Bar Exam, Ethics 1
Questions and Complete
Solutions Graded A+
Ziems v Prothonotary - Answer: Facts
Barrister attacked. Subsequently crashed into and killed a motorcyclist. Alleged that he was drunk,
however, his condition may have been due to shock and concussion. Convicted of manslaughter and his
name was removed from the roll.
A police sergeant who witnessed the attach was not called by the prosecution - meaning that the
defence had to call him. During the coronial, the police officer acknowledge that the Barristers
behaviour could have been a result of the attack (he thought that there would have been a cerebral
injury caused by the violent attack). The police sergeant's evidence at trial was not as favourable.
Held: appeal allowed. Suspended from practice during term of imprisonment.
Principles
Jurisdiction / power to disbar and suspend - The power to disbar or suspend someone is incidental to
the power to admit to practice.
Ultimate question - The question is whether the person is not a fit and proper person to be permitted to
practise at the Bar. It is open to look at every fact which can throw any light on that question. The
question is also answered by defining the minimum standards demanded by reference to the peculiar
position and functions of a barrister.
Standard - A barrister must possess more than honesty, learning and forensic ability. A barrister is in a
relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in
the high task of endeavouring to make successful the service of the law to the community - requiring
exceptional privileges and exceptional obligations.
, Personal misconduct - The personal misconduct may be a ground for disbarring because it may show
that the person guilty of it is not a fit and proper to practise as a barrister, however, the approach is
different to professional misconduct (the latter has much more direct bearing
Clyne v NSW Bar Association - Answer: Facts
Criminal prosecutions commenced against a solicitor to intimidate the solicitor into ceasing to act on the
belief that this would facilitate the settlement of various civil proceedings. The criminal proceedings
concerned the solicitor 'unlawfully maintaining' proceedings.
There was no evidence that could sustain the charges.
The Barrister made damaging statements concerning the solicitor in his opening that were not
supported by the evidence. The opening expressly outlined the purpose of the criminal prosecutions.
The Full Court of the NSW Supreme Court struck the barrister of the roll of barristers.
Decision: appeal dismissed.
Principles
Ultimate question - whether a person is shown not to be a fit and proper person to be a member of the
Bar. This is not capable of a more precise statement.
Standard - An appeal court should not interfere unless it is clear that the discretion of the Supreme
Court has been wrongly exercised (i.e. there is compelling grounds)
Nature of professional rules - they can roughly be divided into two categories:
1. written rules that are conventional in character - designed primarily to regulate conduct of the
members of the profession in relation to one another (i.e. forbidding advertising, rules in relation to
retainers, when SC must appear with a junior. Breaches are treated seriously but would not warrant
disbarment unless it was shown to be part of a deliberate and persistent system of conduct.
2. Unwritten fundamental rules - a generally accepted standard of common decency and common
fairness (i.e. not to lie to a judge, deliberately misrepresent the law, make serious allegations without a
reliable foundation to warrant the suggestion)
Questions and Complete
Solutions Graded A+
Ziems v Prothonotary - Answer: Facts
Barrister attacked. Subsequently crashed into and killed a motorcyclist. Alleged that he was drunk,
however, his condition may have been due to shock and concussion. Convicted of manslaughter and his
name was removed from the roll.
A police sergeant who witnessed the attach was not called by the prosecution - meaning that the
defence had to call him. During the coronial, the police officer acknowledge that the Barristers
behaviour could have been a result of the attack (he thought that there would have been a cerebral
injury caused by the violent attack). The police sergeant's evidence at trial was not as favourable.
Held: appeal allowed. Suspended from practice during term of imprisonment.
Principles
Jurisdiction / power to disbar and suspend - The power to disbar or suspend someone is incidental to
the power to admit to practice.
Ultimate question - The question is whether the person is not a fit and proper person to be permitted to
practise at the Bar. It is open to look at every fact which can throw any light on that question. The
question is also answered by defining the minimum standards demanded by reference to the peculiar
position and functions of a barrister.
Standard - A barrister must possess more than honesty, learning and forensic ability. A barrister is in a
relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in
the high task of endeavouring to make successful the service of the law to the community - requiring
exceptional privileges and exceptional obligations.
, Personal misconduct - The personal misconduct may be a ground for disbarring because it may show
that the person guilty of it is not a fit and proper to practise as a barrister, however, the approach is
different to professional misconduct (the latter has much more direct bearing
Clyne v NSW Bar Association - Answer: Facts
Criminal prosecutions commenced against a solicitor to intimidate the solicitor into ceasing to act on the
belief that this would facilitate the settlement of various civil proceedings. The criminal proceedings
concerned the solicitor 'unlawfully maintaining' proceedings.
There was no evidence that could sustain the charges.
The Barrister made damaging statements concerning the solicitor in his opening that were not
supported by the evidence. The opening expressly outlined the purpose of the criminal prosecutions.
The Full Court of the NSW Supreme Court struck the barrister of the roll of barristers.
Decision: appeal dismissed.
Principles
Ultimate question - whether a person is shown not to be a fit and proper person to be a member of the
Bar. This is not capable of a more precise statement.
Standard - An appeal court should not interfere unless it is clear that the discretion of the Supreme
Court has been wrongly exercised (i.e. there is compelling grounds)
Nature of professional rules - they can roughly be divided into two categories:
1. written rules that are conventional in character - designed primarily to regulate conduct of the
members of the profession in relation to one another (i.e. forbidding advertising, rules in relation to
retainers, when SC must appear with a junior. Breaches are treated seriously but would not warrant
disbarment unless it was shown to be part of a deliberate and persistent system of conduct.
2. Unwritten fundamental rules - a generally accepted standard of common decency and common
fairness (i.e. not to lie to a judge, deliberately misrepresent the law, make serious allegations without a
reliable foundation to warrant the suggestion)
