Ethics
Privilege - in relation to confidentiality
- If something is privileged, even the court can't order disclosure absent unusual circumstances (s 67 Evidence Act 2006) - you can keep things from the court - - Covers confidential communications made for the purpose of obtaining legal services (s 54) - Covers preparatory materials for proceedings (s 56) - litigation work product - going into court
Burgess v Monk
- In this situation, the lawyer had to continue working and couldnt withdraw - Lawyers perceived a threat of negligence suit by client that client subsequently disavowed, lawyers didn't want to continue. - Court ruled that decision was based on broad administration of justice concerns. Here, lawyers must soldier on. - The more common situation where the client has lost confidence in the lawyer and wishes to terminate does usually result in leave as "it would be nigh on impossible for counsel to take adequate instructions from the client to progress the trial" [58]
Admission to the bar
A person is admitted by the HC Substantive requirements for admission Law society is not the same as the profession Statutory factors Character of the person Guidance from precedents
Cab rank rule Applies Only to Reserved Areas
Advice and advocacy before a court or Tribunal, but only those courts and Tribunals that give only lawyers a right to appear - ACC has masses of non-lawyers, but at the HC there are exceptions to having to be a lawyer Where the law requires the work to be done by a lawyer (eg division of relationship property) - a couple who are splitting up, each spouse has to be represented by a different lawyer When the reserved areas are narrow, it means non-lawyers can do things "Legal work" is much broader than the reserved areas (s 6). If done by a person without a practicing certificate, it is unregulated in New Zealand
Pou v Waiktato/Bay of Plenty District Law society
Applicant failed to disclose to the DLS that he had been disciplined by his university while being a student there He positively stated that there was nothing concerning his past conduct that he needed to inform the DLS His failure to disclose was by way of oversight rather than deliberate suppression Their honours stated that a legal practitioner is accorded great privileges not in any personal right but on behalf of the members of the community in need of legal advice and assistance Pou was accepted by the HC and they were convinced he was of good character
Reserved areas of work
Associated with advocacy before a court or Tribunal, but only those courts and Tribunals that only give lawyers a right to appear Where the law requires the work to be done by a lawyer (eg division of relationship property)
What does the traditional justification for the cab rank rule include?
Guarantees that every client will be able to access legal help - you have to have money - not everyone can afford legal help, and the cab rank rule does nothing about affordability
Professionalism in LCA Rules
If a client picks you, you cannot say no - as a professional person you must be available to the public They have linked this to professionalism
Hurts clients (against wider morality)
If each lawyer follows the dictates of his or her own conscience, it is argued that there would be insufficient predictability for clients (lawyers should be Big Macs: you should always know what you're getting). - Can notification deal with this objection? Fully? Lawyers who incorporate morality place their clients at a competitive disadvantage. Client loses advantage of any legal rights that the lawyer won't pursue. - But if notified early, can go elsewhere - Assumes that client is hurt by lawyer's perspective. Is this always true? (eg principled negotiation)
Lord Brougham on loyalty and zeal
In the discharge of his duty, an advocate "knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring others."
NZLCDT - the Tribunal
Independent Tribunal administered by Department of Justice Chair and Deputy Chair must have had 7 years' practicing experience but not currently be lawyers - layperson but with experience 7-15 lawyer members and 7-15 lay members Only body that can make finding of misconduct and strike off Decision to strike off must be unanimous - Was there a violation of the rules etc
R 7.3(d)
Information on proposed retainers is excluded
Breach of the Rules
Is misconduct if willful or reckless, alternatively it is unsatisfactory conduct - there is discretion - a person who has violated the rules will not always be found to have done that, becasue it is discretionary Breach of the Rules is actionable, but complying with the Rules is not enough to avoid disciplinary action - there are things outside the rules that you can be found to have breached Other categories of wrongdoing (eg convictions, actions in private life) - is not exhaustive Rules are not intended as complete (eg first time lawyer disciplined for inappropriate sexual relationship with client, there was no prohibition of this in the rules at the time) - then after that they made a rule, and the new Act and rules
Arguments Against Non-Accountability
It is a myth that the client controls the representation/defense. Lawyer often controls, or at least has significant influence, thus should be morally responsible. Lawyers, as everyone, should be held morally accountable for all their actions. Assisting the immoral is itself immoral. If you build cheaper, more destructive and more reliable nuclear bombs are you behaving morally? Or ways to hinder detection of chemical/biological warfare agents? Ditto getting a serial murder back on the streets.
How can you make sure you are professional if you dont know what the term means?
