Legal ethics is often described as an oxymoron – lay people find the concept amusing and lawyers can find ethics impossible. But the best lawyers are those who have come to grips with their own values and actively seek to improve their ethics in practice. Inside Lawyers’ Ethics is designed to help law students and new lawyers to understand and modify their own ethical priorities, not just because this knowledge makes it easier to practise law and earn an income, but also because self-aware, ethical legal practice is right, feels better and enhances justice. Packed with case studies of ethical scandals and dilemmas from real-life legal practice in Australia, each chapter delves into the most difficult issues lawyers face. From lawyers’ part in corporate fraud to the ethics of time-based billing, the authors expose the values that underlie current practice and set out the alternatives ethical lawyers can follow.
This book is a compact, usable resource for all students, teachers and practitioners in the disciplines of law and ethics.
Christine Parker is Associate Professor and Reader in the Faculty of Law at the University of Melbourne. She is also an Australian Research Council Fellow.
Adrian Evans is Associate Professor and Convenor of Legal Practice Programs in the Faculty of Law at Monash University. He is also a recipient of the Monash Vice-Chancellor’s Award for Distinguished Teaching.
Christine Parker
and
Adrian Evans
CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York
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© Christine Parker, Adrian Evans 2007
First published 2007
Printed in Australia by Ligare Pty Ltd
A catalogue record for this publication is available from the British Library
National Library of Australia Cataloguing in Publication data
Parker, Christine, 1969--.
Inside Lawyers' Ethics.
Bibliography.
Includes index.
ISBN-13 978-0-52154-664-5 paperback
ISBN-10 0-52154-664-8 paperback
1. Legal ethics – Australia. I. Evans, Adrian Hellier II. Title.
174.30994
ISBN-13 978-0-52154-664-5
ISBN-10 0-52154-664-8
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To
Greg Restall
and
Maria Bohan
| Preface viii | |||
| Acknowledgments ix | |||
| List of tables x | |||
| List of figures xi | |||
| List of illustrations xii | |||
| List of case studies xiii | |||
| Table of statutes xiv | |||
| Table of cases xv | |||
| 1 Introduction: Values in Practice | 1 | ||
| 2 Alternatives to Adversarial Advocacy | 21 | ||
| 3 The Responsibility Climate: Regulation of Lawyers’ Ethics | 41 | ||
| 4 Civil Litigation and Excessive Adversarialism | 66 | ||
| 5 Ethics in Criminal Justice: Proof and Truth | 96 | ||
| 6 Ethics in Negotiation and Alternative Dispute Resolution | 120 | ||
| 7 Conflicting Loyalties | 151 | ||
| 8 Lawyers’ Fees and Costs: Billing and Over-Charging | 182 | ||
| 9 Corporate Lawyers and Corporate Misconduct | 212 | ||
| 10 Conclusion – Personal Professionalism: Personal Values and Legal Professionalism | 243 | ||
| Index | 259 |
We are very grateful to Camille Cameron, John Howe and Rob Rosen who very kindly read and helpfully commented on previous incarnations of various chapters of this book. Linda Haller at the University of Melbourne deserves an extraordinary vote of thanks for her extremely helpful and detailed comments on drafts of almost all chapters, and for going on to try out the drafts in the classroom before publication. We are also grateful to those colleagues with whom we have each taught legal ethics or researched with over the years, whose companionship and ideas have helped encourage and inspire us in the development of much of the material published here, including John Braithwaite, Camille Cameron, Andrew Crockett, Linda Haller, Matt Harvey, John Howe, Joanna Krygier, Suzanne Le Mire, Guy Powles, Stephen Parker, Josephine Palermo, Ysaiah Ross, Michelle Sharpe and Michelle Taylor-Sands. We have also benefited greatly from the insight and experience of many legal practitioners and regulators to whom we have talked during the course of writing this book. Particular thanks are due to Janet Cohen and also to Brind Zwicky-Woinarski QC, Greg Connellan, James Leach, Richard Meeran, and Pam Morton as well as some others who should remain anonymous. Zoe Jackson (research assistant and ‘Footnote Queen’) made the final preparation of the manuscript so much easier and more pleasant, for which we are extremely grateful. Needless to say, all mistakes, misjudgements or infelicities of expression remain our own responsibility.
