Legal Ethics Notes - Leila

8/10/2019 Legal Ethics Notes - Leila

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Legal Ethics Summary Notes

Key Statute Lawyers and Conveyencers Act

Origins of Legal EthicsRENSHAWANEWARS

Solicitors Guarantee Fund required a compulsory contribution,

like insurance, from all NZ arristers and Solicitors to co!er any

losses clients incurred from legal ser!ices" # Solicitor could not

make good a clients loss, the fund did, and if there $as a

shortfall in co!ering a claim la$yers could be further le!ied for

it"

%&&' ( )ensha$ and Ed$ards took client*s money out of thetrust fund and bet it at the +#, amounting to - .illion stolen"

/nder the fund #ll la$yers $ere le!ied a further 0%-1 to co!er

)ensha$ and Ed$ards unethical dealings

#s a result the la$ $as amended putting a cap of 021 for le!ies

in any one year and remo!ed in!esting and lending solicitors

from it

N! LAWSOC"E#$RE%OR#

ecause of )ensha$ and Ed$ard*s case, the NZ La$ Society

commissioned the 3Education and +raining in Legal Ethics and

4rofessional )esponsibility 3 )eport, by 5otter and )oper

)eport*s thesis legal professions $ere facing a crisis of con6dence

and thus should introduce a Legal Ethics curriculum into La$

Schools

#lthough Legal ethics is not compulsory for a la$ degree, it is no$

compulsory in order to be admitted as a barrister or solicitor7SS/ES8 one cannot be taught to be 3ethical*

9ne cannot be taught to be ethical

+im :are a legal ethics course $ont stop one stealing trust

accounts )ensha$ and Ed$ards $ere merely crooks, notphilosophical or ethically interesting

)ules problematic, can*t regulate beha!iour based on rules

because this concept relies on the fact that most people

agree $ith $hat the outcome of the rules;la$ is seeking to

bring about if people ha!e a di


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ALL+ LAWSCHOOLSO''ERA,&AL"'$"N(LE*ELO'LE(ALE#H"CS

C&RR"C&L&-

CO&NC"LO'LE(ALE&CA#"ON. "NAO%#"N(#HERE%OR#-AELE(AL

E&CA#"ONCO-%&LSOR$'RO-/001

2e3ning Legal Ethics4

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

practice of law

2%rofession45

LE(AL%RO'ESS"ON6SOC"OLO("S#S /0789:84S;

%" E>pectation of high educational attainment and relati!ely lengthy

training'" 7t*s use of specialised kno$ledge on behalf of clients

" Self(regulation through a professional association?" 7t*s commitment to public ser!ice

"SS&ES< this theory is =ro>le?atic >ecause it ?eans ta@ing the

=rofession4s clai?s a>out itself at face value

#HEOR"ESO'%RO'ESS"ONAL"S-

'unctionalistor structural

functional

theoryercise* that $ould be seen

as morally troubling outside of their legal role

5riticism of accepting morally impermissible beha!iour due to the3institution* .ac5auley8 questions ho$ the legal role alone can 3transform

the $icked and infamous* into something ust" eing a 3la$yer* shouldn*t

ustify beha!iour $hich $ould be other$ise considered morally abhorrent

Gerald 4ostema8 this conept must be abandoned, to be replaced by a

conception $hich allo$s the la$yer to bring his full moral sensibilities in his

professional role,M O Luban8 E!ery la$yer"" kno$s the tricks of the trade that

can be used to do opponents out of their legal deserts,M the 5ritics claim it

not only permits, but )E@/7)ES la$yers to use these tricks, if it is in their

clients best interests to do so"


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#i? are 6author; argues contrary we should not a>andon the

standard conce=tion this is still the correct way to conceive the

ethical o>ligations of lawyers. >ut reading it alternatively.

