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Laws463 Legal Ethics Notes

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Ethical decision-making Carter on integrity: 1) Discerning what is right and what is wrong (moral reflection) 2) Acting on what has been discerned, even at personal cost (commitment) 3) Saying openly that you are acting on your understanding of right from wrong (honesty)

Pro Bono Publico work Lex Mundi: international consortium dedicated to making pro bono work a part of law firm culture Pro bono work: "legal services provided for public good without a fee principally to benefit poor, underprivileged or disenfranchised persons or communities and the organisations that assist them, and to individuals and organisations that seek to effect positive social and economic change in the lives of the poor, disadvantaged and disenfranchised. Why?
The underprivileged do not always have meaningful access to justice or adequate legal representation, which undermines public confidence in government, judicial institutions and the rule of law Access to legal services and justice are essential to free and open societies The legal profession has a privileged role and is uniquely positioned to promote fair and equitable legal systems and respect for people and their rights Sound business reasons (pragmatic - court experience, PR) Difficulties in ethical Dming Financial pressure - especially if conflict of interest Peer pressure Pressure to succeed/win Deferral to authority - (e.g. Senior partners) - e.g. Stanley Milsgram experiment Perception that the system/other side as unjust, so you need to "fight fire with fire" Complacency, negligence. Strategy for ethical decision making - Michael Robertson 1) What does the law (including the Rules) provide?
But won't always be a complete answer. 2) Avoid snap decisions - contemplation really does often lead to better decisions 3) Consider consulting others 4) Questions that may be useful to consider: What consequences (good and bad) will flow from my taking a particular action?
Would respected members of the profession agree to do this?
Do I sincerely believe that an action is the right thing to do?
What would happen if everyone took this action?
How would I feel if someone did this to me?
Would I do this if I knew in advance that everyone is going to find out that I did it?

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The profession, the adversary system and the role of lawyers +
professionalism

Law as a profession Downey on the definition of a profession Limited definition: A vocation or calling that requires advanced knowledge and learning in some branch of learning/science relating specially to law, theology or medicine. A discipline, with a set of ethical standards above those in the criminal law. Other jobs war with each other, attempting to put each other out of business. Professionals voluntarily limit the area of com petition. Could be seen as an elitist attempt to raise income. In fact, more about public responsibility for the pursuit of knowledge, ettiqeutte Hall marks of a profession: integrity and service (McKay J 1993) Larson: a profession is self-serving Professions organise themselves to attain power over the marketplace. A collective assertion of power by producers of special services to achieve upward social mobility (special social status) by controlling a scarce resource of knowledge and skills, which translated into economic and social rewards. Origin of professionalism = economic function, linking tertiary education and the marketplace Then ideloogical function, justifying inequality of status, monopolistic practices. Developed intangible goods, tied to the person/ality of the individual producers The need for standardisation and competition with others led to monopolisation; only lawyers may approach the bench. This kep t the price up on the product. Abel The legal profession's monopoly is dying out: lay conveyancers can practice conveyancing, universities (not the professional) control the bar for legal education. This devalues the products worth. Profession tried to increase demand through legal aid and creating new products, e.g. Administrative law, alternative dispute resolution. But this leads to an increased reliance on and accountability to government; in opposition to an independent profession. Character is relevant to being a lawyer. S 55 L&C Act: whether a person is a 'fit and proper person' to be a lawyer, character = first consideration. This protects: clients (lawyers handle critical matters), the system (lawyers have special privileges and play a critical role and the reputation of the profession. But arbitrary? e.g. Ignores drunk drivers, but prevents cannabis growers from being admitted?
Professionalism is important; s 12(b)(ii) of the L&C Act lists unacceptable 'unprofessional conduct' in the practice of law as unsatisfactory conduct Professionalism means: Fairy-tale: working selflessly to help the public. Cynical: professionalism is a tool for raising status, money, exclusivity. Reality in between?
Concept established in 18th century: clergy, medicine and law set apart from business by lack of profit motive. Attributes of professionalism: Self-organisation/regulation Clients are vulnerable: need protection from lawyers Practitioners best at policing because knowledge and self-interest in integrity and reputation Practitioners also police entry Advanced learning Lay people are not fit to pass judgment [but the L&C Act gives 'laypeople' more of a role in discipline than before]
Lawyers and Disciplinary Tribunal must be headed by a layperson; construed in NZ as someone who has retired from practice of law. Public service Selflessness (Pound: "the gaining of a livelihood is not a professional consideration.") Implications of professionalism Cab rank rule (R4): "A practitioner as a professional person must be available to the public and must not, without good cause, refuse to accept instructions..." R10: "A lawyer must promote and maintain proper standards of professionalism in the lawyer's dealings." Chapter 11 "Proper professional practice" includes rule 11, which refers to preserving the reputation of the legal profession Rule 12 links acting in a professional capacity with integrity, respect and courtesy Critical conceptions of professionalism A 'myth fashioned to rationalise a lucrative monopoly of power and to sustain the calculated mystification and arcane terminology necessary to exclude the outside" George Bernard Shaw: "every profession is a conspiracy against the laity" Entry restricted maintain elite status Excluded women and minorities (formally and more subtly) Limited numbers kept fees high Anti-competitive: e.g. Restrictions on non-lawyers doing conveyancing, appearing in court. Not about public service but self-interest. A vague, slippery concept manipulated to criticise differences in dress, language, parenting issues (does it interfere with putting clients first?) sexual practices (is it unprofessional to be a prostitute, dominatrix or cross-dresser in one's spare time?), hobbies, friendships and affilliations (can a lawyer be patched?) We tend to define professionalism in practice as being like ourselves (California Lawyer, but equally true here)

