As an aside to the question of competence and care is the question of counsel immunity; that is, that counsel are not liable in negligence for the conduct of a case in court.
There were a number of policy considerations that were said incorrectly in the authors view to support the doctrine. It is a doctrine that does little to instil public confidence in the law. In Australia, the High Court bench has changed since Giannarelli v Wraith was decided and perhaps, were the matter to be argued again, so would the law. Members of other professions and the public in general, are bound to view with some scepticism the claims of lawyers that the public interest requires them to have a special immunity from liability for negligence My Lords, the cards are now heavily stacked against maintaining the immunity of advocates.
I would rule that there is no longer any such immunity in criminal and civil cases. In doing so I am quite confident that the legal profession does not need the immunity Having considered some of the ethical obligations that give rise to the duty of the lawyer to the client, I turn to some of the ethical obligations that give rise to the duty of the lawyer to the court.
As noted earlier in this paper, where there is a conflict between the lawyer's duty to the client and his or her duty to the court, the duty to the court must prevail. Misleading the court can occur in a number of ways; for example not referring the court's attention to an authority on point - even where that authority is against you, or misleading the court as to the facts of the case.
It also means that the lawyer does not merely put to the court what it is that the client wants known. The lawyer is not the mere mouthpiece for the client but has an independent and overriding duty to assist the court. In criminal proceedings this duty would include the duty of the prosecution to bring to court all relevant and reliable witnesses. One matter of particular concern in this area is the making of allegations without their being a proper factual or legal basis upon which they can be supported.
In White Industries v Flower and Hart [] FCA the defendant firm was given advice from a Queen's Counsel confirming that the defendants legal position was weak but that there was one possibility of temporarily improving the defendant's bargaining stance, namely to start proceedings under the Trade Practices Act alleging deceptive conduct and fraud.
In a strong criticism of the legal firm Flower and Hart the Full Federal Court held that they had breached their duty to the court by instituting proceedings without proper foundation and for making an allegation of fraud that was without foundation. The Court also criticised the manner in which the firm had conducted the proceedings and the obstructionist and delaying conduct that exacerbated the abuse of process. Little comment was made of the advice given by the Queen's Counsel, however the Court indicated that a solicitor was obliged to make an independent assessment of whether proceedings should be instituted and not just follow the advice of counsel in the matter.
Undertakings given by practitioners are taken seriously and a practitioner will generally be held personally liable for any undertaking given on behalf of a client if the client subsequently breaches that undertaking. Personal liability will only be avoided if such avoidance is expressly disclaimed in the undertaking itself. This is because the undertaking is construed as a binding promise a breach of which can sound in costs or in discipline. An undertaking against a client is only enforceable if it is given with the client's express authority.
The consequences for a client breaching an undertaking are not as severe as for a solicitor, due to the duty to the court owed by the lawyer. Law is a profession and lawyers have certain obligations to their clients and to the court.
These obligations are generally articulated in a Code of Ethics or Rules of Practice. In Vanuatu the Legal Practitioners Act Cap makes provision for the discipline of lawyers on the grounds of misconduct s.
The Rules made under the Act make provision for an allegation or complaint of professional misconduct or unprofessional conduct. These words are not sufficiently defined in the Act, although they have been given particular meaning over a series of cases.
Neither the Act nor the Rules prescribe in any way the ethical obligations of lawyers. It would therefore be left to the Court, based on the case law, to determine whether a lawyer was in breach of professional ethics. This is unsatisfactory. The public must be able to have confidence in the legal profession and the administration of justice. To this end it is desirable that clearly articulated rules of conduct are introduced - not only so that the profession is aware of their ethical obligations but also because this is in the public interest.
In the present framework it would be exceedingly difficult and most unlikely for a lawyer who is abusing their position of trust or who is in breach of their ethical obligations to their client to be disciplined. In most cases the client will be unaware that what has happened is a breach of professional ethics. In other cases, without clear Rules or guidelines, misconduct, unless gross and obvious, will go unnoticed and unpunished.
Professional Codes of Ethics are one of the most important characteristics of a profession. Professional ethics are frequently formulated in Codes of Conduct or Rules of Professional Practice, which illustrate the high standards on which reputations for professionalism rest.
These conditions are that any particular set of professional services is being given not only by i properly qualified or technically expert persons but also ii by persons whose professional standards merit the high degrees of public trustworthiness which are typically required of professionals.
In those jurisdictions where comprehensive Rules have been developed, the focus should be on the nature and rationale for their enforcement. If 'public interest' then the question 'what are you protecting the public from? Secondly, if lawyers are not open to accepting the importance of regulation in the public interest then the experience of other places is that it will be imposed - either by the courts or by government.
The experience in Fiji and the difficulties that have been faced by various Australian Law Society's is evidence of this. Finally, there is a growing concern over the subordination of service and professionalism to profit, personal aims and ambitions. We need to remind ourselves of the honourable nature of the profession otherwise there is little point talking about ethics. Ethics also serve to safeguard the interests of the client being represented and ensure they receive service without discrimination.
Since codes of ethics are determined by various bodies and associations formed for that purpose, the codes are varied from place to place, as are the disciplinary measures were taken. However, there are some common malpractices that apply across the board. These include:. It is worth noting that Judges are held to the same code of conduct used on lawyers. However, judges also have specific rules they are bound to in the execution of their duties in their office. Should a lawyer perform any malpractice or fail to represent his or her client as is required, the client may seek counsel from a legal malpractice lawyer.
Not yet a member? Sign Up. We recognise that the law should protect the rights and freedoms of members of society. We understand that we are responsible to our community to observe high standards of conduct and behaviour when we perform our duties to the courts, our clients and our fellow practitioners. Our conduct and behaviour should reflect the character we aspire to have as a profession.
Every practitioner is an officer of the court. Practitioners are required to act with honesty and integrity, whether in litigious …. Search for: Created with Sketch. Created with Sketch. Unethical behavior is an action that falls outside of what is considered morally right or proper for a person, a profession or an industry. Individuals can behave unethically, as can businesses, professionals and politicians.
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