Professional Responsibility and Relationship of Jake and Lousia - Case Study Example

RUNNING HEAD: Professional Responsibility PROFESSIONAL RESPONSIBILITY SCENARIO QUESTION NAME SUBJECT PROFESSORS NAME DATE A legal practitioner is expected to have good professional conduct as well as personal conduct in respect to their practitioners duties; both to the law, to the courts, to clients as well as to their fellow legal practitioners. Jake Stevens is a solicitor admitted to work as a solicitor in the firm of Scullards Lawyers of about 12 solicitors. This means that after his admission, he is required to adhere to the provisions of the Legal Profession Act 2007 that provides that; the legal profession to be regulated to ensure administration of justice in the jurisdiction generally as well as facilitation of legal practice on a national basis across all states1. Regulating the conduct of Australian Solicitors is the Australian Solicitors’ Conduct Rules, at Rule 5 that a solicitor should not engage in conduct , in the course of practice that demonstrate that the solicitor is unfit and not the proper person to practice law or likely to diminish the public confidence2 or bring the profession into disrepute3. The duty of loyalty, disclosure, confidentiality and duty not to favour the interests of any other party are considered to be amongst the most important fiduciary duties owed by a solicitor to their clients4. All of these duties are owed to each client by the firm as a whole, not merely the particular practitioner.5 Confidentiality mainly refers to keeping confidential any clients information communicated in relation to the client-solicitor relationship and one should not disclose this to anyone under any circumstances unless it is disclosed to qualified persons as per the law6. Confidential information can refer and include; personal information, that a client obtained by virtue of the client solicitor relationship that can give an advantage to the other client as was held in Flanagan v Pioneer Permanent Building Society Ltd7. Rule 9.18 provides that any solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not a solicitor, partner or employee of the solicitor’s law practice or a barrister or an employee of or person otherwise engaged by the solicitor’s law practice9. The disclosure is usually permitted for certain circumstances if the client expressly or impliedly authorizes it, when permitted or compelled by the law and also for the sole purpose of preventing further imminent serious physical harm to the client or to another person10. Rule 30 (1) of the Australian Solicitors ‘Conduct Rules 2012, provides that a solicitor must not take an unfair advantage of the obvious error of another solicitor or other person. When a solicitor fails to do this, disclosure would obtain for client a benefit which has no supportable foundation in law of fact11. Jake takes the information given to him by Angela Crane to decide on whether they should settle for $500,000 this giving rise to an advantage that he has over the case hence affecting the outcome. The relationship of Jake and Lousia can have an adverse effect on how the case is handled. Although it was stated in the case of Bar Association of Queensland v Lamb12 that a legal practitioner who had a relationship with a client, did not engage in unprofessional conduct showing unfitness to practice13. However in, my opinion this kind of relationship can affect how a solicitor can concentrate and remain objective in representing a client14. Moreover it can lead to incompetency in terms of the legal services provided because a solicitor can be clouded, the impartiality and independence due to their personal relationship. In this case Jake fails to ask the fees as a retainer based on the fact that Rule 4.1.415 that a solicitor must avoid any compromise to their integrity and professional independence and comply with the rule of law. Any legal practitioner must treat all their clients. Silas Rogers also fails as per the provision of Rule 17.116 that a solicitor representing a client must exercise independent forensic judgment independently after considering the client’s and the instructing solicitor’s instructions where applicable. One can state that the two solicitors fail to give the appropriate competence level in handling the Johnson-Supercarp matter. Under Division 2 Rules for Australian legal Practionner17 and other individuals at section 220(2) provides that a barrister is prohibited from engaging in legal practice otherwise than as a sole practitioner18 in partnership with any person19 and as the employee of an entity20. Part 4.2 at Section 418 seeks to state that unsatisfactory professional conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner21. Jake in his capacity seems to be acting on behalf of a client based on the fact that Scullards only authenticates the prepared work rather than conducting the case on his own. Section 42022 as at subsection 1 (g) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. This act falls as being unsatisfactory professional conduct or professional misconduct. The main issue brought about in the Jake's case scenario is the issue of conflict of interest as regards solicitor’s fiduciary duties to their clients. Firstly the duty of being loyal to the client. Any legal profession as established in the case of