The Legal The Legal ProfessionProfession

Topic 4Topic 4

Australian lawyerAustralian lawyer

Section 5 of the Section 5 of the LEGAL PROFESSIONLEGAL PROFESSION ACT 2004ACT 2004 (NSW) tells us that: (NSW) tells us that:

““an "Australian lawyer" is a an "Australian lawyer" is a person who is admitted to the person who is admitted to the legal profession under this Act or legal profession under this Act or a corresponding law,”a corresponding law,”

Development of professionDevelopment of profession

1313thth Century England – pleaders and Century England – pleaders and attorneysattorneys

1717thth Century – distinction between Century – distinction between pleaders and attorneyspleaders and attorneys Pleaders members of Inns of CourtPleaders members of Inns of Court Profession came to be divided into Profession came to be divided into

solicitors (who grew in influence) solicitors (who grew in influence) and barristers (who alone had the and barristers (who alone had the right of appearance).right of appearance).

Profession in AustraliaProfession in Australia

Historical, formal division between Historical, formal division between barristers and solicitors removedbarristers and solicitors removed

Common admissionCommon admission BUT, functional separationBUT, functional separation Separate Bar maintained by Separate Bar maintained by

agreement in all States.agreement in all States.

Legal Profession Act 2004Legal Profession Act 2004 (NSW) (NSW)

Governs the professionGoverns the profession Uniform legislation to move towards Uniform legislation to move towards

a national profession with national a national profession with national admission and national right to admission and national right to practicepractice

Maintains common admission but Maintains common admission but functional separation of earlier functional separation of earlier Legal Legal Profession Reform Act 1993 Profession Reform Act 1993 (NSW)(NSW)

Role of professional societiesRole of professional societies

LEGAL PROFESSION ACT 2004LEGAL PROFESSION ACT 2004Practice as a barristerPractice as a barrister 81 Practice as a barrister 81 Practice as a barrister (1) Practice as a barrister is subject to the (1) Practice as a barrister is subject to the

barristers rules. barristers rules. Practice as a solicitorPractice as a solicitor 82 Practice as a solicitor 82 Practice as a solicitor (1) Practice as a solicitor is subject to the (1) Practice as a solicitor is subject to the

solicitors rules. solicitors rules.

Cab rank ruleCab rank rule

85. A barrister must accept a brief from a solicitor to 85. A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister appear before a court in a field in which the barrister practises or professes to practise if:practises or professes to practise if:

(a) the brief is within the barrister's capacity, skill and (a) the brief is within the barrister's capacity, skill and experience;experience;

(b) the barrister would be available to work as a barrister (b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to prepare, and the barrister is not already committed to other professional or personal engagements which to other professional or personal engagements which may, as a real possibility, prevent the barrister from may, as a real possibility, prevent the barrister from being able to advance a client's interests to the best of being able to advance a client's interests to the best of the barrister's skill and diligence;the barrister's skill and diligence;

(c) the fee offered on the brief is acceptable to the (c) the fee offered on the brief is acceptable to the barrister; andbarrister; and

(d) the barrister is not obliged or permitted to refuse the (d) the barrister is not obliged or permitted to refuse the brief under Rules 87,90 or 91.brief under Rules 87,90 or 91.

Law Society RulesLaw Society RulesStatement of Principle for Rules 1-16Statement of Principle for Rules 1-16Practitioners should serve their clients Practitioners should serve their clients competently and diligently. They should be competently and diligently. They should be acutely aware of the fiduciary nature of the acutely aware of the fiduciary nature of the relationship with their clients, and always deal relationship with their clients, and always deal with their clients fairly, free of the influence of with their clients fairly, free of the influence of any interest which may conflict with a client’s any interest which may conflict with a client’s best interests. Practitioners should maintain the best interests. Practitioners should maintain the confidentiality of their clients’ affairs, but give confidentiality of their clients’ affairs, but give their clients the benefit of all information their clients the benefit of all information relevant to their clients’ affairs of which they relevant to their clients’ affairs of which they have knowledge. Practitioners should not, in the have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.justice or is otherwise in breach of the law.