It is acting like a gentleman - this is still vague, and is gender specific George Bernard Shaw - we have this advanced learning, we are the only ones with the experience and skills to pass judgement and discipline lawyers Restricted entry to only good lawyers - but this meant lawyers had a monopoly on conveyancing - 30 years ago, the fee for conveying a house was $1000, and more than 50% of the oncome for law firms came from this
Not in the lawyer's proper role (against wider morality)
It's not the lawyer's business to advise the client on the moral appropriateness of his or her proposed actions, or to force particular choices - BUT: Not everyone agrees. "The client can go elsewhere, but I have my standards." Usurps the role of the law-maker or trial process (eg Erskine CM) Simon: - BUT: Nevertheless, in some cases, the lawyer has a more accurate picture than the judge or jury.
1984 NZ case of D v Hall quoted Re Cooke (1889) - (support for using wider morality)
Judicial support (very limited) - a "solicitor does not have to do everything his client asks him to": "He was bound to use his utmost skill for his client, but neither a solicitor nor a barrister was bound to degrade himself for the purpose of winning his client's case. . . . When concrete cases arose every one could see for himself whether what had been done was fair or not." Hall dealt with a client demanding disclosure from her own lawyer of the identity of persons who adopted her child. But mainstream view is definitely role-differentiated morality
Does duty to advise include "Unsought Advice"?
Lawyer must anticipate what the client is asking for the client expressly indicates that they do not wish to be advised (eg on the wisdom of a transaction) or tells the lawyer that her/she only wishes limited services (eg help executing a document) - more often because of costs - eg former spouse and i are going to determine how to split the property - we have already drawn the list, just want the paperwork formalised to the court some clients might also ignorantly fail to ask for advice (eg not know can contract out of relationship property, so don't ask how to) - on all these situations there may be a duty to provide that advice
Burgess v Monk - withdrawal
Lawyers perceived a threat of negligence suit by client that client subsequently disavowed, lawyers didn't want to continue. Court ruled that decision was based on broad administration of justice concerns. Here, lawyers must soldier on. The more common situation where the client has lost confidence in the lawyer and wishes to terminate does usually result in leave as "it would be nigh on impossible for counsel to take adequate instructions from the client to progress the tial" [58]
Justifications for the Cab Rank Rule
Lawyers shouldn't judge their clients' cases (Paine CM) - Everyone gets a lawyer (bombing example CM) - otherwise the client's autonomy and legal rights could be thwarted Bombing at a courthouse - that person who was going to bomb couldnt get a lawyer to represent them, if they cannot get a lawyer their autonomy and rights could be thwarted Public service aspect of professionalism Theoretically protects lawyers of unpopular clients from public criticism - Didn't succeed in Clayton Weatherston case - lawyers Greg King and Judith Ablett-Kerr were subjected to harassment including threats of violence made against them
Brown
Left police so that they wouldn't discipline him as a police officer He said he didnt need to disclose the information about the 13 year old - he lied about thinking she was a 16 year old 13 complainants, but only 2 trials He did not disclose that he had sent the emails There is reason to doubt his character
R 4.2.1(e) Exception to Duty to Complete Retainer
Mahoney interprets this rule as requiring lawyers in litigation matters to follow client instructions that are both highly imprudent and inconsistent with the lawyer's fundamental obligations (CM) White interprets inconsistency as sufficient justification to withdraw, but not imprudent instructions in litigation (CM) McLoughlin, quoted by White (CM), suggests can't take a contrary approach to the client, but may be able to withdraw if client instructs lawyer to do something that is against the client's best interests.
Lord Brougham's statement is extreme. Should it be taken literally?
Overriding duty to court (then and now, eg R 2.2 & LCA s 4) - the lawyer's duty to the court is higher than that to the client Lord Brougham didn't suggest lying to help the client - he was suggesting to bring up the knowledge of the King's marriage It was really a threat to the King's advisors re disclosing King's marriage/engagement to a Catholic woman Most do agree that the interests of others must be disregarded. - we want to give everyone a fair shot France is inquisitorial, NZ is adversarial The inquisitorial approach - you dont have the same reliance on lawyers- they are a more minor role - then sometimes, no one particularly looks hard at the case
Examples from Notorious and Archetypical Cases Where Wider Morality May Tempt
Post-bankruptcy promise not in writing Defendant wants information on plaintiff's life-threatening injuries kept from plaintiff Child custody sought by inferior parent solely to punish former partner Client confesses to you but wants you to put the State to the burden of proof by hammering rape complainant on past lies or conflicting sexual signals during cross-examination. Polluter wants to delay having to comply with tighter standards as long as possible, and wants you to argue prohibitive cost when you know client can afford to comply.
