cpd seminar: ethics, professional skills and practice management for lawyers

CPD seminar for union lawyersMaurice Blackburn LawyersOctober 2016

2CPD Seminar: 19 October 2016

• Welcome & introduction• Melinda Zerner: Alternative dispute resolution• Rohan Tate: Ethical limits of advocacy at mediation

and a lawyer’s duties to the court • Closing & questions

Today’s agenda

Resolving conflict through alternative dispute resolution.

3Melinda Zerner, Barrister-at-law

Overview

• Conflict• Types of Dispute Resolution• Negotiation• Mediation

Types of conflict

• Interpersonal disputes• Differing expectations• Different values• Reliance on assumptions• Willingness to deal with conflict• Bullying and harassment• Invalid reasons for termination• Escalation - Litigation

Managing Conflict

• Doing nothing• Different methods of dispute resolution for

different scenarios • Conflict styles• Process should meet the needs and interests

of the disputants and the dispute

Skills to Deal with Conflict• Listening• Framing• Appropriate Assertiveness• Reality Testing• Identifying the True Motivating Factors• Problem Solving • Confronting

Factors to consider

• The disputants• The dispute• Relationships• Motivation• Goals/Outcomes

Types of dispute resolution

• Negotiation• Mediation• Facilitation• Conciliation• Arbitration• Litigation

Considerations in Negotiation

• Interests• Options vs Alternatives• Relationships• Communication• Legitimacy• Commitment

STAGES OF NEGOTIATION

• Preparation• Discussion• Clarification of goals• Negotiation (Win/Lose; Win/Win)• Agreement• Implementation of a course of action

Mediation

• Definition:•“A structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute”S25 Civil Procedure Act 2005 (NSW)

Secondary features

• Bringing clarity to the dispute• Reducing communication barriers• Identifying and acknowledging needs and interests• Promoting constructive and productive negotiations• Reducing anxiety and other negative features• Encouraging self responsibility• Reducing tension and distrust• Bringing an outsider’s view

Types of Mediations

• Settlement disputes• Transactional mediation• Policy making mediation• Conflict management mediation• Preventative mediation

Preparation for Mediation

• The ground rules• Identifying the real issues• Choice of mediator – internal or external• Preliminary conference• Logistics• Environmental considerations• Agreement to mediate

Other Considerations

• Communication Skills• Confidentiality• Privacy• Without Prejudice• Power Imbalances

The Mediator

• Assessment• Pre-mediation interviews• Agreement to mediate• Monitoring of power imbalances• Logistics• Environmental considerations• High level communication skills

Questions

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Ethical limits of advocacy at mediation and a lawyer’s duties to the court.

Rohan Tate, Lawyer

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Do ethics apply to advocacy at mediation?

Does Mediation and advocacy require bluffing, deception, bullying and, sometimes, lying?

Discuss

What are the ethical limits of advocacy at mediation?

1. The Australian Solicitors’ Conduct Rules 2012 (ASCR) 2. The Legal Profession Act 2007 (Qld) (LPA)3. The Australian Consumer Law (ACL)


What are the sources of ethics?

Rule 19 Frankness In Court 19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.


Australian Solicitors’ Conduct Rules

Legal Services Commissioner v Mullins [2006] LPT 012 The Tribunal ordered that Mullins, the Barrister, be publicly reprimanded, pay a penalty of $20,000, and, pay the applicant’s costs of the application.

Legal Services Commissioner v Garrett [2009] LPT 12.The Tribunal ordered that Garret, the instructing Solicitor, be publicly reprimanded , pay a penalty of $15,000 and pay the applicant’s costs of the application.


The duty to the court extended to forums other than courts

Rule 3 Paramount duty to the court and the administration of justice 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.


Rule 3 reinforces rule 19

• R v Neal [1949] 2 All ER 438• Facts: the defendant was charged with a number of criminal offences.

The jury were given permission to leave the by the bailiff to have “luncheon” – this was a serious irregularity that the conviction was quashed.

• In criminal cases a lawyer must note an irregularity and not keep it as a ground for appeal, but must take the point at the trial, even though this action may seriously prejudice the client's case.


A lawyer may be required to act in a manner contrary to the interest of their client

In maintaining balance in the discharge of the lawyer’s various duties it needs to be recognised that the judicial process operates by well-established principles, and there is a well-established function of the lawyer within that process.


Maintaining balance in the discharge of the duty to the court

Rule 22. Communication with opponents22.1 A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise).

22.2 A solicitor must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.

22.3 A solicitor will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.


Duty not to tell an untruth to the opponent

Rule 34. Dealing with other persons34.1 A solicitor must not in any action or communication associated with representing a client:

34.1.1 make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person; or

….

34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.


Duty owed to other persons

Given that the Rules define ‘court’ as including a mediation, to whom is the paramount duty and the duty not to deceive or mislead owed?


Who is owed the duty?