The adversary system Dialectic model of litigation The criminal trial: Lawyers are partisans and control witnesses, jury and judge are neutral, judge cannot intervene too much (Williams v Willems - reversible error) Williams Judge has duty to intervene when necessary: to make obscurities clear, to probe a little further into important matters, etc. But supreme duty is to ensure a fair trial, and this is best fulfilled by remaining aloof and detached from the proceeding. Judge cannot take the case out of counsel's hands. Intervention can lead to the appearance of bias, which is a reversible error. Criticisms

1. The focus is on winning, not justice Competition not best producer of truth. Judge Frankel: lawyers' weapons are "equally lethal for heroes and villians." But truth might be a naive, futile goal, given human limitations.

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2. The system relies heavily on lawyers doing their jobs properly

3. Wealth wins (AKA "inequality of arms") Better lawyers, more evidence available, not a level playing field

4. The process leaves the participants bloodied, even if they win Zealousness--> expensive trials Game playing (e.g. False delays) Hurts third parties, witnesses (e.g. Rape complainant) and so can impede justice. Zealousness --> indifference to hurting others.

5. The system obscures truth Process may hinder full investigation, truth (e.g. Confidentiality) Especially in civil trials, where less is at stake and rights of confidentiality are less important. Only an incentive to unearth and use beneficial evidence
[BUT: Clear duty on prosecutor to disclose evidence beneficial to defence.]
"Throwing pepper in the eyes of a surgeon when he is performing an operation"

6. Faith in the system is lost Spectacle hurts public confidence in system, D's rights, lawyers Not healthy for society to have a justice system characterised by absolutes, contradiction, mutually exclusive categories and polarisation. Dichotomies abound.

7. Too slow and inefficient: i. Finder of fact remains passive and neutral for whole proceeding, cannot conduct accelerating, independent inquiries ii. Rules of procedure allow both sides to present full arguments, but slows down. Strict rules of evidence also. iii. Appellate review undercuts finality and prolongs process. iv. Zealous advocates will dredge up every conceivable issue - Justice Wright (Ontario) But at least they should only focus on contentious issues, judges in inquisitorial systems must canvass all posible issues.