Enforcement of Duties to Clients
Professional discipline - eg meets the standard of unsatisfactory conduct Tort (where there is a duty of care) Equity (where there is a fiduciary relationship or equitable obligation) - there is always a fiduciary relationship between a lawyer and client for the legal work they are doing Court (in the exercise of the court's inherent jurisdiction to control its processes) - they get to rule on whether you withdraw Contract (where there is a retainer)
Duty to Disclose to the Client
R 7 - civil actions covers all information the lawyer has or acquires that is relevant to the matter - McKaskell - equitable disclosure
Duty of Confidentiality
R 8 In equity - Must be acquired in the course of the professional relationship Lasts forever - The duty of confidentiality extends forever - but if you want a waiver you can ask the client Disclosure only to the extent necessary to appropriate people Compulsory and discretionary exceptions Confidentiality can also be owed to a non-client (Carter Holt Harvey v Sunnex, South Island and Commercial v Kiwi Green, R 8.8- may owe duties of confidence to other people) --- carter unilaterally changed some of the terms - Confidentiality covers information not real evidence (eg gun and certain documents) - only intangible things
Russell McVeagh v Tower dissent by Thomas J
RMMB breached duty to disclose to Tower that they were acting for GPG [p 656] Information is material if it might bear on continued representation, and there is a sufficient nexus [p 664].
NZ Law Society (NZLS)
Representative function - Professional body advocating for the interests of lawyers - Separate from regulatory division/functions under constitution - NZLS advocacy is on behalf only of its members, not the entire profession - Membership is voluntary - 97.3% of lawyers are members (free, incentives) - Auckland District Law Society chose to continue as an independent organisation rather than dissolve into the national Law Society
Ethical lawyering - Ethics of care (relational lawyering
Responsibilities to people, communities and relationships should guide lawyers, clients, and everyone's behaviour Preserving relationships and avoiding harm are more important than impersonal justice or formal institutions The goal of the lawyer-client relationship is to demonstrate goodness and morality, or at least to nurture relationships and the community
Ethical lawyering - Responsible lawyer (officer of the court)
Role is modified to ensure integrity of and compliance with the spirit of the law Focus is on the merits of a claim, not process Lawyer's job is to make the law work as fairly and justly as possible Lawyer may need to act as gatekeeper of law and advocate of legal system against client
Rules of Conduct and Client care
S 94 of the LCA requires the Law Society to have rules providing, inter alia, standards of professional conduct and client care Minister of Justice must approve Change** Minister unilaterally (after consultation) may amend the rules if inappropriate or deficient in any respect - has not done so --> slipping to have more govt regulation -
Attributes of a profession
Self organisation and self regulation Lawyers know clients are vulnerable Eg dealing with proceeds from the client - eg money from the sale of their house Lawyers can really hurt the public - so we are the best ones to protect it We have the knowledge and self-interest in protecting the integrity of the profession Need specialised knowledge Self-interest in policing the profession, because if it gets a bad reputation, then it hurts everyone
Neutrality
Dare would add another principle to the standard conception which he terms neutrality: the lawyer's duty not to let personal views of morality affect their diligence or zealousness in pursuing the client's awful objectives The rationale for this is to guard "against the possibility that someone might be denied rights allocated by a legal system because its lawyers find those rights or their allocation to that person morally objectionable" CM 31 Supports cab rank rule, as well as lawyers parking their personal moral views We will discuss this under the "wider morality"
Undermines Public confidence (against wider morality)
Dare: in a pluralist society, confidence demands that results be based on a fair transparent process, not a personal judgment of the lawyer. - Whim or prejudice would undermine, but would Kronman's "lawyer/statesman"? Does the public want or respect amoral lawyers? - Maybe acting for the greater good of the community (instead of the client's benefit) will win back that confidence? Eg Webb: focus on the "broader ends of the community rather than the particular acts of the lawyer or the immediate ends of the client."
Exceptions to cab rank rule
Good cause to refuse a client *includes: Lack of time or expertise Breach of professional obligation - what you are asking me to do when i have a conflict of interest Can't / won't pay fee Inconsistent with existing retainer agreement - another version of conflict of interest - a retainer - eg hiring an employment lawyer because you think you will have something against you What else? Not an exclusive definition Good cause excludes: Discrimination - eg race, religion of the client Personal attributes of client - difficult to handle, hyper litigious Merits of matter
Applying the Cab Rank Rule
The lawyer is Jewish and lost grandparents in the Holocaust. If a person is accused of being a brutal concentration camp guard, wants to fight extradition to a war crimes tribunal, and selects that lawyer solely or in part to send a message that he is not prejudiced against Jews, must the lawyer take the case? Based loosely on a real situation in Australia Good cause provisions are not exclusive, could perhaps argue literal inability to do a good job would be good cause - not to look at the motivation why the person chose this particular lawyer Otherwise yes, have to represent. Speculating on client's motives is not irrelevant.
