LAWS1230: LAWYERS, ETHICS AND JUSTICE

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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