Legal Ethics Summary Notes

Key Statute Lawyers and Conveyencers Act

Origins of Legal Ethics

RENSHAW AND EDWARDS
Solicitors Guarantee Fund required a compulsory contribution,
like insurance, from all NZ Barristers and Solicitors to cover any
losses clients incurred from legal services. A Solicitor could not
make good a clients loss, the fund did, and if there was a
shortfall in covering a claim lawyers could be further levied for
it.
1992 - Renshaw and Edwards took clients money out of the
trust fund and bet it at the TAB, amounting to 30 Million stolen.
Under the fund All lawyers were levied a further $10K to cover
Renshaw and Edwards unethical dealings
As a result the law was amended putting a cap of $5K for levies
in any one year and removed investing and lending solicitors
from it
NZ LAW SOCIETY REPORT

Because of Renshaw and Edwards case, the NZ Law Society

commissioned the Education and Training in Legal Ethics and
Professional Responsibility Report, by Cotter and Roper
Reports thesis legal professions were facing a crisis of confidence
and thus should introduce a Legal Ethics curriculum into Law
Schools
Although Legal ethics is not compulsory for a law degree, it is now
compulsory in order to be admitted as a barrister or solicitor
ISSUES: one cannot be taught to be ethical

One cannot be taught to be ethical

Tim Dare a legal ethics course wont stop one stealing trust
accounts Renshaw and Edwards were merely crooks, not
philosophical or ethically interesting
Rules problematic, cant regulate behaviour based on rules
because this concept relies on the fact that most people
agree with what the outcome of the rules/law is seeking to
bring about if people have a different conception of ethics
this will be problematic
1) Academic Stage 2) Practical use of knowledge 3) Practicing
keeping up to date

C OUNCIL OF LEGAL EDUCATION

BODY THAT GOVERNS LEGAL EDUCATION IN NZ

ALL 6 LAW SCHOOLS OFFER A QUALIFYING LEVEL OF LEGAL ETHICS

CURRICULUM

COUNCIL OF LEGAL EDUCATION, IN ADOPTING THE REPORT MADE LEGAL

EDUCATION COMPULSORY FROM 1998

Defining Legal Ethics

The principles of conduct that members of the profession are expected to observe in the
practice of law

Profession?
LEGAL PROFESSION (SOCIOLOGISTS 1930-50S)
1. Expectation of high educational attainment and relatively lengthy
training
2. Its use of specialised knowledge on behalf of clients
3. Self-regulation through a professional association
4. Its commitment to public service
ISSUES: this theory is problematic because it means taking the
professions claims about itself at face value

THEORIES OF PROFESSIONALISM

Functionalist
or structural
functional
theory:
1. Identify the basis
upon which we
can identify a
group as distinct
2. Question the
group:
1.
2.

Its purpose?
How does it fit

Interactionist
Theory
(opposite of
functionalist)

Market Control theory

1. Saw Functionalists
as too narrow and
rigid
2. Focuses on
individual
relationships and
activities

1. 1980s
2. Focus: power of the
profession and its
relationship with the
development of market
economy and the modern
state

a. - What
3. It reveals how many
lawyers do,
characteristics of the
rather than
profession (lengthy training,
3.
the profession
self-regulation, monopoly
as a social
over certain areas of work)
3. Torcott
institution
also serve to hand control
Parsons: saw
3. Concerned with
over their markets to the
lawyers as an
lawyer to lawyer,
profession. It gives them
important
and lawyer to
control over the market
social group,
client relationships.
seeking that service
contributing to
Exploring the way
4. Even if not the deliberate
the social
in which legal
intent of the profession,
operations of
training and
professionalism in fact
social control,
worked
operates a set of strategies
and consensus
relationships
for restricting the supply of
building,
socialise. It
lawyers
having the
5.
It challenges public interests
constructs
potential to
arguments for
professionalism as
transform
professionalism which are put
an expression or of
citizens
forward by the profession
individualism and
relationship
themselves
group identity
with political
4. Looks at distance
Sees Key to profession as
society.
between reality of
consumer protection
Emphasis on
daily legal practice
function
and legal ideology
Problem: lawyers get large
4. This approach
of the profession
control over sectors of society
lasted until late 5. Stresses diversity,
and are the only people who can
1960s
complexity and
carry out these functions
Criticism: a too
conflict in
having qualifications leads to a
narrow and rigid
professional work
monopoly over the market and
definition of the
then the cost and expense to the
profession
public is high
with other
parts of
society?
Ultimately
what is its
function?

Criticism: if the theory is

responded to and acted in
accordance with, it will result in
a decline of professionalism as
it doesnt pay enough attention
to the normative and ideological
professions of professionals

Lawyers & Conveyancers Act in context of the discussion surrounding

market control theory:

Attempt to achieve a balance in society between:

1) Professional ideals (training, regulation, expectations of
practicing lawyers)
2) Consumer protection issues

MORE SOPHISTICATED APPROACH HOW POWER AND STATUS BOTH SHAPE AND
REFLECT THE NATURE OF THE PROFESSION INCORPORATING ALL 3
THEORIES

PIERRE BOURDIEU C APITAL

CAPITAL = THE VALUE ATTACHED TO A VARIETY OF SOCIAL ASPECTS
A LAWYERS STOCK OF SOCIAL CAPITAL FAMILY , OTHER PERSONAL AND

PROFESSIONAL SUPPORT NETWORKS

CULTURAL CAPITAL (IE . THE ABILITY TO PRACTICE ) COMES FROM KNOWLEDGE ,
AND SKILLS STATUS ATTACHED TO EDUCATION OF THE PROFESSION , SHARED

TASTE VALUES , HOW TO RELATE TO CLIENTS AND PROBLEMS .

STATUS AND POWER IN THE LEGAL FIELD WILL REFLECT THE WAY IN WHICH
CAPITAL , IN ALL IT S FORMS , WILL BE DISTRIBUTED THROUGH THE PROFESSION
THE DISTRIBUTION IS UNEVEN. THE VALUE OF THIS THEORY IS THAT IT
CONSIDERS HOW ACTORS AND INSTITUTIONS TOGETHER FUNCTION TO
PRODUCE ECONOMIC AND SOCIAL PRACTICES

READING - Mere-zeal, Hyper zeal and the Ethical Obligations of

Lawyers Tim Dare:
standard conception of a lawyers role special duty to client of conduct
that would otherwise be morally impermissible
Laywers are required to do that, by institutional exercise that would be seen
as morally troubling outside of their legal role
Criticism of accepting morally impermissible behaviour due to the
institution MacCauley: questions how the legal role alone can transform
the wicked and infamous into something just. Being a lawyer shouldnt
justify behaviour which would be otherwise considered morally abhorrent
Gerald Postema: this conept must be abandoned, to be replaced by a
conception which allows the lawyer to bring his full moral sensibilities in his
professional role, + Luban: Every lawyer.. knows the tricks of the trade that
can be used to do opponents out of their legal deserts, the Critics claim it
not only permits, but REQUIRES lawyers to use these tricks, if it is in their
clients best interests to do so.