Arguments in Favour of Non-Accountability
The lawyer is required to take cases and to fearlessly represent the client; so it would be unjust to hold the lawyer morally accountable for the client's later actions Lawyers representing repugnant causes are doing a good deed, not a bad one, because it enables the system to function properly Because the client in general controls the course of the representation/defense (eg how to plead), it would be unjust to hold the lawyer morally accountable for those actions (eg provocation defense). The idea for the adversary system is that the stronger case is the one that wins
A minority approach to cab rank rule
You must act (assuming the client still wants you) - anyone can pick their lawyer and can fire you for any reason - but the client has agreed to a contract with you - but there can be complications in this Teh argument is that the client picks the lawyer and the lawyer explains how they will approach the situation - but there is the potential argument to the scarcity issue of choosing lawyers But you can refuse to do certain things - eg not take an adversarial approach to negotiation Client autonomy is intact because they can terminate the retainer at any time Consistent with wording of rule, but majority see accepting instructions as doing what the client wants and calling the shots
Non-Accountability: "Don't Blame Me, I'm Only Following Orders"
[Often called neutrality - Dare uses these terms differently than many] Two aspects: Lawyers are not morally responsible for the consequences of the legal services they provide. Only clients are morally responsible for their actions - according to the doctrine of non-accountability - i'm not responsible for what my client did Lawyers cannot be blamed for representing villains There is a tendency to blame lawyers, eg witness protection person's lawyer didn't speak up re "clean record" on drunk driving, killed person driving drunk, Cabinet member castigated the defense lawyer more than the police or prosecutor. Dont tell the court of prior convictions your client has
Consent
r 1.2
Barristers Sole
r 14 NZ has a fused profession, with all new practitioners admitted as barristers and solicitors of the HC
Truly Informed Consent
requires discussing risks and alternatives with your client (R 1.2), to both substantive and procedural (eg how the representation will work) matters, and being sure the client has capacity and understanding - the process in whcih the way the lawyer deals with the client -
Clint Rickards
accused of raping two different women - He started going to Auckland Law school, and once he was acquitted in the third case, he applied for the bar He admitted to having extra-marital sex with a teenager - gang rape - the girl says it was not consensual, and he said it was He was married with young children He was acquitted of rape, but from what he admitted to be the facts, we could question his character - after the final acquittal, they released the info that his two co-accused were convicted rapists in other cases The law society said that the acquittals were the important things - you cant say that you cant be admitted because we still think you are guilty --- so Brown is similar to that
Nicholson v Ice Pak Coolstores
apprised of possible misconduct by the client insured, the lawyer should not have disclosed to insurance company client, but should have declined to act for either further. The short answer tis that the lawyer has to withdraw and cant represent either of them
Dorbusch v Dobson (1999, Heron J) - unsought advice
lawyers should use their own initiative to follow up issues where appropriate, and not restrict efforts to the letter of instructions (SEM: who pays for this?) - doesn't give a lot of guidance - where is it appropriate? - who pays for this? - the lawyer should have to do all this research where the client has not authorise it - a different appraoch is to tell the client "I think under these circumstances we have to investigate/do this -- this will cost ..x.. Either agree, or i withdraw as your lawyer" --- it is not fair to lawyers to be liable for not doing this, but they wont pay for it
Lawyer
means person with a current practicing certificate
Debarred
means the lawyer has only been removed from this specific case and cannot represent the client in this particular case - not removed from being a lawyer
Rule 6
"In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties."
Rule 5.2
"The professional judgment of a lawyer must at all times be exercised within the bounds of the law and the professional obligations of the lawyers solely for the benefit of the client." - solely for the benefit of the client
Loyalty / Zealous Advocacy/Partisanship: "I'm a Pit Bull, I Won't Give Up"
"Zealous" / "fearless" advocacy 2 aspects: - Diligent, almost fanatical attempts to help client ("Leave no stone unturned") - how hard you work - Regard "only" the client's wants and needs (selfless, loyal devotion) - what you are working for - the lawyer has a blinder on, meaning they are only looking at their client and are devoted to them
Cab rank rule
(Seen as part of the standard conception - but many countries omit) Rule 4: Must be available to the public and not refuse instructions without good cause for reserved areas of work The rule only applies to the reserved areas of work, not lobbying (contra Chen & Palmer in CM) - * 90% of lawyers have forgotten this part the cab rule doesn't apply to everything - Dont lie about being too busy - Clients cannot tell the lawyer what questions to ask in cross examination A legitimate exception to the cab rank rule is that you dont have time
Pickersgill v Riley [2004] UKPC 14 - prvicy council - NOT NZ
(experienced businessman Riley was indemnified (someone would pay riley if they are out of pocket0 by an English company that both Riley and his solicitor thought was a company of substance, but neither of them investigated to verify this - riley had no assets, company turned out to be a shell company, Riley financially liable, sued solicitor). Should have checked the assets beforehand Held: Existence of duty to offer unsought advice depends on facts of case. - seem to be agreeing with the NZ case above - Here, Riley commercially experienced. - it was a shell-company - Solicitor is not obliged to travel outside his/her instructions and make investigations not expressly or impliedly authorised by client (contra Dorbusch). Pickersgill: In these circumstances, solicitor was not a commercial advisor, or insurer against commercial misjudgment. Commentator argues different result if inexperienced client, and prudent to treat all clients as inexperienced if unsure.
