LAW5015 Ethics in Legal Practice Exam Full Notes

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Law5015 Ethics in Legal Practice Exam Notes 1 1 Approaches to ethical responsibilities 3 Sources governing ethical professional behaviour 3 4 types of ethical approaches (Parker & Evan) 4 2 Admission to practice 4 Admission process 4 Suitability matters – fit and proper person 5 Disclosure requirements – good fame and character 7 Dishonesty 7 Criminal history 8 Political activity/Disregard for the law 8 Academic misconduct 9 Mental Illness and substance abuse 9 Practising certificate (PC) 10 Revocation or termination 11 3 Duty to obey the law 11 Duty to avoid unlawful conduct (lawyer) 12 Duty to advise clients against unlawful conduct (clients breaching the law) 13 Clients who are breaking the law 13 If legality is doubtful, but unclear? 14 4 Duty to the court 14 1. Duty of honesty and candour (disclosure to court) 15 Duty not to mislead about law 15 Duty not to mislead about facts 15 Duty to assist the Court (presentation of law) 15 Duty to disclose relevant law 16 Positive duties of disclosure/Duty to correct innocent misstatements 16 2. Duty not to corrupt the administration of justice 16 1) Lawyers responsibilities regarding client wrongdoing 16 (a) Client perjury 16 (b) Client’s intention to disobey a court order 17 (c) In criminal proceedings, client confesses guilt to the lawyer but maintains a plea of not guilty 17 2) Integrity of the evidence 17 3) Public disclosures during current proceedings 18 4) Proactive discovery duties 18 3. Duty not to abuse court processes 20 1) Making baseless allegations 20 2) Pursuing hopeless cases 20 3) Using processes for improper purposes (intimidate, delay) 21 4) Wasting time and money 21 4. Duty to conduct cases efficiently and expeditiously 22 Sanctions 22 5 Duty to the client 22 Duty of loyalty 22 Confidentiality and privilege 23 Further fiduciary duties/Duty of competence and skill 23 Duty of confidentiality 23 Client legal privilege (CLP) 25 Conflicts of interest 29 Fiduciary duty – undivided loyalty 30 Lawyer‐client conflicts (LCC) 31 Lawyer as witness in client’s case 33 Personal relationships with clients 33 Client/client conflicts (CCC) 35 Concurrent client/client conflicts of interest (ASCR 11) 35 Successive client/client conflicts of interest (ASCR 10) 38 Client/client conflicts in family law 40 Non-client situations/preserving confidence in the administration of justice 41 6 Duty to other lawyers and third parties 42 General duty of honesty and courtesy 42 Rules for dealings with others 43 Specific obligations in civil proceedings 43 7 Duty in Civil matters & Criminal matters 43 Duties in civil matters 43 General civil law duties 44 Negotiation and ADR 46 Duties in criminal matters 46 Right to a fair trial 46 Prosecution duties 47 Suppressing evidence 47 Inflaming the jury/court 48 Defence duties 48 Defending guilty clients/withdrawing from a case 48 Duties in relation to pleas/innocent clients pleading guilty 49 Making allegations against others 50 Role of counsel and client 50 Duties relating to witness 50 8 Regulation of lawyers 51 Legal costs 51 Trust accounting 58 Regulatory framework 63 Complaints 63 Making a complaint 63 Preliminary assessment 64 Investigations 64 Consumer complaints/matters 64 Disciplinary complaints/matters 66 Disciplinary proceedings 66 Conduct capable of constituting UPC or PM (s 298) 66 Types of misconduct (CL) 66 Unsatisfactory professional conduct (UPC) 68 Professional misconduct (PM) – more serious 68 Disciplinary process (UPC) 68 Disciplinary process (PM) 69 Factors affecting sanctions 70 Mental illness 72 Seeking re-admission 72