Spincode Pty Limited v Look Software Pty Ltd23 and in Village Roadshow Limited v Blake Dawson Waldron24 is required to be loyal. The duty of confidentiality is amongst the most supreme in the legal profession since the decision in Prince Jefri Bolkiah v KPMG (A Firm)25 where it was stated that a breach of fiduciary duty that survives others is the duty of confidentiality. Angela Crane states to Jake her client’s information knowing that any disclosure to unauthorized persons can give rise to either a real and sensible possibility of the information being used to her clients detriment26. The duty not to put your own or anyone’s interests before those of the client. It has been long stated in the case of the Law Society of NSW v Harvey27 that at no particular time the interests of a professional should conflict with that of the client’s relationship Jake takes his time to do research on Louisa May a similar case to that of the Johnson-SuperCarp matter and the bill is placed on Johnson. This is considered to be a professional misconduct based on the fact that during billing the client need only be charged for his own costs and not on others. This also raises the issue of conflict of interest between the personal life of Jake and the client’s case. Rule 11.228 provides that when a solicitor acts two or more clients and their interest being the same or related and the interests are adverse or a potential conflict may come up, the solicitor must not act except under the exceptions listed at Rule 11.329 The bill of costs placed on the client is also not of the required standards as to cost because the billable hours charged out at Silas Rogers and Jakes rates and this would be considered exorbitant to the client. Excessive legal costs charged in connection with legal practice is considered to be an unsatisfactory professional conduct30 because it falls short of the standard of diligence and competence expected by the client or public. In the case of Council of the Queensland Law Society Inc. v Roche31 it was held that it is unprofessional to set high costs without absolute justification of the services offered. Jake in working for her girlfriend does not consider the issue of retainer. He has not been retained by Louisa May and then who is to bear the costs of him working for her in her case and he has not said whether it is a Pro bono. Additionally, as per rule 12.132 a solicitor is not to exercise an undue influence to dispose of the client to benefit of the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client. The costs of Silas Rodgers and Jake are at $300 000, but this can be stated to be quite less that the legal services that they rendered to the client. The main charges that can be brought against them would be under section 491(1) as regards confidentiality of a client’s information. Any Australian legal practitioner must comply with a requirement under this chapter or under the QCAT Act33. The Legal Service Commissioner can also bring up a charge of serious breach of rules of practice of either gross professional misconduct or unsatisfactory conduct both at common law and in statute law34on Jake, Silas Rogers, and on Angela Crane. They all ought to be held accountable and responsible for the incompetence displayed in them handling their client’s case35. It is common knowledge that fiduciary relationship between a solicitor and a client only ends with the termination of a retainer36 and no solicitor should breach their professional responsibility before termination of their client’s fiduciary relationship. In any case the solicitors are found guilty, they would be deemed unfit to practice law.37 REFERENCES Books Dal Evan Dal Pont (2006). Lawyers’ Professional Responsibility. (3rd Ed.) Pyrmont, N.S.W: Law Book Company Economides, K. (1998). Ethical Challenges to Legal Education and Conduct. Hart Publishing: Oxford. Freedman, M. & Smith, A. (2004). Understanding Lawyers’ Ethics. (3rd Ed.) LexisNexis: Newark. Hazard, G. & Rhode, D. (1985). The Legal Profession: Responsibility and Regulation. New York: The Foundation Press. Hoffman, I.M.L & Kyros, M. (1997). Handy Hints on Legal Practice. Butterworths: Cape Town. Justice, I. (1995). Reforms to the Adversarial Process in Civil Litigation. (Western Australian Supreme Court) Australian Law Journal, 69, 705. MacFarlene, P. (2002) The Teaching of Legal Ethics at the Undergraduate Level: A working Paper. Journal of South Pacific Law 6:1. MacFarlene, P. & Ross, Y. (2002) Lawyers’ Responsibility and Accountability (2nd Ed.) Sydney: Butterworths Nicholson, D. & Webb, J. (1999) Professional Legal Ethics: Critical Interrogations. Oxford University Press: Oxford Ross, Y. (2005). Ethics in Law: Lawyers’ Responsibility and Accountability in Australia. LexisNexis Butterworths: Australia. Walmsley, S., Zipser, B. & Abadee, A. (2007). Professional Responsibility in Australia (2nd Ed.) Prymont: Law Book Company Legistlation Australian Solicitors Conduct Rules 2011 Legal Profession Act 2007 Cases The Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 Bolkiah v KPMG [1999] 2 AC 222 Flanagan v Pioneer Permanent Building Society, Ltd & Another [2002] QSC 346 Spincode v Look Software (2001) 4 VR 501 Legal Services Commissioner v Madden [2008] LRT 2 LSC v Madden (No 2) [2008] QCA 30. Council of the Queensland Law Society Inc v Roche [2004] 2 Qd R 574 Read More