Tim Dare (author) argues contrary we should not abandon the

standard conception = this is still the correct way to conceive the
ethical obligations of lawyers, but reading it alternatively,
distinguishing between Mere-zeal and hyper-zeal advocacy. He
argues that others concerns of lawyers leading a an immoral reality
is reconciled in this alternative reading making it morally palatable

Dare on the role of law:

How can one appeal meaningfully to the function and role of the law
when it has so many functions?
Issue of legal pluralism - Different people have different conceptions
on what is common good and what rules in society ought to be
achieving
Concludes: the different conceptions on what is good across
society, cannot be expected to settle on one conception of good.
But they can agree on the form of procedures that will give them, if
not what they want, what they need.
Although the fundamental substance of conceptions of good, what
constitutes human flourishing, which basic goals are worthy of
pursuit, and which way is best for an individual to live their life,
cannot be agreed on, we can agree on procedures which respect the
diversity of views represented, and which issue decisions with which
we can live.
Dare says institutions of law are designed and intended to mediate
between the diverse range of views of what ought to be done and
particular decisions about what is to be done. That is the general
function which lies behind the specific tasks performed by the
institutions of law.
(Zabella Case
One way to act immorally, is to knowingly assist
another in acting immorally In Zabella the lawyer employed to act
for P was effectually acting for someone who the court said was a
scoundrel, and morally obnoxious but does this mean the lawyer
defending him is also morally obnoxious or condones his behaviour?
)
Dare Cases such as Zabella represent the operation of the
standard conception of the lawyers role 3 principles:

Partisanship
Neturality
Non-accountability

Partisanship:
The duty of zeal/zealous advocacy the lawyers role is only to
work within their clients interests, not to moderate their

behaviour or calibrate their professional conduct for concern

from the otherside.
Lawyers only interest is their client.
Distinction between mere-zeal (doing what you must for your
client) and hyper-zeal (doing all that you possibly can for your
client)
Luban contends that any form of zeal leads to lawyers acting
immorally believes they should alter their behaviour in order to
care for the interest of the other party
Standard conception only requires mere-zealousness to
zealously promote the needs of their client without regard to the
interests of the other side
Dare thinks Luban mischaracterises the principle if only
invoking moderate zealousness, then no problem with
partisanship its OK to pursue your clients rights, but without
having to go beyond that to secure collateral advantages just
without the law
Neutrality:
Lawyers are to put aside their own moral views on their clients
case
It is not the lawyers role to determine who has the ability to
attain certain rights
Rationale: Clients should not have to search for lawyers with the
same moral views and who will agree to avail them of their legal
rights
Fits cab rank rule: a cab cant turn downt the next fare because
they dont like where its going lawyers cannot turn clients
away on these grounds, the exceptions are limited
Thomas Erkshine R v Paine As soon as the advocate refuses
to defend they are assuming the role of the judge. Concerned
that lawyers will become legal gate keepers

Principle of Non-Accountability:
Lawyers cannot be held accountable for the conduct of their
clients stops 3rd parties being able to draw conclusions about
lawyers protects lawyers

If theory works in practice, it should provide incentive for

representing all sorts of clients
Rondel v Worsley HOL: If counsel is bound to act for such a
person, no reasonable man could think less of any counsel
because of his association with such a client, but if Counsel
could pick and choose, his reputation might suffer if he chose to
act for such a client, and the client might have great difficulty in
obtaining proper legal assistance.
Mere-zeal and Hyper-zeal:
Merely zealous lawyer is concerned solely with the legal
interests of his client, not merely anything which happens to be
in their interests no more than they are entitled to under the
law
Importance of mere-Zealousness
Sees the function of the lawyer is doing that for the client which
in a less complicated legal system, the client would be doing for
themselves obtaining for them benefits of procedures around
which communities are formed
Lawyers who were to sacrifice their clients rights in a way
being generous, are actually arrogant, not generous, but put
their client in a vice

Hyper zealous concerned with more, pursuing any advantage

obtainable for their client through the law. Incorporating tricks of
the trade such as delaying tactics to achieve this (Luban).
Issues with Hyper Zeal:
If the role of the lawyer is to allow clients to avail themselves of
rights allocated to them by social institutions, it would seem to
follow that it is not the function of the lawyer to satisfy the
interests of the client beyond those allocated by law, hence why
lawyers have no special responsibilities to assist their client with
availing themselves of resources or benefits outside of the law
Distinction between the clients interests and the clients
rights
Luban points to blurry areas which are not illegal and may be
within advancing a clients case in regards to rtheir rights such
as delaying tactics which are more difficult to be denounced in
reference to merely-zealous rights advancement

Luban thinks partisanship requires hyper-zeal, whereas Dare

thinks that lawyers are only required to be merely zealous

Mere Zeal, Hyper Zeal and Abuse of Process

Not all lawfully obtainable advantage is a legal
entitlement - Professional roles of the lawyer are structured by
the function of the institution to which those roles belong the
function of the legal institution is to determine and protect legal
entitlements, not to secure every possible lawful advantage
thus
Collateral advantages are something more than the purpose of
legal proceedings unrelated objectives to the design of the
court processes
Could be abuse of process where a lawyer is required to act
lawfully but unethically as it is arguably not a function of the
law
-

Grainger v Hill the ulterior purpose need not be illegal, it

just needs to not be the proper goal of the particular
proceedings
Willaims v Spautz S alleged criminal proceedings, held to
be abuse of process not because anything improper about
Ss goal of seeking to have his dismissal reviewed, but
because the purpose/design of criminal proceedings was to
determine whether the accused had committed an offence,
not for his ulterior motive of convincing the university to
reconsider his dismissal
White Industries v Flower Lawyers cannot shelter
behind the wishes of their clients in abuse of process cases,
it is not sufficient to argue it was what the client wanted.

WEBB - ETHICS, PROFESSIONAL RESPONSIBILITY AND THE LAWYER CHAPTER

1 (THEORIES AND PROFESSIONALISM ) TO READ

Right of Dual Practice

Barrister a legal practitioner whos work in theory is devoted to advocacy
fundamentally, litigators
S6 Barristers and solicitors concerned with transactional work of the law

Lawyers and Conveyancers Act

PART 4 AND 8

70

Constitution of New Zealand Law Society

(1)The New Zealand Law Society must have a constitution that provides for
o

(a)a Council of the New Zealand Law Society and the powers of the Council; and

(b)the ways in which persons become members of the New Zealand Law Society; and

(c)the ways in which persons cease to be members of the New Zealand Law Society; and

(d)the summoning and holding of general meetings of the New Zealand Law Society, and
the method of voting at those meetings; and

(e)a president and 1 or more vice-presidents of the Council; and

(f)an Executive Board of the New Zealand Law Society; and

(g)the appointment by the Council of an executive director of the New Zealand Law
Society, who may be a member of the Council; and

(h)the amendment and replacement of the constitution.