Duties to the CourtDuties to the Court

Statement of Principle for Rules 17-24Statement of Principle for Rules 17-24Practitioners, in all their dealings with the Practitioners, in all their dealings with the courts, whether those dealings involve the courts, whether those dealings involve the obtaining and presentation of evidence, the obtaining and presentation of evidence, the preparation and filing of documents, preparation and filing of documents, instructing an advocate or appearing as an instructing an advocate or appearing as an advocate, should act with competence, advocate, should act with competence, honesty and candour. Practitioners should honesty and candour. Practitioners should be frank in their responses and disclosures be frank in their responses and disclosures to the Court, and diligent in their to the Court, and diligent in their observance of undertakings which they give observance of undertakings which they give to the Court or their opponentsto the Court or their opponents..

Relations with other Relations with other practitionerspractitioners

Statement of Principle for Rules 25 -31AStatement of Principle for Rules 25 -31A

In all of their dealings with other In all of their dealings with other practitioners, practitioners should act with practitioners, practitioners should act with honesty, fairness and courtesy, and adhere honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to faithfully to their undertakings, in order to transact lawfully and competently the transact lawfully and competently the business which they undertake for their business which they undertake for their clients in a manner that is consistent with clients in a manner that is consistent with the public interest.the public interest.

Duties of a legal professionalDuties of a legal professional

Members of the legal profession owe Members of the legal profession owe duties: duties:

to the law to the law to the courts to the courts to their clients to their clients to their professionto their profession to each otherto each other

Nature of a professionalNature of a professional

““An important basic thesis is that as true An important basic thesis is that as true professionals, we embrace unique ethical professionals, we embrace unique ethical responsibilities not because they are responsibilities not because they are prescribed, or because doing so opens a prescribed, or because doing so opens a gateway to financial return, or because if gateway to financial return, or because if discovered in breach we may be discovered in breach we may be disciplined. We embrace them, I certainly disciplined. We embrace them, I certainly trust, because of a basic sense of refined trust, because of a basic sense of refined decency and fairness; and albeit on a lesser decency and fairness; and albeit on a lesser plane, because we acknowledge them as a plane, because we acknowledge them as a reasonable quid pro quo for the substantial reasonable quid pro quo for the substantial privileges admission to this rank accords.”privileges admission to this rank accords.”De Jersey CJ; Bar Practice Course final lecture “The ‘fit and proper’ criterion: indefinable but fundamental” 18De Jersey CJ; Bar Practice Course final lecture “The ‘fit and proper’ criterion: indefinable but fundamental” 18thth February February 20052005

De Jersey CJ:De Jersey CJ:

““But let there be no doubt. A bad But let there be no doubt. A bad person cannot be a good barrister person cannot be a good barrister [or solicitor].[or solicitor].** Those “fit” for this Those “fit” for this role, are imbued with ordinary role, are imbued with ordinary human decency and fairness, and human decency and fairness, and an acute perception and an acute perception and acceptance of the unique acceptance of the unique responsibilities which accompany responsibilities which accompany practice…”practice…”

* * words addedwords added

Two elements to admission:Two elements to admission:

s24: s24: eligibilityeligibility – which refers to – which refers to academic qualifications and academic qualifications and completion of practical legal trainingcompletion of practical legal training

s25: s25: suitabilitysuitability – which refers to – which refers to whether or not a candidate is a ‘fit whether or not a candidate is a ‘fit and proper person’, and includes (s9) and proper person’, and includes (s9) a consideration of whether or not a a consideration of whether or not a person is of good fame and person is of good fame and character. character.

Sir Edward Coke:Sir Edward Coke:

““honesty, knowledge and ability; honesty, knowledge and ability; honesty to execute it truly, without honesty to execute it truly, without malice, affection, or partiality; malice, affection, or partiality; knowledge to know what he ought knowledge to know what he ought duly to do; and ability, as well in duly to do; and ability, as well in estate as in body, that he may estate as in body, that he may intend and execute his office, when intend and execute his office, when need is, diligently, and not for need is, diligently, and not for impotency or probity neglected.”impotency or probity neglected.”