8. Lawyers come to dominate the system, short circuiting the benefits of party control

9. Judges have conflicting responsibilities both to create the law and to rule impartially. And lawyers are cultivated in a partisan environment, from which impartial judges are picked.

10. Race to the bottom: prisoner's dilemma created where the lowest common denominator is what is important. i. The truth will only come out if two equally partisan litigators are engaged; if one plays more even -handedly, there is a competitive disadvantage. Benefits of adversary system

1. Adversary system arose from past abuses Check on state power Guarantees relatively powerless defendant a defence. Search for truth may end up in more abuses: torture, drugging etc. (But Langbein says these abuses could have been addressed other ways)

2. Partisanship ensures the best possible defence Partisans have more time and resources (than inquisitor) because narrower focus Encourages maximum effort Cross-examination tests evidence Argument raises issues aid search for truth i. Impartiality of judge and jury are protected and promoted by their neutral role Confirmation bias is avoided

3. Adversary system is superior for protecting D's rights i. State should be neutral, not biased against accused, or people won't trust the government Recognises, reaffirms dignity of the individual: the state strips itself down to Crown counsel, gives power of decision to twelve citizens and an impartial umpire.
- Arnold ii. Where the state has great power, almost always abuses. PASI prevents fishing expeditions, keeps the system honest. 1) Rights have instrumental, not just intrinsic, benefits. 2) Better for 99 guilty go free than one innocent be punished? How to weigh this up?
iii. Empirical research backs up fair process (not outcome) as most important to client's satisfaction with the system.

4. More party control of process i. If a party is intimately involved in the adjudicatory process, they are more likely to accept results. ii. Better for society; less chance of judge simply pursing own agenda. Inquisitorial systems Focus is on establishing truth, outcome; process is sceondary Judges take very active roles In Frnce, examining magistrate (juge d'instruction) is inquisitor/investigator, not independent neutral observer/referee like common law Trial judge questions witnesses + accused Ds have fewer rights e.g. No PASI. Far fewer procedural limits, e.g. Make suspects re-enact crime (NZ would see as very perjudicial) Direct confrontation between conflicting witnesses (confrontation de temoins) Fewer exclusionary evidence rules; if relevant, admissible, and weight is argued later. Criticisms of inquisitorial systems

1. Decreased public confidence Decreased importance of process means lesser appearance of justice, maybe less faith in system by public [but less fear of re leasing guilty people]

2. Injustice because judges too involved to remain dispassionate - conformation bias Form preliminary theory, downplay/overlook conflicting evidence. A judge who is aloof and neutral is thus more objective?
As thorough as zealous partisan advocate?
Aacquittals rarely happen at that level of judge alone.

3. Less respect for rights No PASI Prejudicial evidence is admitted Hearsay Unfairly obtained (e.g. Search) Prior criminal record No habeas corpus:- for major offences, can hold accused in custody indefinitely without finding guilt

4. Less of a presumption of innocence Abraham: almost presumption of guilt Supporters argue that PASI is found in Art 9 of the Declaration of the Erights of Man and of the Citizen (French rev)

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Where to from here?
Inquisitorial systems becoming more adversarial (e.g. SA) and vice versa Adversary system modifications in NZ (e.g. EA06 permits jurors to pose questions of witnesses (Bain) also disputes tribunal (lawyers not allowed?), mediation/arbityration/case management, relaxation of rules of evidence, case management, plea bargaining, restorative justice. Semi-inquisitorial processes in NZ : Admission of hearsay, plea bargaining, ombudsman, status hearings and sentence indivications, restorative justice, Human Righ ts Review Tribunal, commissions of inquiry), case management. Hybrid = best? MacKenzie: because protection of individual rights less important in civil context, use inquisitorial system, but in criminal context --> adversary. Zealous advocacy Two aspects:

1. Diligent, fanatical attempt to help client ("Leave no stone unturned")

2. Regard "only" the client's wants and needs (selfless, loyal devotion) Lord Brougham: "An advocate, in the discharge of his duty,knows but one person in all the world, and that person is his client. ... must not regard alarm, suffering, torment, destruction which he may bring on another." Not wholly accurate: Overriding duty to court (then and now, e.g. R 2.2 (must not pervert justice) & Act s 4 (highest duty to court)) R13: The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer. Most agree interests of others are irrelevant. Underlying mindset is adversarial: zero -sum game. NZ rules: Preface: lawyer must "protect and promote your interests and act for you free from compromising influence or loyalties." Rule 5.2: "professional judgment of lawyer must be exercised within bounds of the law and the professional obligations of the lawyers solely for the benefit of the client." Rule 6: "In acting for client, lawyer must, *within the law+, protect and promote the interests of the client to the exclusion of the interests of third parties." Arguments for: Part of agency/advocacy role Client needs a dedicated supporter to ensure merits are not prejudged and rights are protected. You argue for client, judge/jury decides case. Arguments against: Promotes excess of 'win at all costs' mentality: leads to waste, over-ID with client, tempts unethical conduct. Fictional: Lawyers don't actually put in this degree of effort. If lawyer's duty is to client inside the client care rules and laws, but those laws and rules are ambiguous, then the lawyer will resolve those ambiguities in favour of the client; this is a recipe for sabotage. The reality is not that if all clients are zealously represented, those with the best legitimate claims will win out; the mar ketplace of legal ideas is favoured in terms of those who can buy the best legal aid; this is self-perpetuating also, as zealous advocacy takes more time and expense, and so further shuts out the poor. Neutrality (amorality) Lawyers are not morally responsible for the consequences of the legal services they provide Lawyers representing repugnant causes are doing a good deed, not a bad one
[Example - witness protection person "clean record" lawyer didn't speak up, killed a person drunk driving, Cabinet member castigated the lawyer]
Arguments against: Client control of lawyer is a myth. Lawyer often controls, or at least has significant influence. Lawyers are moral agent; inherent dignity. Aiding an immoral practice is itself immoral (e.g. Nuclear bomb technician) Arguments for: Lawyer is legally required to fearlessly represent client; would be unjust to hold the lawyer morally accountable. Strengthens the presumption of innocence if counsel can assume innocence and act as advocate to promote this view - Aronson.

Role differentiated morality The traditional view of legal morality. Role morality: your role should determine your behaviour. Faithfully executing that role means that you are behaving morally, whatever the consequences. Wider (personal) morality: lawyers need to take responsibility for their actions. The Rules Make reference to personal decision-making: "To the extent appropriate, these rules define the bounds within which a lawyer may practise. Within those bounds, each lawyer needs to be guided by his or her own sense of professional responsibility." (p A-4) Make some decisions discretionary, eg R 8.4 confidentiality: no standard for exercising the discretion is given (e.g. Don't say 'public interest!) Judicial support (very limited). R v Hall (1984) NZ quoted Re Cooke (1889) with approval for proposition that a "solicitor does not have to do everything his client asks him to": "bound to use utmost skill for his client, but not bound to degrade himself for the purpose of winning his client's case..." Hall dealt with a client demanding disclosure from her own lawyer of the identity of persons who adopted her child. But mainstream view supports role-differentiated morality. In favour of wider morality Webb: role-differentiated morality is justified by underlying institution, but it is open to criticism (e.g. Adversary system obscures truth sometimes) Impossible to separate personal life and professional lives: Conflict between personal/wider morality and role differentiated morality results in stress and/or diminished effort for some 'intellectual harlotry' Postema: moral decision-making powers atrophy if not used. Duncan Webb: behind Rawls 'veil of ignorance', we would all want to choose lawyers with personal integrity, and so reach more substantively fair results. But because of prisoner's dilemma, we must used hired guns, or else at disadvantage. 'Profession' is used because requires application of skill and judgment that can vary. Arguments against wider morality
○ No certainty if each lawyer follows own conscience, Dare - we don't have detailed knowledge of our professional's character, have to put trust in them.
- notification fully deal with this objection?
○ Insufficient protection for clients if low personal morality
- Doesn't justify a ceiling on personal morality?
○ Undermines public confidence. Need fair transparent process for pluralism.
- Does the public want or respect amoral lawyers?
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- Does the public want or respect amoral lawyers?
- Can acting for the greater good of the community (instead of the client's benefit) win back that confidence? Webb, communitar ianism.
- Simon: Nevertheless, in some cases, the lawyer has a more accurate picture than the judge or jury.
○ Competitive disadvantage vis adversaries
- But if notified early, can go elsewhere; assumes client is hurt by lawyer's perspective (not always true: Principled negotiat ion)
○ Role-differentiated morality leads to the greatest utility in the long run. Rules, even 'loopholes' are there for a reason.
- Webb: it may be utilitarian to follow wider morality)
○ Butt out -- it is the client's right what method to take.
- Not everyone agrees. "the client can go elsewhere, but I have my standards" Timothy Dare: Value of the social role of lawyers is only attainable if lawyers are subject to specific role -differentiated obligations and permissions. e.g. If there was not a lawyer-specific duty of confidentiality, clients may not tell all facts, and may not be able to exercise all rights. Necessary for a pluralist society, where different conceptions of the good life can be pursued within one societal framework; allows stable and just political community between the advocates of diverse views of the good.

