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Qld Bar Exam - Ethics
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Qld Bar Exam - Ethics
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Qld Bar Exam - EthicsAre contingency fees allowed? - ANS-They are prohibited, s 325
· Must not enter into a costs agreement under which amount payable (or any part
thereof) is calculated by reference to the amount of any award, settlement, or value of
the property that may be recovered in the proceedings: s 325(1), LPA.
· Must not enter into a costs agreement in which all or part of the client's interest in any
proceedings is transferred to the law practice instead of the client being required to pay
legal costs: s 325(3), LPA.
Bale v Mills [2011] NSWCA 226 - ANS-Facts: After hearing, leave was given to "add any
references" to certain issues concerning the application of Browne v Dunn to the
proceedings. Both parties provided further submissions, instead of merely referring the
court to additional authorities or other references.
Key principles:
· Parties should not place before the court any further material after a hearing without,
or outside of, any leave given.
· Once a matter is reserved, the parties' rights to argument and to be heard have been
exhausted: Bale v Mills.
Outcome: Court ignored further submissions provided.
Billing? - ANS-• General: Costs agreement must be signed and can be lump sum or
itemised, may be provided electronically with client's consent: s 330, LPA.
• Interest: If charging interest on unpaid costs, statement and applicable rate of interest
must be included in the bill, subject to regulations: s 321, LPA.
• Mandatory notice to clients: Statement of client's rights to assessment and set aside
costs agreement, with time limits, required in bill, except for sophisticated clients: s 331,
LPA.
• Interim bills: Assessable under Division 7 at time of interim bill or after final bill,
regardless of payments received: s 333, LPA.
• Itemised bill: Client can request, must comply within 28 days and recovery
proceedings cannot start until at least 30 days after provision, must comply with s 330: s
332(2), LPA.
, Cab rank rule? - ANS-rr 21-23
Can you take advantage of an opponent's mistake? - ANS-Rule 50: A barrister does not
make a false statement to the opponent simply by failing to correct an error on any
matter stated to the lawyer by the opponent
Communications with opponents? - ANS-rr51-52
No contact rule to represented parties- r 51. Who cannot be be contacted and when
does it apply?
For unrepresented parties: Must not confer or deal directly with any unrepresented party
unless they have signified a willingness to do so: Rule 52
Costs assessments? - ANS-ss 335-338
Costs in Speculative Personal Injury Claims? - ANS-· See ss 345-347, LPA.
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 - ANS-Proofs of evidence:
Case on lawyers who let witnesses communicate with each other about there evidence
on a group conference call.
Rule:
Lawyers must take proofs of evidence from lay witnesses separately and encourage
them not to discuss their evidence with others (in particular, with other potential
witnesses).
Encouraging witnesses to confer / collude can amount to unsatisfactory professional
conduct or worse.
Dealing with children in family law? - ANS-Paramountcy principle
Devilling? - ANS-Dealt with at r 107 - will not breach sole practitioner rule at r 16 if done
in accordance of r 107.
Distinguish when a barrister either: a) MUST, b) MAY or c) MAY NOT return a brief. -
ANS-
Duties in defending a client? - ANS-ADVICE ON PLEAS AND GIVING EVIDENCE
Clients decide whether to plead guilty or give evidence
Counsel should provide adequate advice
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