Answer

Essay and Problem Questions About Legal Ethics

Question 1

Part A

Ethics refers to professional responsibility that legal practitioners have to act morally and in accordance with different moral principles such as honesty and integrity. There are different approaches to legal ethics. Some of the most common are utilitarianism and deontological approaches to ethics. As Dal Pont[1] opines, utilitarianism can lead to the resolution of an ethical dilemma by focusing on the favourable consequences of the action. I decide whether the costs outweigh the benefits by conducting a cost-benefit analysis of my actions. In this case, I would examine all the possible actions I can take and evaluate them based on the perceived costs and benefits and come to a conclusion about the best course of action. For instance, every decision has its pros and cons. As such, assessing the pros and cons of different options can lead to the establishment of the most effective decision. A cost-benefit analysis presents a balanced evaluation of different options and hence the determination of options, which would lead to better outcomes/consequences. I define a cost as a decision, which would lead to unfavourable outcomes for my client and a benefit as a positive outcome for my client. For instance, if a specific action leads to my client’s claim succeeding in court then such an action is a benefit whereas a decision, which inhibits the success of my client’s claim, would be a cost.

            According to Dal Pont,[2] rightness of actions; according to deontologists, is based in a system or rules. As such, I would decide the right or wrong based on the specific set of rules applicable in the situation. Also, I decide what is right or wrong based on professional standards and an ethical code of conduct. Specifically, anything that goes against the code of ethics, irrespective of its consequences, would be wrong. I appeal to the deontological value system which holds that actions are right or wrong notwithstanding their consequences, but based on system of rules. For instance, in determining whether the action of fabricating evidence on behalf of my client is right or wrong, I would be guided by professional ethics codes of conducts for lawyers, which hold that honest and candour is important. I appeal to the deontological value position because it ensures that the process of arriving at specific outcomes is a good one. For instance, it eliminates the probability of using illegal means to get a better outcome for the client.

1. Difference Between the Utilitarian and The Deontological Approaches to Ethics

            In a utilitarian approach, the process of arriving at the consequences is not important but the outcomes of actions. However, in the deontological approach, an action is judged to be wrong or right based on whether the procedure used to arrive at an outcome follows a certain moral code. For instance, in the case of Gobbo ‘Lawyer X’ scandal, the Victorian Police used the utilitarian approach whereby they deployed Ms. Gobbo as a police informer and defied professional ethics to arrive at a favourable outcome of reigning on crime in the city.[3] The police department in Victoria were more focused on the outcomes of their actions as opposed to the process of arriving at those consequences. They were guided by the utilitarian approach by focusing only on the consequences (reducing crime in the city) as opposed to the process. However, such a scenario is different from the approach used in the Heydon findings where deontological ethics were at play. Specifically, in this aspect, the actions of Heydon were judged to be wrong based on a clear set of rules, which in this case is the professional code of conduct for the judges.[4] These two scenarios demonstrate the differences between the utilitarian and deontological approaches to ethics.

Part B

How and Why A Lawyer’s Duties Sometimes Come into Conflict

1. Conflict Between Client Loyalty and Fidelity to The Law

The duty to represent the client fully may collide with the lawyer’s duty to the court/administration of justice. The fiduciary duty of the lawyer towards the client is one of the fundamental aspects. As described in Tyrell v Bank of London[5], and quoted by Dal Pont “there is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between solicitor and client”[6]. However, the fiduciary duty of the client may conflict with the duty of the lawyer to ensure fidelity to the law. For instance, where the lawyer seeks to maintain a balance between the two duties, then a conflict may arise. Although lawyers are fiduciaries to the client, they are also fiduciaries to the rule of law.

1. Conflict Between Interests of The Client and Dispensation of Justice

What the client wants may conflict with the interests of ensuring the achievement of justice. Dal Pont argues that lawyers should use all available legal means to “advance clients’ interests as the clients perceive them”[7].  Apart from the lawyer having a duty towards the client to represent their interests maximumly, they are also supposed to be defenders of the law. As officer of the court, lawyers are supposed to ensure the efficient and proper administration of justice. As such, lawyers should take actions which ensure that justice is administrated in the courts. The reasoning for the conflict between the duty of the lawyer to safeguard the interests of the client and the duty to ensure the dispensation of justice is where the two duties cannot co-exist. For instance, where the duty to ensure the dispensation of justice negates the duty of the client to ensure full representation in the courts, then a conflict may arise.

• Conflicts Between the Lawyer Interests and Those of The Client

A conflict of interests may arise were the interests of the client do not align with those of the lawyer. Notably, although lawyers are expected to serve the best interests of the client, there are situations which arise where the interests of the clients in ensuring justice collide with those of the client. As Dal Pont points out, “whenever such a conflict arises, the lawyer’s self-interest will necessarily prevail”[8]. The reason for the occurrence of such a conflict is where a lawyer has a personal interest in a matter, which may inhibit his/her ability to dispense their mandate of ensuring that the client is effectively represented in the court. An individual lawyer cannot act because if a conflict of interest and duty and thus, the course of justice is hindered. To resolve this type of conflict, the lawyer must cease acting on behalf of the client because the course of justice will be hindered.

