Exam (elaborations)
QLD BAR EXAM - ETHICS QUESTIONS AND ANSWERS 2024
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QLD BAR EXAM - ETHICS QUESTIONS AND ANSWERS 2024
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QLD BAR EXAM - ETHICSDuties owed to third parties in tort? - ANSWERS-• As a general rule, a lawyer
acting on behalf of a client owes no duty of care in tort to non-clients: Ross v
Caunters.
• Liability will usually only arise where:
(1) lawyer has assumed some responsibility to the third party;
(2) lawyer makes a negligent misstatement to the third party; or
(3) lawyer gives an opposing client an assurance or undertaking (see
'Undertakings').
Duties owed to third parties in equity? - ANSWERS-DUTIES OF CONFIDENTIALITY:
• Lawyers owe a duty of confidentiality to their clients, sourced from contract,
equity and professional rules.
• Lawyers may be restrained from acting against former clients and should avoid
assuming confidentiality obligations inconsistent with the duty to their clients.
FIDUCIARY DUTIES:
• The relationship between lawyer and client gives rise to fiduciary duties.
• Lawyers may also owe fiduciary duties to non-clients if the facts support it.
• Equity may impose accessorial liability on a lawyer for a client's breach of trust
or fiduciary duty.
,Part 3.4 LPA? - ANSWERS-Deals with costs:
Requirements for costs agreement, disclosure and what must be disclosed.
REQUIREMENTS FOR COSTS AGREEMENT AND DISCLOSURE? - ANSWERS-
Including, but not limited to:
1) Costs agreement must be in writing and may be made between a barrister and
a client, solicitor or associated third party payer: s 322, LPA.
2) Must clearly state it is an offer to enter into a costs agreement to which Part
3.4, LPA applies: s 302, LPA.
3) Disclosure must be provided in writing before, or as soon as practicable after,
engagement: s 310 LPA.
4) Disclosure must be expressed in clear, plain language: s 314, LPA.
Must also disclose any substantial change to anything included in a disclosure as
soon as reasonably practicable: s 315, LPA.
When is disclosure of of costs not required? - ANSWERS-s 311, LPA:
Total costs (excl. disbursements) not likely to exceed $1,500: s 311(1)(a), LPA.
Client is a sophisticated client (e.g. law practice, public company or subsidiary
thereof, large proprietary company, AFSL holder, liquidators, the
Commonwealth): s 311(1)(c), LPA.
, Work won following tender: s 311(1)(d), LPA.
Pro bono work: s 311(1)(e), LPA
What must be disclosed (if briefed)? - ANSWERS-s 309 LPA
- Barristers not required to make disclosure directly to the client under s 308.
However, must disclose to instructing solicitors sufficient information to allow
them to comply with their obligations to provide certain information to the client
about the barrister's practice: s 309, LPA.
What do with costs if directly briefed? - ANSWERS-Must have disclose all matters
set out in s 308(1)(a)-(l), LPA.
What happens if there is a failure to disclose? - ANSWERS-See range of issues
under s 316.
Recovering legal costs? - ANSWERS-Costs agreement can be enforced in the same
way as any contract, s326 LPA.
If no valid costs agreement in place? - ANSWERS-may recover costs under:
- the applicable scale of costs; or
- if no scale is applicable, according to the fair and reasonable value of the legal
services provided (applying the criteria in s 341 in relation to costs assessments): s
319, LPA.
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