distinguishing >etween -ere9Deal and hy=er9Deal advocacy He

argues that others concerns of lawyers leading a an i??oral reality

is reconciled in this alternative reading ?a@ing it ?orally =alata>le

are on the role of lawceptions are limited

+homas Erkshine R & 'aine #s soon as the ad!ocate refuses

to defend they are assuming the role of the udge" 5oncerned

that la$yers $ill become legal gate keepers

%rinci=le of Non9Accounta>ilityuse of %rocess

Not all lawfully o>taina>le advantage is a legal

entitle?ent ( 4rofessional roles of the la$yer are structured by

the function of the institution to $hich those roles belong the

function of the legal institution is to determine and protect legal

entitlements, not to secure e!ery possible la$ful ad!antage

thus

5ollateral ad!antages are something more than the purpose of

legal proceedings unrelated obecti!es to the design of the

court processes

5ould be abuse of process $here a la$yer is required to act

la$fully but unethically as it is arguably not a function of the

la$

( Grainger & Hill the ulterior purpose need not be illegal, it

ust needs to not be the proper goal of the particular

proceedings( (illai$s & S=autD S alleged criminal proceedings, held to

be abuse of process not because 3anything improper about

S*s goal of seeking to ha!e his dismissal re!ie$ed, butbecause the purpose;design of criminal proceedings $as to

determine $hether the accused had committed an o


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WE)) 9 E#H"CS. %RO'ESS"ONALRES%ONS")"L"#$AN#HELAW$ER CHA%#ER

/ 6#HEOR"ESAN%RO'ESS"ONAL"S-; #O REA

Right of ual %ractice

3arrister* a legal practitioner $ho*s $ork in theory is de!oted to ad!ocacy

fundamentally, litigators

S+ arristers and solicitors concerned $ith transactional $ork of the la$

Lawyers and Conveyancers Act

%AR#F AN1

G8 Constitution of New !ealand Law Society

H%=The New Zealand Law Society must have a constitution that provides for

o Ha=a Council of the New Zealand Law Societyand the powers of the Council; and

o Hb=the ways in which persons become members of the New Zealand Law Society; and

o Hc=the ways in which persons cease to be members of the New Zealand Law Society; and

o Hd=the summoning and holding of general meetings of the New Zealand Law Society and

the method of voting at those meetings; and

o He=a president and 1 or more vice-presidents of the Council; and

o Hf=an Executive Boardof the New Zealand Law Society; and

o Hg=the appointment by the Council of an executive director of the New Zealand Law

Society who may be a member of the Council; and

o Hh=the amendment and replacement of the constitution!

H'="n addition to the provisions re#uired by subsection $%& the constitution may contain any other

provisions that are not inconsistent with this 'ct or any other 'ct or any rule of law!

Compare( %))* No +) s H%=Ha=He=, Hk=, H'=
http://www.legislation.govt.nz/act/public/2006/0001/latest/link.aspx?id=DLM391405http://www.legislation.govt.nz/act/public/2006/0001/latest/link.aspx?id=DLM391405


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A re=resentative fro? each >ranch of council fro? around N!

and >ar association

N! Law Society is to >e governed >y a council and a >oard

*oluntary -e?>ershi= regulated >y this as soon as you>eco?e a lawyer

"ntroduction. Regulation and Legal %ractice in New

!ealand

N! Law Society 'unctionsperience( $here students $ere employed employers often found they $erenTt good( enough ( e>pectations ( that once the student 6nished degree they could undertake( legal $ork( O other la$ schools had diased course 9 dierent fro? acade?ic stage

( #bout inter!ie$ing, ad!ising, inter!ie$ing and drafting ( you donTt

learn them in the abstract

Criticis?e @nown to the client fro? the outset

)/LE"? 9F+BE59N:/5+#N:5L7EN+5#)E)/LES

a la$yer in ad!ance must pro!ide a client $ith info in $riting on the

principle aspects of client ser!ice ( including Hd= the procedure in the

la$yers practice made by clients (

.ust ha!e a procedure in the 6rm for handling things

.ust tell them about the complaints ser!ice (requires ad!ice on the

ser!ice and ho$ the society may be contacted to make a complaint

%rovision of infor?ation

"? ' la$yermust in advanceprovide a client with information in writing on the principal aspects of client service

including the following(

Ha=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 $sub-ect to any re#uirement ofregulation &or%-of

the La$yersand 5on!eyancers'ct $Trust 'ccount& 2egulations 1334&(

Hb=the professional indemnity arrangements of the la$yer5s 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! "f a la$yeror a practice is not indemnified this must be disclosed in writing to the client(

Hc=the coverage provided by the La$yers5 6idelity 6und and if the client5s funds are to be held or utilised for purposes

not covered by the La$yers5 6idelity 6und the fact that this is the case(

Hd=the procedures in the la$yer5s practice for the handling of complaints by clients and advice on the existence and

availability of the Law Society5s complaints service and how the Law Society may be contacted in order to ma.e a

complaint!