We also thank law students at Monash University, University of Melbourne and the University of New South Wales who have ‘road tested’ much of the material in this book and goaded us (with their enthusiasm, vigorous disagreement or sometimes lack of interest) into improving our ideas, arguments and, particularly, our case studies through class discussions and their responses to assessment tasks. The precept of this book is that readers will wish to make ethical choices in good faith, rather than seek only to avoid obligations in their professional behaviour. We are especially grateful to the many students and lawyers we have known who have encouraged us that this is often true.
Finally, we dedicate this book to our partners, Greg Restall and Maria Bohan, thanking them, and also each other, for helping us to keep on going in the faith that it is worthwhile to spend much of our time in ethics education and discussion with law students and lawyers.
Christine Parker and Adrian Evans
Melbourne, July 2006
An earlier version of Chapters 1 and 2 was published as Christine Parker ‘A Critical Morality for Australian Lawyers and Law Students’ (2004) 30 Monash University Law Review 49–74.
Material from the Australian Lawyers Values Study used in this book has been previously published in Adrian Evans and Josephine Palermo, ‘Australian Law Students’ Perceptions of their Values: Interim Results in the First Year – 2001 – of a Three-Year Empirical Assessment’ (2002) 5 Legal Ethics 103–29; Adrian Evans and Josephine Palermo, ‘Zero Impact: Are Law Students’ Values Affected by Law School?’ (2005) 8 Legal Ethics 240; Josephine Palermo and Adrian Evans, ‘Preparing Future Australian Lawyers: An Exposition of Changing Values Over Time in the Context of Teaching About Ethical Dilemmas’ (2006) 11 (1) Deakin Law Review 104–30.
The authors wish to thank the following people for their kind permission to reproduce cartoons: Kahlil Bendib (p. 9), John Spooner (p. 75), Michael Leunig (p. 101) and Jenny Coopes (p. 214).
| 2.1 Four Approaches to Legal Ethics 23 | |||
| 3.1 Different Regulatory Arrangements for Complaint Handling and Prosecuting Disciplinary Action in Australia – June 2006 48 | |||
| 8.1 Amount of Legal Fees Charged at Different Stages of Litigation under Traditional Item Remuneration Charging Structure and Event-Based Fee Structure 205 |
| 3.1 Key Relationships of the Legal Profession Act 2004 (Vic) Affecting Independence in the Relationship between the Legal Services Board and the Legal Services Commissioner in the Investigation of Complaints 61 | |||
| 5.1 Number of Respondents to the Australian Lawyers’ Values Study Who Would Report Daughter’s Drug Offence 117 | |||
| 7.1 Relationship between Law Firm and Clients in Spincode Case 163 | |||
| 8.1 Relationship between Solicitor–Client Costs, Party–Party Costs and Total Legal Costs 188 | |||
| 8.2 Example of Rate of Increase of Fees in Litigation under Traditional Item Remuneration Basis 205 | |||
| 8.3 Example of Rate of Increase of Fees in Litigation under Event-Based Fee System 205 | |||
| 10.1 Respondents Who Would Break Confidentiality and Inform Welfare Authorities of Suspected Child Abuse – Results from 2001 Survey 257 |
‘Tim-berrr!’ (Kahlil Bendib, www.corpwatch.org) 9
If it wasn’t for that horrible lawyer the really nice priest would have been a Christian (Spooner, Sydney Morning Herald, 7 July 2003) 75
‘Grandfather, how did Auschwitz and the Holocaust happen?’ ‘All too easily, all too easily . . .’ (Leunig, The Age, January 2005) 101
