LLB197 Lecture Notes - Lecture 1: Law Society Of New South Wales, Vexatious Litigation, Centrelink
TOPIC 1: Introduction to the Subject and Admission
Balancing client/court/personal values: adversarial advocate – let chips fall where they may, responsible lawyer
– admin of justice, moral activist – agents for justice and public interest, ethics of care – nurture relationships
and community
Conduct rules stipulate that the paramount duty is to the court and the admin of justice and prevails to
the extent of any inconsistency with any other duty (RULE 3). This is reflected in Gianneelli v Wraith-
where Mason CJ indicated, ‘ the duty to the court is paramount and must be performed, even if the
client gives instructions to the contrary’.
Subject to that duty, a solicitor must also act in the best interests of a client in any matter in which they
represent the client (RULE 4).
While this is important, a lawyer should never be the mouth piece for the client and must exercise
independent forensic judgement (Rule 17.1) They must also not engage in conduct that may bring the
prof in to disrepute (RULE 5.1)
Potential issues may arise in commercial law where a lawyer is to advise a client on their business
interests while considering ethics and rules.
SPAULDING V ZIMMERMAN (ISSUE: ETHICS)
-aneurysm lawyers opposing lawyers knew of
-lawyer did not have to disclose but it may have been morally wrong not to
-reason to know plaintiff would not agree to settlement with the knowledge
-plaintiff was a minor; more likely to be bound by court decision if an adult however could claim
against doctor or lawyers
ADMISSION
s 6 (1) Uniform Law: Australian legal practitioner means an Australian lawyer who holds a current Aus
practicing certificate (62-66 of text).
S 10 Prohibition on engaging in legal practice by unqualified entities
"qualified entity" means- (a) an Australian legal practitioner; or (b) a law practice; (s. 6(1) Uniform Law)
Therefore only those admitted to practice are qualified to provide legal services.
Compliance certificate – s 16, s 17(1) and (2) UL; r 10 Uniform Admision Rules
Prac cert – s45(2) UL, r 12(1) (show cause) and r 13(1) (what must have regards to in deciding ‘fit and proper’
Uniform General Rules
S 6(1) UL admission to aus legal prof means
S19 UL compliance cert
Academic and PLT prerequisites for s 19 compliance cert: s 17(1) UL (p52-53 TB)
Suitability for admission s 17(2) UL
R 10 Uniform Admission Rules - DISCLOSURE;
-Thomas v Legal Practioners Admission Bd
-Re Owens
-Foreman
-Pangallo etc
Previous criminal behavior; Re Davis – command personal confidence, crime of dishonesty, real issue is
disclosure than crime
Litigation improper conduct;
-Re B – standing bail for prisoner
-Wentworth v NSW Bar Association - vexatious litigant
Academic misconduct
-Re AJG
-Re Liveri
-Re OG – Vic case failure to disclose academic misconduct; collusion
-Lack of full disclosure viewed seriously
-r 19 now requires conduct report from uni and PLT provider
Other conduct (use as case examples)- page 61.
-Recent cases of Saunders and Jarvis re student centrelink fraud and impact on admission (p 61 text).
-Bankruptcy (r 10(1)(g)).
-Commission of offences in Australia or OS (r 10(1)(h))
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Topic 1: introduction to the subject and admission. Balancing client/court/personal values: adversarial advocate let chips fall where they may, responsible lawyer. Admin of justice, moral activist agents for justice and public interest, ethics of care nurture relationships and community. Conduct rules stipulate that the paramount duty is to the court and the admin of justice and prevails to the extent of any inconsistency with any other duty (rule 3). This is reflected in gianneelli v wraith- where mason cj indicated, the duty to the court is paramount and must be performed, even if the client gives instructions to the contrary". Subject to that duty, a solicitor must also act in the best interests of a client in any matter in which they represent the client (rule 4). Potential issues may arise in commercial law where a lawyer is to advise a client on their business interests while considering ethics and rules.
