LLB197 Lecture 11: Week 11 – Duty to the Profession and Third Parties
Week 11 – Duty to the Profession and Third Parties
Chapter 17
Duty to Other Lawyers
Communication
• General duty to communicate with other lawyers in an honest and courteous
manner – r 4.1.2
- Seen as something which is in the public interest
- Must be professional respect while also working in the best interests of the client
- Should aoid offesie or prooatie laguage ad odut
Negotiation
• R 22 - Not knowingly make a false statement to the opponent in relation to the case
– INCLUDING compromise (r22.1)
- see, eg, Legal Services Commissioner v Mullins [2006] LPT 012 (WA case); LPCC v
Fleming [2006] (QLD case see text p. 358 and also n 36 in Ch 11)
• Take all necessary steps to correct false statement unknowingly made as soon as
possible after becoming aware that it was false (r22.2)
• See r 34.1 (text pg 357)
• Honest and fair negotiations → accords with the duty to the court and
administration of justice
• Generates a poor reputation
• Lying or misleading may not only lead to a finding of professional misconduct but
may also result in the settlement being set aside and your clients interests
compromised
• Not false stateet to NOT orret a oppoets error r .
Mistakes by another lawyer or government agency
• No dut to assist oes opponent
• Dut to at ith fairess ad ourtes toards other laers ad i a aer
osistet ith puli iterest suggests eploitig a oppoets istake is ot
always appropriate or justifiable & may be subject to disciplinary sanction
- Chamberlain v Law Society of Australian Capital Territory
• R 30 – prohibits a lawyer from taking unfair advantage of the obvious error of
another solicitor or another person, if to do so would obtain for a client a benefit
which has no supportable foundation in law or fact
• If error in court proceedings is likely to cause delay and which the opponent is likely
to be allowed by the court to correct → may be appropriate to point out error →
duty to client and duty to proper and efficient administration of justice
• Failure to point out the error may create animosity between parties, jeopardizing
prospects of settlement
• Any advantage hoped to be gained may be short-lived, if the lawyer receiving that
document is disqualified from further acting in the matter on the grounds of
obtaining unfair advantage to benefit the client
• Specifically, for inadvertent disclosure – r 31
- ‘eeer: ee if istruted a liet to read ofidetial aterial reeied
i error, the soliitor ust refuse to do so – r 31.3
find more resources at oneclass.com
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• Actively taking advantage of mistakes – can amount to misconduct → discipline:
- Chamberlain v Law Society of ACT (1993) 43 FCR 148
Can be removed from case – ot i liets est iterest
Officer of the court – aste ourts tie, et
- Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Those eers of the legal professio ho seek to i a oetar adatage
for their clients without observing the proper courtesies invite correction by the
court and disapproval of their colleagues ... To the extent that solicitors act in
this way, they run the risk of destroying the confidence and mutual respect
which generally distinguishes dealings between members of the legal profession
fro other dealigs i the ouit. : at per Kir ACJ
Complaints against other lawyers
• Professional courtesy → when instructed by a client to sue another lawyer for
negligence, the prospective defendant lawyer should be notified of intention to
bring a claim, unless it will cause disadvantage to the client
• Early notification = early resolution
• Not allege unreasonable misconduct allegations – r 32
- Threatening to report a lawyer for professional misconduct to gain tactical
advantage is inappropriate
- Threats should ot e ade erel o the liets istructions to do so and not
be made unless:
▪ there is a real basis for seeking such an order
▪ the practitioner has clear instructions from a client to apply for the order,
and the client is aware of consequences should the application be
successful
▪ practitioner informs opposing lawyer of the basis for their view and
arig is gie as a professioal ourtes
• Breach of duties to other lawyers
- Professional misconduct
- Personal costs orders
Relationship with counsel
• Counsel looks to the solicitor for payment of fees, not the client
• Common for agreements to provide that payment responsibility lies with the
solicitor
• Non-payment may amount to professional misconduct (see pg 363, footnote 26)
• Counsel has conduct of matters in court → can return a brief if they perceive that
the soliitor is iterferig ith ousels odut → client remains client of the
solicitor → soliitor has dut to protet liets iterests if uhapp ith ousels
performance
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
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