Richard, aggrieved both by the amount he had been charged and Justine's conduct generally, laid a complaint with the Legal Profession Conduct Commissioner (LPCC). It transpired that, in addition, three barristers had also complained to the LPCC in relation to Justine's failure to pay counsel fees. The LPCC investigated the complaints. It asked Justine to provide information and explanations in relation to the various allegations. Justine failed to respond to some of the requests. Some of them were dealt with after a very long delay. She was very uncooperative on many occasions, causing further trouble and inconvenience. She finally announced that she would not renew her practicing certificate for the foreseeable future; instead, she would take leave to consider her options. She has not practiced law for 2 years. The LPCC referred the matter to the Legal Practitioners Disciplinary Tribunal, which determined that Justine was guilty of professional misconduct. The Tribunal recommended that disciplinary proceedings be commenced against Justine in the Supreme Court. The LPCC has brought proceedings in the Supreme Court, seeking an order that Justine's name be struck off the roll of legal practitioners. 

Justine is resisting the strike-off application. She claims that she has an acute agitated depressive illness which has caused her to develop a compulsive phobic avoidance of dealing with complaints by clients and investigations. One of her psychiatrists has reported that there has been an improvement in her psychiatric condition recently, likely to be linked to the fact that she has not practiced law for 2 years. He also noted that while she had 'not yet shown a consistent ability to be aware of the importance of external stresses, modify them or implement worthwhile stress reduction strategies', her psychiatric condition had somewhat improved with intensive treatment, but that she was not yet fully recovered.

 

Do you think that the court will order that Justine's name be struck off the roll of legal practitioners? What factors will the court consider in deciding this matter? Of what relevance is Justine's psychiatric condition? You must reference the relevant parts of the Legal Practitioners' Act (SA) 1981.

 

 

 

Here are some information that you might find relevant. please refer to the relevant parts of he Legal Practitioners' Act (SA) 1981. Use cases to support your answers. 

 

Regulation of the Legal Profession

• The Legal Profession's reputation depends, in large part, on the maintenance and enforcement of high standards of conduct by its members
• Regulation of the Legal Profession covers all aspects of legal practice and is implemented by various institutions so as to ensure that this objective is met.
• See the Legal Practitioners Act 1981 (SA) ("LPA") and
• The Professional Conduct Rules
  • the Law Society of South Australia Australian Solicitors' Conduct Rules 
  • the South Australian Bar Association Inc. Barristers' Conduct Rules.

 

 

Regulation of the Legal Profession

 

Regulation involves: 

• The Admission (entry into the profession) of practitioners
• The identification of standards of conduct enshrined in codes of conduct
• The issuing of practising certificates / control of membership
• Identification of specialised areas of practice 
• Supervision of trust accounts & insurance
• Transparency & access to justice
• Complaints procedures
• Discipline of members including the removal of their right to practise

 

 

Legal Professional Standards

• Standards of legal professional conduct are found in:
  • The Common Law and Statute
  • Codes of Conduct
  • Personal values
• A breach of the standards refers to a level of conduct that is regarded as unacceptable so far as the profession or the Court is concerned.
• Legal professional standards fulfil 3 main requirements:
  • The standards enshrined in the professional conduct rules inform disciplinary proceedings
  • They provide a guide to lawyers on issues of professional responsibility
  • They serve as 'public relations' document assuring the general public how seriously lawyers take their responsibilities

 

 

National Legal Associations

Law Council of Australia

• Formed in1933 as a Federation of all State Law Societies and Bar Associations, the Law Council of Australia "exists to represent the legal profession at the national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law.
• The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world."

 

National Legal Associations

The Australian Bar Association.

"The Australian Bar Association is the peak body representing nearly 6000 barristers throughout Australia. Established in 1963, the ABA is committed to serving, promoting and representing its members, as well as advocating for fair and equal justice for all. "

 

 

Institutions regulating the profession in SA

 

There are various bodies in South Australia which fall loosely under the term "regulatory authority" of the legal profession.

