BAR EXAM, ETHICS 2 STUDY GUIDE
A Solicitor v Council of the Law Society of NSW - Answer -Facts
Solicitor committed 4 acts of indecent assault against daughters of partner. Complaint
made in relation to 2 acts. Solicitor admitted 2 acts and informed police about the other
2 acts. Alleged conduct occurred as a result of being made redundant and his father ill
health. Immediately sought medical help. Had the support of partner, children and
medical practitioners.
I further complaint was made by one of the daughters. After conviction and before it was
quashed on appeal, the solicitor corresponded with the law society without revealing the
charges / conviction.
Court of Appeal ordered that the solicitor's name be removed from the roll and made
declarations.
Decision: appeal allowed in part. Declarations 1(a) and 2 set aside, order that name be
removed from roll set aside.
Principles
Inherent jurisdiction - applied the distinction between professional misconduct and
personal misconduct in Ziems. The dividing line between the two is often unclear.
- Even where conduct is not engaged in directly in the course of professional practice, it
may be so connected to such practice as to amount to professional misconduct.
- Further, personal conduct may demonstrate qualities of a kind that require a
conclusion that a person is not a fit and proper person to practice.
The concept of professional misconduct should not be stretched beyond conduct having
some real and substantial connection with professional practice [Note: not following the
Spigelman CJ approach in Cummins].
Not all cases of professional misconduct justify or require that the name of a practitioner
should be removed from the roll - that ultimate issue is whether the practitioner is shown
not to be a fit and proper person. Fitness is to be decided at the time of the hearing.
The conduct of the appellant in committing the acts of indecency towards the
Legal Services Commissioner v Mullins - Answer -Facts
An expert report was served based upon an assumption as to life expectancy. Shortly
before mediation the barrister was informed that the client had cancer which had a
material impact on the client's life expectancy.
The client wanted the matter settled and did not want to disclose the change in
circumstances.
After conducting research and speaking with senior counsel, the barrister considered
that the disclosure of the change of circumstances was not necessary so longer as the
claimant's lawyers did not positively mislead Suncorp and its lawyers about the client's
life expectancy. The barrister otherwise properly advised about the risks of non-
disclosure.
, In the Outline of Arguments, the barrister based the claim on the expert's report and did
not disclose the changed circumstances. During mediation the barrister referred to and
relied upon aspects of the Outline
Decision: public reprimand, penalty of $20,000
Principles
The context determines the extent of legal and equitable obligations of disclosure. The
Barrister rules provided that a barrister must not knowingly make a false statement to
the opponent in relation to the case (including its compromise) and a barrister must take
all necessary steps to correct any false statement unknowingly made by the barrister to
the opponent as soon as possible after the barrister becomes aware that the statement
was false.
Here:
By continuing to rely upon the expert report after learning of the cancer fact, and
recognising their significance for the validity of the life-expectancy assumption, the
respondent intentionally deceived Mr Kent and Suncorp representatives about the
accuracy of the assumption.
He did this intending reliance on the discredited assumption.
The fraudulent deception involved such a substantial departure from the standard of
conduct to be expec
NSW Bar Association v Meakes - Answer -Facts
First complaint - the respondent overcharged for the provision of legal services.
Second complaint - the respondent did not provide a fee agreement or a fee disclosure.
The respondent admitted that he did not provide a specific fee agreement and that the
total fees were excessive. The respondent did not give evidence before the Tribunal.
An expert gave evidence that the fees were 66-90% above what was considered fair
and reasonable (including a 25% uplift fee that he was not entitled to charge in the
circumstances). The tribunal accepted that the respondent was guilty of 'gross
overcharging' but rejected that this amounted to professional misconduct.
Vulnerable client.
Decision: appeal allowed, set aside the orders of the ADT, respondent found guilty of
professional conduct and unsatisfactory professional conduct.
Principles
Gross over-charging may amount to professional misconduct, particularly where the
lawyer has taken advantage of their client's vulnerability, - there is no additional element
of fraud or the like.
Gross over-charging - where fees were grossly disproportionate to what was fair and
reasonable in the circumstances.