Spigelman CJ in Spigelman CJ in New South WalesNew South Wales Bar AssociationBar Association v v CumminsCummins

““Even in a period where other values have become Even in a period where other values have become of significance to the regulation of the legal of significance to the regulation of the legal profession – I refer particularly to the application profession – I refer particularly to the application of competition principles and professional of competition principles and professional regulation – the traditional professional paradigm regulation – the traditional professional paradigm still has a vitality of abiding significance. Neither still has a vitality of abiding significance. Neither the relationship of trust between a legal the relationship of trust between a legal practitioner on the one hand, and his or her practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other clients, colleagues and the judiciary on the other hand, nor public confidence in the profession, can hand, nor public confidence in the profession, can be established or maintained, without be established or maintained, without professional regulation and enforcement. …Clients professional regulation and enforcement. …Clients must feel secure in confiding their secrets and must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend Fellow practitioners must be able to depend implicitly on the word and the behaviour of their implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in colleagues. The judiciary must have confidence in those appearing before the courts. The public those appearing before the courts. The public must have confidence in the legal profession by must have confidence in the legal profession by reason of the central role the profession plays in reason of the central role the profession plays in the administration of justice”the administration of justice”

ClyneClyne v v The New South Wales Bar The New South Wales Bar AssociationAssociation

““A barrister does not lie to a judge A barrister does not lie to a judge who relies on him for information. He who relies on him for information. He does not deliberately misrepresent the does not deliberately misrepresent the law to an inferior court or to a lay law to an inferior court or to a lay tribunal…he does not, in cross-tribunal…he does not, in cross-examination as to credit, ask a witness examination as to credit, ask a witness if he has not been guilty of some evil if he has not been guilty of some evil conduct unless he has reliable conduct unless he has reliable information to warrant the suggestion information to warrant the suggestion which the question conveys.”which the question conveys.”

Mason P in Mason P in New South Wales BarNew South Wales Bar AssociationAssociation v v HammanHamman

““I emphatically dispute the proposition I emphatically dispute the proposition that defrauding ‘the Revenue’ for personal that defrauding ‘the Revenue’ for personal gain is of lesser seriousness than gain is of lesser seriousness than defrauding a client, a member of the defrauding a client, a member of the public or a corporation. The demonstrated public or a corporation. The demonstrated unfitness to be trusted in serious matters unfitness to be trusted in serious matters is identical. …’The Revenue’ may not have is identical. …’The Revenue’ may not have a human face, but neither does a a human face, but neither does a corporation. But behind each (in the final corporation. But behind each (in the final analysis) are human faces who are analysis) are human faces who are ultimately worse off in consequence of ultimately worse off in consequence of fraud. Dishonest non disclosure of income fraud. Dishonest non disclosure of income also increases the burden on taxpayers also increases the burden on taxpayers generally because rates of tax inevitably generally because rates of tax inevitably reflect effective collection levels.”reflect effective collection levels.”

PlagiarismPlagiarism Re Legal Profession Act; re OG, a Re Legal Profession Act; re OG, a

lawyer lawyer [2007] VSC 520[2007] VSC 520 Re LiveriRe Liveri [2006] QCA 152 [2006] QCA 152

““it should go without saying that an it should go without saying that an applicant seeking admission to the applicant seeking admission to the legal profession should not have to legal profession should not have to be warned about the be warned about the unacceptability of cheating in the unacceptability of cheating in the course of securing the prerequisite course of securing the prerequisite academic qualification.”academic qualification.”