(2)In addition to the provisions required by subsection (1), the constitution may contain any other
provisions that are not inconsistent with this Act or any other Act or any rule of law.
Compare: 1996 No 39 s 6(1)(a)(e), (k), (2)

A representative from each branch of council from around NZ

and bar association
NZ Law Society is to be governed by a council and a board
Voluntary Membership regulated by this as soon as you
become a lawyer

Introduction, Regulation and Legal Practice in New

Zealand

NZ Law Society 2 Functions:

1) Regulatory
- Controlling and regulating Lawyers
- Practicing certificate opposing admission, rulemaking,
discipline
- (Self regulation by lawyers themselves thus can be
criticised for element of bias)
2) Representative
- Representative function members who pay a fee can have
the law society represent them
District Law Societies hold the real power
(The lawyers and Conveyancers Act alone is useless)
Section 373(1) Provision enabling District Law society to become an
incorporated society, and if a district law society did that, it retained its
assests
- Auckland Law Society in tandum with District Law
Society Branch = a proponent for reforming the law
society structure
Council of Legal Education
Has oversight of legal education, apart from Law Society
Comprised of Representatives of Judiciary, Law Deans, and students
Covers the law and all its firms in the practition
Functions: Sets the requirements for admission as candidates and
barristers; Allows for moderation; Makes provision for professional legal
training and foreign qualifications

Regulation
public confidence - protect public users - status of legal profession
establish new practices

DUNCAN WEBB T HE LAWYERS AND CONVEYANCERS ACT: CATCHING UP

WITH CONSUMERISM 2007
NZ followed AUS (and England) - shift towards consumerism, away
from professionalism
o Focus protecting consumers of legal services - ref S3(b)
o This is shown in the fundamental obligation in Section 4(c)
the duty of care owed by lawyers to clients is a
fundamental obligation
Parliament trying to reflect changes in social values in terms of
function and structure
Fundamental obligations of lawyers: must uphold the rule of law,
and administration of law in NZ
Fiduciary duties - obligation to protect, subject to overriding duties
of the high court - in interests of clients
Traditional Framework:
o Function of traditional framework of the regulatory body was to
focus on the need to maintain the reputation of the legal profession
(Bolton v Law Society)
o Discpline is to protect the public from bad practitioners, rather than
to punish the lawyers (L v Canterbury District Law Society)
o Misconduct requires that something has been established showing
either that his conduct in management of professional business
entrusted to him has been fraudulent, or engages in transactions at
the boundary of the law (RE Four Solicitors)
(Note stopped here in Rorys notes for this reading revisit)

FUNDAMENTAL OBLIGATIONS - what they mean

NB ref to upholding the rule of law - the obligation to be

independent
ref to duties of care and fiduciary duties
Act is fundamentally concerned with consumer protection and
lawyer confidence

S4 LAWYERS AND CONVEYANCERS ACT 2006 SETS OUT THE FUNDAMENTAL

O BLIGATIONS OF LAWYERS:

Fundamental obligations of lawyers

Every lawyer who provides regulated services must, in the
course of his or her practice, comply with the following
fundamental obligations:
(a)the obligation to uphold the rule of law and to facilitate the
administration of justice in New Zealand:
(b)the obligation to be independent in providing regulated services to
his or her clients:
(c)the obligation to act in accordance with all fiduciary duties and
duties of care owed by lawyers to their clients:
(d)the obligation to protect, subject to his or her overriding duties as
an officer of the High Court and to his or her duties under any
enactment, the interests of his or her clients.

Theories of professionalism

Structure of the NZ Law Society is built on the definition of barrister and

solicitor, and is comprised of a vast body of rules
that statute (Lawyers and Conveyancers Act) is essentially concerned
with consumer protection and lawyer confidence

Consumer protection
Client care + rules of conduct for lawyers
Client care is not a term in the Law Practitioners Act 1982
nor in the professional conduct (the preceding body of rules)
Client care introduced in lawyers and conveyancers act

Practicing Client care is so important that parliament has

found it necessary to spell this out in the current act reflects

The values of a consumer society

Lawyers and conveyancers act 2006

95Code of professional conduct and client care
The New Zealand Law Society and the New Zealand Society of Conveyancers, in exercising the
powers conferred bysection 94(e), must each have rules that include or provide for a code of
professional conduct and client care, which will be a reference point for discipline and which
will focus on, but need not be limited to,
(a)in the case of lawyers, the duties of lawyers as officers of the High Court and the duties of lawyers to
their clients:
(b)in the case of conveyancing practitioners, the duties of conveyancing practitioners to their clients:
(c)in the case of both lawyers and conveyancing practitioners, the duties imposed on them by their
fundamental obligation to be independent in providing regulated services to their clients.

he or she must act competently in a timely way in instructions received

and arrangements made
protect and promote interests free from compromise
objectives - achieving them
the work - how to do it
reasonable fee
how and when you will be billed
information and advice
confidentiality
fair undiscriminatory treatment complaints + deal with them promptly
These need to be dealt with
Based on fundamental obligations lawyers owe to clients

You can't teach someone to care for a clients, but have set in place
machinery -

Complaints and discipline

Question of competence to practice
What is it to be competent to be a law practitioner?

Competence is partnered with complaints and discipline

- a lack of competence leads to complaints and disciplined

Legal education
Continuing education and training
Professional legal training
Academic stage
Short period of professional training - CPD - continuing professional
development
-

can be no complaint about the LLB

issues with the other stages - aggravated by the academic stage
before mid 1960's - after one or 2 years of full time study, the llb student wwould take a
profession in a law office - facilitated on the job learning
properly regulated system of clerkship - auto qualified as solicitor

mid 1960's - establishment of fulltime degree in NZ - followed by one year in a

law office, during which professional subjects were studied and on completion, then
qualified as barrister and solicitor
failed because periods where there were not enough jobs available, whilse
working in law office - full time without experience
where students were employed employers often found they weren't good
enough - expectations - that once the student finished degree they could undertake
legal work
+ other law schools had different ways of undertaking professional training
situation where law firms wanted new law clerks to be better equipped - wanted
them to act promptly on joining the firm

NEED: consistent course of structure that would equip them with

a level of confidence that would make them useful to their firms
-

1986 - the NZ Law Society invited Neil Gold to look into the question of legal
education in this jurisdiction
- Gold recommended that NZ adopt a full time block course 13 wks in length addressed to both the law society and educationers
the study

- Reviewed number of times since then - set the pattern for legal training in NZ

Gives us a skills based course - different from academic stage

-

About interviewing, advising, interviewing and drafting - you don't

learn them in the abstract

Criticism:
13 - 19 weeks - not long
Professional legal training in NZ should involve more - you have a 2
year period
overseas, including in an office/chambers

Here the law firms have commonly opposed extention - they argued
they themselves offered excellent training - and offered training to
the newly qualified,
Council of Legal Ed's website - Tipping has just set out legal
reccomendations
- LLB is just prerequisite academic stage - it's different than the professional legal
training stage
- unlikely to see changes in consequence of report - but read it!

PLT - emphasis on LLB

dramatically different system from Eng and Wales - fewer students are doing LLB they take their degree then can take teh CPE - cramming LLb into a year and at the
end can then take the professional training exams offered by the bar - so not many
have LLB's - they have other degrees - Indicates you don't need an LLB to practice
law, provided you have a solid course following it

Once admitted as solicitor - and if of good character, if you can satisfy

those requirements you can be admitted, and then engaged in
continuing education

NB - under lawyers practice rules, Rule 12 - before you can practice on your own account,
not as employee but as principle, you must have had 3 years experience before you can
practice under your own name, in the immediately preceding 8 years
-

this req of 3 years applies to Barrister-sole (those relieved of soliciting obligations)

Because Barristers Sole - changed - in 3 yr rule, it applies to everybody, and practicing
certificate you are actually holding
really looking at 3 yr period in a law office - professional legal training stage
3 yrs before you ccan become a principle of a firm - that is intended to ensure
competence
no programme prescribed for 3 years though
you might go into a firm who gives you good training, over those 3 yrs, but other
and others wont - so not well regulated

CPD (continuing professional development)

CPD takes effect from moment you are admitted
- we can't say the law society has come up with something it requires of
solicitors that scheme is not yet fully in effect takes effect on 1st April
Lawyers ongoing legal education - Continuing professional development
Rules 2013 - a set of guidelines to the rules: - began 1st oct last yr - first
CPD year. These will commence next month. Rules apply to lawyers
providing regulated services

Rules require:
that you must complete a minimum of 10 hours activity in each CPD
year (1-4; 31-3)
- Legal services = carrying out legal work for another person
- Conveyancing services - sales and purchases of land
- Services a lawyer provides undertaking work of a real estate
agent
- if you should complete more than 10 hrs. then you can carry
forward up to 5 hrs.