7F ?ade =ursuant to s 0F6; of the act structure ( comple> not for sake of being comple> but to

deal $ith complaints in an e; standard of service Hunreasonable delays, $rong or incomplete

response, not keeping client inform, failing to communicate;respond=

c; failure to co?=ly$ith order of Standards committee or legal

complaints re!ie$ oPcer Horder or termination under the act ( made

by a standards committee or the legal complaints re!ie$ oPce=

d; fees charged( normally fee to ground a complaint must in!ol!e a

fee of 'k O e>cluding gst

( note that the legal complaints ser!ice, the la$yers complaints

ser!ice doesnTt( gi!e legal ad!ice or second opinions ( it simply deals $ith

complaints ( it deals only $ith complaints

( procedures required under the act


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/; "nternal =rocedure 9 if this doesnPt lead to resolution. then the

client can go to co?=laints service( the society has established an

early resolution ser!ice ( e


24/43

9nce a complaint is recei!ed by the complaints ser!ice it is then recei!ed by a

la$yer*s standards committee (

( lay people O senior la$yers

( must ha!e ' la$yers and % lay person and can ha!e up to W la$yers and

' lay people

( National standards committee as $ell as others around country

( a copy is sent to the la$yer complained about and they can make a

$ritten submission to the standards committee ( then ha!e options

%= inquire into complaint

'= ask the la$yer and complainant to go to E)s

= no action

( if the LSC inuiries into co?=laint, it can determine as follo$s8

%= no further action $arranted

'= unsatisfactory conduct on part of the la$yer Htechnical term=

= complaint is so serious it should be referred to disciplinary

tribunal

( $hate!er it decides the complainant is informed of the decision and reasons for it

DEI01A(2ER3.OM'AIN#33ER1I.EO*N4R3

( : lodged series of complaints against a number of la$yers, all of which

were

oQce holders in the co?=laints service

( $hen the ser!ice recei!ed these, each complaint $as ust reected

( then clai?edthat the co?=laints service had no =ower to

dis?iss co?=laints >efore referring the? to a standards

co??itteethe complaints ser!ice ust functions to determine them

( B5 ( held that any complaint against a la$yer .ust be referred by the

committee ser!ice to the standards committee

the standards committee is the body to deal $ith this matter, there

is no urisdiction for an oPcer of the ser!ice to deal $ith them

there is no po$er ust to reect complaints ( under %', the

complaint must be referred to the committee and under %2 H%= (and determined by the committee under s %W


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26/43

Be did not enforce the """ ( did contend a high threshold encompassing

seriousness of the charge and suPciency of e!idence ( to protect

practitioners from arbitrary action

Page 19- Para 54 ( 5# addresses the issue of a threshold test and re!erses

the B5 BeathTs test ( said no threshold F#5+9)S +ELL7NG #G#7NS+ #+B)ESB9L: +ES+8

%= section in the act does not have an eB=ress threshold

testreferred to

'= there are eB=ress threshold tests 9 in s /71 9 sFF6/=,

the striking o< by tribunal, there is an e>press threshold test (

other pro!isions do, so parliament didnTt seem to intend one

= %arlia?ent deli>erately disregarded the threshold test

>y disregarding the regional one in the new act

?= the fact that any co?=laint can >e referred. told

against a threshold test

?= the a>sence of reuire?ent under the act to give

reasons to refer the ?atter to a tri>unal 6telling against

threshold=

2= has all the po$ers of a standards committee

= the purpose of consu?er =rotection. ?aintenance in

=u>lic education, made it

important that the tribunal ha!e ability to determine complaints,

e!en if not striking o


27/43

7nterestingly on &th .ay '-% Hand theOrlo&$as Qune '-%=

Qustice 4anhusrt in case of . ! ellington Standards 5ommittee ',

disagreed !ith Heath/s decision in Orlo&

ustice %an@hurst didnPt follow Heath

had a diy

the act and =ro=er consideration of the review and natural ustice

can postpone re!ie$ and prompt parties to negotiate

re!ie$s are conducted in pri!ate and sometimes simply on papers

o $$$"ustice"go!t"nD;tribunals;legal(complaints(re!ie$(

oPcer;decisions(%

!HAO*LE(ALCO-%LA"N#SRE*"EWO''"CER9 "LL&S#RA#ES#HEWORK"N(S

O'#HELE(ALCO-%LA"N#SRE*"EWO''"CER

( solicitor N launched complaint against Z, holding certi6cate as barrister(

sole (

(N said although Z only held barrister(sole cert, he $as acting as solicitor

( N $as not satis6ed and applied to re!ie$ oPcer for re!ie$


28/43

( Z posted on the skyki$i $ebsite, setting out his ser!ices otended to con!eyancing Hsolicitors $ork=