Re Humzy-Hancock Re Humzy-Hancock [2007] QSC 34[2007] QSC 34

American Bar AssociationAmerican Bar AssociationThe continued existence of a free and democratic society depends The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government. and the capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational unrestrained power, respect for law is destroyed, and rational self-government is impossible.self-government is impossible.Lawyers, as guardians of the law, play a vital role in the Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.maintain the highest standards of ethical conduct.In fulfilling professional responsibilities, a lawyer necessarily In fulfilling professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many assumes various roles that require the performance of many difficult tasks. Not every situation which a lawyer may encounter difficult tasks. Not every situation which a lawyer may encounter can be foreseen, but fundamental ethical principles are always can be foreseen, but fundamental ethical principles are always present as guidelines. Within the framework of these principles, a present as guidelines. Within the framework of these principles, a lawyer must, with courage and foresight, be able and ready to lawyer must, with courage and foresight, be able and ready to shape the body of the law to the ever-changing relationships of shape the body of the law to the ever-changing relationships of society.society.But in the last analysis it is the desire for the respect and But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.its greatness and its strength, which permit of no compromise.

JudiciaryJudiciary

Adversarial systemAdversarial system Judge as neutral umpireJudge as neutral umpire Parties control issues through Parties control issues through

pleadingspleadings Judge does not decide the Judge does not decide the

truth – but the rights as truth – but the rights as between the partiesbetween the parties

Judicial independenceJudicial independence

Act of Settlement 1701Act of Settlement 1701 Security of tenureSecurity of tenure

AppointmentAppointment RemovalRemoval

Security of incomeSecurity of income Security of ‘reputation’ – public Security of ‘reputation’ – public

confidence maintained by restraint of confidence maintained by restraint of criticismcriticism

s72 Constitutions72 Constitution

72.72. The Justices of the High Court and of the other The Justices of the High Court and of the other courts created by the Parliament--courts created by the Parliament--(i.)(i.) Shall be appointed by the Governor-General in Shall be appointed by the Governor-General in Council:Council:(ii.)(ii.) Shall not be removed except by the Governor- Shall not be removed except by the Governor-General in Council, on an address from both Houses of General in Council, on an address from both Houses of the Parliament in the same session, praying for such the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or removal on the ground of proved misbehaviour or incapacity:incapacity:(iii.)(iii.) Shall receive such remuneration as the Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be Parliament may fix; but the remuneration shall not be diminished during their continuance in office. diminished during their continuance in office. The appointment of a Justice of the High Court shall be The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that a Justice of the High Court if he has attained that age… age… 

  

HIGH COURT OF AUSTRALIAHIGH COURT OF AUSTRALIA ACT 1979ACT 1979 - s 6 - s 6

Consultation with State Attorneys-Consultation with State Attorneys-General on appointment of Justices General on appointment of Justices

Where there is a vacancy in an office of Where there is a vacancy in an office of Justice, the Attorney‑ General shall, before Justice, the Attorney‑ General shall, before an appointment is made to the vacant an appointment is made to the vacant office, consult with the Attorneys‑General office, consult with the Attorneys‑General of the States in relation to the of the States in relation to the appointment. appointment.

Wisconsin Supreme CourtWisconsin Supreme Court

"Nature has tempered woman as "Nature has tempered woman as little for the juridical conflicts of little for the juridical conflicts of the court room, as for the the court room, as for the physical conflicts of the battle physical conflicts of the battle field. Womanhood is moulded for field. Womanhood is moulded for gentler and better things."gentler and better things."

Difficulties with s72:Difficulties with s72:

Involvement of political Involvement of political parties in removal processparties in removal process

Definition of ‘misbehaviour Definition of ‘misbehaviour and incapacity’and incapacity’ Two viewsTwo views

Sir George LushSir George Lush

"[T]he word 'misbehaviour' in s 72 is used "[T]he word 'misbehaviour' in s 72 is used in its ordinary meaning, and not in the in its ordinary meaning, and not in the restricted sense of 'misconduct in office'. It restricted sense of 'misconduct in office'. It is not confined, either, to conduct of a is not confined, either, to conduct of a criminal nature…If their [judges'] conduct, criminal nature…If their [judges'] conduct, even in matters remote from their work, is even in matters remote from their work, is such that it would be judged by the such that it would be judged by the standards of the time to throw doubt on standards of the time to throw doubt on their own suitability to continue in office, their own suitability to continue in office, or to undermine their authority as judges or to undermine their authority as judges or the standing of their courts, it may be or the standing of their courts, it may be appropriate to remove them…[I]t is for appropriate to remove them…[I]t is for Parliament to decide what is misbehaviour, Parliament to decide what is misbehaviour, a decision which will fall to be made in the a decision which will fall to be made in the light of contemporary values."light of contemporary values."