CPD Activity?
- learning which is planned and structured with a purpose and outcomes
- it provides for interaction and feedback
- it must be related to identified learning needs
- it must NOT be part of day to day work - must be beyond the
practical work you
are doing
- rules require that every law [firm] maintain a CPD plan and record
- you are required to reflect on and verify your CPD activities
examples of CPD activity
1) participating in courses, seminars, training progs, one to one coaching,
and
study groups - one to one mentoring or training must be structured and planned - must not be file specific - it's not a question of sorting out how best to sort
out a difficult file, it must be beyond that
- distance learning programmes are a part of this - verifiable and provide for interaction

2) study towards relevant degrees, diplomas, and certificates 3) lecturing, teaching instructing at tertiary level
4) writing law related books and articles,
- significant because if you are the leading lawyer in a certain area, the criticism was what they do you teach about it, you pass your knowledge on, that can be fulfilment of CPD

5) preparing and presenting certain types of admissions

-

What

are the sorts of topics you can undertake?

Knowledge - can be of law itself or other relevant disciplines
concepts of social work, psychology/psychiatry
legal skills - advocacy, negotiations etc.
personal management skills - time, communication
practice management - strategic - marketing

 strategy, client care, professionalism

Flexibility is the key factor - key within that is that the topics you are
engaged in relate to your individual learning needs

Under the rules

you must each year make a declaration of compliance - which
can be audited by the law society
it is possible to arrange self-audit Rules are learner centred rather than prescriptive What if you don't comply with rules?
sanction is a proposal to amend the lawyers practice rules so as to
make compliance a requirement for practicing
If you dont comply your livelihood may be suspended
Client care is paramount to ensure competence
o

Competence - goes beyond these essentially educational factors

concerns mental state of practitioners - a practitioner from time to
time loses their mental capacity
demensure - cases of this where practitioners have head injuries
and don't realise they are competent, but unaware of it - law society
relies on other practitioners telling them
also arises through complaints
can't legislate easily for this

Standards Committee Intervention

S163 Act - Standards committee can intervene in a practice
para C& D - NZ law society can take charge of the practice (essential run
it)
s163 F - Bankruptcy practitioner
-

if practitioner becomes bankrupt, the standards committee can

intervene, again competence is fundamental

163Circumstances justifying intervention

A Standards Committee may exercise any power under section 164 or section 169 if it is satisfied,
in respect of any practitioner or former practitioner, that
(a)there is reasonable cause to believe that the practitioner or former practitioner has been guilty of theft or of any
improper conduct in relation to the money or other property of any other person; or
(b)there is reasonable cause to believe that any person who is an agent (within the meaning of section 305) of
the practitioner or former practitioner has been guilty of theft or of any improper conduct in relation to any money
or other property entrusted to the practitioner or former practitioner or any related person or entity; or
(c)the practitioner is, because of his or her mental or physical condition, unable to properly administer any trust
account that the practitioner is required to administer as a regulated trust account; or
(d)the practitioner is, because of his or her mental or physical condition, unable to properly conduct his or her
practice; or
(e)the practitioner or former practitioner has died; or
(f)the practitioner or former practitioner has been adjudicated a bankrupt; or
(g)the body corporate by which the practitioner or former practitioner is or was employed is in receivership or
liquidation other than for the purpose of amalgamation under Part 13 of the Companies Act 1993; or
(h)the incorporated firm of which the practitioner or former practitioner is or was a director or shareholder is in
receivership or liquidation other than for the purpose of amalgamation under Part 13 of the Companies Act 1993;
or
(i)the name of the practitioner or former practitioner has been struck off the roll; or
(j)the practitioner or former practitioner has been suspended from practice; or
(k)the practitioner or former practitioner has been ordered by the Disciplinary Tribunal not to practise as a
solicitor on his or her own account; or
(l)the practitioner or former practitioner has ceased to practise and has neglected to wind up any trust account
required by this Act or by any rules made under this Act to be kept by the practitioner.

Question of Complaints and discipline

a lack of client care can lead to complaints which may then lead to
disciplining (Usually results from a lack of confidence)
PT 7 LAWYERS AND CONVEYENCERS ACT 2006
- To receive complaints concerning:

lawyers and former lawyers

incorporated law firms and former firms, and
employees of both lawyers and former lawyers and corporate
lawyers and firms

-( under Lawyers and Conveyancers act, it's possible for a firm to

become a company under the act 1983)

Part 7
Complaints and discipline
120Purposes

(1)The first purpose of this Part is to provide a framework in relation to complaints and discipline.
(2)The framework is, in relation to complaints, to be
o

(a)one that relates to complaints about

(i)lawyers and former lawyers; and

(ii)incorporated law firms and former incorporated law firms; and

(iii)persons who are not practitioners but who are employees or former employees of lawyers and
incorporated law firms; and

(iv)conveyancing practitioners and former conveyancing practitioners; and

(v)incorporated conveyancing firms and former incorporated conveyancing firms; and

(vi)persons who are not practitioners but who are employees or former employees of conveyancing
practitioners and incorporated conveyancing firms; and

(b)one within which complaints of the kind referred to in paragraph (a) may be processed and resolved
expeditiously and, in appropriate cases, by negotiation, conciliation, or mediation.

(3)The framework is, in relation to discipline, to be one within which disciplinary charges against persons of the kinds
described in subparagraphs (i) to (vi) of subsection (2)(a) may be heard and determined expeditiously.
(4)The second purpose of this Part is to require the New Zealand Law Society to make, in relation to persons of the kinds
described in subparagraphs (i) to (iii) of subsection (2)(a), rules necessary for the purposes of the framework referred to in
this section.
(5)The third purpose of this Part is to require the New Zealand Society of Conveyancers to make, in relation to persons of
the kinds described in subparagraphs (iv) to (vi) of subsection (2)(a), rules necessary for the purposes of the framework
referred to in this section.
(6)The fourth purpose of this Part is to preserve the inherent jurisdiction of the High Court to strike off the roll and discipline
lawyers in their capacity as officers of the High Court.

