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ETHICS FOR LAWYERS IN 2013 30 APRIL 2013

Why do Lawyers need to be reminded?

• Legal ethics is concerned with having a critical understanding of the legal profession, its structures, its roles and responsibilities, the roles and responsibilities of lawyers in their provision of professional services and requires participants to examine what the legal profession does and compare it with what it, and they, ought to do.

• How these legal ethics are applied by individual legal

practitioners is often influenced by their personal values or moralities and the situations they find themselves in which may conflict both with the rules or their own personal values of morality and philosophy.

Professional Responsibility

The Rules Legal Profession Act 2004 (“the Act”) (Amended 1/7/2011) Law Institute of Victoria -Professional Conduct and Practice Rules 2005 Some important sections of the Act relevant to all lawyers are: • 2.4.27 Holder of local practising certificate—show

cause event (This includes bankruptcy or failure to pay your income tax)

• 3.4.11 How and when must disclosure be made to a client?

• 4.4.2 Unsatisfactory professional conduct

If you don’t have a copy of the Act or the Rules to hand both are available on line.

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When faced with a different situation it is wise to discuss any unquiet “gut” feelings you may have with a colleague and/or refer to the Act and the Rules or, if still confused, telephone the Ethics committee at the LIV. If I “feel” something is wrong without knowing quite what, that is the time to stop and check . The embarrassment of being wrong is much less than the pain from doing the wrong thing and being told about it by the Legal Services Commissioner, (“the Commissioner”) currently Mr Michael McGarvie and his staff who handle complaints from the public, the profession1 and even the judiciary.2 According to the LSC’s Annual Report (http://www.lsc.vic.gov.au/documents/LSC_Annual_Report_Final_Version_LSC1877_2012AR.pdf) the Commissioner initiated 28 disciplinary proceedings in the year 2011-2012, from received complaints totalling 2,304, an increase from the previous year which saw 1,982 complaints being dealt with. These complaints stemmed from 5,316 enquiries, some of which were obviously resolved over the phone because only 2,779 complaint forms were sent out and of those 2,304 filed as complaints. The complaints detailed in the Report included: Complaints for overcharging Failure to respond to communication (solicitor in small practice went overseas without making arrangements for documents held in his safe). This is the url for a recent factsheet produced by the LSC http://lsc.vic.gov.au/documents/NewTemp_Negligence_and_complaints.pdf directed at your clients.

1 Legal Services Commissioner v D'Alessandro (Legal Practice) [2009] VCAT 1129 (2 July 2009)

2 Legal Services Commissioner v Griffin (Legal Practice) [2010] VCAT 484 (21 April 2010)

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But there is also one for lawyers http://lsc.vic.gov.au/documents/NewTemp_Working_with_your_client.pdf. If you get a client who wants constant communication, often in Family Law3 when emotions run very high, you may well get a complaint about your account, but if your file notes record the charges relate to responses made to request s for information, the complaint will most likely be dealt with and resolved quickly. It is important to respond quickly to requests from the Legal Services Board staff. These are serious questions and shouldn’t be put aside for when you have time to think about it. They should be dealt with in the same way as any other deadline. Then there is the issue of mishandling Trust Money. All those rules, all those forms to be completed and everything to balance, and relate to the actual file. I have included the following extract from a paper given by the Legal Services Commissioner to a Conference in Canada last year, the full paper is included with this paper as I think it explains a lot of what has been happening lately with regards to complaints against lawyers and supports my Shepparton colleague’s complaint: Under the Act, complaints regarding lawyers are categorised as a civil complaint, a disciplinary complaint or both. Civil complaints are primarily disputes between lawyers and their clients, which are further categorised into costs disputes9, pecuniary loss claims or any other genuine Disputes 10. Disciplinary complaints are defined as complaints about a lawyer’s conduct that would, if proved, amount to ‘unsatisfactory professional conduct’ 11 or ‘professional misconduct’, 12 and disciplinary complaints must be investigated. 13 It should also be noted that the Commissioner may summarily dismiss complaints on certain grounds.14 While the Act is quite prescriptive about what constitutes a civil complaint and what constitutes a disciplinary complaint, many complaints received

3 Legal Services Commissioner’s Annual Report 2011-12 recorded the highest number of complaints in

the Family Law area with the highest number of all complaints relating to costs charged.