‘Good grief . . . it was only a few documents . . .’ ‘Yeah! Anyone’d think we were accessories to murder or something.’ (Jenny Coopes, Australian Financial Review, 21 June 2002) 214
| 1.1 The Jewish QC and the Alleged Nazi War Criminal 1 | |||
| 1.2 Lawyers, Gunns and Protest 7 | |||
| 2.1 The Nazi Gold 37 | |||
| 3.1 Reforms to Self-Regulation in Each of the States and Territories 53 | |||
| 4.1 Excessive Adversarialism 66 | |||
| 4.2 Priests and Lawyers 73 | |||
| 4.3 White Industries v Flower & Hart 84 | |||
| 5.1 The Defence: R v Neilan 113 | |||
| 5.2 Prior Convictions 115 | |||
| 5.3 Prosecutors’ Values 116 | |||
| 6.1 Ethics in Negotiation 123 | |||
| 6.2 Mediators’ Ethics 129 | |||
| 6.3 Collaborative Law 137 | |||
| 6.4 The Cape Asbestos Settlement 146 | |||
| 7.1 Allens Arthur Robinson and the Drug Companies 172 | |||
| 7.2 Blake Dawson Waldron and the Share Buy-Back 174 | |||
| 7.3 Enron’s Lawyers’ Conflicted Loyalties 177 | |||
| 8.1 The Basis for Determining Fees 207 | |||
| 8.2 The Collapse of HIH and the Rise in Legal Fees 207 | |||
| 8.3 The Foreman Case: Over-Charging and Falsifying Evidence Under Pressure of Law Firm Billing Practices 209 | |||
| 9.1 James Hardie’s Attempts to Separate Itself from its Asbestos Liabilities 237 | |||
| 10.1 The Wendy Bacon Case 249 | |||
| 10.2 Confidentiality in the Face of Likely Child Abuse 256 |
Australian Security Intelligence Organisation 1979 (Cth) 98, 110
Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) 98, 110
Corporations Act 2001 (Cth) 230
Crimes Act 1958 (Vic) 213
Crimes (Document Destruction) Act 2006 (Vic) 213
Evidence Act 1958 (Vic) 213
Evidence (Document Unavailability) Act 2006 (Vic) 213
Legal Practice Act 1996 (Vic) 49, 58, 59
Legal Practitioners Act 1893 (WA) 60
Legal Practitioners Act 1974 (NT) 60
Legal Practitioners Act 1981 (SA) 60
Legal Profession Act 1987 (NSW) 91
Legal Profession Act 2004 (Qld) 56, 57
Legal Profession Act 2004 (Vic) 49, 59
Legal Profession Act 2006 (ACT) 60
Legal Profession (Barristers) Rule 2004 (Qld) 191
Legal Profession – Model Laws Project Model Provisions (2004) 48, 193–195
Legal Profession Regulation 2005 (NSW) 213
Major Crime (Investigative Powers) Act 2004 (Vic) 110
Migration Act 1958 (Cth) 91
Model Rules of Professional Conduct and Practice (2002) 48
National Legal Practice Model Bill (2004) 3
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) 98, 248–249
Sarbanes–Oxley Act (US) 235
Solicitors Accounts Rules 1991 (UK) 64
Supreme Court (General Civil Procedure) Rules 2005 (Vic) 90, 187
Victorian Civil and Administrative Tribunal Act 1998 (Vic) 213
A-G (NT) v Kearney (1985) 230
A-G (NT) v Maurice (1986) 168
A Solicitor v Council of the Law Society of New South Wales (2004) 45
AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales (2001) 68
Arthur Andersen LLP v United States (2005) 219
Australian Commercial Research and Development Ltd v Hampson [1991] 160
Australian Competition & Consumer Commission v Cadbury Schweppes Pty Ltd (2002) 132
Australian Competition & Consumer Commission v Lux Pty Ltd [2001] 132
Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 227
Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd [2002] 166
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] 222
AWB Ltd v Cole [2006] 221
Baker Johnson v Jorgensen [2002] 56, 191
Baker v Campbell (1983) 168
Baker v Legal Services Commissioner [2006] 57, 182
Belan v Casey [2002] 164
British American Tobacco Australia Services Ltd v Blanch [2004] 160, 164
British American Tobacco Australia Services Ltd v Cowell (2002) 16, 67, 213
Brown v Inland Revenue Commissioners (1965) 64
Buksh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 91