S6 - LAWYERS AND CONVEYENCERS ACT

The lawyer client relationship procedures for complaint must

be known to the client from the outset

RULE 3.4 OF THE CONDUCT AND CLIENT CARE RULES

a lawyer in advance must provide a client with info in writing on the

principle aspects of client service - including (d) the procedure in the
lawyers practice made by clients Must have a procedure in the firm for handling things
Must tell them about the complaints service -requires advice on the
service and how the society may be contacted to make a complaint

Provision of information
3.4 A lawyer must, in advance,3 provide a client with information in writing on the principal aspects of client service
including the following:
(a)the basis on which the fees will be charged, when payment of fees is to be made, and whether the fee may be
deducted from funds held in trust on behalf of the client (subject to any requirement of regulation 9 or10 of
the Lawyers and Conveyancers Act (Trust Account) Regulations 2008):
(b)the professional indemnity arrangements of the lawyer's practice. This obligation is met if it is disclosed that the
practice holds indemnity insurance that meets or exceeds any minimum standards from time to time specified by the
Law Society. If a lawyer or a practice is not indemnified, this must be disclosed in writing to the client:
(c)the coverage provided by the Lawyers' Fidelity Fund and if the client's funds are to be held or utilised for purposes
not covered by the Lawyers' Fidelity Fund, the fact that this is the case:
(d)the procedures in the lawyer's practice for the handling of complaints by clients, and advice on the existence and
availability of the Law Society's complaints service and how the Law Society may be contacted in order to make a
complaint.

3.4 made pursuant to s 94(j) of the act:

94Practice rules
The New Zealand Law Society and the New Zealand Society of Conveyancers must each have rules
that include or provide for
(j)a requirement for practitioners and incorporated firms to provide clients in advance with information on the principal
aspects of client service, including
(i)the basis on which fees will be charged; and
(ii)indemnity insurance arrangements or other arrangements in respect of professional indemnity; and
(iii)the coverage provided by any fidelity fund; and
(iv)complaints mechanisms:

requirement to give info in writing in advance was introduced by the

conveyancers act
client engagement letters - standard form letter about the contract given
engagement of the client, concerning how to make complaints - a
relationship of confidence both ways - indicative of modern concept of
'profession'
marketing control theory - consumerism as a result of consequences of
this theory

Structure for complaints

Procedure in firm -> NZ law society complaints service
must decide whether proper complaint - if so then dealt with as
formal complaint with complaints service referring it to a
standards committee
the standards committee can refer it to disciplinary tribunal
that decision can be reviewed by officer - then right of appeal to
HC
then HC to CA - the final CA for these matters - it is infact
possible for it to get to SC - concept of judicial review of
administrative action - possible to have this review of lower
down decisions
a complex structure - complex not for sake of being complex but to
deal with complaints in an effective way - consumer demands

Grounds for complaint?

s 132
a) conduct
b) standard of service (unreasonable delays, wrong or incomplete
response, not keeping client inform, failing to communicate/respond)
c) failure to comply with order of Standards committee or legal
complaints review officer (order or termination under the act - made
by a standards committee or the legal complaints review office)
d) fees charged - normally fee to ground a complaint must involve a
fee of 2k + excluding gst
-

note that the legal complaints service, the lawyers complaints

service doesn't
give legal advice or second opinions - it simply deals with
complaints - it deals only with complaints
procedures required under the act

1) Internal procedure - if this doesn't lead to resolution, then the

client can go to complaints service - the society has established an
early resolution service - effective 3rd Feb 2013 - the early res service is
focused on certain types of complaints using ADR processes (alternative
dispute - mediation conciliation negotiation) = if in this situation
something is referred to the early resolution service, someone referred to
in these processes assists these parties to deal with these problems - a
member of the service will negotiate these processes

doesn't deal with all complaints (those involving serious

misconduct, and trust account issues, or where ordinary process is
more appropriate than its treated in the ordinary way)

2) ERS - will process the matter and will determine whether its a
matter suitable to go through the service

ERS is voluntary and if either party (lawyers or client) decline, then normal
procedure applies

3) second level of triage - the complaint then goes to one of the

societies standards committees and they determine whether its a
complaint to go through early resolution service -

-any service given if confidential and if it goes onto formal dealings,

its not disclosed to standards committee
the ERS was developed by law society because the formal
complaints service was unsuitable for minor consumer complaints so developed this special service
the manner of dealing with complaints was taking too long - deals
more rapidly and effectively, leaving these committees only to deal
with complaints requiring investigation and determination
30 June 2012 - in those 12 months the legal complaints service
received 1125 complaints
a need to deal with minor complaints swiftly - 30 days to deal with
complaints- quicker than ordinary process

- Law society says that protection of the public is the key factor a consumer protection measure
- Procedures in the law office - if its a minor matter can go to ERS

s126 - Lawyers Standards committee

Once a complaint is received by the complaints service it is then received by a

lawyers standards committee - lay people + senior lawyers
- must have 2 lawyers and 1 lay person and can have up to 7 lawyers and
2 lay people
- National standards committee as well as others around country
- a copy is sent to the lawyer complained about and they can make a
written submission to the standards committee - then have 3 options
1) inquire into complaint
2) ask the lawyer and complainant to go to ERs
3) no action
- if the LSC inquiries into complaint, it can determine as follows:
1) no further action warranted
2) unsatisfactory conduct on part of the lawyer (technical term)
3) complaint is so serious it should be referred to disciplinary
tribunal
-

whatever it decides the complainant is informed of the decision and reasons for it

DELIU V LAWYERS COMPLAINTS SERVICE OF NZLRS

- D lodged series of complaints against a number of lawyers, all of which
were
office holders in the complaints service
- when the service received these, each complaint was just rejected
- D then claimed that the complaints service had no power to
dismiss complaints before referring them to a standards
committee the complaints service just functions to determine them
- HC - held that any complaint against a lawyer Must be referred by the
committee service to the standards committee

the standards committee is the body to deal with this matter, there
is no jurisdiction for an officer of the service to deal with them
there is no power just to reject complaints - under 132, the
complaint must be referred to the committee and under 135 (1) and determined by the committee under s 137

Under 136 - may make an order confirming terms of an agreed

settlement resulting from negotiation, conciliation or mediation what the party has settled between themselves
may censure or reprimand the lawyers
order lawyer to apologise, pay the complainant compensation up to
25K for actual loss, reduce, cancel or refund some or all of the fees
that were charged to the complainant rectify any errors or omissions at the lawyers expense
order the lawyer to ay a fine of up to 15K
pay the complainant from expenses incurred in making the
complaint
the standards committee may make one or more of those orders, or
other orders improving the lawyers standards of practice (far
reaching)
It can confirm or change the committees decision, it can refer it to
the disciplinary tribunal or refer it back to the standards committee
to hear it again

ORLOV C NZ LAW SOCIETY [2013] NZCA 230 HC: 2013 1 NZLR 390
READ
- CA decision of Stevens and French JJ series of cases climaxed in CA
decision
- O was a practicing lawyer subject to several complaints related to his
competence as a lawyer
- The case itself involved application by O and cross application against
society by O
In HC, justice Heath found there was a threshold test for referrring a
matter to a lawyers and conveyancers tribunal under s152 2(a)
under preceding act 1982 - there was under that act a threshold test, but
not this was not repeated
Under s152(2)(a) - French said there should be a similar test as contained
in the 1982 Act - 'is there a real risk the practitioner might be
suspended or struck off? - if that threshold is met its' sufficient to go to
the tribunal
- s101 (2) - of old act - 'if in the opinion of the district council or
committee, the case was of sufficient gravity to warrant the
making of a charge' - - Justice Heath said a test such as the old one,
would focus the minds of the committee on the likely outcomes of
considering a charge and would act as a disincentive to anyone on the
committee motivated by ill will towards a practitioner -

He did not enforce the ... - did contend a high threshold encompassing
seriousness of the charge and sufficiency of evidence - to protect
practitioners from arbitrary action
Page 19- Para 54 - CA addresses the issue of a threshold test and reverses
the HC Heath's test - said no threshold FACTORS TELLING AGAINST A
THRESHOLD TEST:
1) section in the act does not have an express threshold
test referred to
2) there are express threshold tests - in s 138 - s244(1),
the striking off by tribunal, there is an express threshold test other provisions do, so parliament didn't seem to intend one
3) Parliament deliberately disregarded the threshold test
by disregarding the regional one in the new act
4) the fact that any complaint can be referred, told
against a threshold test
4) the absence of requirement under the act to give
reasons to refer the matter to a tribunal (telling against
threshold)
5) has all the powers of a standards committee
6) the purpose of consumer protection, maintenance in
public education, made it
important that the tribunal have ability to determine complaints,
even if not striking off...??