Alternative approaches Richard HS Tur 'Cause lawyers' may believe that professing moral theory in practice is a professional responsibility. Fidelity to law, seen by some as the primary ethical duty for lawyers, requires slavish adoption and unquestioning acceptance of racist and sexist assumptions. Legal ethics should be aspirational, about ethics, but is instead disciplinary, not prudence. Lawyers conduct is being de-ethicised and instead over-regulated. "The wise, ethically sensitive, well-educated lawyer, certainly knows more than one person in all the world, and almost always owes moral duties to individuals and institutions other than the client." Duncan Webb: Zealous advocacy by neutral advocates "hired guns". Beyind a Rawlsian veil of ignorance, we would advocate a morally responsible framework. Seek just result. Prisoner's dilemma in the real world Liberal-utilitarian view of law and society: law is the arbiter of rights, lawyers must act impartially for individuals with disputes. The lawyer has no standing to question the law's moral content, and particularly, has no right to thwart clients' use of the law to enforce their rights on the ground that their aims are immoral. We have specific ideas of how other self-regulated industries should work, but usually they are held to a higher standard than we would hold ourselves personally; lawyers are frequently permitted or even required to act below normal expectations. Institutional excuse: as though as long as the role that a person occupies is not inherently immoral, then the actions that r ole requires are not immoral. Utilitarian ethic: individual wrongs justified in the larger scheme as they are outweighed by some greater good. Role-differentiated morality then relies on the institutional of law, and thus the role of a lawyer, being moral. Fails to take into account that lawyers are autonomous human actors, and are not morally transparent; have their own values and commitments. To force lawyers to be hired guns through cab-rank rule is then to reduce lawyers to a less than human state, to disregard their moral limitations. Should give more primacy to the lawyer in the lawyer-client relationship: The client's best interests are primary, but the manner in which they are defined and furthered is the lawyer's province. Thi s is a matter of personal judgment. Christine Parker (1) To what extent should lawyer's ethics be determined by their role?
Legalism is dominant in considering ethics; just look at the law, very positivistic. (2) How should lawyer and client relate ethically; whose view of morality prevails?
(3) What is the lawyer's obligation towards law and justice?
(4) To what extent should lawyers in their daily work make sure they care for people and relationship?

1. Adversarial Advocate (traditional role-differentiated morality - amoral) Lawyer's ethics governed by role as advocate in adversarial legal process and complex legal system: partisanship, loyalty and non-accountability. Lawyer's duty is to advocate client's interests as vigorously as possible within the bounds of the law (barest obligation to legality) - let the chips fall where they may. Extends beyond adversary role to ensuring client's autonomy in a complex legal system as required by the rule of law.

