LLW3009 Lawyers' Ethics and Professional Responsibility: WINTER BLOCK 2022 FACTS AND QUESTION FOR ASSIGNMENT 2A (20 MARKS) 1. Wickham is a principal solicitor of Collins Wickham Lawyers, a general law practice comprising 3 legal practitioners. The other principal solicitor is Collins. The third practitioner is Lucas, an employee solicitor, who recently joined the practice. 2. Charlotte is the Minister for Immigration and Citizenship Affairs (MICA). Lizzie is an opinionated video logger, occasional free-lance journalist and self-proclaimed crusader against corruption. Lizzie's slogan on her video log (vlog) channel (which has over 50,000 followers) is that she goes 'where angels fear to tread', apparently abbreviated from the saying, 'fools rush in where angels fear to tread'. 3. In a recent vlog, Lizzie filmed herself outside the offices of MICA and alleged that Charlotte is abusing her position as the MICA. Lizzie stated bluntly in her vlog that Charlotte is pressuring a charity, the Association of Friends for Asylum-seekers and Refugees (AFAR) to divert its resources away from assisting asylum-seekers and refugees fleeing persecution, war or instability from Asian and African nations, and to channel those resources towards encouraging emigration from North America and Europe. Lizzie alleged that Charlotte is doing this through a government department within her portfolio, the Authority for Charitable Organisations and Not-for-profits Section (A-CON), that oversees charities like AFAR. Lizzie suggested that Charlotte is beholden to a right-wing lobby group that has been promoting a 'Make Australia Champion Again for Whites' (MACAW) policy because of the lobby group's generous donations to Charlotte's political campaign. In the vlog, Lizzie proclaimed, 'If this is not racist abuse of power, I don't know what is'. 4. Bingley Darcy Legal, solicitors for Charlotte, have just served a 'concerns notice' on Lizzie under the Defamation Act 2005 (Vic). Charlotte's solicitors are demanding that Lizzie publish a retraction and an unqualified apology on her vlog channel and in a national newspaper, as well as pay Charlotte's legal costs; otherwise they will commence defamation proceedings on behalf of Charlotte against Lizzie. 5. Lizzie and Wickham are in an on-again, off-again relationship. On a Tuesday afternoon, Lizzie flounces into Wickham's office without an appointment and slaps the 'concerns notice' from Bingley Darcy Legal onto his table, demanding that he respond to it on her behalf. Wickham quickly scans through the 'concerns notice' and tells Lizzie that he is not confident taking it on as defamation law is a specialist area, but can recommend an expert to her. 6. Lizzie leans suggestively towards Wickham and whispers in his ear. Wickham's eyes widen. He adroitly manoeuvres a chair behind Lizzie and ingratiatingly invites her to be seated. Lizzie accepts with grace, crossing her legs and smiling at Wickham demurely. Wickham slips back into his own chair and prepares to take notes. 7. Wickham spends the rest of the day getting information from Lizzie about the matter. He finds it difficult to focus because she keeps fluttering her long eyelashes at him, which proves to be very distracting to him. Finally he thinks he has sufficient information and tells Lizzie that he will do some research and provide her with an update. Apparently, Lizzie's claims are based on an inside source in A-CON. Wickham asks Lizzie to drop by his office on Friday morning for the update. Blowing a kiss to him, Lizzie invites Wickham to drop by her place that weekend to discuss the matter in 'more conducive surroundings'. Wickham knows what the invitation implies and agrees instantly. Lizzie stands up and sashays her way out of his office. 8. Wickham spends the next 3 days reading up on the law of defamation and forms the view that Lizzie has a defence of justification and/or in the alternative, a defence of honest opinion. However, he fails 2 to appreciate that Lizzie may have asserted statements of fact and that while one defence relates to facts that are substantially true, the other relates to comments or expressions of opinion on matters of public interest founded on a demonstrably proper basis. 9. Tingling with anticipation, Wickham goes to Lizzie's house on the weekend. He is also excited to convey what he believes to be good news to Lizzie regarding her defence if Charlotte follows through on her threat to commence defamation proceedings. On arrival, he asks Lizzie once again whether she is sure that she wants him to handle the matter. Wickham reminds Lizzie that defamation law is a niche area and that he is more than happy to recommend a specialist to her. Lizzie pashes Wickham and whispers that she wants him to be her 'Sir Lancealot'. Wickham starts to tell her about his research, but Lizzie coyly puts a finger to his lips and leads him to her bedroom. 10. In the afterglow of their passion, discussing the merits or otherwise of defending potential defamation proceedings is the furthest thing from Wickham's mind. Significantly, it completely slips his mind to bring to Lizzie's attention, the merits or otherwise, of making an 'offer of amends' to Charlotte. 11. The following Monday, after confirming with Lizzie, Wickham replies to the letter from Bingley Darcy Legal refuting the allegations of defamation in the 'concerns notice' and stating that Lizzie is standing by her blog post about Charlotte. He sends a copy of his reply to Lizzie by email. In response, Bingley Darcy Legal commence defamation proceedings on Charlotte's behalf in the County Court of Victoria against Lizzie and serve the court papers on Collins Wickham Lawyers as solicitors for Lizzie. 12. Wickham files a Notice of Appearance in court on Lizzie's behalf within 3 days of receiving the court papers from Bingley Darcy Legal and serves on them a copy of the Notice of Appearance. He starts working on a draft Defence for Lizzie. He also drafts the 'overarching obligations' and 'proper basis' certificates pursuant to sections 41 and 42 of the Civil Procedure Act 2010 read with rules 4.09 and 4.10 of the County Court Civil Procedure Rules 2018. 13. Wickham requests Lizzie to attend at his office as soon as possible to sign the court papers. When Lizzie arrives, Wickham asks her to go through the draft Defence. Lizzie skims over it and tells Wickham, 'It's OK, I trust you, but I have just found out that my source did not get along with Charlotte and she had bypassed him before a couple of times on certain matters. I gather he is thinking of early retirement. Does that change things? I still believe him though.' 14. Wickham assures Lizzie that there is no cause for concern. He informs her that this new information makes little difference as he believes that her defences of justification and/or honest opinion will stand up. He asks Lizzie to sign the 'overarching obligations' certificate, just telling her that it is 'a formality' without elaboration. Lizzie signs the certificate and leaves without asking any questions. 15. Wickham finalises and signs the Defence and the 'proper basis' certificate. He files these documents in court together with the 'overarching obligations' certificate that Lizzie has signed and arranges for service of all the papers on Bingley Darcy Legal. He also emails copies of the documents to Lizzie for her reference. Having done all these within 2 weeks of filing and serving the Notice of Appearance, Wickham congratulates himself on his quick work. ____________________ Question 1 With reference to the relevant common law factors, identify when the lawyer client relationship between Wickham and Lizzie first began. In your analysis, you must apply and/or distinguish the current assessment facts from the facts in the relevant case(s) on lawyer client relationships. 3 Question 2 With reference to one relevant case and one corresponding rule (i.e. a rule that corresponds to the principles discussed in the case) of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (SR), other than rule 12, discuss whether Wickham should be acting for Lizzie. You must analyse the case and apply the principles gleaned from it, as well as show how the principles correspond to the relevant rule of the SR. For this assignment, an in-depth analysis of a single relevant case is preferable to a superficial discussion of 2 or more cases.