Heath J's decision dismissed

This case also tells us more about the provisions governing
standards committees

S158(2)

- when a complaint is referred to Standards commitee, the

committee may do other thigns (says 'may' means 'must')

makes the point that the ability of the standards committee to refer
to the disciplinary committee is subject to judicial review
it tells us also that the standards committee is not required to
obtain corroborating evidence of a complaint, and can
consider evidence in related complaints
also that the standards committee may revert a complaint into an
investigation motivated by it's own motion
M v Wellington Standards Committee 2

Interestingly on 9th May 2013 (and the Orlov was June 2013)
Justice Panhusrt in case of M v Wellington Standards Committee 2,
disagreed with Heath's decision in Orlov
Justice Pankhurst didn't follow Heath J
had a different view
Orlov was struck off 2013 -

SUBSEQUENT CASE - ORLOV V NATIONAL STANDARDS COMMITTEE NO 1 -- O is appealing against striking off, wanted to have Deliu represent him
as council
- National Standards Commitee 1 brought action that Deliu be
debarred from appearing as O's council, on grounds that D faces
similar charges and may as a result be struck off himself - READ - para 19, 20, 21 - Justice Foggherty in HC debarred Deliu from appearing for O as
council - interesting because it talks of everyone's right to council and
question of what it means

Legal Complaints review officer

This office was an innovation under the Act

the review officer is appointed by Justice
they are a lawyer but not someone in practice and their function is
to provide an independent review of decisions
s200 - review officer must conduct the review with as little
formality and technicality and as much expedition as permitted by
the act and proper consideration of the review and natural justice
can postpone review and prompt parties to negotiate
reviews are conducted in private and sometimes simply on papers
o www.justice.govt.nz/tribunals/legal-complaints-reviewofficer/decisions-1

ZHAO V LEGAL COMPLAINTS REVIEW OFFICER - ILLUSTRATES THE WORKINGS

OF THE LEGAL COMPLAINTS REVIEW OFFICER

- solicitor N launched complaint against Z, holding certificate as barristersole -N said although Z only held barrister-sole cert, he was acting as solicitor
- N was not satisfied and applied to review officer for review

- Z posted on the skykiwi website, setting out his services offered, and
that they extended to conveyancing (solicitors work)
- in terms of that posting, N translated that herself and had a professional
translation made( dates 26th Nov 2010, and that date was after the
Standards Commitee considered the compliant
- The review officer said the committee shouldve considered that
translation, but that was a mistake of fact (??)
- in this case the matter was referred back to the standards
commitee and Z made an application for judicial review of that decision
- prima facie, Z had been mucked around

(Lec3)

Council of legal education

The cause for the compulsory nature of this course

comprehensive grasp on living life in accordance with rules

to cover everything required to understand it

1) Theories of professionalism - lawyers and conveyencers Act

2) Law society
3) Competence - a key factor under the lawyers and conveyancers act and continuing professional development

a lack of competence will lead to complaints and discipline

Structure of discipline of various bodies existing relative

to the practition

 Must start off with procedure in office

- then law society complaints service + early resolution service
- standards committee via formal complaint
Right of review by Legal complaints review officer, but they can refer it to the
disciplinary tribunal

Right of
Review
HC
CA

Only by Judicial Review

(SC)

NB- the tribunal is administered, not by the law society but by the
Ministry of Justice, so it is INDEPENDANT of the Law society

think of the market control theory and criticism that what lawyers say
is self-serving - and this is trying to combat this view - dealt with
separately within ministry of justice
It's there to assess charges agaisnt the legal profession

The Tribunal
Comprised of: Chair, dept. Chair, 12 lay members (significant in terms of
consumer protection), 14 lawyer members, 3 conveyancing members

the chair, dept. chair and lay people, are appointed by Governor Gen, by ministry
of justice
Lawyers from appointed by NZ law society
Conveyancers - NZ conveyancers ...

The chair sits, and there must be not less than 4 others, and those others
must make up an even number, with an uneven number overall - half must
be lay members, half lawyers

Lawyers for lawyers

S 227 of Act - where a lawyer has been struck off they can be
reinstated

reinstatement is one of the functions of the committee

S240 - Can place restrictions on publication S241 - IMPORTANT - a practitioner can be charged with
1) misconduct
2) conduct unsatisfactory - not so gross, wilful or reckless as to amount to
misconduct - something less than misconduct
3) A practitioner can be charged with being guilty of negligence or
incompetence in a professional capacity, where it has been of such a
degree or so frequent as to reflect on their fitness to practice, or
such as to bring the profession into disrepute
4) Practitioner can be charged where they have been convicted of an
offence punishable by imprisonment, then if the conviction reflects on that
persons fitness to practice, or tends to bring the profession into disrepute,
then that person can be convicted by the tribunal
-> Charges to be brought against practitioners in disciplinary tribunal

s241 the standard of proof = balance of probabilities

S242 - can make any order a standards committee complaint

+ can strike off a practitioner from their role for up to 6 months, prohibit
private practice whether in partnership or on their own, prohibit
employment of a practitioner by a law firm
(30 K ?)
- It cannot order someone stuck off the role unless it shows that
the person is a FIT AND PROPER PERSON to be a law practitioner s244

If the tribunal is going to make an order suspending or striking off a

practitioner, 5 must vote in favour and 5 must make up a majority

- It is possible for a practitioner to consent to that ie. if you are in a

hopeless position and say you will consent at the outset, it may prove
helpful, than to endure the laying out of everything
s245 - an interim suspension is also possible -

s253 - Right of appeal to HC

- s253 - any order or decision of DC, and appeal may be made by a
practitioner or person to whom the order or decision relates, if a
standards committee has brought the matter before the tribunal then
the standards committee has right of appeal
- if the review officer brings it, they have a right of appeal as well
- Appeals are by re-hearing, may confirm, reverse or modify the
decision appealed against
E. G. HALL V WELLINGTON STANDARDS COMMITTEE NO 2
- Alleged H acted in situation where she had conflict of interest
- H's response to that charge was that there was no case to answer - H argued on the basis that the evidence DID NOT ESTABLISH A PRIMA
FACIE CASE AGAINST HER, Therefore no case to answer
- Disciplinary tribunal had to consider argument - held the test to be
applied in this situation was the same one that would be used on an
application to strike out a civil proceeding where the grounds alleged were
that the statement of claim did NOT disclose a reasonably arguable cause
of action
- The test to apply is the same test as when someone says an statement
of claim should be struck out, because the statement doesn't reveal a
reasonably arguable cause of action
- DT found against H
H appealed to HC, on grounds that the DT had applied the wrong
test - the test of striking out a claim on basis of no arguable claim
was wrong
-