1. The Supreme Court*
2. The Legal Practitioners Education and Admissions Council (LPEAC)
3. The Board of Examiners
4. The Law Society of South Australia
5. Legal Practitioners' Registry
6. The South Australian Bar Association
7. The Legal Profession Conduct Commissioner*
8. The Legal Practitioners Disciplinary Tribunal*

 

         The Legal Practitioners Education and Admission   Council (LPEAC)

 

• Established by Part 2A Division 1 of the of Legal Practitioners Act 1981.  
• Functions are set out in S14C of the Legal Practitioners Act 1981.
• Composition
• The Chief Justice (Chair)
• The Attorney-General
• 3 judges (of the Supreme Court or Federal Court)
• The Deans of each of the Law Schools
• Presiding member of the Board of Examiners
• A law student nominated in a manner determined by the Chief Justice and appointed by the Chief Justice
• A legal practitioner appointed by the Attorney-General,
• 4 legal practitioners appointed by The Law Society (at least one of whom, at the time of appointment, is practicing predominantly as a barrister). 

 

 

The Legal Practitioners Education and Admissions Council (LPEAC)

• Mandatory continuing professional development (MCPD) requires practitioners are to complete 10 units of MCPD activity per year.
• An MCPD activity is an activity dedicated to professional development and is not merely engaging in legal practice. Generally, it is a matter for each legal practitioner to choose the subject matter of each activity undertaken, as long as it qualifies as an 
• MCPD activity. 
• Failure to comply with the MCPD conditions is a breach of a condition of a lawyer's practising certificate. 
• Continued failure to comply with the MCPD requirements may be constitute unsatisfactory professional conduct or professional misconduct (depending on the nature and circumstances of the breaches) under the LPA. 

 

 

The Legal Practitioners Education and Admissions Council (LPEAC)

• LPEAC - Other functions include:
  • Participate in the development of uniform national admission and standards of practice.
  • Review legal education and training courses and post-admission experience;
  • Perform any other functions assigned to LPEAC by the LPA.

 

The Board of Examiners

• The Board has the functions and powers conferred on it under the Legal Practitioners Act 1981 (Part 2A, Sections 14I - 14L) or by LPEAC.
•  These functions include the consideration and determination of whether a person has satisfied the requirements for admission to practice. 
• The Board consists of 15 members appointed by the Chief Justice of whom—

         (a) one must be a Master of the Supreme Court       (Presiding Member); and

         (b) two must be persons nominated by the Attorney-       General; and

         (c) 12 must be legal practitioners.

• The Board examines all applications for admission, and reports to the Supreme Court whether each applicant is eligible for admission and is a "fit and proper person".
• It also examines applications for renewal of practising certificates.
• See: LPEAC Rules 7.6(a), 8 & 9.
• It may request a teaching institution for a written statement  as to whether or not the applicant has been guilty of any dishonest conduct or other conduct relevant to the determination of the question whether the applicant is a fit and proper person to be admitted as a legal practitioner. 
  • A body corporate established by Part 2 of Legal Practitioners Act 1981, Ss 7- 14. 

 

The Law Society of South Australia

• The Society is managed by a Council and has the right of audience in any court, in any matter affecting its interests.
• The Society provides professional services, resources and support to its members and the legal profession in general. 
• It also undertakes community education, the offering of continuing legal education programmes and engages in activities designed to improve access to justice.
• It administers the Litigation Assistance Fund

 

The Law Society of South Australia

• The Society has a right of audience before the courts in relation to any matter concerning the Society's affairs and in respect of any case where a person is seeking admission.
• The Society also maintains a database of practitioners and, by delegation of the Supreme Court, runs the Legal Practitioners Registry which issues practising certificates.
• It has a representative role as the voice of lawyers in SA.
• It is not obligatory to be a member.
  • An association of independent barristers. 

