The Professional Conduct & Practice Rules - Assignment Example

L&LE Take Home Exam Question No. 2 2.1 Portia and Jeeves The issues to be resolved in the problem at hand are the following: 1. Whether or not a conflict of interest has arisen as a consequence of the transfer of Jeeves from Kingdom & Associates to Atticus Legal; 2. Whether or not a conflict of interest has arisen as a consequence of the transfer of Portia to Kingdom & Associates after she brought all her clients with her to the new firm. A necessary aspect of the fiduciary nature of the relationship between a legal practitioner and his client is confidentiality.1 Under Rule 4 of the Professional Conduct & Practice Rules 2005 (Vic), acting against a former client occurs when a practitioner or his firm represents a party against a former client and the confidential information previously acquired may be used to jeopardise his position. A mechanism that can prevent such a scenario is the institution of information barrier or the Chinese wall. An information barrier, according to Prince Jefri Bolkiah v KPMG (A firm),2 is an institutional arrangement employed to prevent the passing of information from one part of the organisation to another for the purpose of preventing the flow of information. A possible conflict of interest may arise because Jeeves’ former firm has not established an information barrier, and Jeeves is close friends with Wooster, who is handling the case in issue. In Kallinicos & Anor v Hunt & Ors,3 the Court developed a test to determine breach of confidentiality under Rule 4 of the Professional Conduct & Practice Rules 2005 (Vic). The test is ‘whether a fair-minded, reasonably informed member of the public would conclude […] that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.’ Jeeves’ former firm has created an ad hoc arrangement where departments handling different types of cases are located in separate buildings in different sections of the city. In Re A Firm of Solicitors,4 the separation of departments handling different subject matters in two different buildings was deemed sufficient to establish barriers to the flow of information. In addition, Jeeves has never handled a family case before nor is he handling one now. As to Portia, it is indicated that Tatiana is a client of hers even in her old firm and when she transferred, she brought her like her others clients to the new firm. Tatiana’s case with her husband has been going on for 18 months, which means that 12 months of it was with Portia’s old firm and 6 months with Kingdom. According to the Law Society of Western Australia Professional Conduct Rules, which is being endorsed by the Law Institute of Victoria, a practitioner departing from a firm must follow a certain ethical procedure, which includes ensuring that the clients are not mistakenly led that they should follow the practitioner. For this purpose, both the firm and the departing practitioner must so inform the clients although it is believed that it is the firm’s prerogative to ensure the halt of communication between clients and practitioner, if deemed appropriate. However, the firm cannot really compel the clients to stay if they prefer to go with the practitioner. 2.2 Portia and Wooster The lone issue for this problem is: 1. Whether Portia and Wooster may continue to represent their respective clients despite the potential problems attendant to the transfer of Jeeves to Atticus and Portia to Kingdom. A court interference to compel Atticus Legal from dropping its representation of Oberon will depend on the determination as to whether Jeeves’s transfer to Atticus presents a potential breach of confidentiality, but as earlier indicated this is not evident. The Court in Asia Pacific Telecommunications v Optus Networks Pty Limited5 held that the applicant moving to declare a potential breach of confidentiality must prove that confidential information is possessed by the practitioner that could jeopardise him. Since a finding towards this end cannot be made against Jeeves as earlier discussed, there is no reason why in Wooster’s case a different conclusion should ensue. Moreover, the imputed knowledge that practitioners who work together share confidences is a rebuttable presumption as was held in Spector v Ageda.6 On the other hand, there is no reason why Portia cannot continue to represent Tatiana. Even if she committed breach of ethics in bringing along the clients to her new firm, the breach is not against the client, but against the old firm. All she had to do is to inform Tatiana even if belatedly, if the latter decides to leave Portia and go back to the old firm, then Portia must concede, but if Tatiana ratifies the representation there is no further problem. Portia’s case does not involve a potential breach of confidentiality because she is representing the same client and therefore, the rule on information barrier is not applicable in her case. Question No. 3 3.1 If A Solicitor v The Council of the Law Society of New South Wales7 happened in Victoria after the enactment of the Legal Profession Act 2004, there are two ways with the case can be proceeded: filing a disciplinary action with the Legal Services Commissioner (Commissioner hereafter)8 or applying to the SC for an order for the removal of his name from the local roll to be initiated by the Legal Services Board (Board hereafter) in accordance with s 2.4.42. At the Commissioner level, the case can be brought on grounds of professional misconduct. According to s 4.4.3(b), a professional misconduct can include conduct that occurred even outside the course of practice that if proven would establish lack of fitness to practice. A specific example of such conduct is serious offence,9 which is defined, amongst others, as ‘an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily)’.10 The offence of indecent assault, whether aggravated or not, is an indictable offence, according to the Crimes Act 1958 (Vic).11 After investigation, the Commissioner may either apply for an order with the Victoria Civil and Administrative Tribunal (Tribunal hereafter), if he finds basis for the complaint or if this is not case, dismiss the action.12 The Tribunal, on the other hand, may impose the following