Carindale Country Club Estate Pty Ltd v Astill (1993) 164
Carter Holt Harvey Forests Ltd v Sunnex Logging Ltd [2001] 137
Clark Boyce v Mouat [1993] 159
Clyne v New South Wales Bar Association (1960) 45, 86, 87, 191
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 123
Cook v Pasminco Ltd (No 2) (2000) 89
Council of Law Society of New South Wales v Foreman (No 2) (1994) 209–210
Council of the Law Society of New South Wales v A Solicitor [2002] 46
Council of the Queensland Law Society Inc v Roche [2004] 154, 183
Cubillo v Commonwealth (2000) 93
Cubillo v Commonwealth (2001) 93
De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 91
Englebrecht (1995) 82
Equuscorp Pty Ltd v Wilmoth Field Warne (No 4) [2006] 201
Ex parte Lenehan (1948) 44, 248
Finers v Miro [1991] 230
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 84–85
Gannon v Turner (1997) 131
Gersten v Minister for Immigration & Multicultural Affairs [2001] 91
Giannarelli v Wraith (1988) 79
Gunns Ltd v Marr [2005] 9
Guo v Minister for Immigration & Multicultural Affairs [2000] 87, 91
Hamdan v Rumsfeld (2006) 99
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 123
Kolavo v Pitsikas [2003] 90
Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 91
Law Society of New South Wales v Harvey [1976] 155
Legal Practitioners Conduct Board v Morel (2004) 156
Legal Services Commissioner v Baker [2006] 191
Lemoto v Able Technical Pty Ltd (2005) 91, 93
Levick v Deputy Commissioner of Taxation (2000) 86, 89, 93
Mabo v Queensland (No 2) (1992) 92
Maguire v Makaronis (1997) 155
McCabe v British American Tobacco Australia Services Ltd [2002] 15–16, 67, 213, 223
McDonald’s Corporation v Steel [1997] 67
Medcalf v Mardell [2003] 87, 90
Meek v Fleming [1961] 82
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) (2000) 91
New South Wales Bar Association v Cummins (2001) 55
Orchard v South Eastern Electricity Board [1987] 90
Phillips v Washington Legal Foundation (1998) 63
Pillai v Messiter (No 2) (1989) 44
Poseidon Ltd v Adelaide Petroleum NL (1991) 124
Prince Jefri Bolkiah v KPMG (a firm) [1999] 161, 162, 166
R v Bell; Ex parte Lees (1980) 230
R v Kina [1993] 105
R v Neilan (1991) 107, 114
R v Neilan [1992] 105, 113–115
R v Rugari (2001) 116
R v Weisz [1951] 86
R v Wilson [1995] 104
Re B [1981] 44, 248, 249, 250
Re Davis (1947) 44, 248
Re Legal Practitioners Act 1970 [2003] 248
Re G Mayor Cooke (1889) 86
Re Moseley (1925) 44
Re Veron: Ex parte Law Society of New South Wales [1966] 184
Ridehalgh v Horsefield [1994] 86
SBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 91
Schiliro v Gadens Ridgeway (1995) 201
Sent v John Fairfax Publications Pty Ltd [2002] 175
Spincode Pty Ltd v Look Software Pty Ltd (2001) 163–164, 168
Steel and Morris v The United Kingdom [2005] 67
Steel v McDonald’s Corporation [1999] 67
Sutton v AJ Thompson Pty Ltd (in liq) (1987) 123
Tanddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 91
Tapoohi v Lewenberg 130
Tombling v Universal Bulb Company [1951] 82
Tuckiar v The King (1934) 108–109
Veghelyi v The Law Society of New South Wales (1995) 193
Vernon v Bosley [1997] 67
Vernon v Bosley (No 2) [1999] 82
Victorian Lawyers RPA Ltd v X (2001) 248
Village Roadshow Ltd v Blake Dawson Waldron (2004) 174–176
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 84–85, 86, 89, 90, 92, 184, 219
White Industries (Qld) Pty Ltd v Flower & Hart (No 2) (2000) 85
Whyte v Brosch (1998) 90
Williams v Spautz (1992) 86
Williamson v Schmidt [1998] 137
World Medical Manufacturing Corp v Phillips Ormonde & Fitzpatrick Lawyers [2000] 162
XY v Board of Examiners [2005] 248