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by the office do not fall strictly within either category. Our statistics indicate that in any given period, about 35% of the complaints received fall into the Act’s category of a civil dispute and about 15% would amount to a disciplinary complaint. It is quite rare to receive a complaint about dishonesty, theft, fraud or other serious misconduct that would ordinarily attract a prosecution, although complaints that may warrant some kind of lower level disciplinary action are relatively common. About 50% of complaints received however, fall into neither category. In fact, the vast majority of complaints are largely about a universal consumer issue: the breakdown of the adviser-client relationship. They usually relate to a failure to communicate, uncertainty or inadequacy relating to costs disclosure, issues of timeliness, unclear advice and lack of attentiveness, or lack of value for money. So this leaves a question – what should the regulator do with these ‘none of the above’ complaints?

How do you prevent a Complaint?

Communication Communicate with all parties but especially your client. With current clients, when we have fallen into bad habits, this will take time to recover. When dealing with a new client you need to set the pattern of behaviour from the outset and refer back to this initial advice, if need be, as the relationship continues. The client needs to be clear that you will not act without their clear instructions, however, neither are you a mouthpiece. The new Civil Procedure Act 2010 makes that very clear. With mobile phones, where you can text as well as ring, and emails, there is no excuse for not communicating. If you client ignores your need for instructions you will not be criticised for not acting, especially if your file documents your attempts. Costs Agreements When you walk into a coffee shop you know what you are going to pay for your coffee, it is either written up there or on a menu. At most we are talking $4.50, but people still get upset if they were expecting to only pay $3.50 and it is only one dollar.

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Even if your client has a lot of legal work done, they still need to know what you are going to charge, how you are going to charge and, for us lawyers more importantly, when you expect to get paid. Barristers often find themselves thinking someone must have confused them with a bank, which I can assure you we are not. Situations where there is no time to draft and provide a Costs Disclosure Letter or Agreement before commencing the work are rare. Verbal advice of costs with verbal acceptance can cover an emergency or rush situation, but should always be immediately followed up by confirming written documentation. If nothing else spurs you the Act should. Nowadays with computers and precedents this should only be the job of minutes. It can be emailed to your client with a hard copy to follow in the mail. One thing I have started doing, however, is to convert my Costs Agreement into a .pdf. A computer hack can still change my document if they really want to but I have made it that little bit harder. Costs generally I think this goes together with communication generally. Even where you have taken all the right steps to inform your client, the message doesn’t always get home. Where a matter is litigious and likely to get out of hand cost-wise, I take the time to draft a Memo of Advice setting out the likely scenarios in particular with costs consequences. Showing the client what they will end up with after all the legal costs have been deducted often focusses their mind on settling. Rarely does “it’s the principle that’s important” last to judgment. That said, there are still some clients who insist on continuing because of a principle or because they would rather give you the money than their opponent. However, I have found this mainly in the Probate area where it is money that has not actually come out of their bank account.

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However, even here where costs of the applicant have generally been borne by the Estate of the deceased, more recently courts have been reluctant to award what they consider to be excessive costs and in some cases have either refused costs4 or capped them.5 In fact if the Estate is small (ie less than $350K) the Court may order Mediation before parties have even had a chance to fire their initial salvo of affidavits. Ensure your instructions are current I am repeating this one because it is so important. I am fortunate in that solicitors I act for generally keep me informed but some of my colleagues have complained to me of being told on the day of trial that “the matter has settled”. The client will not be happy to be paying Counsel’s fees when they consider the matter done and dusted however if the barrister has rejected a brief because they thought they were going to trial they have to charge or be out of pocket. If you are settling a matter make sure you don’t forget to include the client. Last year I told you of the solicitor continuing to act in a proceeding refusing an offer to settle when their client had already died.