1. Conflict between lawyer’s duty as the client’s representative and officer of the court

The lawyer is both a representative of the client, who acts on behalf of the client, and also an officer of the court. A conflict arises where the duties of the lawyer as a representative of the client collide with those of the solicitor as an officer of the court. Dal Pont asserts that “a lawyer’s duty to the court is “paramount” or “overriding”[9] (548). A perfect example where the duty of the lawyer to the client conflicts with that of the lawyer to the court is where it fabricating evidence would assist the client. Although the fabrication of evidence can increase the client’s chances of success in a specific claim, such an action is contrary to the honesty and candour aspects required of lawyers as officers of the court. As stated in Rondel vs Worsely,[10] the lawyer has an overriding duty to the court and to uphold the standards of his profession.

Question 2

Whether Ms Danker Have A Duty to Advise Mr Boswell To Take Action Against the Building Company

Under the duty of competency and promotion of access to justice, Ms Danker has a duty to advise Mr Boswell to take action against the building company before the time limit for such action expiries. The question on whether Ms Danker has a duty of care to advise Mr Boswell to take action against the building company is based on the terms of the retainer in place. If the retainer is not clear or is ambiguous about the duties that the lawyer owes to the client, then Ms Danker would have a duty of care to advise Mr Boswell about the need to sue the building company. In Astley v Austrust Ltd,[11] the Court held that a lawyer has an implied responsibility to protect the interests of the client and exercise reasonable care and skill when carrying out instructions from the client. However, as it was held in Hawkins v Clayton,[12] the scope of the lawyer’s duty of care is defined by the retainer he/she has signed with the client. If a retainer is not restricted in terms of its express terms, then lawyers are allowed to take positive steps outside the retainer for the benefit of the client. Although Rule 8.1[13] provides that a lawyer must follow the lawful, proper, and competent instructions of the client, the solicitor must inform the client about the risks associated with a specific course of conduct (Credit Lyonnais SA v Russell Jones and Walker[14]). It is vital to apply the rules on the duty of competency in the present case to establish whether Ms Danker had such a duty.

Ms Danker should, as a matter of competency and care, have provided advise to Mr Boswell on the importance of taking an action against the building company. The client assumes that the lawyer is competent and knowledgeable on such matters and hence, is reliant on Ms Danker to provide adequate professional advice. Additionally, a solicitor has a duty to promote access to justice for the client and such a duty cannot be prohibited by factors such as high fees.  Ms danker has a duty to provide advise to her client about ways in which he can get justice for the injury that he has before the expiry of the time frame allowed for bringing such a claim. The duty of promoting access to justice means that a lawyer should take all measures to ensure that there is justice for the client. In the present case, Ms Danker should have initiated measures to make sure that Mr Boswell understands the various options available to him in terms of seeking compensation from the building company which was at fault for his injury. Also, Ms Danker has duty to encourage settlement and thus, should have informed her client about the need to achieve an efficient and effective resolution of the matter with the building company. As a result, Ms Danker’s duty to advise Mr Boswell on taking action against the building company for his injury is pegged on her duty of competence, care, and promoting access to justice.

Question 3

Whether Mr Lowe Breached His Duty to Mr And Mrs Alan And Colleen Waddy

1. Mr Lowe Has Breached the Duty of Loyalty

There is an apparent conflict of interest between the Waddys and Ms Louise Johnson. Acting for both is a breach of the duty of loyalty on the part of Mr Lowe. Notably, the relationship between the lawyer and the client is a fiduciary one where the lawyer is in a position of trust. Additionally, the client is reliant on the skills and knowledge of the lawyer. Rule 4.1.1[15]holds that the lawyer must always act in the best interests of the client. Moreover, one of the central fiduciary duties of the lawyer is to have an undivided loyalty to the client. To ensure that the duty of loyalty is observed, the lawyers must not; without informed consent of the client, place themselves on positions where there may arise a conflict of interests between their duty towards one client and those of a third party. Additionally, lawyers should not benefit from the fiduciary relationship that they have created with the client except without the informed consent of the client. In the present case, a breach of the duty of loyalty is seen when Mr Lowe acted in a situation where there was a conflict of interest. Specifically, he had concurrent clients and hence, his loyalty was divided. In Farrington v Rowe McBride & Partners,[16] it was held that lawyer is unable to provided undivided loyalty to the client if a lawyer had two or more clients with conflict of interests. Also, in Clark v Baker,[17] it was the ruling of the Court that the lawyer should not act if there is a slightest possibility that there may be a potential conflict of interest. In the present case, Mr Lowe was aware that the Waddys were his clients but, nevertheless, he decided to act for Ms Johnson, which is a breach of the duty of loyalty to Mr and Mrs Alan and Colleen Waddy.