( in terms of that posting, N translated that herself and had a professional

translation madeH dates 'th No! '-%-, and that date $as after the

Standards5ommitee considered the compliant

( +he re!ie$ oPcer said the committee should*!e considered that

translation, but that $as a mistake of fact HAA=

( in this case the ?atter was referred >ac@ to the standards

co??iteeand Z made an application for udicial re!ie$ of that decision

( prima facie, Z had been mucked around

HLec=

Council of legal education+he cause for the compulsory nature of this course

comprehensi!e grasp on li!ing life in accordance $ith rules

to co!er e!erything required to understand it

%= #heories of =rofessionalis?( la$yers and con!eyencers #ct

'= La$ society

= 5ompetence ( a key factor under the la$yers and con!eyancers act (

and continuing professional de!elopment

a lack of competence $ill lead to complaints and discipline

3tr)ct)re of discipline of &ario)s bodies e5isting relati&e

to the practition


29/43

X.uststartounal is ad?inistered. not >y the law society >ut >y the

-inistry of ustice. so it is "NE%ENAN# of the Law society

think of the market control theory and criticism that $hat la$yers say

is self(ser!ing ( and this is trying to combat this !ie$ ( dealt $ith

separately $ithin ministry of ustice

7tTs there to assess charges agaisnt the legal profession

#he #ri>unal5omprised of8 5hair, dept" 5hair, %' lay members Hsigni6cant in terms of

consumer protection=, %? la$yer members, con!eyancing members (

the chair, dept" chair and lay people, are appointed by Go!ernor Gen, by ministry

of ustice

La$yers from appointed by NZ la$ society

5on!eyancers ( NZ con!eyancers """

+he chair sits, and there must be not less than ? others, and those others

must make up an e!en number, $ith an une!en number o!erall ( half must

be lay members, half la$yers

La$yers for la$yers


30/43

3 ++6 of Act - !here a la!yer has been str)c7 o8 they can be

reinstated

reinstatement is one of the functions of the committee

3+9 - .an place restrictions on p)blication -

3+9: - IM'OR#AN# - a practitioner can be charged !ith

%= misconduct

'= conduct unsatisfactory ( not so gross, $ilful or reckless as to amount to

misconduct ( something less than misconduct

= # practitioner can be charged with >eing guilty of negligence or

inco?=etencein a =rofessional ca=acity, $here it has been of such adegreeor so frequent as to reTect on their 3tness to =ractice. or

such as to >ring the =rofession into disre=ute

?= 4ractitioner can be charged $here they ha!e been con!icted of an

oalance of =ro>a>ilities

3+9+ - can $a7e any order a standards co$$ittee co$plaint

O can strike o< a practitioner from their role for up to months, prohibit

pri!ate practice $hether in partnership or on their o$n, prohibit

employment of a practitioner by a la$ 6rm

H- 1 A=

( 7t cannot order so?eone stuc@ o the role unless it shows that

the =erson is a '"# AN %RO%ER %ERSON to >e a law =ractitioner9

sFF

7f the tribunal is going to make an order suspending or striking o< a

practitioner, 2 must !ote in fa!our and 2 must make up a maority

( 7t is possible for a practitioner to consent to that ie" if you are in a

hopeless position and say you $ill consent at the outset, it may pro!e

helpful, than to endure the laying out of e!erything

s+9; - an interi$ s)spension is also possible -


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s+;< - Right of appeal to H.