2. Responsible Lawyer (officer of the court, trustee of legal system) Lawyers ethics governed by role of facilitating the public administration of justice according to law in the public interest. Duties of advocacy are tempered by duly to ensure integrity of and compliance with the spirit of the law; to ensure that issu es are not decided on purely procedural or formal grounds but substantive merits. Lawyer is responsible to make law work as fairly and justly as possible. May need to a ct as gatekeeper of law and advocate of legal system against client. Role modified: facilitates administration of traditional justice in public interest E.g. Spirit of the law not just letter. Focus on merits of a claim, not process. Limit things like abusive cross-examination of truthful witnesses. Would not use loopholes to advance clients' interests at the expense of the system. Because that would be destructive of the system, and ultimately therefore client's interests: the two are, ultimately, complementary. Personal ethics irrelevant; look to ethics inherent in role as officer of court and in law itself. Conservative approach.

3. Moral Activist (public interest lawyering and law reform) Lawyers' responsibilities defined by general ethics, particularly social and political conceptions of justice, moral philosop hy and promotion of substantive justice. Lawyers should take advantage of their position to improve justice in two ways: 1) Public interest lawyering and law reform activities to improve access to justice and change the law and legal institutions to make the law more substantively just (in the public interest). Progressive, not conservative. 2) Client counselling to seek to persuade clients of the moral thing to do or withdraw if client wants something else. Justice is aim but defined in broader terms: socially and politically. Lawyer's personal ethics are placed above client's.

4. Ethics of Care (relational lawyering) -- Responsibilities to people, communities and relationships should guide everyone's behaviour Carroll Gilligan Social role of lawyers is irrelevant. Responsibilities to people, communities and relationships should guide lawyers (and cli ents) as everybody else. Preserving relationships and avoiding harm are more important than impersonal justice. The value of law, legal institutions a nd institutional roles of lawyers and others are derivative of relationships. People and relationships are more important than institutions such as law. The goal of the l awyer-client relationship (like all relationships) should be the moral worth and goodness of both lawyer and client, or at least the nurturing of relationships a nd community. Encourages holistic view of client and their problems: looking outside the legal, still trying to find what's in their best interests but by considering a wide range of factors. Client-Lawyer relationship is participatory, based on mutual trust and shared knowledge.

Implications of Professionalism Cab Rank Rule 4 A lawyer as a professional person must be available to the public and must not, without good cause, refuse to accept instructions from any client or prospective client for services withinthe reserved areas of work that are within the lawyer's fields of practice.

4.1 Good cause includes [not exhaustive] lack of time, lack of experience, professional obligations, inability of client to pay.

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4.1 Good cause includes [not exhaustive] lack of time, lack of experience, professional obligations, inability of client to pay.

4.1.1 Discrimination (HRA93), client's personal attributes and merits of the matter are not good cause.

4.1.2 Entitled to declien instructions that interfere with current retainer.

4.1.3 Declining instructions? Must give assistance to find a new lawyer. Lawyer's personal beliefs were considered as good cause, but rejected. Schwartz: Whether or not denying representation is ethical is the result of a balancing exercise:

1. The nature and substantiality of the legal interests being vindicated Whether the legal interest calling for representation is important enough to subordinate the lawyer's autonomy.

2. The gravity of injury or damage to the party who suffered the moral wrong

3. The adequacy of presentation of the cause without counsel. Compares representing a lay person to saving a drowning child... Both would be at a loss without someone coming to their aid. Quinlivan:

4. The impact of the choice to represent on the lawyer Personally (emotionally etc) and socially (Goldberger, ACLU lawyer who took on Neo-Nazis' case in US, Skokie) Justifications for rule: Everyone gets a lawyer (IRA bombing example in Ireland), important right to fair trial BORA. Public service aspect of professionalism Protects lawyers of unpopular clients from public criticism Arguments against rule: People would get lawyers anyway (fee, challenge, commitment to system) Rule is not enforced Lawyer's autonomy (Simon: controlling one's own labour is a fundamental right) ('moral prostitution' - Quinlivan) A lawyer may not turn down a client on the basis of their moral repugnance, but may refuse on the grounds that they will not generate as much profit as others.