4 Re Carn-Moerth-v-Moerth and another;Moerth-v-Mac Bean (No 2) [2011] VSC 275,

Gardiner AsJ Related [2011] VSC 176. 5 Cangia v Cangia (No 2)

5[2008] VSC 556

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DIFFERENT BREACHES OF PRACTISING REGULATIONS Purporting to witness a signature in the absence of the relevant person

Legal Services Commissioner v El-Hissi (Legal Practice) [2013] VCAT 325 (21 March 2013) Legal Profession Act 2004 ─ professional misconduct ─ conflict of interest ─ false execution and attestation of mortgage documents ─ breach of duty of candour to Law Institute of Victoria ─ plea of guilty Reprimanded, Practising certificate cancelled, not to apply again before 21 December 2013, LSC’s costs $16,293. Legal Services Commissioner v Kiatos (Legal Practice) [

2012] VCAT 1695 (8 November 2012)

Professional misconduct and misconduct at common law; legal practitioner client claimed solicitor witnessed mortgage documents acting as solicitor when not done so. Guarantee not able to be relied on.

Charges not proved and dismissed.

Legal Services Commissioner v Lamplugh (Legal Practice) [2012] VCAT 279 (5 March 2012) Professional misconduct; legal practitioner purporting to witness mortgage documents when not done so; certified having explained effect of mortgage documentation to both mortgagors when not done so and forging client’s signature on documents. Reprimanded and fined $10,000 and to pay LCS’s costs of $4,183.

Legal Services Commissioner v Comito (Legal Practice) [2011] VCAT 497 (24 March 2011)

Charging for retrieval of stored documents where client not advised in advance

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Legal Services Commissioner v Rose (No. 2) (Legal Practice) [2007] VCAT 2465 (17 December 2007)

Failing to deliver up file to client when demanded

Legal Services Commissioner v Nixon (Legal Practice) [2007] VCAT 1695 (31 July 2007)

Failure to hold current practising certificate

Legal Services Commissioner v Nguyen (Legal Practice) [2013] VCAT 345 (25 March 2013)

Practising while not holding a practising certificate deliberately and recklessly misleading Judge constituting VCAT.

Not to be granted Practising Certificate till 1 April 2019, name to be removed from roll of practitioners, LSC’s costs to be taxed if not agreed.

Legal Services Commissioner v Nixon (Legal Practice) [2012] VCAT 708 (16 May 2012)

(As above)Not held a practising certificate since 2007. Not entitled to hold practising certificate until 1 July 2017, required to undertake course of study in relation to Trust Accounts, prior to applying for such practising certificate.

LSC’s costs $26,145.

Legal Services Commissioner v Owens (Legal Practice) [2010] VCAT 1686 (14 October 2010)

Taking a commission without authority

Legal Services Commissioner v Hession (Legal Practice) [2010] VCAT 1687 (5 October 2010)

Lawyer transferred $109,000 in unauthorised commission as Executor of an Estate.

Fined $30,000, LSC’s costs $38,161.50, and ordered to attend a course on Wills and Estates management.

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Charging a contingency fee and failure to provide information in costs disclosure

Legal Services Commissioner v Barrett (Legal Practice) [2012] VCAT 1800 (23 November 2012)

Solicitor charged contingency fee in personal injury case.

Fined $5,000 and LSC’s costs $5,000.

Competency as a lawyer

Failure to reach or maintain reasonable standard of competence and acting in conflict of interest

Legal Services Commissioner v McNamara (Legal Practice) [2011] VCAT 1228 (1 July 2011)

Lawyer gave advice to Executor and beneficiary widow, suspected of suffering from dementia. Conflict of interest and acting beyond his expertise and knowledge.

Charges proved. Adjourned to further hearing 11 August 2011.

Failing to complete work promptly and communicate with client

Legal Services Commissioner v Morgan (Legal Practice) [2010] VCAT 1814 (22 October 2010)

Found guilty of 6 charges of unsatisfactory professional conduct and to use his best endeavours to complete legal work. Not to apply for Practising Certificate October 2011 (12 months), pay LSC’s costs.