( s'2 ( any order or decision of :5, and appeal may be made by a

practitioner or person to $hom 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 re!ie$ oPcer brings it, they ha!e a right of appeal as $ell

( #ppeals are by re(hearing, may con6rm, re!erse or modify the

decision appealed against

E( HALL*WELL"N(#ONS#ANARSCO--"##EENO

( #lleged B acted in situation $here she had conict of interest

( BTs response to that charge $as that there $as no case to ans$er (

( B argued on the basis that the e!idence :7: N9+ ES+#L7SB # 4)7.#

F#57E 5#SE #G#7NS+ BE), +herefore no case to ans$er

( :isciplinary tribunal had to consider argument ( held the test to be

applied in this situation $as the same one that $ould be used on an

application to strike out a ci!il proceeding $here the grounds alleged $ere

that the statement of claim did N9+ disclose a reasonably arguable cause

of action

( +he test to apply is the same test as $hen someone says an statement

of claim should be struck out, because the statement doesnTt re!eal areasonably arguable cause of action

( :+ found against B

H a==ealed to HC. on grounds that the # had a==lied the wrong

test 9 the test of stri@ing out a clai? on >asis of no argua>le clai?

was wrong

( HC held it had ?isdirected itself( and that $hat the

:isciplinary +ribunal had considered $as $hether the charge $as

one $hich $as a recognised form of misconduct9 "t says the tri>unal was considering whether what she did

a?ounted to recognisa>le ?isconduct 9 which was NO# what

H was arguing9 9 it found the tri>unal failed to weigh u= all the evidence to

deter?ine whether there $as suPcient e!idence to establish the

requisite charge9 +hey umped to misconduct $hich $as not $hat she $as arguing9 B5 set aside the disciplinary tribunalTs decision9 HCRE'ERRE #HE -A##ER )ACK #O #HE #R")&NALto apply

the right test on rehearing and that it had to be constituted of

:7FFE)EN+ .E.E)S than the 6rst hearingTs panel


32/43

s+;9 " *)rther right of Appeal to .o)rt of Appeal

( any party to an appeal under S'2H%= disatis6ed $ith any determination

of B5, has erroneous in point of la$, may lea!e of B5, or appeal to 5# $ith

lea!e (

+;9 =+> - $)st ha&e regard to !hether the ?)estion of la!, or for

any other reason o)ght to be s)b$itted to .A for decision -

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

to 5#( decision of 5# is 6nal, and no other appeal to S5( 7t is possible for disciplinary matters to go to S5( e"g" arry Bart case ( $ent to 5# on udicial re!ie$ ( that co!ers the

$hole question of the structure of dealing $ith disciplinary matters

formally (

urisdiction of the courts the?selves. relevant to disci=linary

action

( pre %&2 ( sanctions for serious breaches of professional standards by

practitioners $ere controlled by the courts ( not structure that $e ha!e

no$

( 5# had right to strike a practitioner o< the role, or suspend the

practitioner

( %&2 ( the 6rst committee $as constituted under the la$ practitioners

act 9 that co??ittee under the act had rights to stri@e o a

=ractitioner. a =ractitioner and other sanctions 9 that

NO#W"#HS#AN"N( it was statutory. the courts ?aintained

urisdiction to stri@e o a =ractitioner

9 Rights of a==eal to HC and CA fro? isci=linary #ri>unal( butapart from that, under the La$yers and con!eyancer*s act, there is

urisdiction, e>pressly conferring po$ers on superior courts to strike ole?is coming up $ith a rationally defensi>le

theory of right and wrong action( if you do this, then the

theory $ill present us $ith theories of ho$ to conduct oursel!es (

but there is no one such theory (

- Moral philosophy is do$inated by 9 basic &ie!s or

theories of right!rong action

&tilitarianisi?

Kantianis?

"ntuitionis? 6co??on sense;

/+7L7+#)7#N7S.

Qeremy entham %W?C( %C'

( concerned $ith what the law ?ight >e( Bis body and $ill is preser!ed there (( best kno$n teleological theory (

#eleology is the doctrine of 3nal causes

( tells us that the consequences or results of a particular action

dictate itTs 3rightnessT and they should therefore go!ern the

outcome of any ethical dilemma ( the ends ustify the means (

#ELEOLO($UCONSE,&EN#"AL"S-


35/43

$hat the utilitarian*s tell us is that the action that engenders the greatest

amount of fa!ourable consequences Haka that $hich ma>imiDes utility=

should go!ern the outcome of any ethical dilemma

"ssue( it usti6es action $hich may be unethical, by the consequences

that o$ from that action $hich are themsel!es positi!e (

( +his tells us that right action should >e understood in ter?s

of hu?an good and well>eing( Tthe greatest happiness of the

greatest number of peopleT( good can encompass kno$ledge, autonomy, honour, !irtue ( )aises the question of T$hat is goodAT O issue of ends ustifying

