Ethics and professional responsibility Notes

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Activity 1.1 Applying a framework for ethical decision making After assessing the situation given in the facts, my decision was to disclose the information given to the lawyer by Herb. I came to this conclusion because it seemed to be the most moral and ethical course of action. I first looked at the values waypoint and looked to the respect for life aspect, I understood from this that Herb is entitled under this principle to respect and dignity, and although he is no longer here to authorise his lawyer to disclose the given information, he was willing to disclose the issues with Alphonso and his sons prior to his death. So, it could be said that disclosing the information to the police is in a way complying with his wishes and giving him the respect and dignity, he deserves. The justice principle is relevant to this situation as disclosing the information Herb gave his lawyer, the police will be able to investigate his death appropriately. Next, I looked to the Covenantal Integrity which promotes truthfulness and honesty in all relationships. Promises and loyalty should only be renounced in the most extreme circumstances. in my opinion, Herb's death would be considered an extreme circumstance. And lastly, I looked at the legal principles. The duty of confidentiality encourages clients to be open and frank with their lawyers in turn, to obtain best advice. Set out in the Australia Solicitor Conduct Rule 2015, rule 9. Rule 9.2.5 might be applicable, although disclosing the information now would not be considered preventative, it would assist it what might be a malicious incident, that resulted in Herb's death. after I weighed up the moral and legal obligations of the lawyer in this situation, there was an exception I found in the Legal profession uniform law Australian solicitors conduct rules on the duty of confidentiality. Set out in Rule 9, there are exceptions to when a solicitor may disclose information which is confidential to a client such as if they are compelled by law, or for the sole purpose of avoiding the probable commission of a serious offence or for the purposes of preventing imminent serious physical harm to the client or to another person. In this instance, the Herb's lawyer may be compelled by law to disclose the information to the police because not doing so might constitute 'perverting the course of justice' as outlined in section 320 of the Crimes Act 1958. As non-disclosure of the information could be seen as hindering the police investigation. Given the above reasons, it would be in the best interest of both Herb and his lawyer/law firm to disclose the information. The lawyer has an ethical and legal obligation to disclose the information to assist Police in their investigation. Supervised lawyer two could respond to the search warrant by claiming that the files request is protected under privilege and they in fact have a duty to assert their client's claim of privilege. It is important to note that a vague or blanket claim of legal professional privilege will not be an adequate assertion of privilege. What kind of lawyer do I want to be? Acting contrary to one's character inclinations can lead to internal conflict, affecting your wellbeing. If my decisions as a lawyer do not resonate with how I would respond to a situation outside of work, I know it will be difficult to maintain. I strive to be an honest and moral person. I know that it is paramount in the legal profession to uphold the values and conduct rules as a solicitor, but to also balance the needs of your clients and the justice system equally. I know this can sometimes be difficult to do, such as in the given circumstance. However, these 'difficult' scenarios are what show the kind of lawyer, person and community member you are. Therefore, the best course of action given my values and morals as a lawyer, would be to inform the police of the information given by Herb about his altercations with Alphonso and his sons. Although, I know that generally speaking there is a duty of confidentiality, this may be circumvented by the
option to disclose the information "for the sole purpose of preventing imminent serious physical harm" as set out in rule 9.2.5 in the ASCR. Although the disclosure of the information would not strictly 'prevent' serious physical harm, it is closely rel ated to this and may be applicable given the serious nature of Herb's death. Qiyang, my partner for this task and I had different ideas as to what we would ultimately decide in Herb's situation but used the same resource to come to that conclusion, namely the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 . Qiyang's analysis was thorough. he was thoughtful in his responses and considered all possible outcomes in the given scenario. Qiyang's analysis did not affect my decision but it was nice to see that we both had different analysis and were on a different track and we came to a different conclusion, my analysis was to disclose the information to the police whereas, Qiyang's analysi s was to not disclose the information to the police. I would have obtained assistance in making this decision much the same as supervised lawyer two. Asking a colleague is a great place to start and is permissible under the rules 9.2.3 of the legal profe ssion uniform law conduct rules, which states "for the sole purpose of obtaining advice in connection with the solicitor's legal or ethical obligations". I would also, in practice go to the Legal Institute of Victoria, and ask for their advice on Herb's si tuation. Thank you Activity 1.2 - keeping promises made in professional practice File Note Details Saunders is worried about the Facebook post not being taken down as this has caused a lot bad business for Grunsky. Saunders is worried if the post is not taken down, Grunsky will make a complaint. Saunders is willing to pay $3500 to get Susan to take down the Facebook post I explained to Saunders that this would be best as Susan wants Grusnky to pay her legal fees. Date: 15 June 2022 Start time: 12:30 pm Units: End time: 1:30 pm Matter: Matter number: Type of attendance: online interview via zoom Telephone: Where: Other: By whom: On whom:
In order to take down the Facebook post Saunders to pay $3500 to the trust fund I will fund the remaining $3500 to pay Susan. Next steps: Saunders to pay $3500 to the trust fund Moody will fund the other $3500 to pay Susan Peters her $7000 legal fees. By whom: Common facts document 1. (a) Has Moody or Saunders given an undertaking that would be personally binding on them? Moody has given an undertaking that would be personally binding on her. (b) If so, specifically indicate what Moody or Saunders has undertaken to do? Moody undertook to get the posts taken down if Saunders' client pays the amount of $25,000 into Moody's trust account within 2 days. (c) What authority do you rely on for your reasoning? According to rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules ( LPUL ), a solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction. According to the telephone conversation, Moody said to Saunders: "if you undertake to get your client to pay the $25,00 0 into my trust account within 2 days, I'll get the posts taken
down." Moody replied Saunters' email and stated: "When the ($25,000) arrive, I will get those posts taken down." The evidence will prove Moody has given a personal undertaking. Further, our facts are similar to Legal services Commissioner v Kaine where there was a breach of undertaking due to his failure to take down the posts. 2. Assuming that any undertakings given by the lawyers are personally binding but have not been fulfilled, would the lawyer who fails to fulfil their undertaking be guilty of professional misconduct or unsatisfactory professional conduct as those terms are defined in the Legal Profession Uniform Law? Professional misconduct is defined under section 297 LPUL as either "unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard or competence and diligence or conduct happening in connection with the practice of law or otherwise that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice". Based on the terms defined in LPUL, A lawyer's failure to fulfil an undertaking can amount to either unsatisfactory professional conduct or professional misconduct. 3. Identify how the conduct by either lawyer could be considered to breach r 6.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. Rule 6.2 of the ASCR 2015 provides that a lawyer must not give to another lawyer an undertaking, whereby compliance with that undertaking requires third-party cooperation and the third-party is not a party to the undertaking and whose cooperation cannot be guaranteed by the lawyer giving the undertaking. On our facts, it appears that both Moody and Saunders have breached r 6.2 of the ASCR. They have both agreed on an undertaking to which their clients Peters and Grunsky are not parties to the undertaking. Moody was aware that his client was already finding it hard to pay the money owing and so he could not have guaranteed that his client would make the payment within two days (even though this undertaking was complied with). Similarly, Saunders could not have guaranteed that her client would take down the Facebook post. Clients can and do change their mind for good or bad reasons. 4. Can either lawyer's conduct be regarded as offensive, discourteous or otherwise in breach of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015? As per rule 4.1.2 of ASCR 2015, the solicitor must be honest and courteous in all dealings in the course of legal practice. Moody's email stated she did not give any personal undertaking and never said those words at all. Moody breached the rule 4.1.2 of ASCR 2015, she must be honest in all dealing in all matters. In the previous email, Moody replied Saunders' email and gave an undertaking she would get those posts taken down when the money arrived. Although she did not express the word "undertaking", howev er, it is an undertaking.
There may also be a breach of r 4.1.4 ASCR as publicly commenting on Facebook is not representative of professional independence or integrity. Saunders' email accused Moody and her client of both lie in court and on social media without any evidence. It breached rule 32 of ASCR 2015. A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it. Saunders may also have breached r 34.1.1 and 34.1.2 ASCR by threatening to commence proceedings and overstating he r client's entitlements (being the damages for $100,000) which can be seen as misleading or intimidating Moody. 5. If Megan Saunders wishes to make a formal complaint against Moody, to whom would the complaint be made? The formal complaint should be made to the Office of the Legal Services Commissioner. 6. If a lawyer holding a practising certificate is convicted of a tax offence: (a) Does that lawyer have to disclose that conviction? The lawyer has to disclose that conviction. as per r 43 ASCR. Lawyers must be open and frank in their dealings with the regulatory authority. A tax offence is capable of amounting to unsatisfactory professional misconduct or professional misconduct under s 298 Legal Profession Uniform Law (VIC). Furthermore, it is a requirement under Legal Profession Uniform Law (VIC) s 51(1) that the lawyer must disclose this offence in writing to the Victorian Legal Service Board within 7 days of being notified of the conviction. (b) can the lawyer retain their practice certificate? The lawyer can retain their practice certificate. However, the holder must "show case" in certain circumstances. The holder must complete a written statement within 28 days of the happening of certain events explaining why, despite the event, the holder considers themselves to be a fit and proper person to hold a certificate. If LSBC is satisfied the lawyer is still a fit and proper person to hold the certificate, then the lawyer can retain their practice certificate. Activity 2.1 - Making disclosures and maintaining client confidentiality 1. Identify any actual or apparent conflict of interest/conflict of duty and the consequences for Michelle and/or our law practice. Rue 12.1 of the ASCR requires Michelle to avoid conflicts between the duty to serve the best interests of her clients and her own interests. As Michelle's firm obtains financial gain from GCU referrals, Michelle's undivided loyalty to Mary can be called into question: Maguire and Farrington .