 

 

The South Australian Bar Association

• Responsible for the registration and regulation of its members and for the maintenance of professional standards and discipline within the Bar.
• The Bar Council has the power to reprimand, suspend or expel a member or otherwise act as set out in the Barristers' Rules.
• The Professional Responsibility Committee has the power to make rulings, conduct investigations, promote the resolution of disputes, prosecute complaints and otherwise act as set out in the Barristers' Rules. 
• See sabar.org.au

 

Public interest in the Regulation of the legal profession

• The public interest in the regulation of the profession is not measured purely in economic terms or the cost of legal services to consumers.
• The legal profession is concerned with the administration of justice and so there is a public interest in how the profession is regulated and the extent to which it promotes this ideal.
• Peace, order, stability and security depend upon the Rule of law, which  in turn depends on a system of courts and a political/social commitment to the administration of justice. 
• Courts depend on the assistance of legal practitioners in fulfilling their obligations as Officers of the Court. Evaluation of the degree and form of regulation of the profession requires an assessment of values that cannot therefore be measured purely in economic terms. 

 

Public interest in the discipline of the legal profession

• The legal profession has yielded to calls for a mix of independent, self and co-regulation.
• In South Australia we have an independent Legal Profession Conduct Commissioner with further review (co-regulation) by the Legal Practitioners' Disciplinary Tribunal.
• However the final decision-maker in relation to the conduct of members of the legal profession remains the Supreme Court.
• This means that serious complaints about lawyers are handled (mostly) by lawyers and/or judges. 
• Is this self-serving and a conflict of interest?

 

 

 

 

 

LAWYERS' PROFESSIONAL DUTIES OWED TO OTHER LAWYERS AND THIRD PARTIES

 

Civility and Courtesy in ASCR Rules & General Law

• ASCR 4.1.2: honesty and courtesy
• ASCR 5: dishonest and disreputable
• "Lawyers who act discourteously or bicker with one another are unlikely to give the requisite assistance to the court" Beevis v Dawson [1957] 1 QB 195, 201.
• Key readings: 
  • Dal Pont, Ch. 21 
  • Equal Opportunity Report on Harassment in the legal profession  
  • Australian Law Council's ASCR 42 discussion paper.

 

Civility & Courtesy in Legal Communication

• Lawyers' language should be reasoned, dispassionate and without invective: Towers v Atkins (No 2) [2015] 3537, [59].
• Offensive and disparaging language is unprofessional and will likely lead to disciplinary sanctions: Legal Professional Complaints Committee v in de Braekt (2012) 80 SR (WA) 134.

 

Exceptions & Boundaries in Civility and Offensive Language - What's the boundary between incivility and legitimately promoting a client's case?

• Lander v Council of the Law Society of the ACT (2009) 231 FLR 399
  • Depends on the circumstances; politeness in advocacy can be challenging
  • Offensive language may be unavoidable (e.g., fraud or misconduct accusations)
• Honesty is the guiding value:
  • Legal foundation required for offensive language use
  • Unprofessional conduct in inevitable when honesty is disregarded

 

Balancing Honesty, Civility, and Courtesy in Legal Practice

• Uphold the values of honesty, civility, and courtesy where possible; reliance on honesty alone will not suffice.
• For example, ambiguity in ASCR 22 - do you need correct an error in negotiation?
  • Legal Services Commissioner v Mullins [2006]  LPT 12 and Legal Practitioners Complaints Committee v Fleming (2006) 48 SR (WA) 29 highlight potential consequences of an honest but literal interpretation of this rule. 
• In seeking to negotiate, the lawyer relinquishes their adversarial role in favour of a negotiating role. Honesty, fairness, and integrity are crucial, and a certain level of trust between lawyers and their clients is essential: Legal Practitioners Complaints Committee v Fleming (2006) 48 SR (WA) 29, [75] - [77].

