Fellehas Duties to Goneril - Assignment Example

Take Home Exam Name Date Course Question 1 1.1 Felleha’s duties to Goneril According to the model rules of professional conduct and practice section 2005, (1), a lawyer has some obligations towards a client.1 When discharging the legal duties, the practitioner should maintain a high degree of honesty towards the client at all times. This means that Fellaha should always be honest to Goneril regarding any legal information concerning her case. On the other hand, confidentiality is also an obligation towards the client. In the case of Sent v Fairfax the court noted that the principle of confidentiality is important between the client and practitioner.2 However, this principle should not be misused to delay the court proceedings. Fellaha should ensure that all the confidential information regarding Goneril should not be disclosed to the public. The actions of Fellaha should also be in the best interest of Goneril. This means that Fellaha should explain in details all the instructions and details that Goneril needs to know regarding her case. It is also the duty of the practitioner to serve the client with diligence and competency at all times for the purposes of promoting the best interest of the client. In the case of Law Society of NSW v Nguyen, Nguyen was found guilty of professional misconduct through conflict of interest and not serving the best interest of the client.3 She was reprimanded and fine $1000. The fiduciary principles should also be applied by Fellaha towards Goneril. This means that Fellaha has to be free with her client and treat her in a fair manner at all times. This is regardless of the situation that she is facing in court. 1.2 What Fellaha should do in the light of new information? Fellaha has been acting in the best interest of the client which is part of her obligations. However, due to the new information that she has obtained from her client, her defense has been misleading the court. This is because her client finally admits that she did not intend to pay for the runners while all along she insisted that her client was willing to pay for the runners before being arrested. This also contradicts the statements that her client made with regards to communication with the witnesses. This also amounts to misleading of the court. According to the civil procedure act 2010, section 17, a person whom an overreaching obligation applies has a duty to act honestly during the proceedings4. Fellaha and her client also risk facing more problems from the court due to the misleading information. This is because the civil procedure act 2010 section 46 gives the court the powers to note any failure of compliance with the act. In the case of Legal Services Commissioner v Scott, Scott who is practitioner was suspended for ten months after being found guilty of misleading the court5. Fellaha should therefore inform the court of the new discovery in order to avoid more legal problems for her client. The court will then make a ruling on how the case will proceed. This is in accordance to civil procedure Act 2010 section 55 which gives the court the powers to make a ruling incase new information is discovered. 1.3 Whether Fellaha should continue defending her The practitioner also has the obligation of being honest to the court during the proceedings. However, this should not contradict the duty of confidentiality towards the client. Misleading the court is also a breach of duty by the practitioner. This is in accordance with the model rules of the professional conduct and practice section 14. Since the Goneril has admitted to lying, Fellaha should take swift action. The first action is to consult with her client in order to inform the court of the lie. If her client does not agree with the disclosure of the lie to the court, she should immediately stop representing her in the case. However if her clients agree to the disclosure of lies to the court, she can continue representing her. The lie should thus be disclosed immediately to the court for direction before the case proceeds. This is in accordance to the model rules of professional conduct and practice section 15 which deals with delinquent and guilty clients. It is wrong for the practitioner to continue representing the client with the full knowledge of falsification without informing court. The practitioner should also ensure that their clients understand this aspect and how it can affect the outcome of the case. 1.4 No case to answer submission According to the civil procedure act 2010 section 62, a defendant may apply for summary judgment. This is based on the ground that the claims of the plaintiff have no prospect of success. The new evidence that Fellaha has gathered from the client indicates that she has a case to answer. Goneril has a case to answer because of admitting that she would not have paid for the runners. This indicates that her intentions were not good. The failure by Fellaha to apply for ‘no case to answer’ is an indication of professionalism in accordance to the model rules of professional conduct and practice section 2005, 14. However she needs to explain to her client why she refused to apply. 