LCRO - Legal complaints review officer
- Appointed by Minister of Justice - Must not have current practicing certificate - in this context, they are a lay-person - Reviews actions taken by standards committees - - Can make any orders a Standards Committee could make - can substitute - Everyone has a right to an LCRO review - this means there is a backlog of cases
Regulatory functions
- Compulsory for all lawyers - Regulates admission NZLS maintains rolls, collects fees etc NZLS may oppose admission of those considered unfit (High Court admits) Council of Legal Education specifies educational requirements, NZLS is represented but does not dominate the CLE (CLE also handles admission of lawyers from overseas) - Disciplines lawyers Standards Committees Pays for independent LCRO & Disciplinary Tribunal too
Neutrality
- Dare would add another principle to the standard conception which he terms neutrality: the lawyer's duty not to let personal views of morality affect their diligence or zealousness in pursuing the client's lawful objectives - The rationale for this is to guard "against the possibility that someone might be denied rights allocated by a legal system because its lawyers find those rights or their allocation to that person morally objectionable" CM 31 - challenge to Dare is that his appraoch doesn't meet this - some things that amount to a right allocated by the legal system would be screened out between zeal and hyper zeal - Supports cab rank rule, as well as lawyers parking their personal moral views - We will discuss this under the "wider morality"
Duty to provide competent advice
- Duty to advise - Level of skill
Ethical lawyering - moral activist (public interest lawyering and law reform)
- It is not appropriate for lawyers to have special role-defined ethics - Substantive justice is the aim and defined in broader terms including social and political concerns - Lawyer counsels client to persuade him or her to do the moral thing, and will withdraw unless successful - The lawyer can urge the client, but when does it become overbearing the client's will?
Practicalities/stress (favouring wider morality)
- Lawyers can't separate their personal and professional lives. It won't work, even if they try. - Conflict between personal/wider morality and role-differentiated morality results in stress and/or diminished effort by some. 23% of Auckland practitioners reported moderate conflict between personal values and beliefs and their professional obligations (16% Christchurch) [A major complaint was that law has become too much like a business] One lawyer answering a survey reported stress between personal values and professional responsibilities, and labelled the work as that of an "intellectual harlot."
Selected Perspectives Favouring Wider Morality
- Morality - Justice - Practicalities/stress
Wider Morality for Lawyers (wider than RDM)
- Morally active lawyers (those taking a "wider morality" approach) incorporate societal and/or personal values in representing clients. - Lawyers need to take responsibility for their actions, just as other people do. ("I'm just being a lawyer" not much of an excuse)
Arguments Against Wider Morality (and Some Rebuttal)
- Not the lawyer's proper role - Hurts clients - Not in the public's interest - Undermines public confidence
Arguments in Favour of Zealous Advocacy
- Part of agency/advocacy role (the lawyer is just doing what the client would do if they had the knowledge and skill) - you are a tool that the client is using - Clients need dedicated supporters to ensure the merits are not prejudged and rights are protected
Role-Differentiated Morality (RDM)
- Role-differentiated morality is the dominant philosophy for lawyer obligations and responsibilities - In NZ, it comprises zealous advocacy, non-accountability and the cab rank rule - neutrality is also in there too - Zealous advocacy is not absolute - both at the time of Queen Caroline and now there is a higher duty to the court than to the client and a prohibition on things eg lying- the duty to the court is narrow/small and is mostly not deceiving the court - eg not telling the court something - Non-accountability holds that lawyers are not morally responsible for the consequences of actions that fulfill their legitimate role - - Non-accountability - calling the idea of being blameless for what your client does is called nonaccountability - and neutrality means that the lawyer's personal beliefs do not affect the way they practise law
Scope of aRetainer
- The scope of a retainer includes "matters which fairly and reasonably arise in the course of carrying out" express instructions (Gilbert v Shanahan) - want to sell our house and buy another house - Critical for identifying duties (in tort, equity and contract). - May be implied by the conduct of the parties (Bartle at [130]) - may have been decided wrongly - they said there was no contract - the lawyers said they had not planned on charging them for the interview - but this does not matter, as it was clear that if they went ahead with it then this is consideration - but the lawyers say it was pre-contract - (CA 30 June 1998) (in negotiations and the written agreement to lease, the lessor did not require a guarantee, but sent one to solicitor for execution along with lease document, client signed it). Held: Solicitor had a duty to ascertain whether a client is legally obliged to sign a guarantee, and to advise the client accordingly Only things with a reasonable degree of specificity form part of the retainer. - Midland Bank Trust Co v Hett (UK 1979) rejected a "general retainer" said to be based on a long-standing relationship, which required the lawyer to consider all aspects of a client's business. - you need to give reasonable notice of what you are going to do - If client gives an instruction, the lawyer must either accomplish it or tell the client that he/she can't. In Goldfinch v Castle Brown (unrep Hi Ct 2001), plaintiffs had effectively instructed solicitor that if they needed to take possession of the farm under their security, they wanted to operate it and sell it as a going concern. Solicitors had to either take steps to achieve this, or else advise the clients that it couldn't be done.