orders: recommend to the SC the removal of the solicitor’s name from the roll as was the case in Legal Services Commissioner v Nguyen (Legal Practice) [2013] VCAT 345 (25 March 2013) where defendant practised unregistered for more than 2 years; suspend as in the case of Legal Services Commissioner v Coldham & Ors13 for withholding the disbursement of trust moneys to third parties, or cancel it as in the case of Legal Services Commissioner v Booth (Legal Practice)14 where anomalies were committed in handling of trust money, or; amend, restrict and impose additional conditions.15 The other procedure in dealing with the solicitor is for the Board to apply to the SC for the removal of the name of the solicitor from the local roll on the grounds that he has been found guilty of an offence in the state of Victoria. An illustrative case is Legal Services Board v Williams16 where a QC’s name was removed from the roll on the grounds of his criminal conviction for possession of child pornography and in Legal Services Board v Bourozikas17 where the defendant was convicted of theft and deficiency of trust account. 3.2 If the case of A Solicitor is to be tried in Victoria, the Supreme Court should grant the application for the removal of the defendant’s name from the roll. The rationale for this is conduct that revealed a defect in character that is highly incongruent with the nature of a profession that is anchored on professionalism, trust, respect and integrity. In the original case, the HC emphasised that the CA’s error stemmed from its findings that, amongst others, the defendant’s acts for which he was convicted was purely a matter of personal conduct and had nothing to do with his professional practice. Although admitting that the conduct of the defendant was in the nature of a breach of trust, the Court nevertheless stated: However, the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous. Declaration 1(a) should be set aside.18 The aforecited passage seemed to imply that the setting aside the decision of the CA was largely anchored on the erroneous terminology it used. The trust reposed by the family on the defendant on the basis of his intimate relationship with the mother engendered the expectation that he was to be trusted like a father would his daughters and to breach that trust is akin to a fiduciary breach to a party to whom a fiduciary duty is owed. This did not seem like a remote connection to legal practice where clients repose their trust on legal practitioners to act always in their best interest. The importance of maintaining a good reputation as a legal practitioner was explained in Legal Services Commissioner v Turner19 where it held that a good reputation in itself is of little value, but its impact on the effectiveness of the judicial system as a whole. Moreover: The legal profession enjoys a monopoly of the right to practise on the theory that those possessed of the requisite learning, skill and character can be trusted to perform legal services involving high levels of trustworthiness. Removal from the rolls for unfitness is an extreme remedy, but it is necessary in order to maintain public respect for the legal process.20 It has been said that the power of the Court to discipline legal practitioners is not a punitive measure, but a protective measure.21 This protection is not meant for the defendant, but for the public and the ‘legal profession as a group, the courts, the justice system and community confidence in that system.’22 To feel compassion for the defendant is an acknowledgment of the inherent weakness of man – a tendency that especially manifests in times of crisis – but the nature of the weakness and how a person struggles to overcome it must be taken into account when determining the fitness of a person to practice law. All people have, at one time or another, gone through critical periods in life, but not everyone will succumb the way the solicitor did. Some will drown themselves in alcohol or even commit suicide, but only a sick few will take it out on innocent children. Self-destruction, although not commendable, is a lot more honourable. The extent to which the defendant has succumbed to his weakness should be differentiated, for example, with the defendant in Legal Services Board v McGrath.23 There, the practitioner was only convicted of two counts of possession of child pornography, and although possession in itself does not really reveal the mental intent of a person and he could have offered a lot of excuses to exculpate himself, the defendant voluntarily agreed to have his name delisted from the roll. The defendant seemed to have understood the implication of his conduct and honourably bowed out without a fight. The SC should, therefore, taje all these into account when it rules on the application to remove the solicitor’s name from the roll. Bibliography Cases A Solicitor v The Council of the Law Society of New South Wales (2004) 216 CLR 253, [2004] HCA 1 Asia Pacific Telecommunications v Optus Networks Pty Limited [2005] NSWSC 550 (20 June 2005) Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 (22 November 2005) Legal Services Board v Bourozikas [2009] VSC 382 (8 September 2009) Legal Services Board v McGrath [2010] VSC 266 (17 June 2010) Legal Services Board v Williams [2009] VSC 561 (25 November 2009) Legal Services Commissioner v Booth (Legal Practice) [2012] VCAT 1730 (13 November 2012) Legal Services Commissioner v Coldham & Ors (Legal Practice) [2012] VCAT 74 (19 January 2012) Legal Services Commissioner v Nguyen (Legal Practice) [2013] VCAT 345 (25 March 2013) Legal Services Commissioner v Rushford [2012] VSC 632 (20 December 2012) Legal Services Commissioner v Turner [2012] VSC 394 (5 September 2012) Prince Jefri Bolkiah v KPMG (A firm) [1999] 2 W.L.R. 215 Re A Firm of Solicitors [1992] 1 QB 959 Spector v Ageda [1973] Ch 30 Legal Guidelines Council of the Law Institute of Victoria, Information Barrier Guidelines (Law Institute of Victoria, 2006). Legislations Crimes Act 1958 (Vic) Law Society of Western Australia Professional Conduct Rules, July 2008 Revision Legal Profession Act (Vic) Professional Conduct & Practice Rules 2005 (Vic) Victorian Civil and Administrative Tribunal Act 1998 Read More