 

 

Fostering Trust in Legal Practice

• Avoid exploiting accidentally received privileged material (Great Atlantic Insurance Co v Home Insurance [1981] 1 WLR 528, 538-39)
• Make misconduct allegations only when genuine and based on reasonable grounds ASCR 32
• Don't record conversations without permission Surveillance Devices Act 2016 (SA)
• Seek permission before discussing with a client's previous lawyer
• Refrain from threatening legal costs orders without merit
• Provide notice to a lawyer before initiating legal proceedings

 

Fostering Trust and Avoiding Exploitation

 

• Avoid exploiting peer's mistakes (by relying on ASCR 19.3)
  • Short-lived, minor victories harm long-term trust
• Do not foster or induce a mistake (ASCR 30)
  • This may result in disciplinary action
• Chamberlin case: fostering/inducing mistakes is unprofessional
  • Fostered and induced mistakes are misrepresentations (and thus potentially a breach of ASCR 21 & 22)

 

Professionalism in Communication

• Civility, courtesy, and honesty apply to everyone (ASCR 7, 34)
  • Be clear, fair, and respectful in all communications
• Avoid:
  • Exaggerated claims or misleading statements
  • Threats and intimidation
  • Tactics designed to embarrass or frustrate others
  • Exploiting vulnerable individuals
• Protecting the administration of justice when communicating with the media (ASCR 28)
  • Do not publish prejudicial material during proceedings

 

 

Communication with Represented and Unrepresented Individuals

 

• ASCR 33: Communicating with another practitioner's client
  • Direct communication is allowed only when:
    • The lawyer gives consent
    • Urgent circumstances
    • To determine whether the client is represented
    • No response from the lawyer within a reasonable time
• ASCR 34: Communicating with unrepresented litigants
  • Act with courtesy and fairness
  • Avoid giving legal advice: Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116
  • Do not take advantage of their situation

 

Harassment in the Legal Profession & Rule 42

• Not unique to South Australia
• Grim statistics:
  • Victoria: 57% experienced sexual harassment in the last 5 years
  • South Australia: 42% experienced sexual harassment in the profession
• Underreporting and consequences:
  • 75% did not report harassment (Victoria and South Australia)
  • 20% faced adverse consequences after reporting (e.g., loss of position)

 

 

Drivers of Harassment and Recommendations from the Commissioner's Report

• Drivers of sexual harassment in the legal profession:
  • Strict hierarchical structure
  • Homogenous, male-dominated culture
  • Conservative norms and gender inequality
  • Unchecked abuse of power
• Recommendations for cultural change:
  • Legislative and regulatory change: prevent sexual harassment and promote reporting
  • Educational initiatives: raise awareness and increase understanding
  • Sexual harassment policy and process development: drive cultural and organizational change

 

 

Amendment to ASCR Rule 42

• Original R 42: "in the course of practice"
  • Limited scope for addressing harassment outside of legal practice settings
• R 42 Amendment:
  • Covers situations where sexual harassment is connected to the practice of law
• Impact:
  • Better response to sexual harassment complaints
  • Increased accountability for lawyers engaging in harassment

 

 

The Regulatory Gap in the original ASCR 42

• Harassment outside the course of practice is not covered by the original R 42
• Harassment may not be severe enough to meet the R 5 threshold: Zymes v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
• Reformulating R 42 to ensure consistent treatment of harassment, irrespective of whether it occurred in the course of legal practice

 

 

Reformulated Rule 42 and its Objectives

• R 42:
  • A solicitor must not, in the course of, or in connection with, legal practice, engage in conduct which constitutes: discrimination; sexual harassment; any other form of unlawful harassment; or workplace bullying.
• Objectives:
  • Express the profession's collective view that discrimination and harassment (particularly sexual harassment) are unacceptable conduct in any situation connected to the practice of law.
  • Remove doubts about whether discrimination and harassment by legal practitioners can be appropriately dealt with as unsatisfactory professional conduct or professional misconduct. This would clarify the application of disciplinary measures and make it easier for regulators to address these issues consistently.
  • Provide better alignment within the ASCR, especially with the interaction between R 5 and R 42. This alignment promotes consistency and helps to ensure that all relevant cases of harassment can be addressed, regardless of the setting in which they occur.