Professional Conduct and Practice Rules - Assignment Example

Report On Professional Conduct and Practice Rules, 1995 Order No: 416793 Subject: Law Name: Student’s No: Lecturer’s name: Campus of Enrollment: Total Word count: 1574 Introduction (a) The report examines and proposes reforms to the “Professional Conduct and Practice Rules”1 as a procedural law. Procedural Law is the law regulating the manner in which cases are litigated and concluded in Courts of Law. These rules prescribe steps followed to enforce a right as opposed to substantive law that defines the rights and duties of citizens.2 In our jurisdiction, the Constitution is the Supreme Law through which all other Laws are derived. Therefore, the Constitution empowers the legislature to pass Laws that defines the manner in which society is governed through regulation and enforcements of rights.3 For instance, the Legislature passed an Act governing the professional conduct of all practitioners in our Jurisdiction.4 However, this Act is a substantive law. Consequently, the Legislature passed a procedural law operationalzing the above Act and this is the “Professional Conduct and Practice Rules,” a central subject requiring relevant reforms in this report.5 In particular, the author seeks possible amendments to Rule 23 in light of Justice Rares ratio decidendi in the case of Ashby v Commonwealth of Australia (no 4). 6 Therefore, the problem with the procedural Law requiring reform is that it does not provide defined penalties for a lawyer who engages in unprofessional conduct as seen in the above case and explained herein. The law should provide mechanisms to restrain lawyers from abusing Court process. This is the inadequacy or gap created by the law in its current form. It stems from the regard that it’s the duty of the lawyer to give wise counsel to the client failure of which tantamounts to equal disciplinary action for wasting Court’s time. This is the main objective of the proposed reform as seen in the conclusion. Case Analysis The case is Ashby v Commonwealth of Australia.7 This case involved a defamatory statement. The applicant, Mr. Ashby in conspiracy with Ms. Doane, Mr. Brough among others instituted an application by way of originating summon against the government and Mr. Peter Slipper, the then Speaker of Parliament.8 They alleged through their lawyers and solicitors,9 that the second respondent sexually harrassed his male employee (applicant) and breached the contract of service by virtue of this homosexuality conduct. Furthermore that Mr. Slipper abused his office by way of the Cabcharge allegations when he paid out vouchers to his tax driver on several occasions unlawfully.10 It was quasi civil and criminal case. In their defence the respondents denied all the allegations. They submitted that the application was defamatory in nature, propagated by political differences between “Labor Party” and “Liberal National Party.”11 They prayed that it should be dismissed on grounds of “abuse of Court process.”12 The Court accordingly dismissed the case concluding that the aim of the applicants was to defame Mr. Slipper in the right minded thinking people in our society.13 This was a political attack on the person of the speaker through publication of allegations calculated to “embarrass, humiliate or demean” him. The Judge further stated that such allegations were “scandalous, oppressive and vexatious” hence amounting to “abuse of Court process.”14 The conduct of the applicant did not in any way show that he was fearful of Mr. Slipper’s but it was a calculated political attempt to destroy the image and reputation to the speaker for the benefit of “Liberal National Party.” Although the applicant attempted to prove the allegations, the evidence fell below the threshold to suggest that the sexual harassment was involuntary and not consensual if it ever happened based on the applicant’s conduct.15 The need for reform It’s upon this backdrop that the researcher developed interest in examining the professional and ethical conduct of the applicant’s lawyers. It was their duty to give wise counsel to the applicant in order to prevent “abuse of Court process.”16 Not every allegation is worth of instituting. From the above case, it’s obvious that the Lawyers were engaged in unprofessional conduct.17 Therefore, it’s the author’s proposal that “the Professional Conduct and Practice Rules”18 be amended or reformed to include ways in which such lawyers should be held responsible for professional misconduct in their capacity as legal counsellors. This would amount to professional negligence and so I propose. Duties and obligations of a practitioner These are those provided for under Rule 23 of “the Professional Conduct and Practice Rules” applicable to this report. 19 In particular, the rule requires that a practitioner should advance and protect the interests of the client using his or her professional skill and due diligence without fear, favour, ill will or undue influence.20 In the above case, the lawyers attempted to fulfill this requirement but they did not refrain from being influenced by the applicant. It’s clear that the applicant influenced the lawyers to believe that the defamatory allegations were true. The lawyers ought to have restrained themselves from that influence and ought to have properly advised the clients. It’s the duty of the Lawyer to be truthful to their client however much the client would think otherwise. In doing so, the practitioner is helping the client to understand the issues in the allegation.21 However, what they did was a professional misconduct as observed by Rares J.22 Besides, the law requires practitioners to exercise and promote independence of thought and mind and avoid bias. They are charged with the duty to listen carefully to the client’s interests and restrain from following unlawful influences intended to “abuse Court process.” The fact that clients don’t understand the law means that it’s the duty and obligation of a practitioner to prevent clients from taking such ill will intentions by carrying out a forensic audit of the evidence.23 The exercise of this forensic audit must be within the confines of the Law. 24 This requires making reasonable enquiries into the matter prior to instituting a case except where the evidence is premafacie overwhelming.25 Whereas the solicitors in the above case attempted to contact Mr. Slipper, they were biased by the applicant’s influence and thus, fell short of their professional obligations. Furthermore, the law requires that a practitioner shouldn’t settle in Court any document suggesting serious misconduct if there is no corroborating evidence to support it.26 The applicants brought to Court Mr. Slippers diary entries which their lawyer relied upon but it was not relevant to the case at all.27 Conclusion b) In conclusion, the conduct of the applicant’s Lawyers was unprofessional conduct that necessitated equal disciplinary action. The Lawyers failed on their duty to the client of giving wise counsel and therefore contravened the law. They were under a duty to conduct a forensic investigation of the allegation prior to instituting the case to avoid “abuse of Court process .”28 This duty is mandatory and not discretionary failure of which requires equal disciplinary measures. Therefore, I propose the following reforms to Rule 23 that; (A). A legal practitioner who engages in unprofessional conduct such as;- a) Accepting to be influenced by a client(s), b) Does not conduct reasonable forensic audit of the evidence thereby affecting the adverse party, c) Carries on the case in a manner prejudicial to the interests of his or her client, d) Knowingly conspires with the client to defeat due process of law, Which in these circumstances amounts to “abuse of Court process”, commits a civil wrong termed as professional negligence? B. It shall be the duty of the Court either on its own motion or upon being moved by the aggrieved party to enforce this part of the rule by subjecting the practitioner to pay Court the following; i) Equivalent costs incurred by the aggrieved party from the time of institution of case until final discharge. ii) Interest accruing on the above costs at a Court rate from the time of disposal of the case until payment in full. iii) Special and general damage as a penalty for professional negligence as Court may deem it fit. iv) Be suspended from practicing for two years. Bibliography Ashby v Commonwealth of Australia (no 4) [2012] FCA 1411 Bryan, Garner, Black's Law Dictionary (Thomson West, 8th edition, 2004) 1241 Constitution Act 1902 (NSW) Federal Court Rules 2011 (Cth) Legal Professional Act 1995 (NSW) Legal Profession Act 2004 No 112 (NSW) Revised Professional Conduct and Practice Rules1995- No.670 (NWS). Read More