1.5 Action to be taken incase of a prima facie If the court dismisses the application of the prosecution, Goneril has to enter her defense for the purposes of giving evidence regarding the case. At this point, contradicting the manner in which her practitioner cross examined the witnesses could ruin the reputation of Fellaha. In the case of Legal Services Commissioner vs Mullins, Mullins was found guilty of professional misconduct and was publicly reprimanded.6 She should advise Goneril to comply with her cross examination of the witnesses but in the end, she should apologize for the conduct at the shop to the manager and the company. This is for the purposes of indicating that she has learnt her lesson from the process. She should also promise never to engage in a similar conduct before. By doing so, she would be admitting her mistake which will also be a relief to the company and the prosecution witnesses. Question 3 3.1 Decision in relation to the legal profession Act 2004 In the case of a solicitor V council of the law society of NSW, the high court ruled that the personal misconduct has no connection with the legal practice. This is after the law society of NSW had ruled that he was not fit to practice due to his case which involved four counts of aggravated indecent assault upon children of a woman that he subsequently married. He was thus suspended for a period of five years instead of the earlier ruling of not being unfit to practice. Had the incident happened in Victoria after the enactment of the Profession Act 2004, the solicitor would have been summoned by the Legal profession Board where the matter would be discussed. Section 2.3.10 gives the board the powers to make recommendations to the Supreme Court regarding the practitioners.7 This means that the Board would analyze the situation and make investigations of the claims in relation to sect 4.4.7. The commissioner is involved during the investigations. It is also important to note that the investigations may be carried out by the commissioner after a complaint has been launched by the Board or members of the public. PFM’s name was removed from the list of local roll of practitioner due to professional misconduct in the case of Legal Services Commissioner v PFM.8 The commissioner also reserves the powers to launch investigations without complaints. This is an indication that the issue would have been handled differently in Victoria. According to section 4.4.2, unsatisfactory conduct occurs when a practitioner is involved in a conduct against the practice of law or any other activity that the members of the public do not expect of a legal practitioner. The aggravated indecent assault of four children is not related to the practice of law in any way. However the conduct is unexpected of a legal practitioner. This indicates that the members of the public would not approve of such an act by the legal practitioner. This is one of the condition under which the practitioner may be declared unfit to practice law. An investigation which is instituted by a tribunal or the court must prove that the conduct is unsatisfactory. The action to be tacked will depend on the extent of the conduct. The disciplinary action involves the cancellation of the certificate to practice, suspension, and refusal to renew the certificate upon expiry or removal of the name from the Australian Roll. The disciplinary action has a negative consequence to the practitioner as it takes effect immediately. Cancellation of the certificate of practice is thus an option that the solicitor would have faced if the incident had taken place in Victoria. The appropriate authority to take the measures would be court or tribunal formed. 3.2 Critique of the high court decision If the incident had happened in Victoria, the decision would not be the same as that of the high court. The decision of the high court was erroneous in some o the aspects relating to the legal profession Act 2004. The high court found that the solicitor had indeed committed the offenses that had been leveled against him. The offences committed are not expected of a legal practitioner as it taints the image of the entire profession. This is also considering that the solicitor is fully aware of the consequences of such actions. According to section 4.4.4, any serious crimes constitutes to professional misconduct regardless of whether it is linked on the legal profession or not. The public image of the solicitor may also have been damaged due to his action; this may lead to the lack of confidence on the solicitor by the members of the public. His continuous practice may therefore affect the outcome of the legal proceedings. This reason also indicates that the decision of the high court was improper. On the other hand, the decision of suspending the solicitor for five year was not strict enough compared to the acts that he committed. This undermines the human rights of the children who were affected by the acts of the solicitor. The decision by the Law Society of New South Wales was in order as it meant to ensure that only the practitioners who have respect for the law are allowed to practice. In Victoria, thorough investigations that involve the commissioners and discussion by the members of the Board would not have arrived at the same decision. The courts usually rely on the recommendations of the Board. This is an issue that the high court overlooked. The reliance on the decision f the Board therefore indicates that the court would have come up with a different judgment. The high court did not consider the plight of the children who were affected by the actions of the solicitor. This is because it treated the matter lightly by emphasizing that the personal misconduct is not connected to the legal misconduct. It indicates that the conducts of the legal professionals is not strictly monitored in New South Wales. In the case of Barristers’ Board v Darveniza, the barrister was still able to acquire a new license to practice after being convicted of two of supplying dangerous drugs.9 The court argued that he did not display a violent conduct due to his actions. The personal misconduct may influence the practice of and individual which may lead to the professional misconduct. Such a consideration is ought to have been made by the high court. The decision of the high court was thus not proper in relation to the situation. References Barristers’ Board v Darveniza (2000) 112 A Crim R 439, Sent v Fairfax [2002] VSC 429 (Unreported, Nettle J, 7 October 2002) [67]. Civil Procedure Act 2010 (VIC). Legal Profession Act 2004 (VIC). Model rules of professional conduct and practice section 2005.10 Law Society of NSW v Nguyen [2009] NSWADT 199 (28 July 2009). Legal Services Commissioner v Scott [2009] QLPT 7 (27 March 2009). Legal Services Commissioner v Mullins [2006] QLPT 12 (23 November 2006) Legal Services Commissioner v PFM (Legal Practice) [2013] VCAT 827 (27 May 2013) Read More