
17. ETHICS IMPLEMENTATION 157
Behavioural Legal Ethics 157
Improving individual ethics 158
Enhance organisational ethical culture 159
18. ETHICS AT THE CRIMINAL BAR 160
ETHICS IN CRIMINAL JUSTICE: PROOF AND TRUTH 160
The criminal trial 160
The defence 161
Abbe Smith, ‘Defending the unpopular down-under’ 162
Introduction 162
Duty to the court and fealty to truth 163
20. ETHICS IN NEGOTIATION AND ADR 163
Getting to the Yes 163


UNSW

Term 1, 2019


167 pages

64,692 words

$59.00

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