Ethics and - Gordon & Jackson

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Professional Responsibility The Rules As a regulated profession we have rules we are required to abide by. Legal ethics requires us to know the disciplinary rules regulating our legal profession. Some rules are statute based with punitive sanctions like the Legal Profession Act 2004 (“the Act”) (Amended 2/5/2012) Some rules have been drawn up or endorsed by professional bodies like the Law Institute of Victoria (“LIV”) (Professional Conduct and Practice Rules 2005) (“the Rules”) and the Victorian Bar (“the Bar”) (Victorian Bar Practice Rules) (the Bar Rules”). In addition we now also have to keep the Civil Procedure Act 2010 in mind. Some sections of the Rules relevant to all lawyers are: • 2.4.27 Holder of local practising certificate—show cause event • 3.4.11 How and when must disclosure be made to a client? • 4.4.2 Unsatisfactory professional conduct These 3 are reproduced as a Schedule to this paper but there are, of course, many more. We all need to become familiar with the Act. If unsure when acting for a client, check the Act and the relevant Rules, or seek advice from your regulatory body (LIV or the Bar) before committing yourself to a step which could see you fall foul of the Legal Services Commissioner, and join the ranks of those appearing before VCAT. The Act currently consists of some 620 pages dealing with issues of how lawyers are admitted to practise, remain in practise, and what issues or behaviour can cause them to have their practising certificates cancelled, suspended, (in other words “lose their ticket”) facing fines and paying the costs of the Legal Services Commissioner to bring them to the Tribunal. The Act empowers the Legal Services Commissioner, (“the Commissioner”) currently Mr Michael McGarvie, and his staff to handle complaints from the public, the profession 2 and even the judiciary. 3 To put the following statistics into perspective according to the Legal Services Board’s (“LSB”) website states that there are currently 16,727 practitioners registered in Victoria. In 2010-11 1,263 new practitioners were admitted, an increase of 6%. 56% of the legal profession were male 2 Legal Services Commissioner v D'Alessandro (Legal Practice) [2009] VCAT 1129 (2 July 2009) 3 Legal Services Commissioner v Griffin (Legal Practice) [2010] VCAT 484 (21 April 2010) Oldham v Law Institute of Victoria (Legal Practice) VCAT 571 (30 May 2012). 2
and 44% female. Of these 16,7272, 15,000 are located in the city or suburbs and 1,200 in the country. The remaining 441 are located either overseas or interstate. In 2010 the Commissioner received 2200 some complaints. Most of these were resolved with 10 practitioners being referred to VCAT for findings of professional misconduct. In 2011 there were 15, in 2012 to date I have counted 19 reported on the Legal Services Board’s (“LSB”) website, most heard in VCAT but 4 were heard by the Supreme Court. In reviewing the reported cases the breadth of the complaints made to the LSB is surprising, but by far the greatest number related to a failure by lawyers to communicate. Initially with their clients and once a complaint had been lodged, a failure to respond to the Commissioner’s request for information in relation to a complaint. In most cases these were later resolved. Where they couldn’t be resolved, the lawyer often faces a reprimand as well as a fine as well as meeting the Commissioner’s costs of bringing the action. How do you prevent a Complaint? Communication Communicate with all parties but especially your client. The dilemma all legal practitioners face is cost. Every time we communicate with our client it costs them. Most non-lawyers are not aware of lawyers’ responsibilities, even when it is spelt out to them in disclosure letters. For some the only communication that seems to make an impact is the dollar figure on the bill they receive, whether it is large or small. Despite this, we cannot be cowed into failing to advise clients of costs consequences of various actions, incurring further costs in seeking their instructions in the face of changed circumstances and advising of the likely outcomes of continuing the current action. We need to do this even when we think they will confirm our current instructions. When dealing with a new client you need to set the pattern of behaviour from the outset and refer back to this initial advice, if need be, as the relationship continues. The client needs to be aware that you are not allowed to act without their instructions, in fact are prohibited from doing so either by legislation or professional regulations. Regrettably this need for communication adds to the client’s costs. Conversely, a client who is continually contacting you for advice needs to be aware that all those phone calls, emails, are going to generate costs they are liable for. Situations where there is no time to draft and provide a Costs Disclosure Letter or Agreement are rare. Verbal advice of costs with verbal acceptance can cover an emergency or rush situation, but should always be immediately followed up by confirming written documentation. This needs to be done not only to meet your obligations under the law, but you may well be relying on it in a costs fight, even if you win the case. 3
Page 1: ETHICS & PROFESSIONAL RESPONSIBILIT
Page 5 and 6: What can go wrong if you are not et
Page 7 and 8: Conflict of Interest Failure to avo
Page 9 and 10: R v Andre di Cioccio [2012] VSC 28
Page 11 and 12: Tax Issues Failure to file tax retu
Page 13 and 14: Undertakings Failing to take steps
Page 15 and 16: lawyers responsible. As the interes
Page 17 and 18: The company sought advice from Astl
Page 19 and 20: Does the standard of ethics change
Page 21 and 22: S. 2.4.27(2)(a) amended by No. 12/2

Ethics and - Gordon & Jackson

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