Relevant here is r 12.4.4, which permits a lawyer to act for a client where a financial benefit may be gained by a third party for referring the client, as long as the lawyer has disclosed that benefit. However, Michelle did not seem to disclose any information related to the referral system in place between her firm and GCU to Mary. Therefore, Michelle is arguably engaging in a conflict of interest in violation of r 12.1. Similar to Michelle, the firm is also likely engaging in a conflict of interest in violation per r 12.1. The r 12.4.2 exception does not apply here as there is no evidence of disclosure. Also, r 11.1 requires Michelle's firm to avoid conflicts between the duties owed to current clients. As Michelle's firm is representing Mary and GCU in related matters, that is, matters which involve investment of funds and the repackaging of those funds into loans, Michelle's firm is likely engaging in a conflict of interest. The exception to r 11.2, contained within r 11.3, will likely not apply as there is no indication that clients such as Mary have been informed that the firm is also representing GCU: r 11.3.1 and r 11.3.2. The above may result in an unsatisfactory professional conduct against Michelle and the firm. 2. Has Michelle breached her fiduciary obligations to her client, Mary Kwan, or to any other client who has funds invested at call with Gateway Credit Union? Michelle's fiduciary obligations to her client Mary Kwan are to act in Mary's best interest; be honest and courteous in all dealings during her matter; provide clear and timely advice; follow Mary's competent instructions; and avoid any conflict of interests. Now I will break down whether Michelle's conduct upholds her fiduciary obligation to Mary. It is arguable that Michelle was acting in the best interest of her client as she advised Mary prior to any dealings being committed to with Credit Union and she also disclosed to Mary that she (Michelle) had had prior dealings with GCU. The fact that she did not disclose that her firm has a commercial relationship with GCU may compromise her transparency and honesty with Mary. Despite this, Michelle conducted herself in a professional and courteous manner as she procedurally ran the matter well. It was noted that Mary Kwan is 74 years of age and quite unsophisticated in legal and financial matters. Therefore, taking this into account, Michelle could have potentially advised Mary to seek someone to attend her legal conferences with her when she discussed the administration of her deceased sister's estate with Michelle. Therefore, prior to Mary signing our trust account authority for the withdrawal of the trust money and payment to the credit union, Mary would have had a greater understanding of the transaction which she was approving. Furthermore, Michelle may have run into a conflict of interest in her dealings with Mary Kwan. The obvious scenario for Michelle would have been to disclose to Mary that her law firm has a commercial relationship with GCU and the extent of that relationship. This may potentially mitigate any issues that may arise as a potential conflict of interest. 3. Identify any conduct rules relevant to Michelle or Robert. Give your opinion as to whether Robert has any responsibility for the management of our law practice.