Conflict of Interest

Failure to avoid conflict of interest and disclose interest in a transaction

Legal Services Commissioner v Blaker (Legal Practice) [2013] VCAT 87 (31 January 2013)

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Legal practitioner – continuing to act in conflict of interest – acting for both parties to a contract of sale and loan agreement – professional misconduct - failing to re-lodge caveat on behalf of one client – failing to inform that client that the other client had created security interests – unsatisfactory professional conduct – Rule 8.2 Professional Conduct and Practice Rules – Rule 39.1 of the 2005 Rules – where plea of guilty and consent to reprimand and fine – appropriate fine in respect of each charge.

4 Charges proved, total fine $13,000 and $5,000, LSC’s costs.

Legal Services Commissioner v Francis (Legal Practice) [2006] VCAT 690 (13 April 2006)

2 Charges found, 2 fines $30,000 and $17,500, LSC’s costs to be taxed.

Acting in conflict of interest in a property matter Legal Services Commissioner v Harle (Legal Practice) [2008] VCAT 2301 (21 October 2008) Practising Certificate cancelled for 3 years, pay LSC’s costs.

Failure to get client to sign Form 2 acknowledgement of solicitor’s interest in the company loaning money to the client.

Legal Services Commissioner v Johnston (Legal Practice) [2011] VCAT 1366 (11 July 2011)

Reprimanded, fined and ordered to pay LSC’s costs.

Failing to keep business interests and legal practice separate involving misappropriation of client’s funds.

Legal Services Commissioner v Brereton (Legal Practice) [2008] VCAT 2073 (7 October 2008)

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Practising certificate cancelled, not able to apply till 2013, or for practising certificate to deal with Trust Money till 2018, LSC’s costs of $145,000.

Failure to disclose costs

Failure to provide a Costs Agreement

Legal Services Commissioner v Nowicki (Legal Practice) [2011] VCAT 1003 (24 May 2011)

Reprimand, fined $15,000 and LSC’s costs.

Failure to communicate with client and confirm instructions

Legal Services Commissioner v Battiato (Legal Practice) [2012] VCAT 1279 (21 August 2012)

Ms Vita Battiato has held a practising certificate in Victoria since her admission to practice in November 1987. Charges relate to her practice prior to that as a sole practitioner in Dandenong. The respondent (LSC) has brought six charges of professional misconduct against her under the Legal Profession Act 2004 (the Act). These relate to her conduct in acting for three clients over the period 2007 – 2010, all in family law matters. In summary, the charges relate to extended delays in completing work for clients, poor communication with clients, acting without instructions in one instance and failure to respond to requests by the LSC for an explanation of her conduct. Ms Battiato pleaded guilty to all six charges.

Reprimanded and fined $3,000, not able to engage in practice for 2 years. LSC’s costs $2,585.

Legal Services Commissioner v Brott (Legal Practice) [2011] VCAT 110 (7 February 2011)

The Tribunal found 4 charges proved of instituting proceedings without seeking client instructions. The lawyer was referred to be struck off the roll of practitioners and ordered not to re-apply for a practising certificate till 2019, 8 years, one of the longest I have found.

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Failing to communicate properly with clients regarding proceeding

Legal Services Commissioner v Galatas (Legal Practice) [2012] VCAT 214 (21 February 2013)

Legal Profession Act 2004; professional misconduct; failing to use best endeavours to effect a transfer of land; failing to communicate effectively and promptly with clients; plea of guilty to two charges.

Found guilty of 2 charges, reprimanded, to seek supervision, fined $2,000 and LSC’s costs to be costed if not agreed.

Legal Services Commissioner & Ors v Jayakody (Legal Practice) [2008] VCAT 2075 (7 October 2008)

Reprimand, $3,000 fine and pay LSC’s costs.

Misleading a client regarding a VOCAT application

Legal Services Commissioner v Horsley (Legal Practice) [2011] VCAT 875 (27 April 2011)

Reprimand, fine and pay LSC’s costs.