Rule 33. Communications with another solicitor's client

33.1 A solicitor must not deal directly with the client or clients of another practitioner unless:

33.1.1 the other practitioner has previously consented;


Giannarelli v Wraith (1988) 165 CLR 543• Responsibility of a Barrister to assist in the speedy and efficient

adminstration of justice and they are immune from liability and the immunity from suit is in the interests of the adminsatation of justice

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 • The court declined to revisit Giannarelli. The common law provides

absolute protection from civil action in respect of what a lawyer says and does in proceedings before the courts and in respect of work done out of court which leads to a decision affecting the conduct of the case in court. The privilege does not arise out of the status of a lawyer as an officer of the court; it arises out of the person’s function as an advocate

Attwells v Jackson Lalic Lawyers Pty Limited 2016 HCA 16• French CJ, Kiefle, Bell, Gageler and Keane in a joint judgement declined

to revisit advocate immunity and confirmed Giannerelli and D’Orta.


Advocate immunity

(1) Professional misconduct includes—(a) unsatisfactory professional conduct of an Australian legal

practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.


The Legal Profession Act 2007


What is the Australian Consumer Law (the ACL)?

Does it apply to lawyers?

The Legal Profession Act 2007 (LPA) is specialist consumer protection legislation directed solely to the regulation of lawyers and the provision of legal services and related matters. The ACL complements and sits side by side with the LPA, both governing the conduct of lawyers.


The ACL is ‘generic’ consumer protection legislation.

Misleading and deceptive conduct

Section 18 of the ACL is headed "Misleading or deceptive conduct"

18 (1) "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."


What provisions of the ACL are relevant to lawyers in relation to mediation?

The confidential and ‘without prejudice’ regime imposed by most agreements to mediate cannot exclude the law. This is the case, of course, because s. 96 of the ACL provides that it ‘has effect despite any stipulation in any contract or agreement to the contrary’.


There is no escaping the ACL

Section 4 of the ACL deals with representations about future matters.

It is very broad in its application.

It is very relevant to conduct often observed during mediations, such as, “This is my clients’ final offer. They will not make another offer.”


Section 4 is very relevant to your conduct during a mediation

Lam v Ausintel Investments Pty Ltd (1989) 97 FLR 458 at 475 The common law rule is that there is not duty to disclose material facts not known to the other party. You must be honest in what you say (tell the truth), but you do not have to be candid (volunteer information or documents). However, this rule does not apply if there is an obligation to give full evidence.


Silence or failure to disclose can constitute misleading and deceptive conduct

Section 18 of the ACL prohibits conduct that may mislead or deceive. Silence, or non-disclosure of information, is conduct. If the surrounding circumstances create a reasonable expectation that is some relevant facts exists it will be disclosed, failure to disclose that fact will amount to a misleading representation that it does not exist. The organisational arrangement for a mediation could easily create a reasonable expectation.


Silence or non-disclosure can breach s. 18 of the ACL


Silence can constitute professional misconduct

Mullins and Garrett


Principles in relation to binding agreements at conciliation

conferencesMasters v Cameron 91 CLR 1954

Cameron and Masters had an agreement to sell Cameron’s farm worth £1,750, in the agreement there was a detailed description of the farm, however the agreement was also described as pre-contract for the final contract of sale, which was never executed.


Csontos v QT Hotels & Resorts Pty Ltd [2016] FWC 3632: QT indicated that it considered it had reached agreement and Mr Csontos indicated that he understood that he had reached a verbal agreement during the conference. Mr Csontos entered into a binding settlement agreement orally on 14 January 2016, and accordingly the cause of action for unfair dismissal relief no longer existed.Curtis v Darwin City Council [2012] FWAFB 8021: Fair Work Australia found that there was in place a binding agreement between Ms Curtis and the Council, because no phrases such as “subject to contract” were used in the negotiations. As such there was nothing to indicate that the parties did not intend to be immediately bound by the terms of the agreement. Australian Postal Corporation v Brent Gorman and Fair Work Australia 2011 FCA 975: The Federal Court overturned the decision of Fair Work Australia (FWA) which, among other things, allowed an employee to pursue an unfair dismissal application despite his representative submitting that “an outcome had been reached” during the arbitration.

Principles in relation to binding agreements at conciliation conferences

Tomas v Symbion Health 2011 FWA 5458 Facts: the applicant disputed that she had instructed her representative to accept the terms of settlement at conciliation Then Commissioner Gooley held that the matter had been settled at conciliation and dismissed the application pursuant to Section 587 of the FW Act as it had no reasonable prospects of success.

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Lack of intention to be bound

Rohan Tate, LawyerMaurice Blackburn Lawyers

Ph: 07 3016 0300E: [email protected]

Contact me

mailto:[email protected]

This information is prepared for the purposes of the seminar conducted on 19 October 2016 only. The content of this paper / presentation is not legal advice. It is information of a general nature. Readers requiring legal assistance for their specific circumstances should not rely on the content of the foregoing but should take appropriate legal advice.

Thank you.

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