Andrew WellsAndrew Wells

"[T]he word 'misbehaviour' must be "[T]he word 'misbehaviour' must be held to extend to conduct of the held to extend to conduct of the judge in or beyond the execution of judge in or beyond the execution of his judicial office, that represents his judicial office, that represents so serious a departure from so serious a departure from standards of proper behaviour by standards of proper behaviour by such a judge that it must be found such a judge that it must be found to have destroyed public to have destroyed public confidence that he will continue to confidence that he will continue to do his duty under and pursuant to do his duty under and pursuant to the Constitution."the Constitution."

CONSTITUTION ACT 1902CONSTITUTION ACT 1902 (NSW)- SECT 53(NSW)- SECT 53

53 Removal from judicial office 53 Removal from judicial office (1) No holder of a judicial office can be removed from the (1) No holder of a judicial office can be removed from the

office, except as provided by this Part. office, except as provided by this Part. (2) The holder of a judicial office can be removed from the (2) The holder of a judicial office can be removed from the

office by the Governor, on an address from both Houses office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. the ground of proved misbehaviour or incapacity.

(3) Legislation may lay down additional procedures and (3) Legislation may lay down additional procedures and requirements to be complied with before a judicial requirements to be complied with before a judicial officer may be removed from office. officer may be removed from office.

(4) This section extends to term appointments to a (4) This section extends to term appointments to a judicial office, but does not apply to the holder of the judicial office, but does not apply to the holder of the office at the expiry of such a term. office at the expiry of such a term.

(5) This section extends to acting appointments to a (5) This section extends to acting appointments to a judicial office, whether made with or without a specific judicial office, whether made with or without a specific term. term.

JUDICIAL OFFICERS ACT 1986 - JUDICIAL OFFICERS ACT 1986 - SECT 41 SECT 41

Removal of judicial officersRemoval of judicial officers 41 Removal of judicial officers 41 Removal of judicial officers (1) A judicial officer may not be removed from office (1) A judicial officer may not be removed from office

in the absence of a report of the Conduct Division in the absence of a report of the Conduct Division to the Governor under this Act that sets out the to the Governor under this Act that sets out the Division’s opinion that the matters referred to in Division’s opinion that the matters referred to in the report could justify parliamentary the report could justify parliamentary consideration of the removal of the judicial officer consideration of the removal of the judicial officer on the ground of proved misbehaviour or on the ground of proved misbehaviour or incapacity. incapacity.

(2) The provisions of this section are additional to (2) The provisions of this section are additional to those of section 53 of the those of section 53 of the Constitution Act 1902 Constitution Act 1902 . .

The Judicial Commission of NSWThe Judicial Commission of NSW

assists the courts to achieve assists the courts to achieve consistency in sentencingconsistency in sentencing

organises and supervises an organises and supervises an appropriate scheme of continuing appropriate scheme of continuing education and training of judicial education and training of judicial officersofficers

examines complaints against judicial examines complaints against judicial officersofficers

gives advice to the Attorney General gives advice to the Attorney General on matters concerning judicial officers.on matters concerning judicial officers.

Examples of removal from officeExamples of removal from office

Bruce JBruce J Vasta JVasta J

Other attacks on judicial Other attacks on judicial independenceindependence

Criticism of judges as individualsCriticism of judges as individuals Denigration to corrode authority of Denigration to corrode authority of

courtcourt Abolition of courtsAbolition of courts Appointment of judicial officersAppointment of judicial officers Acting judges/part time judgesActing judges/part time judges FinancesFinances Transferral of powers to tribunalsTransferral of powers to tribunals