Morality (in favour of wider morality)
- Webb: Behind Rawls' veil of ignorance, we would choose lawyers to be morally responsible - Postema: moral decision-making powers atrophy (wither away) if not used - Webb: Lawyers have some autonomy and should not be required to engage in actions they find morally repugnant.
Justice (favouring wider morality)
- Webb: RDM depends on the underlying institution being justified, but it is open to criticism (eg adversary system which may make it harder to find truth by obscuring the real issues) - Webb: Use of hired gun lawyers tends to result in matters being resolved on procedural grounds or without full disclosure (vs substantive merits of case by morally responsible lawyers).
Arguments Against Zealous Advocacy
- Win at all costs mentality is excessive, can lead to waste, over-identification with the client (eg cigs in pocket) and unethical conduct - It's a fiction. Lawyers often don't actually put in this degree of effort - supreme effort is not always put in - Tim Dare: Clients are entitled to "mere zeal" (legal rights), but not "hyper-zeal" (motive to win, to pursue any advantage obtainable through the law, including eg delaying tactics, loopholes for non-written promises to repay) CM 31 - distinction between hyper and mere zeal - you can sense it, but there is no real workable rule Where a client made a promise to repay after a bankruptcy proceeding - and if you make this promise in writing, then you must be held to it - the client in this case had only orally promised - the law was that it was not an enforceable debt - - The welfare of others should matter
Who practice on own account
- sole practitioners - partners in law firms - in-house lawyers wishing to enter into a contract for services with a non-lawyer - consultants wishing to provide regulated services through a contract
Parker & Evans - 4 approaches to ethical lawyering
1. Adversarial Advocate (traditional role-differentiated morality) 2. Responsible lawyer (officer of the court) 3. Moral Activist (public interest lawyering and law reform) 4. Ethics of Care (relational lawyering)
"fit and proper person" the underlying principles
1. Function of the court is not to punish applicant for past conduct 2. The onus on a person who has erred in the professional sense following admission is heavier than that upon a candidate for admission 3. Recognition must be given to youth where errors of conduct occurred when the applicant was immature 4. It is important to look at the facts of the case in the round and not just pay regard to the fact of a previous conviction or convictions
The Cab Rank/Withdrawal Rule
Cab Rank Rule = r 4 Duty to complete the retainer r 4.2 Duty to complete applies to all legal work by lawyers, whereas the cab rank rule applies only to reserved areas of work - anything that is office practice - The same standard is not used for ability to refuse to complete the retainer (withdrawal) and good cause to refuse to accept a retainer in the first place Withdrawal causes practical problems - in active litigation need to petition court for leave to withdraw. - eg may have to find a new date or get a new lawyer which costs a lot of money to the client - Access to justice is the main concept behind the cab rank rule
Clark Boyce v Mouat (Privy Council) - unsought advice
Client in full command of faculties and aware of what she/he is doing, seeks legal assistance in carrying out of particular transaction, lawyer is under no duty to exceed instructions and offer unsought advice - they repeatedly told thsi woman not to do it and got it in writing twice - privy council says that she should recover - but the what more could the lawyer have done -- Limits both contract and fiduciary duty - a restricted retainer - in this case no one was arguing tort
McKaskell v Benseman
Contractual and fiduciary obligation to disclose owed by lawyer, but not by lawyer's consultants - Slur was material and important Lawyers have duty to convey unwelcome as well as welcome information to clients The real argument was is this slur relevant? They said the clients clearly cared about stuff like this so there was a duty to disclose - the court said it was material and important -so the lawsuit was successful
Darvell v Auckland District Legal Services Subcommittee
Counsel should acknowledge some obligation to undertake legal aid briefs and in doing so to accept that a sacrifice in terms of their usual remuneration is necessarily involved
Not in the public's interest (against wider morality)
Following their own consciences, some lawyers would have very low standards - This justifies a floor level of protection via the rules, but does it justify a ceiling? Role-differentiated morality leads to the greatest utility in the long run. Rules, even "loopholes" are there for a reason. - But: Not everyone agrees (eg Webb: it may be utilitarian to follow wider morality)
Ali v NZLS
Disciplining of a student at uni - it was for Ali to conduct his life in a way that discloses that he acknowledges the importance of being a trustworthy and honest person Faire J said that Ali's history distinguished his case from those referred to above, because in those cases, the applications were granted after a period of reform on the part of the candidate had been proven
R 7.5
Disclosure is not subordinate to the duty to keep confidences
Withdrawal
Duty to complete the retainer r 4.2 Duty to complete applies to all legal work by lawyers, whereas the cab rank rule applies only to reserved areas of work The same standard is not used for ability to refuse to complete the retainer (withdrawal) and good cause to refuse to accept a retainer in the first place Withdrawal causes practical problems - in active litigation need to petition court for leave to withdraw.
