Issues:

• The significance of ethics in the legal profession.
• The regulation of the legal profession.
• The regulation of barristers.

Desired Outcomes:

• An understanding of how and why ethics play a major role in the manner in which a legal practitioner conducts himself or herself.
• A knowledge of the rules which govern the conduct of solicitors and barristers.

1. The significance of ethics

2. Regulation of the legal profession

Legal Profession Act 2004, ss 496-498

Legal Profession Act 2004, ss 9, 25, 42

9 Suitability matters

(1) Each of the following is a suitability matter in relation to a natural person:
(a) whether the person is currently of good fame and character,
(b) whether the person is or has been an insolvent under administration,
(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i) the nature of the offence, and
(ii) how long ago the offence was committed, and
(iii) the person’s age when the offence was committed,
Note: The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.
(d) whether the person engaged in legal practice in Australia:
(i) when not admitted, or not holding a practising certificate,
(ii) if admitted, in contravention of a condition on which admission was granted, or
(iii) in contravention of a condition of the certificate or while the certificate was suspended,
(e) whether the person has practised law in a foreign country:
(i) when not permitted by or under a law of that country to do so, or
(ii) if permitted to do so, in contravention of a condition of the permission,
(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i) this Act or a previous law of this jurisdiction that corresponds to this Act, or
(ii) a corresponding law or corresponding foreign law,
(g) whether the person:
(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country, or
(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt,
(h) whether the person’s name has been removed from:
(i) a local roll, and whether the person’s name has since been restored to or entered on a local roll, or
(ii) an interstate roll, and whether the person’s name has since been restored to or entered on an interstate roll, or
(iii) a foreign roll,
(i) whether the person’s right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country,
(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts,
(k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person,
(l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice,
(m) whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.
A matter is a suitability matter even if it happened before the commencement of this section.

24 Eligibility for admission

(1) A person is eligible for admission only if the person is a natural person aged 18 years or over and:
(a) the person has attained:
(i) approved academic qualifications, or
(ii) corresponding academic qualifications, and
(b) the person has satisfactorily completed:
(i) approved practical legal training requirements, or
(ii) corresponding practical legal training requirements.

25 Suitability for admission

(1) In deciding if an applicant is a fit and proper person to be admitted, the Admission Board:
(a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and
(b) may consider any other matter it considers relevant.
(2) However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter.

42 Suitability to hold local practising certificate

(1) This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.

(2) A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section:
(a) whether the person obtained an Australian practising certificate because of incorrect or misleading information,
(b) whether the person has contravened a condition of an Australian practising certificate held by the person,
(c) whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law,
(d) whether the person has contravened:
(i) an order of the Tribunal, or
(ii) an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body,
(e) without limiting any other paragraph:
(i) whether the person has failed to pay a required contribution or levy to the Fidelity Fund, or
(ii) whether the person has contravened a requirement imposed by a Council about professional indemnity insurance, or
(iii) whether the person has contravened a requirement of this Act or the regulations about trust money, or
(iv) whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or the regulations,
(f) other matters the Council thinks appropriate.

(3) A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Council considers that the circumstances warrant the determination.
(4) If a matter was:
(a) disclosed in an application for admission to the legal profession in this or another jurisdiction, and
(b) determined by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission,

the matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the matter may be taken into account when considering other matters in relation to the person concerned.

(5) A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.

3. Regulation of barristers

(a) Fundamental rules

Clyne v The New South Wales Bar Association (1960) 104 CLR 186

The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may be divided roughly into two classes.

In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession.... Examples of this class in the case of the Bar are [a rule forbidding advertising and the ‘two counsel’ rule, both of which have since been substantially abrogated]. A breach of any of these rules is treated seriously, but would not warrant disbarment - at least unless it was shown to be part of a deliberate and persistent system of conduct.

Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of `does not' than of `must not'. A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal.... He does not, in cross examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys’

(b) Bar Rules

Advocacy Rules, rr 16-72
16, 17 Duty to client
18-20 Disinterestedness
21-31 Frankness in court
32-34 Delinquent or guilty clients
35-40 Responsible use of court process and privilege
41-42A Efficient administration of justice
43-50 Integrity of evidence
51-58 Duty to opponent
59-61 Integrity of hearings
62-72 Prosecutor's duties

Barristers’ Work, rr 74-80, 81

74. A barrister must confine the barrister's professional work to:

(a) appearing as an advocate;
(b) preparing to appear as an advocate;
(c) negotiating for the client with the opponent to compromise the case;
(d) representing the client in a mediation;
(e) giving legal advice;
(f) advising on documents to be used in the client's affairs;
(g) acting as a referee, arbitrator or mediator; and
(h) carrying out work properly incidental to the kinds of work referred to in (a)-(g).

75. A barrister must not, in the barrister’s professional work:

(a) commence proceedings or file process in any court on behalf of the client
in the barrister’s name;
(b) serve any process of any court;
(c) make any demand, by letter or otherwise, on behalf of the client in the barrister’s name, except for the purposes of work under Rule 74(c) and (d);and
(d) conduct correspondence on behalf of the client in the barrister’s name or deal on behalf of the client with any other person, unless:
(i) the correspondence is to seek information from a potential witness;
or
(ii) the dealing is a conference with a potential witness; or
(iii) it is for the purposes of work under Rule 74.

76. A barrister must take reasonable steps to avoid the possibility of the barrister becoming a witness in the case as a result of any correspondence conducted by the barrister or of any dealing by the barrister with persons other than the client.

77. A barrister must not, in the barrister’s professional work, hold, invest or disburse any funds for any other person.

Referral to solicitor

78. A barrister who is asked by any person to do work or engage in conduct which is not barristers' work, or which appears likely to require work to be done which is not barristers' work, must promptly inform that person:
(a) of the effect of Rules 74 and 75 as they relevantly apply in the circumstances; and
(b) that, if it be the case, solicitors are capable of providing those services to that person.

79. A barrister who provides information under Rule 78 to a person must not inform the person that the barrister will perform barristers' work for that person on condition that a particular solicitor briefs the barrister to do so.

Disclosure to direct access client

80. A barrister who proposes to accept instructions directly from a person who is not a solicitor must inform the client in writing of:
(a) the effect of Rules 74 and 75;
(b) circumstances may require the client to retain an instructing solicitor at short notice;
(c) any other disadvantage suffered by the client if the client does not retain an instructing solicitor; and
(d) the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and
(e) a fair description of the advocacy experience of the barrister.

Sole Practitioner Rules

81. A barrister must be a sole practitioner, and must not practise:
(a) in partnership with any person;
(b) as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment; or
(c) as the employee of any person.