A Solicitor v Council of the Law Society of NSW - Answer -Facts
Solicitor committed 4 acts of indecent assault against daughters of partner. Complaint
made in relation to 2 acts. Solicitor admitted 2 acts and informed police about the other
2 acts. Alleged conduct occurred as a result of being made redundant and his father ill
health. Immediately sought medical help. Had the support of partner, children and
medical practitioners.
I further complaint was made by one of the daughters. After conviction and before it was
quashed on appeal, the solicitor corresponded with the law society without revealing the
charges / conviction.
Court of Appeal ordered that the solicitor's name be removed from the roll and made
declarations.
Decision: appeal allowed in part. Declarations 1(a) and 2 set aside, order that name be
removed from roll set aside.
Principles
Inherent jurisdiction - applied the distinction between professional misconduct and
personal misconduct in Ziems. The dividing line between the two is often unclear.
- Even where conduct is not engaged in directly in the course of professional practice, it
may be so connected to such practice as to amount to professional misconduct.
- Further, personal conduct may demonstrate qualities of a kind that require a
conclusion that a person is not a fit and proper person to practice.
The concept of professional misconduct should not be stretched beyond conduct having
some real and substantial connection with professional practice [Note: not following the
Spigelman CJ approach in Cummins].
Not all cases of professional misconduct justify or require that the name of a practitioner
should be removed from the roll - that ultimate issue is whether the practitioner is shown
not to be a fit and proper person. Fitness is to be decided at the time of the hearing.
The conduct of the appellant in committing the acts of indecency towards the
Legal Services Commissioner v Mullins - Answer -Facts
An expert report was served based upon an assumption as to life expectancy. Shortly
before mediation the barrister was informed that the client had cancer which had a
material impact on the client's life expectancy.
The client wanted the matter settled and did not want to disclose the change in
circumstances.
After conducting research and speaking with senior counsel, the barrister considered
that the disclosure of the change of circumstances was not necessary so longer as the
claimant's lawyers did not positively mislead Suncorp and its lawyers about the client's
life expectancy. The barrister otherwise properly advised about the risks of non-
disclosure.
, In the Outline of Arguments, the barrister based the claim on the expert's report and did
not disclose the changed circumstances. During mediation the barrister referred to and
relied upon aspects of the Outline
Decision: public reprimand, penalty of $20,000
Principles
The context determines the extent of legal and equitable obligations of disclosure. The
Barrister rules provided that a barrister must not knowingly make a false statement to
the opponent in relation to the case (including its compromise) and a barrister must take
all necessary steps to correct any false statement unknowingly made by the barrister to
the opponent as soon as possible after the barrister becomes aware that the statement
was false.
Here:
By continuing to rely upon the expert report after learning of the cancer fact, and
recognising their significance for the validity of the life-expectancy assumption, the
respondent intentionally deceived Mr Kent and Suncorp representatives about the
accuracy of the assumption.
He did this intending reliance on the discredited assumption.
The fraudulent deception involved such a substantial departure from the standard of
conduct to be expec
NSW Bar Association v Meakes - Answer -Facts
First complaint - the respondent overcharged for the provision of legal services.
Second complaint - the respondent did not provide a fee agreement or a fee disclosure.
The respondent admitted that he did not provide a specific fee agreement and that the
total fees were excessive. The respondent did not give evidence before the Tribunal.
An expert gave evidence that the fees were 66-90% above what was considered fair
and reasonable (including a 25% uplift fee that he was not entitled to charge in the
circumstances). The tribunal accepted that the respondent was guilty of 'gross
overcharging' but rejected that this amounted to professional misconduct.
Vulnerable client.
Decision: appeal allowed, set aside the orders of the ADT, respondent found guilty of
professional conduct and unsatisfactory professional conduct.
Principles
Gross over-charging may amount to professional misconduct, particularly where the
lawyer has taken advantage of their client's vulnerability, - there is no additional element
of fraud or the like.
Gross over-charging - where fees were grossly disproportionate to what was fair and
reasonable in the circumstances.