Mouat v Clark Boyce
Duty to disclose does not extend to a lack of knowledge In that case, the lawyer was ignorant of the son's ability to make mortgage payments
Is it true or false that the rules of conduct and client care clearly support the aspect of zealous advocacy that includes seeing only the client's interests (so long as doing so doesn't violate the lawyer's duty to the court), but do not say anything about how hard the lawyer has to work on the client's behalf
False - under r 3 - lawyer must act competently and have to be a just and reasonable lawyer - this is the standard of competence -
Duty to Advise
Must fully inform client about all relevant legal matters relating to the retainer (eg tell them of tax implications, or other unperceived consequences, tell them of anticipated law changes, etc). See R 13.3, 13.4. - no general retainers - have to give some reasonable degree of notice to the lawyer of what you want to be done Is not limited to legal advice (eg in Chick & Chick v Blackwell, the Court found the lawyer should have urged the client to get a valuation prior to re-leasing the farm) - not just legal advice - it is going to relate to other things in some circumstances - best practice would have been to put something in a loan agreement that you cant sell stock without notification - bit the court said that doesn't matter - in court we are looking at what a reasonable lawyer or specialist would do -- eg a tax lawyer has a higher standard of care than a general practitioner of lawyer Chick - the lawyer was negligent - lawyer should have told the person to get an evaluation, because turned out the lease price was lower - Extends only for period of lawyer-client relationship (but best practice to contact former client if law changes)
Is Advocacy a Win at All Costs War?
My shirt "Mad dog" - compliment for a litigator - this was intended to be a compliment "He did what a good lawyer is supposed to do for his client: he ate the opposition alive" For some lawyers, negotiating the settlement of a case being prepared for trial has about as much as appeal as negotiating the settlement of a football game would have for the athlete. - negotiating instead of settling - "[I]t is sometimes more fun to have a bad case than a good one for it tests your powers of persuasion more severely. Certainly I have seldom felt better pleased than when I persuaded [the court] to come to a decision which I was convinced was wrong ..." - just because they were a persuasive orator, but the court came to the wrong conclusion
Would the cab rank rule require a lawyer to represent two clients jointly if legislation in a specific area forbade joint representation?
No - the cab rank rule will not make you violate any rules
Selected Arguments Against the Rule
Only guarantees access to lawyers to those who can pay If you cant pay for a lawyer, you cant get one - and this doesnt follow the rule fo access to justice People would get lawyers anyway (fee, challenge, commitment to system) - there can be different reasons - eg some need the money so take the case, some love the challenge of a hard case Rule is not always followed or enforced Lawyer's autonomy demands the ability to select clients (Quinlivan, Simon: controlling one's own labour is a fundamental right) - who are you to tell me i have to take on the case of this serial killer - there are people who are hyper litigious out there
Does the Cab Rank Rule mean that the highest price Queen's Counsel in NZ must accept as a client the most impoverished criminal defendant>
Only if either the D can pay the regular fee OR if the D is both eligible for legal aid and the QC will work for legal aid rates Most QC do criminal defence work
Harold v LCRO High Court
Sought out brother's defence council and says she made the allegation up, then she dies They said the council talking to her was inappropriate - this was reflected in the rules - you have to be careful when talking to a crown witness without first talking to police - you can be disciplined for things that don't break the rules Courts might develop directions of good practice which differ from the Rules, and the breach of those guidelines could be unsatisfactory conduct - this is obiter statement (at [65]) - Deference must be given to the view of an expert body such as a Standards Committee, but that is tempered by factors such as the Rules. - the standards committee have to certainly take the rules into account The Rules are "a statement of collective opinion of the profession as to what is good practice by practitioners" (at [41]) - If Rules are relevant they have to be given weight and incorporated into the reasoning process. - the standards committee did not discuss these rules at all and did not give adequate weight Risks and good practice cannot be turned into a convention which contradicts what is impliedly acknowledged as permissible conduct by the rules themselves (at [56])
Rule 13
Subject to the overriding duty to the court, "the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer." - lawyer has to put their personal interests aside
LCA = Lawyers and Conveyancers Act