means

Categories

#ct utilitarianism ( requires you to choose the >ehaviourin a particular

situation that leads to the greatest good for the greatest nu?>er

( Sub category $hich is unique to la$yers ( EC"S"ON "L"#AR"AN"S-

the court of la$ deciding the question of ho$ the public $elfare in a

case $ill be a


36/43

o there are situations $here it can be morally appropriate to

tell a lie ( accords $ith Qudaism and 5hristianityo E>press e>ception in buddism

o # sense of rightness and ignoring consequences

Central to KantPs thin@ing was Autono?y self law 6gree@;

( #utonomy understands the moral imperati!e as the moral agentTs

Hindi!idualTs= o$n freely and rationally adopted moral policy( as moral agents, $e are all subect to moral la$, but on this !ie$,

$e then repudiate all personal action $hich does not accord $ith

$hat $e $ant to do ( $e determine our o$n course of action (( $here moral la$ is imposed from the outside ( heteronomy Hthe la$

of another=

( ith :eontology ( right action is then independent from itsconsequences, the emphasis is on indi!idual autonomy( 7n legal autonomy IV the rights of the indi!idual

"nstitutionalis?

( there can be uni3ed or unifying account of our ?oral o>ligations

because they are plural, the only general moral principles this theory $ill

recognise are prima facie principles

( e"g" prima facie $rong to harm another, or break a promise( this !ie$ sees a multiplicity of morals $orking( +im :eer ( looks at pluralism in the 5asebook

J7)+/EE+B75S

( Jirtue ethicists ( belie!e that right and wrong cannot >e ca=tured

>y inde=endently or >asically valid ?oral rules or =rinci=les8

situational sensiti!ity 9 it is a ?atter of situational sensitivity( it isfundamentally good or admirable inner ?otives or states

"ssue of *EPsis =roving what is right in a situationUreferred to for

guidance without =rinci=les

#here are =ro>le?s with all the =rinci=les

( all these theories add to our comple>ity of understanding $hat is

right


37/43

( 7ssue for ethics as philosophical conduct, is the $idespread

disagreement about ethical !alues, spread amongst di


38/43

Law Society 9 rules and conduct of client care forlawyers

)/LE 9FL#KE)S#N:59NJEK#N5E)*S#5+'--C

( rules of conduct are mandatory( but it is not merely a question of learning the rules, but interpreting

and applying them in in6nite situations that arise

( Guidelines assisting in this task ( medical profession

Autono?y 9 V=ersonal rule of the self that is free fro? >oth

controlling interefere and fro? =ersonal li?itations that =revent

?eaningful choiceP

9 this tells us that autono?ous individualsact "N#EN#"ONALL$.

with understanding and free fro? controlling inTuences 9( applies as readily in la$ as it does in medicine (

Res=ect for autono?y is a guideline of clinical ethics 6?ed

degree;

9 not a question of allo$ing patients to make their o$n decisions, but

=hysicians have a right to ?a@e the decisions necessary for

allowing the =atient to ?a@e an autono?ous choice( respect for autonomy includes indi!iduals right for self

determination( +hey come to drs for guidance in making the choice( 4atients do not themsel!es ha!e the necessary background for

making the right choice, so the physicians must pro!ide the

background,( they must address the emotions and fears of the patients, they

must council patients $hen their decisions are disrupted( e>tends to con6dentiality (( seeking consent to treatment ( maintaining pri!acy

"n ter?s of =ro?oting autono?ous >ehaviour( they must pro!ide all

options, and e>plain risks so the patient can understand, and present

procedures prior to surgery

LAW$ERSO)"SA*"SOR$


39/43

Need to ad!ise the client of the pros and cons of each action ( $hat

is negati!e ( this all leads to infor?ed consent

"nfor?ed consent( consent to an act after >eing given

for?al adeuate disclosureo you must make sure that the client is a$are of e!erything (

all the pros and cons likely to be a factor in decisiono potentially problematic based on $ho you are dealing $ith

