Ethics PRACTICE EXAMS VERIFIED A+

23. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 - Facts: Bar fight followed by drink driving resulting in fatal crash. Held: Conviction for a serious offence does not, of itself, necessitate conclusion that barrister is not a fit and proper person. Personal misconduct may be grounds for disbarring because, by its nature, it reveals some unfitness to practice in terms of the person's character or qualities, but conviction for personal misconduct does not necessitate conclusion that barrister is unfit to practice. 24. Clyne v The New South Wales Bar Association (1960) 104 CLR 186 - Facts: Mr Jacombe and his wife are engaged in an "orgy of litigation" following her commencement of divorce and related proceedings against him on the basis of his adultery. Clyne was Jacombe's barrister and advises Jacombe to commence a criminal prosecution against Mrs Jacombe's solicitor for maintenance. Clyne knew there was no basis for the action and sole purpose was to intimidate the solicitor. In his opening statement, Clyne made an extravagant attack on the solicitor in he alleged perjury, fraud and blackmail. He knew at the time he had no evidence to support those allegations. Held: It is unfair and improper for a B to make statements against a person unless the B knows that he or she has, and intends to adduce, evidence to support those statements. 25. New South Wales Bar Association v Evatt (1968) 117 CLR 177 - Facts: Barrister charging excessive fees in context of solicitors charging excessive fees to client. Held: Charging excessive and extortionate fees is professional misconduct and, by placing the barrister's own interests above those of his or her client, demonstrates an unfitness to be a barrister. 26. Kelly v London Transport Executive [1982] 1 WLR 1055; [1982] 2 All ER 842 - Facts: Plaintiff, a chronic alcoholic, sued employer when he received a slight cut after bumping his head. He claimed all manner of injuries as a result of the accident, including depression, eye trouble and bad hearing. Solicitors for the plaintiff obtained 19 medical expert reports. Five additional examinations of the plaintiff were held by specialists with the defendant's experts present. Defendant's experts concluded maladies caused by alcoholism, and defendant sent those reports to the plaintiff. Plaintiff's counsel did not send their reports to the defendant, except one that had been altered to remove an unfavourable reference. Held: The plaintiff's solicitor and counsel were criticised for requesting that a doctor change his medical report. The court held that counsel must not ask a medical expert to change his report so as to favour their own legally aided client or to conceal things that may be against him. They must not settle the evidence of the medical evidence as they did in Whitehouse v Jordan. Counsel owe a duty to the court and a duty to the other side. If they fail in their duty the court can call them to account and make them pay the costs of the other side. Counsel have no immunity if they fail to have regard for their duty to the court and to the other side. 27. Glissan, James Lindsay, Re, Legal Profession Disciplinary Tribunal, No. 13 of 1990 - Facts: Barrister told his client that his case was hopeless, and that he should settle. Glissan was overbearing when doing this, suggested that client would have to run the case himself if he didn't settle. Held: It is unsatisfactory professional conduct for a barrister to pressure his or her client in a manner that overbears the client's instructions. On the issue of settlement, the barristers duty to the client is to advise the client, but allow the client to determine how to proceed based on that advice. 28. Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148 - Facts: Barrister took advantage of tax office's mistaken, in conducting legal affairs that related to his own personal finances. Held: Where conduct involves the use of a legal practitioner's legal knowledge and skills, it should be considered professional conduct, notwithstanding that it is engaged in with respect to private or personal matters. It is professional misconduct for a legal practitioner, knowing of an opponent's mistake of fact, to take steps to deliberately take advantage of that error (as opposed to merely remain silent). 29. Gould, Glenn, Re, Legal Services Tribunal, No 5 of 1997 - Facts: Barrister accepted a brief to appear in a 3 day hearing when he was already briefed to appear in a part-heard AVO matter on the first day of the hearing Monday). He failed to inform the solicitor in the AVO matter of the conflict when in conference with the solicitor and client the Thursday prior. The following day (Friday), the barrister