Ongoing legal education S 97 L&C Act 2006 says the NZLS can require lawyers to undertake ongoing legal education (1), and

'Pro bono publico' work Darvell v Auckland District Legal Services Subcommittee [1993]
The operation of the criminal legal aid scheme is to be as inexpensive and efficient as is consistent with the spirit of the Act. There is an important and long-standing professional tradition that counsel should acknowledge some obligation to undertake legal aid briefs and in so doing to accept that a sacrfifice in terms of their usual remuneration is necessarily involved; no segment of the legal profession is excluded from this occassional professional duty. Especially QCs, who have a heightened sense of public responsibility. Webb A duty to do pro bono work is ethical and aspirational, not regulatory; lawyers ought to do it to be good lawyers, not to achieve smoe minimum standard. Necessary for poor people because otherwise: Illusory rights, Counterweight to more resourceful interests, Tactics, Adversarialism, access to justice, public interests Why legal aid is insufficient alone: Legal aid only covers litigation, not general advice on legal rights. No grant of legal aid can be given to groups of people (e.g. Charitable trusts) Where fruits of litigation will not cover costs incurred, no legal aid. But is it denying lawyer's rights? Slavery/taxation? Unfair to those not quite in poverty? Not consistent with rational egoism?
But lawyer's have general duty to uphold

"Fit and proper person" s 55 Fit and proper person (1) For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters: (a) whether the person is of good character: (b) whether the person has, at any time, been declared bankrupt or been a director of a company that has been put into receivership or liquidation: (c) whether the person has been convicted of an offence in New Zealand or a foreign country, and, if so: (i) the nature of the offence; and (ii) the time that has elapsed since the offence was committed; and (iii) the person's age when the offence was committed; (d) whether the person has engaged in legal practice in New Zealand when not admitted under this Act or a corresponding law, or not holding an appropriate New Zealand practising certificate, as required by law: (e) whether the person has practised law in a foreign country—
(i) when not permitted by or under the law of that country to do so; or (ii) if permitted to do so. in contravention of a condition of the permission: (f) whether the person is subject to—
(i) an unresolved complaint under a corresponding foreign law: or (ii) a current investigation, charge. or order by a regulatory or disciplinary body for persons engaging in legal practice under a corresponding foreign law: (g) whether the person—
(i) is a subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country; or (ii) has been the subject of disciplinary action of that kind that has involved a finding of guilty, however expressed: (h) whether the person's name has been removed from a foreign roll, and that person's name has not been restored: (i) whether the person's right of practice as a lawyer has been cancelled or suspended in a foreign country: (j) whether the person has contravened, in New Zealand or a foreign country, a law about trust money or a trust account: (k) whether the person is subject to an order under this Act or a corresponding law disqualifying the person from being employed by, or a partner of, a lawyer or an incorporated law firm: (l) whether, because of a mental or physical condition, the person is unable to perform the functions required for the practice of the law. (3) (1)'s list isn't exhaustive.

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Disciplining lawyers

Court-ordered sanctions and remedies Contempt of court (inherent jurisdiction of court to control own processes) imposing costs on lawyer or firm (as opposed to client) Court also has power to disbar counsel as part of its inherent jurisdiction to control its own processes [considered more in conflicts of interest]

Professional discipline The Rules a 'reference point' for discipline. So can still be disciplined even if action not expressly prohibited by Rules. 4 categories of behaviour that can be disciplined:

1. Misconduct (s 241(a))

2. Unsatisfactory conduct that is not so gross, wilful or reckless as to amount to misconduct ( s 241(b))

3. Negligence/incompetence of such a degree/so frequent as to reflect on fitness to practice/bring the profession into disrepute ( s 241(c))

4. Conviction for offence punishable by imprisonment where conviction reflects on fitness to practise/tends to bring the profession into di srepute (s 241(d)).

