Tutorial 5 - Fidelity to the Law and Accountability

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Feb 20, 2024

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Lawyers, Ethics & Justice – Tutorial 5 Please make sure to review and prepare before coming to class. Question 1 Michelle, a solicitor, has been instructed to act on behalf of Arthur in criminal proceedings. Arthur has been charged with battery and drink driving. Arthur wishe s to plead guilty. Arthur also advises Michelle that he has recently lost his job as he has been accused of using some of the assets of his employer for his own personal use and defrauding his employer by $5,000. Michelle asks Arthur if he has ever been convicted. Arthur states: 'You do not need to worry about it.’ Michelle is worried about this statement. She makes further enquiries and discovers that Arthur in fact has been convicted for another drink driving offence in 2005. During the court proceedings, the prosecutor, William, states to the court that Arthur is employed. Michelle suspects that the prosecution is not aware of Arthur’s past conviction. (a)Advise Michelle on her duties: Does she need to correct the prosecutor’s error regarding his statement according to the Solicitors Rules? Should she disclose the prior conviction? (b)Assume that Michelle did not disclose any of the information to the court. What is the likely consequence, if any, for her action? Question 2 The facts in this scenario are based on The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 Arnold was admitted to the roll of lawyers in 2002. He assaulted his partner on 22 July 2007. As a result of this conduct, in 2009, following a trial in the District Court, the respondent was convicted of three offences. At trial and at the sentencing hearing, Arnold denied that the conduct constituting those offences took place. On 18 September 2009, the respondent was sentenced to imprisonment for a minimum term of four and a half years. Would this conviction affect Arnold’s ability to practise law? Question 3 From Parker & Evans, Ch 6, pp189-190: (a) The plaintiff’s lawyer mistakenly states on the writ, the amount owing is $25,000 when the amount owing is $250,000. CRICOS Provider Code 00098G
Should the defendant’s lawyer inform the other side of the mistake? (b) A lawyer states that their client had not been drinking alcohol prior to the car accident in question, but does not mention the client had been smoking marijuana. The other side is unaware of this fact. Does the lawyer have an obligation to disclose this? (c) A lawyer withdraws from representing a client who perjured themselves ( r19 ASCR ) but does not inform anyone else, including the court, of the perjury because of the need to keep client information confidential. The client lies more convincingly to their new lawyer and the case is decided in the client’s favour on the basis of the perjured evidence. Does the original lawyer have a duty to inform the court? How does he/she reconcile the duty of confidentiality owed to the client, with the duty not to mislead the court? Question 4: Practise your Exam Technique Kim’s Problem Scenario (a) In what aspects do you believe Kim may have breached his duty of candour in this scenario? Identify instances from the facts where Kim has breached this duty Select the relevant rule/s, case law and apply it/them to the facts at hand. (b) Do you think Kim breached his duty of independence? Identify instances from the facts where Kim has breached this duty Select the relevant rule/s, case law and apply it/them to the facts at hand (c) What may be the consequences of his conduct? Mei’s Problem Scenario (a) Identify occasions where Mei has breached her duty of candour in this scenario and name the applicable professional rule and case law. (b) What may be the consequences of her conduct? For the purposes of these questions, please focus only on instances where Kim or Mei have breached their obligations re Fidelity to the Law. Other issues such as conflicts of interest, confidentiality, inadequate costs disclosure will be addressed in later classes. Page 2
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