Failing to advise clients

Legal Services Commissioner v Cassidy (Legal Practice) [2009] VCAT 2647 (8 December 2009)

Reprimand, fine and pay LSC’s costs of $15,891.63.

Honesty

Forging a medical certificate (previous complaints)

Legal Services Commissioner v Johal (Legal Practice) [2011] VCAT 1390 (14 April 2011)

Reprimand, fined $3,500 and to pay LSC’s costs on County Court D Scale.

Defrauding the State Revenue Office

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Legal Services Commissioner v Szental (Legal Practice) [2007] VCAT 1835 (2 October 2007)

Solicitor attempted to defraud SRO, repaid monies, pleaded guilty to criminal charges, inherited money, made donations to charity, Practising Certificate cancelled till 2013.

Forgery of wife’s signature

Legal Services Commissioner v Jackson l (Legal Practice) [2012] VCAT 372 (2 April 2012)

Solicitor forged wife’s signature on ASIC documents and tax refund cheques, no appropriation.

Reprimanded and fined $5,000, LSC’s costs $3,552.

Plagiarism in an application for Masters

Legal Services Commissioner v Keough (Legal Practice) [2010] VCAT 108 (3 February 2010)

Solicitor pleaded guilty to plagiarism inobtaining a Master of Health and Medical Law. Practising Certificate cancelled and solicitor not to reapply before October 2010. Pay LSC’s costs.

Litigation complaints/Breaches of Duties to the Court

Failing to discover relevant documents

Legal Services Commissioner v Piva (Legal Practice) [2009] VCAT 1981 (25 September 2009)

Solicitor knowingly withheld document when giving discovery to the Supreme Court, document held information against solicitor’s case.

Practising Certificate cancelled, solicitor not to reapply before September 2011, pay LSC’s costs.

Failure to comply with duties to Family Court

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Legal Services Commissioner v Shulsinger (Legal Practice) [2010] VCAT 1497 (9 September 2010)

Solicitor reprimanded for neglecting to comply with duties owed to the Family Court. Three charges of professional misconduct fined $5,000, $1,000 and $1,000 respectively and $36,000 LSC’s costs.

Tax Issues

Failure to file tax returns for 13 years, practitioner bankrupted

Legal Services Commissioner v Long (Legal Practice) [2011] VCAT 1164 (10 June 2011)

Lawyer pleaded guilty to charge of professional misconduct, returns filed following action by ATO, now meeting revenue obligations. Good character otherwise, Practising Certificate suspended for 4 months. Fined and paid LSC’s costs $12,000.

Failure to Lodge Tax Returns and GST Returns

Legal Services Commissioner v Turner (Legal Practice) [2013] VCAT 390 (3 April 2013)

Failure to lodge income tax returns and BAS, bankruptcy, professional misconduct.

Found guilty and fined $5,000, to advise LSB of discharge from bankruptcy within 7 days of discharge, retain Practising Certificate but advise LSC of any failure to pay tax pay LSC’s costs $8,233.

Legal Services Commissioner v Moore (Legal Practice) [2010] VCAT 742 (1 June 2010)

Reprimanded, fined $50,000 and paid LSC’s costs.

Trust monies

Round robin transaction to avoid stamp duty

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Legal Services Commissioner v McGregor (Legal Practice) [2012] VCAT 1742 (19 November 2012)

Legal Profession Act 2004; disciplinary charges; deficiency in solicitors’ trust account; deficiency subsequently remedied; ‘round robin’ transaction intended to avoid client incurring a liability to pay stamp duty; alleged dishonesty; whether professional misconduct or unsatisfactory professional conduct.

Fined $2,000, to undertake trust accounts course and pay LSC’s costs $ 13,944.

Failing to deposit trust monies within required period

Legal Services Commissioner v McCristal (Legal Practice) [2011] VCAT 231 (10 February 2011)

Fined $25,000 and ordered to attend course on Trust account management and pay LSC’s costs.