9 Autono?y 9 the a==roach where the dr or lawyer @nows >est

+he la$yer control model ( $here the la$yer gets on $ith it Tthey

kno$ bestT ( N9+ G99:, the client becomes separated from

procedures

.ed e>ample ( the dr telling the patient the truth about their

decision may be detrimental to the patients health in itself ( it

doesnTt assist their autonomy as it $ill be info they can use in their

decisions, but if in the end, impro!ing and maintaining health is

gi!en precedence in society then you may ha!e to !eto other

concerns ( ( ( ( ( )elati!ist !ie$ ( diarrister and solicitorP(

conduct outside the practice of a la$yer Hpri!ate situations= ( but

beha!iour $hich

reected on the la$yers ability to practice la$ and the

appropriateness to carry on as

a la$yer

- 36 - a!yers and.on&eyancerCs Act "$iscond)ct =broad

categories>


40/43

is conduct when =roviding regulated servicesand conduct 6rst that

would reasona>ly >e regarded >y lawyers of good standing as

%= disgraceful or dishonoura>le or

'= consists of a $ilful or reckless contra!ention of the L5 #ct or

rules, regulations made undder it, or any other act relating to the

pro!ision of regulated ser!ices

= misconduct is found $here you ha!e a wilful or rec@less

failure to co?=ly with a condition or restriction of the

su>ect 9

?= (rossly eBcessive costs for legal wor@amounts to

misconduct

2= includes conduct unconnected with the =rovision of

regulated services.but $hich $ould ustify a 6nding that a

la$yer is not a 6t and proper person or other$ise unsuited to

engage as practice as a la$yer

= 7f you @nowingly e?=loy a @nowingly struc@ o a

=ractitioner of the law society, that is misconduct, #nd

W= Sharing =ractice with a non9lawyerI misconduct

9 a==lies to e?=loyees 9

7tTs misconduct if an employee opected of a practitioner in its

most serious form

6:=a>=:> - refers to cond)ct that !o)ld reasonably be

regarded by la!yers of good standing as disgracef)l or

dishono)rable -


41/43

this relies on the standards of other la$yers of conduct

la$yers themsel!es set the standard of conduct in their discipline

9NE4/)49SE9F+BE#5+7S+9#FFE5+59NS/.E)4)9+E5+79N

.embers of a disciplinary committee are the best to assess

disciplinary conduct HRe a solicitor =:;>>

-"SCON&C#

equi!alent of conduct unbecoming (

.isconduct is a broad term ( and it must be de6ned relati!e to the

circumstances of the indi!idual case

itTs conduct $hich reects on the professional character of the

practitioner ( that personTs adherence to proper standards( e"g" $here a practitioner is not trust$orthy but failure to conduct proper ismisconduct and keeping of accounts adequately HAA=

( so it is not limited to dishonesty ( but that is integral

HLec W= 5omplaints and :iscipline

Ended last $eek on sW Lay$ers and 5on!eyencers #ct ( a signi6cant

section

becasue it sets out broad categories of misconduct

)E#: 9)L9J NEY+ +7.E U

4age Ethics Lec C

( see roryTs notes misconduct sW

4age ?Ethics lec &

( seiDe goods (


42/43

E>am8

( di!ide the paper up to ans$er questions ( aim to co!er the $hole

course

( kno$ enough for alarm bells to go up if a problem situation arises

( Ethicalproblems arise internally,

( Subtle things (

( #im of the course is to put e!erybody in the position for bells to go o< (

to try and

spread the entire paper across e!erything $eT!e done

Smith question U ( )ichard set it last semester ( a compulsory question

? parts to it ( Smith practicing on o$n account ( series of things (

( 2 marks all up ( ha!enTt allotted them to each section

aim to put e!en marks for co!erage (

a= opportunity to discuss cab rank rule, to .arie #rticle, theBart 5ase,

directly

impoint $ith o!ercharging ( sWH%=Ha=Hi!=, in re.c5onnell ( a bill so

disproportionate

amounted to """

b= opportunity to discuss unsatisfctory conduct ( to be contrasted $ith # (

go!erned

by rule %%" ( penalties s%H%=, )e ruges

c= misconduct under sWH%=Hb=Hii= ( unconnected $ith pro!ision of legal

ser!ices (

( la$ society NS cases etc"


43/43

( s'?' ( and point that it is up to the la$ society to act of its o$n notion

d= there is question of the court (

( cases89rlo! test situation, Gao case (

@' ( distinct matters

( a= market control theory b= 1antian .oral philosophy c=

5L9SE: 991

9!er break ( read client care rules (

4age 2

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Legal Ethics Notes - Leila

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