HC held it had misdirected itself - and that what the

Disciplinary Tribunal had considered was whether the charge was
one which was a recognised form of misconduct
It says the tribunal was considering whether what she did
amounted to recognisable misconduct - which was NOT what
H was arguing
- it found the tribunal failed to weigh up all the evidence to
determine whether there was sufficient evidence to establish the
requisite charge
They jumped to misconduct which was not what she was arguing
HC set aside the disciplinary tribunal's decision
HC REFERRED THE MATTER BACK TO THE TRIBUNAL to apply
the right test on rehearing and that it had to be constituted of
DIFFERENT MEMBERS than the first hearing's panel

s254 Further right of Appeal to Court of Appeal

- any party to an appeal under S253(1) disatisfied with any determination
of HC, has erroneous in point of law, may leave of HC, or appeal to CA with
leave 254 (2) - must have regard to whether the question of law, or for
any other reason ought to be submitted to CA for decision -

is it by reason of gen public importance or for any other reason go

to CA
decision of CA is final, and no other appeal to SC
It is possible for disciplinary matters to go to SC
e.g. Barry Hart case - went to CA on judicial review - that covers the
whole question of the structure of dealing with disciplinary matters
formally -

Jurisdiction of the courts themselves, relevant to disciplinary

action
- pre 1935 - sanctions for serious breaches of professional standards by
practitioners were controlled by the courts - not structure that we have
now
-

CA had right to strike a practitioner off the role, or suspend the

practitioner

- 1935 - the first committee was constituted under the law practitioners
act - that committee under the act had rights to strike off a
practitioner, a practitioner and other sanctions - that
NOTWITHSTANDING it was statutory, the courts maintained
jurisdiction to strike off a practitioner
- Rights of appeal to HC and CA from Disciplinary Tribunal - but
apart from that, under the Lawyers and conveyancers act, there is
jurisdiction, expressly conferring powers on superior courts to strike off

s266 - tells us a barrister and solicitors name may be struck off

the roll for reasonable cause, by the HC
s267 - when struck off, the HC can dismiss the application, if the
court is in 2 minds about it, the HC must reserve the case for the
CA

268 (2) the HC retains full power on reasonable cause being

shown, to suspend any barrister-sole or barrister/solicitor from
practice
This is usually referred to as INHERENT JURISIDITION - the HC
retains a power over barristers and barristers/solicitors
On admission you become an officer of the court - and it's that that
gives the courts that inherent power - if you misbehave yourself,
it's being part of that team that they can impose the penalty

268(1) - no other sections than 266, and 267 affect the

jurisdiction

those provisions confer power on HC and CA, but the inherent

jurisdiction remains apart from these anyway
nothing in the Act limits the jurisdiction of the HC - so the inherent
jurisdiction is preserved in the statute
confers powers on HC and CA anyway

WHAT IS THE SORT OF CONDUCT THAT WILL GIVE RISE TO DISCIPLINE?

2 kinds of conduct that the lawyers and conveyancers conduct
a) unsatisfactory conduct
b) misconduct
-

need to put these into a context - the context is one of moral

philosophy
Moral Philosophy by DD Raphael
Ethics in Law 3rd Ed Ysaiah Ross

Ethics and Morality are closely related

commonly we refer to ethical judgements or principles where we
may have referred to moral judgements or principles
Ethics refers to the field of inquiry that has morality as it's subject
matter = moral philosophy
About 'how we should live' - what we should aim at - if we choose
happiness, is it our
own happiness or the happiness that ..
is it right to be dishonest at a good cause

FUNDAMENTAL ISSUES OF PRACTICAL DECISION MAKING

the nature of ultimate value

the standard by which human values can be judged right or wrong
normative theories and applying these to practical moral problems
(normative =
how we ought to behave, and applying those principles to practical
moral problems)

Legal ethics - we are concerned with 'applied ethics' - how ethical

conduct applies to the practice of law

Ethics is concerned with right and wrong action and we need to

embark on looking at various theories of ethics
Major problem is coming up with a rationally defensible
theory of right and wrong action - if you do this, then the
theory will present us with theories of how to conduct ourselves but there is no one such theory -

- Moral philosophy is dominated by 4 basic views or

theories of right/wrong action
Utilitarianisim
Kantianism
Intuitionism (common sense)
.....

UTILITARIANISM
Jeremy Bentham 1748- 1832
-

concerned with what the law might be

His body and will is preserved there best known teleological theory -

Teleology is the doctrine of final causes

-

tells us that the consequences or results of a particular action

dictate it's rightness' and they should therefore govern the
outcome of any ethical dilemma - the ends justify the means -

TELEOLOGY /CONSEQUENTIALISM

what the utilitarians tell us is that the action that engenders the greatest
amount of favourable consequences (aka that which maximizes utility)
should govern the outcome of any ethical dilemma
Issue - it justifies action which may be unethical, by the consequences
that flow from that action which are themselves positive -

This tells us that right action should be understood in terms

of human good and wellbeing - 'the greatest happiness of the
greatest number of people'
good can encompass knowledge, autonomy, honour, virtue
Raises the question of 'what is good?' + issue of ends justifying
means

Categories
Act utilitarianism - requires you to choose the behaviour in a particular
situation that leads to the greatest good for the greatest number
- Sub category which is unique to lawyers - DECISION UTILITARIANISM

the court of law deciding the question of how the public welfare in a
case will be affect for the good, over and above what is best for the
parties to the case - like public policy rationale

KANTIANISM - FROM THE THINKING OF IMMANUEL KANT

- Central to Autonomy - Kantianism belongs within the thinking of deontology - the science
of duty/moral obligation
MORAL OBLIGATION

to act morally is to act according to what you accept as truths without taking into consideration the effects produced by the action
the opposite of utilitarianism, you don't judge the rightness by
consequences

C ATEGORICAL IMPERATIVE -

if under Deontology, if you accept a duty of truthfulness, you must

always tell the truth and never lie o writers talking about this use example of a murder who asks
about the location of someone they are going to go and kill if you have categorical imperative of always telling the truth,
on the face of it, you are ignoring ... a major problem with
absolute truth telling

o
o
o

there are situations where it can be morally appropriate to

tell a lie - accords with Judaism and Christianity
Express exception in buddism
A sense of rightness and ignoring consequences

Central to Kant's thinking was Autonomy = self + law (greek)

-

Autonomy understands the moral imperative as the moral agent's

(individual's) own freely and rationally adopted moral policy
as moral agents, we are all subject to moral law, but on this view,
we then repudiate all personal action which does not accord with
what we want to do - we determine our own course of action where moral law is imposed from the outside - heteronomy (the law
of another)
With Deontology - right action is then independent from its
consequences, the emphasis is on individual autonomy
In legal autonomy => the rights of the individual

Institutionalism
- there can be unified or unifying account of our moral obligations
because they are plural, the only general moral principles this theory will
recognise are prima facie principles
-

e.g. prima facie wrong to harm another, or break a promise

this view sees a multiplicity of morals working
Tim Deer - looks at pluralism in the Casebook