Failure to invoice client before taking trust monies

Legal Services Commissioner v Angelatos (Legal Practice) [2011] VCAT 1390 (17 September 2012)

Failing to progress clients’ matters, failing to provide invoices to clients before taking trust monies, failing to communicate properly and effectively with client , failing to pay Counsel’s fees from moneys received from clients on behalf of Counsel. Professional misconduct six charges, unsatisfactory conduct (two charges) , guilty plea, solicitor bankrupt in 2008.

Reprimanded, not entitled to apply for Practising Certificate before 17 September 2017, requirement to obtain 10 CPD points above 10 required, in relation to Trust and Office accounts, before applying.t management and pay LSC’s costs $30,000.

Failure to manage office and trust monies

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Legal Services Commissioner v Booth (Legal Practice) [2012] VCAT 1730 (13 November 2012).

Failure to manage trust accounts, practising certificate cancelled from 12 November 2012 for one year. Respondent to undertake Trust Accounting course and pay LSC’s costs of $35,000.

Legal Services Commissioner v Dwyer (Legal Practice) [2012] VCAT 886 (26 June 2012)

Failing to make costs disclosure; professional misconduct – failing to deposit fees received in trust account and thereby causing a deficiency; professional misconduct – creating false documents and misleading the Legal Services Commissioner; no financial gain from practitioner’s actions; plea of guilty to all charges.

Reprimanded and fined $40,000 and LSC’s costs of $8,102.

Legal Services Commissioner v Rushford (Legal Practice) [2012] VCAT 780 (7 June 2012)

Professional misconduct; five proceedings involving 20 charges, including failing to account to clients for trust monies held since 2004, failing to provide information and files pursuant to statutory requirements and Tribunal orders, trust account deficiencies and other breaches of trust accounting requirements and engaging in legal practice when practising certificate no longer held; not fit and proper to practise.

Respondent not be granted a Practising Certificate before 1 July 2019, or principal of a practice before 1 July 2022, name to be removed from roll of local practitioners. LSC’s costs $10,815.

Legal Services Commissioner v McAuley (Legal Practice) [2012] VCAT 159 (23 January 2012)

Receipt of trust money without holding practising certificate authorising receipt of trust money. Failure to use best endeavours to complete legal work as soon as reasonably

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possible. Failure to provide applicant with information and documents.

Reprimanded, fined $8,000 and paid LSC’s costs of $14,532.

Legal Services Commissioner v Coldham & Ors (Legal Practice) [2012] VCAT 74 (19 January 2012

Professional misconduct at common law, firm was collecting monies from clients for specifically identified disbursements and detaining moneys for an indefinite period; moneys credited to firm’s office account thereby reducing firm’s overdraft; money’s therefore used for the firm’s working capital; cheques drawn in favour of third party service providers but detained by firm; longest detention for a period of over three years; breaches detected by routine investigation; appropriate disposition; respondents’ practising certificates suspended for a term of nine months.

Legal Services Commissioner v Peacock (Legal Practice) [2008] VCAT 983 (2 June 2008)

Practitioner failed to supervise his legal practice – another party utilised his office account to misappropriate monies from third parties.

Practising Certificate downgraded to employee certificate, required to attend practise management course, reprimanded with costs.

Unqualified practice and receipt of trust monies

Legal Services Commissioner v Spicehandler (Legal Practice) [2012] VCAT 630 (14 May 2012)

Professional misconduct; Provision of false resume in support of successful application for employment; working as a solicitor without a practicing certificate.

Reprimanded, no Practising Certificate to be issued before 27 April, 2013, LSC’s costs $5,936.

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Legal Services Commissioner v Rallis (Legal Practice) [2009] VCAT 1445 (23 July 2009)

Practitioner pleaded guilty to two counts of misconduct, unqualified practice and unqualified receipt of trust money. Practising Certificate cancelled, may not apply till 2014, monies to be repaid and LSC’s costs of $25,000.

Undertakings

Failing to take steps to be released from an undertaking he was unable to complete and acceding to his client’s request to disburse trust funds contrary to his undertaking

Legal Services Commissioner v D'Alessandro (Legal Practice) [2009] VCAT 1129 (2 July 2009)

Reprimanded, fined $4,000 and LSC’s costs $3,357.60.