The LC Act "handles" by removing promotion of interests of the public in relation to legal matters from express list of functions Does this truly resolve the problem?? S 70 of LCA requires that NZLS must have a constitution and stipulates what the constitution must provide for S 64 - membership of the NZLS is voluntary - this is a significant change from what it was S 67 - Regulatory powers set out S 68 - representative powers set out
Support for Using Wider Morality
The Rules make reference to personal decision-making: "To the extent appropriate, these rules define the bounds within which a lawyer may practise. Within those bounds, each lawyer needs to be guided by his or her own sense of professional responsibility." (p 3) The Rules also provide that some decisions are discretionary
Haira v Burbery Mortgage CA - unsought advice
There are different conclusions to some extent CA does not read Clark Boyce as holding that there will never be a duty to offer unsought advice on the wisdom of the transaction, BUT it will depend on the circumstances as they develop and the terms of the retainer. - family members said to get in on an investment and they never explained what the investment was
Role Differentiated Morality (RDM) AKA "The Standard Conception"
There is a philosophical underpinning This is universally accepted - things are moral for you to do in your particular role, which may not be moral in another role Lawyers assume a certain role This role dictates their behavior The role makes actions moral which might otherwise be immoral (may even compel the lawyer to take those actions) This does all vary from country to country We will examine these aspects of the traditional role of lawyers: Loyalty/zealous advocacy/partisanship Non-accountability Cab rank rule Analogy with person seeing a child run into the street - if has the role of parent or caregiver, it's a crime. If a bystander, it's not. But may be immoral in both cases, if no risk to person.
Level of Skill
There is an implied warranty to exercise reasonable skill and care on behalf of the client (Bannerman Brydone Folster & Co v Murray) The duty in tort is to act as a reasonable lawyer (or specialist) would R 3: act competently, taking reasonable care
The lawyer's role
There is no one universal view Different Conceptions of the Lawyer's Role vis-à-vis the Client >Expert (let me make most of the decisions) - in the rules there are decisions expressly reserved for the client because clients should/must have a major say >Shark/barracuda/hired gun (amoral (without morals) and aggressive defender of the client) - get whatever you possibly can for the client - it is in the rules though that you have to be courteous to the opposing counsel - >Special friend/facilitator (lawyer offers their skills and knowledge to support client's goals/autonomy) - AKA - client centred lawyering - an elder in the community who makes their expertise available > Lawyer/statesman, traditional professional (in service of public good, not a servant of the client) - the lawyer are people of sterling quality - associated with Kronhman - atticus Finch, and Mahatma Gandhi
Waiving Disclosure?
There must be informed consent (R 1.2) Much harder to waive disclosure than confidentiality - Consider: How important is the information? Can the client be warned of the potential implications of waiving disclosure? Can the information be described to the client? Am I breaching my duty of care to the client by recommending or allowing client to waive? Suggesting independent advice is best practice, even though not required by Rules Document for your own protection. It may be easier to get one client to waive confidentiality effectively than the other to waive disclosure, because he/she will know exactly what the information is and the likely effects of its disclosure
A lawyer receives info about her client's case from interviewing a potential witness at trial... is this covered by confidentiality?
This is not covered by confidentiality because it is covered in litigation privilege
A lawyer receives info about her client's case from a friend at a dinner party... is this covered by confidentiality?
This is not covered by confidentiality because it was not acquired in the course of the professional relationship
Conflicting interests
To effectively discipline lawyers and protect the public, the NZLS must be willing to hold them to account Yet the NZLS needs to promote the reputation and interests of the profession (its "representative" role) Sometimes these interests align, eg reining in rogue lawyers Sometimes these interests conflict, eg exposing widespread misconduct by lawyers, or having full transparency in disciplinary proceedings
Standards committees
Vast majority are geographic They sit in panels - and at least one is a lay member - but this is not defined in the Act, it is defined in other parts as someone with no practising certificate Law society has stopped publishing information about the penalties involved This may be because all the penalties were money being paid to the Law society rather than the aggrieved person in the proceeding - and now they dont publish it at all
Unsatisfactory conduct
When you were being lawyer you did something that falls short of competence and diligence How well you do your job, and how you did your job The public is entitled to expect this in a reasonably competent lawyer Unbecoming behaviour - Contravening the Act