1. Mr Lower Has Breached the Duty of Confidence/Confidentiality

Mr Lowe disclosed confidential information about their character and actions to Ms Louise Johnson, which is a breach of confidentiality. Notably, the duty of confidentiality is based on the law of contract and Rule 9.1,[18] which holds that a lawyer is prohibited from disclosing any information, which is confidential to a client and acquired by the solicitor during engagement with a client. In the current case, Mr Lowe used his knowledge of the information he had acquired about the Waddys to give an undue advantage to Ms Johnson. For instance, he knew that although the Waddys were dismissive, they were afraid of the court process and would prefer an out-of-court settlement. Notably, lawyers are obligated not to reveal client’s information as the position of the court in Spincode Pty Ltd v Look Software Pty Ltd. Additionally, in Prince Jeffri Bolkiah v KPMG[19] (a firm), it was held that lawyers are not supposed to misuse the confidential information they have about their client. Moreover, the obligation not to reveal client’s confidential obligation is not reduced because of a duty owed to another client as was the position in Hilton v Barker Booth & Eastwood[20]. In testing whether a duty of confidentiality exists, objective test can be used. In Mense v Milenkovic,[21] it was held that confidentiality can be found if a reasonable person in the position of the recipient of the information would have realized that the specific information provided was in confidence. However, an applicant claiming a breach of confidentiality would need to show that the information in question has the necessary quality of confidence and was given in circumstances that would import an obligation of confidence. In the present case, the information about how the Waddys would react to a court process was given in confidence and hence, Mr Lowe was in breach of the duty of confidentiality.

• Breach of Duty to Avoid Conflict of Interest

Mr Lowe was in breach of his duty to avoid situations which may lead to a conflict of interest. Notably, Rule 12.1 of the Model Rules of Professional Conduct and Practice[22] holds that lawyers must seek ways to advance and protect the interests of their client to the best of their skills and diligence of the lawyer. A conflict of interest can either be direct or indirect conflict. Whereas direct conflicts are those forms of conflicts between the best interests of the client and those of the lawyer, indirect conflicts are the conflicts between concurrent ad successive clients.  In the current case, Mr Lowe was still a lawyer for the Waddys although he had not acted for them in the last few years. However, he decided to act for another client who was a friend to the Waddys and did not disclose the existence and possible consequences of the conflict. Notably, the position in Marron v J Chatham Daunt Pty Ltd[23] is that a lawyer needs to make it known to the client the existence and possible outcomes of the conflict of interest. Although there is no rule prohibiting Mr Lowe from acting for the friend and former friends of the Waddys, the lawyer-client relationship between Mr Lowe and the Waddys is one of a confidential nature. The action of Mr Lowe to act for both Ms. Johnson and the Waddys, which presented a potential conflict of interests, is a breach of his duty to avoid situations which lead to a conflict of interest.

[1]Gino, Dal Pont. Lawyers’ Professional Responsibility. (Thomson Reuters (Professional) Australia Pty Limited, 2016): 4.

[2] Dal Pont (n 1).

[3] Nadia, Stojanova. T3 2019 Week 1 Topic 1 Intro- Ethics Morality and The Legal Profession. Deakin University, 2019. https://alex.deakin.edu.au/Mediasite/Play/c0fa3c01ff514084b63097efc74f600a1d?catalog=e80f959824524992a6853267e22a65ec21&autoStart=false

[4] McLoughlin, Kcasey. Dyson Heydon finding may spark a #MeToo moment for the legal profession. The Conversation. https://theconversation.com/dyson-heydon-finding-may-spark-a-metoo-moment-for-the-legal-profession-141212

[5] Tyrell v Bank of London [1862] 10 HL Cas 26.

[6] Dal Pont (n 1) 120.

[7] Dal Pont (n 1) 153.

[8] Dal Pont (n 1) 218.

[9] Dal Pont (n 1) 548.

[10] Rondel v Worsley [ 1969] AC 19 1.

[11] Astley v Austrust Ltd [1999] HCA 6.

[12] Hawkins v Clayton [1988]164 C.L.R. 539.

[13] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (SCR).

[14] Credit Lyonnais SA v Russell Jones and Walker [2002] EWHC 1310 (Ch).

[15] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (SCR).

[16] Farrington v Rowe McBride & Partners [1985] 1 NZLR 83.

[17] Clark v Baker [1987] 4 BPR 9, 476.

[18] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (SCR).

[19] Prince Jeffri Bolkiah v KPMG [1999] 2 AC 222.

[20] Hilton v Barker Booth & Eastwood [2002] Lloyd’s Rep PN 500.

[21] Mense v Milenkovic [1973] VR 784.

[22]Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (SCR).

[23] Marron v J Chatham Daunt Pty Ltd [1998] VSC 110.