Failure to honour undertaking within reasonable time

Legal Services Commissioner v Sapountzis (Legal Practice) [2010] VCAT 1124 (24 June 2010)

Reprimanded and LSC’s costs $5,000.

Abuse of process

Legal Services Commissioner v Johnson (Legal Practice) [2012] VCAT 1731 (14 November 2012)

Legal Profession Act 2004: professional misconduct: solicitor representing himself in family law proceedings; four affidavits and exhibits filed containing intemperate, provocative and offensive language; appropriate penalty; costs to be determined by costs court.

Legal Services Commissioner v Johnson (Legal Practice) [2012] VCAT 605 (30 May 2012)

Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Sections 98, 104 and 114 – Issuing of 57 subpoenas to many prominent people in matter involving legal practitioner

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charged with professional misconduct – Whether any relationship between addressees of subpoenas and nature of charge – Whether abuse of process – Setting aside of subpoenas – Jurisdiction – Service – Factors to be considered..

All 57 subpoenas issued set aside. Further hearing of matter.

Legal Services Commissioner v Cantwell (Legal Practice) [2012] VCAT 890 (23 April 2012)

Professional misconduct: making false statements to Court on four occasions: solicitor acting with best of intentions for his client, but his actions completely misguided.

Practising certificate cancelled, no local Practising certificate to be granted before 29 March 2013, LSC’s costs $10,089.

• Using legal processes for improper or ulterior purposes;

– Making unsupported or irrelevant allegations against a person;

– Entering into proceedings without proper consideration for the prospects of success;

– Running a case in a way that gives rise to unreasonable delay or expense.

What about Mediation?

The informality of mediation can assist in resolving the real issues in dispute, but is not intended to be a reason to relax your usual professional standards. The fact that mediations are cloaked in confidentiality should not allow lawyers to engage in allegations or assertions which cannot be sustained, in particular denigration of the justice system to urge clients to settle. Relevant LIV Rules

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18.1 A practitioner must not knowingly make a false

statement to the opponent in relation to the case (including its compromise)

18.2 A practitioner must take all necessary steps to correct

any false statement unknowingly made by the practitioner to the opponent as soon as possible after the practitioner becomes aware that the statement was false.

18.3 A practitioner does not make a false statement to the opponent simply by failing to correct an error on any matter stated to the practitioner by the opponent.

18.4 A practitioner must not deal directly with the opponent’s client in relation to the case for which the opponent is instructed unless:

18.4.1 the opponent has previously consented;……

21 A practitioner, in all of the practitioner’s dealings with

other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.

Issues which can arise in Mediation

� Extremely aggressive advocacy and bargaining � Hiding strengths of other case and weaknesses of own

case

� Not alerting other side to existence of documents which would assist them

� Claiming “final offer” when it is not & other posturing

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As in dealing with the courts, at a court appointed mediation you may not keep secret an error that you know the other side may be relying on to their detriment and to your client’s advantage. Authority to settle – courts commonly make orders that persons with authority to settle should attend the mediation. Ignoring such an order, or concealing the fact that the responsible person either does not attend the mediation or does not have the requisite authority offends the rules and probably amounts to contempt of court. For many clients attending a mediation is as emotional as appearing in court, often they are not prepared for what is happening or likely to happen. Apart from the opening statement and discussion, the rest of the mediation is between the key parties and their willingness to concede points or position. Whilst settlement is to be encouraged and clients made aware of costs consequences in proceeding to the next step in litigation, neither should they be harassed either by their own legal representatives or the other side’s. A settlement at mediation has to be settling, not unsettling. Conclusion Acting for clients is a privilege and carries with it responsibilities to always act ethically in all areas of the work and in ensuring that we are competent to perform the task we have been called upon to do. In conclusion I think our position as lawyers to deal ethically and professionally can be summed up with the following case: In Clyne v NSW Bar Association (1960) 104 CLR 186 at 200, the court ruled that “An advocate owes a duty to his client. He must advance and protect the client’s interest to the best of his skill and diligence.”

Lydia Kinda Barrister

29 April 2013.