Misconduct defined - s 7 L&C Act Conduct occurring at a time of providing legal services...
- (1)(a)(i) That would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable or; No rigid, unchanging standard; good and bad.
- (1)(a)(ii) Wilful or reckless contravention of the Act or rules or regulations made under it, or
- (1)(a)(iii) That consists of a wilful or reckless failure on the part of the lawyer to comply with a condition or restriction of the practising certificate
- (1)(a)(iv) That consists of charging grossly excessive costs for legal work carried out
- (1)(b)(ii) Conduct unconnected with legal services but justifies finding lawyer is not fit and proper person otherwise unsuited to practice
- (1)(b) + (3) Sharing legal fees with a non-lawyer ((4) except patent attorneys) ((5) except distributions to shareholders of incorporated law firms) Re A:"professional misconduct" under old scheme requires more than a finding of mere breach of a rule; implies fault beyond an er ror of judgment Probably similar under current legislation.

Unsatisfactory conduct defined Includes (s 12 L&C Act): (a) Conduct during provision of legal services below standard of competence + diligence that the public is entitled to expect of a reasonably competent lawyer (b) Conduct during the provision of legal services that would be regarded by lawyers of good standing as unacceptable, including (i) conduct unbecoming a lawyer or (ii) unprofessional conduct; (c) Conduct which contravenes the Act or regulations or practice rules that isn't misconduct under s 7 (d) Failure to comply with restriction on practice certificate that isn't misconduct under s 7 There are various penalties, including fines, censure and orders. Practitioners will not be struck off unless they are found, by reason of their conduct, not to be fit and proper persons to p ractice law (s 244(1))

Contract remedies against lawyers A contract of retainer (ie, to provide legal services) may arise expressly or by implication. Retainer is presumed if parties' conduct shows solicitor -client relationship has in fact been established (Bartle (CM 123) at [130], quoting Groom) Bartle: Dodgy investment deals, mortgaging house. B asked lawyer if put house at risk ('not really), if good investment ('yes, done b efore, it's good').
□ Expectation was if went ahead, use this lawyer for secured transaction (mortgage) and review contracts of investment etc.
 Didn't give instructions (general pre-transaction advice) - no contract at first interview
□ If lawyer wasn't contracted until post-deal, no responsibility for quality of deal.
□ Held: going to lawyer for advice on legal significance of situation, unless lawyer is to take related action, doesn't count a s 'instruction'.
 Seems like a form of instruction... But judges said that:
 No evidence of an expectation that the lawyer was entitled to a fee for the consultation
□ If you pay someone for advice, clearly there is a contract.
□ But here, not clear. Many lawyers give the first consultation for free, roping people in.
 Selene is sceptical: Bartles went out of their way to consult and ask for advice prior to entering into the transaction Retainers Retainers are seldom completely reduced to writing Instructions usually verbal and some terms (reasonable skill) are implied. e.g. 'we will use reasonable skill in carrying out instructions' Fees and other info must be in writing (Rules 3.4, 3.5; but fee estimates need not be: R 9.4) Lawyers must fulfil contractual obligations Strict liability, Paradine v Jane. Third parties can't rely on contract: no privity. Scope Express terms: E.g. file documents by due date Implied terms: reasonable care and skill, warn of risks, adequate diligence Might include: complete advice, matters incidental to express terms Scope is critical for identifying duties (in tort and k). Also relevant agency law (e.g. authority to settle?) If client gives an instruction, the lawyer must either accomplish it or tell the client that he can't Goldfinch v Castle Brown (2001) HC Plaintiffs effectively instructed solicitor that if they needed to take possession of farm under security, wanted to operate and sell as going concern. By

Selene Page 7

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