VIRTUE ETHICS
- Virtue ethicists - believe that right and wrong cannot be captured
by independently or basically valid moral rules or principles:
situational sensitivity - it is a matter of situational sensitivity - it is
fundamentally good or admirable inner motives or states
Issue of VE's is proving what is right in a situation/referred to for
guidance without principles

There are problems with all the principles

-

all these theories add to our complexity of understanding what is

right

Issue for ethics as philosophical conduct, is the widespread

disagreement about ethical values, spread amongst different
societies, and then within the society the differences as well
Notwithstanding Ethicists want to uncover the ultimate truth

Ethics pleads to certain metaphysical issues

- e.g. freewill, and the human capacity for morality- Freewill - if humans lack freewill, it has been traditionally argued that
they cannot be held accountable for their actions
- Human capacity for morality - most moral codes and philosophers
require that people put aside self-interest in the name of honour, fairness,
decency, loyalty or the general good
- It raises the question of how much morality, validly or fairly can demand
of people, how much it can actually demand of people

UTILITARIANISM
-

you do the best that you can for humanity as a whole

if you are in a position for suffering and hunger of others, then you
are morally obliged to do so - even if it means giving up your life
plans
so the standard for morality is very demanding, almost too
demanding in a sense
Insisting that only moral conscientiousness is a proper
moral motive- so if you give to someone out of friendship, or liking
someone, lacks moral worth, because it wasn't done out of a sense
of duty In legal practice, it is for you to determine what is the right//wrong
decision

Law Society - rules and conduct of client care for

lawyers
RULE

3 OF LAWYERS AND CONVEYANCERS ACT 2008

rules of conduct are mandatory

but it is not merely a question of learning the rules, but interpreting
and applying them in infinite situations that arise

Guidelines assisting in this task - medical profession

Autonomy - "personal rule of the self that is free from both

controlling interefere and from personal limitations that prevent
meaningful choice'
-

this tells us that autonomous individuals act INTENTIONALLY,

with understanding and free from controlling influences applies as readily in law as it does in medicine -

Respect for autonomy is a guideline of clinical ethics (med

degree)
-

not a question of allowing patients to make their own decisions, but

physicians have a right to make the decisions necessary for
allowing the patient to make an autonomous choice
respect for autonomy includes individuals right for self
determination
They come to drs for guidance in making the choice
Patients do not themselves have the necessary background for
making the right choice, so the physicians must provide the
background,
they must address the emotions and fears of the patients, they
must council patients when their decisions are disrupted
extends to confidentiality seeking consent to treatment - maintaining privacy

In terms of promoting autonomous behaviour - they must provide all

options, and explain risks so the patient can understand, and present
procedures prior to surgery

LAWYERS JOB IS ADVISORY

Need to advise the client of the pros and cons of each action - what
is negative - this all leads to informed consent
Informed consent - consent to an act after being given
formal adequate disclosure
o you must make sure that the client is aware of everything all the pros and cons likely to be a factor in decision
o potentially problematic based on who you are dealing with

- Autonomy - the approach where the dr or lawyer knows best

The lawyer control model - where the lawyer gets on with it 'they
know best' - NOT GOOD, the client becomes separated from
procedures
Med example - the dr telling the patient the truth about their
decision may be detrimental to the patients health in itself - it
doesn't assist their autonomy as it will be info they can use in their
decisions, but if in the end, improving and maintaining health is
given precedence in society then you may have to veto other
concerns - - - - - Relativist view - different moral codes which will
apply

UNDER LAWYERS AND CONVEYANCERS ACT, MISCONDUCT AND

UNSATISFACTORY CONDUCT

under it's predecessor 1982 Lawyers and Conveyencers Act - the

terminology was different
Misconduct was there as well as 'conduct unbecoming a
barrister and solicitor' conduct outside the practice of a lawyer (private situations) - but
behaviour which
reflected on the lawyers ability to practice law and the
appropriateness to carry on as
a lawyer

- S7 - Lawyers and
Conveyancers Act
misconduct (broad
categories)

is conduct when providing regulated services and conduct first that

would reasonably be regarded by lawyers of good standing as
1) disgraceful or dishonourable or
2) consists of a wilful or reckless contravention of the LC Act or
rules, regulations made undder it, or any other act relating to the
provision of regulated services
3) misconduct is found where you have a wilful or reckless
failure to comply with a condition or restriction of the
subject 4) Grossly excessive costs for legal work amounts to
misconduct
5) includes conduct unconnected with the provision of
regulated services, but which would justify a finding that a
lawyer is not a fit and proper person or otherwise unsuited to
engage as practice as a lawyer
6) If you knowingly employ a knowingly struck off a
practitioner of the law society, that is misconduct, And
7) Sharing practice with a non-lawyer = misconduct

- applies to employees

It's misconduct if an employee offers services outside of that firm you can't go and practice on your own account
People who are not practitioners but working in law firms can also
be guilty of misconduct

What does this actually mean?

- misconduct is a common law concept, but its a common law
concept which has been adopted under the layers and conveyancers act conduct which falls below the standard expected of a practitioner in its
most serious form

7.1(a)(1) - refers to conduct that would reasonably be

regarded by lawyers of good standing as disgraceful or
dishonourable -

this relies on the standards of other lawyers of conduct

lawyers themselves set the standard of conduct in their discipline

ONE PURPOSE OF THE ACT IS TO AFFECT CONSUMER PROTECTION

Members of a disciplinary committee are the best to assess
disciplinary conduct (Re a solicitor (1956))
MISCONDUCT=

equivalent of conduct unbecoming Misconduct is a broad term - and it must be defined relative to the
circumstances of the individual case
it's conduct which reflects on the professional character of the
practitioner - that person's adherence to proper standards
-

e.g. where a practitioner is not trustworthy but failure to conduct proper is

misconduct and keeping of accounts adequately (??)
so it is not limited to dishonesty - but that is integral

(Lec 7) Complaints and Discipline

Ended last week on s7 Laywers and Conveyencers Act - a significant

section
becasue it sets out broad categories of misconduct

READ ORLOV NEXT TIME !

Page 33Ethics Lec 8

- see rory's notes misconduct s7

Page 34Ethics lec 9

- seize goods -

Exam:
- divide the paper up to answer 3 questions - aim to cover the whole
course
- know enough for alarm bells to go up if a problem situation arises
- Ethicalproblems arise internally,
- Subtle things - Aim of the course is to put everybody in the position for bells to go off to try and
spread the entire paper across everything we've done

Smith question ! - Richard set it last semester - a compulsory question

4 parts to it - Smith practicing on own account - series of things - 35 marks all up - haven't allotted them to each section

aim to put even marks for coverage -

a) opportunity to discuss cab rank rule, to Marie Article, theHart Case,

directly
impoint with overcharging - s7(1)(a)(iv), in reMcConnell - a bill so
disproportionate
amounted to ...

b) opportunity to discuss unsatisfctory conduct - to be contrasted with A governed

by rule 11.3 - penalties s166(1), Re Bruges

c) misconduct under s7(1)(b)(ii) - unconnected with provision of legal

services - law society NSW cases etc.

- s242 - and point that it is up to the law society to act of its own notion

d) there is question of the court - cases:Orlov test situation, Gao case -

Q2 - 3 distinct matters
- a) market control theory b) Kantian Moral philosophy c)

CLOSED BOOK

Over break - read client care rules Page 35