Rule 11 of the ASCR applies to both Michelle and Robert, as Gateway Credit Union and Mary are both clients creating a conflict. Should a dispute arise in the future, the firm would need to cease acting for one of the parties. Rule 12 applies to Michelle, as the business that the firm receives from Gateway Credit Union is based on the number of employees and clients of the firm patronise the credit union and there is a benefit obtained by the firm for every referral to the credit union. Michelle did not disclose this to Mary, nor has Mary given permission for the benefit to be received as required under rule 12.4.3. Rule 37 of the ASCR applies to Robert, as he is supervising Michelle who is responsible for the matter and has a responsibility to exercise reasonable supervision. Under r. 34, this would include steps to ensure that Michelle complies with her professional obligations and that legal services are provided in accordance with the Uniform Law. As a principle in the law practice within the definition of s 6(b) of the Legal Profession Uniform Law 2015 , Robert has responsibilities under s34 of the Uniform Law for the management of the law practice, including (a) ensuring that legal practitioner associates comply with their obligations under the Uniform Law, the Uniform Rules and other professional obligations, and (b) that the legal services provided by the practice are provided in accordance with this Law, the Rules and other professional obligations. 4. Describe any specific actions, policies, and procedures that should be implemented by our law practice for future matters. Rule 11 of the ASCR takes a flexible approach to a conflict of duties between current clients. A solicitor and a law practice must avoid conflicts between duties owed to two or more current clients, except: 1. Each client is aware that the solicitor or law practice is also acting for another client and has given informed consent to the solicitor or law practice so acting. This rule highlights three points for a solicitor and law practice when making policies: 1. A timely conflict check is required since the check would inform direct or potential conflicts between current clients. In this case, neither Robert as Michelle's supervisor partner nor the law practice had noticed the potential conflict of interest between Alison and Gateway Credit Union because there was no effective system and policies to do the conflict check. 2. When a solicitor and the law practice realise the potential conflict, they need to timely disclose the conflict to the client and seek instructions about the waiver (if the conflict is waivable). In this case, no such action was taken. The failure of disclosing the conflict and seeking instructions from both sides of the client may cause misconduct. 3. If the conflict cannot be waived or any clients refuse to consent, a lawyer or law practice must cease to act for both sides . Activity 3.1 - Accounting for other people's money Monday
Tina Hudson attends the office. She advises she has moved out of her house and the keys have been left with the agent on sale. All is ready for Friday's settlement. She gives you a cheque drawn on her personal account with Westpac for $1,800 on account of our costs and disbursements as agreed. Q1 (a) What should you now do with Tina's cheque; and (b) Identify any of the accounting records that are required to be completed upon your receipt of that cheque? a) The cheque provided by Tina must be deposited into the general trust account of the firm. The cheque must be deposited within a timely manner/ as soon as practicable upon receipt. As the cheque provided by Tina is in connection with the provision of legal services by the practice then, it is considered as general costs. b) First, a receipt should be provided to the client. Secondly, a bank deposit slip is completed to accept the deposit and a duplicated copy is generated for the record keeping purposes of the firm.
Tuesday Jack Sprowle arranges to meet with you later that day. You obtain a printout of the trust and general account ledgers in the matter of Sprowle v Davis Peaches Pty Limited as set out at Appendix 1 . Q2 In relation to your bill of costs for $2,000 (the office account ledger indicates the bill was sent 2 days ago) for the initial advice: (a) What action should you take to pay the bill? (b) Identify each book-keeping step you will take to pay the bill, assuming a manual book- keeping system is used. a) Under the Legal Professional Uniform Application Act 2014, rule 194 2(b) allows for a client to pay legal fees within 30 days of issuing the invoice. Here, the invoice was issued 2 days ago. Therefore, it would not be appropriate to take action/ chase the bill at this point. The firm may take legal action to recover the fees once if the invoice has not paid following the 30-day period. b) 1. The payment of the legal fees would be permitted as per rule 42. 2. The legal fee can be withdrawn from the controlled money account in two ways, via cheque or electronic funds transfer. 3. The withdrawal of the money can only be directed by the authority of an authorised principal of the law practices. 4. A written record of the withdrawal must be kept. The written record must contain a date/ number of the transaction, amount of withdrawal, the type of withdrawal (e.g. cheque), the payee details, details identifying the name of the person it belongs, particulars identifying reason of payment and person directing the withdrawal. You also check the Sprowle v Davis Peaches Pty Limited file, which now includes Mark Richards' memo of fees in the sum of $3,500 which was only received this morning. Q3 Assuming the bill of costs of $2,000 has now been paid, what will you say to Jack in relation to the payment of Mark Richards' fees?
In relation to the fees of Mark Richards, I would provide the client a bill and request payment of the fees within the standard time frame (30-days). Once, the client has provided payment of the feed it would be considered as transit money. Hence, I would make payment of the money to Mark Richards as soon as practicable (s140 (1) of LPUL). Wednesday Dino Demarco attends on you unannounced. He says that he has sold his car as he will have no use for it if he is sentenced to imprisonment. He received $15,000 in cash for the car. He wants you to invest it for him in an interest-bearing account pending his sentencing so that he can pay any fine that may be imposed and any additional costs that might be incurred. He doesn't want to be able to operate on the account as he knows he'll only spend it. Dino wants only you, Joel or someone else from the law practice to be able to access the money. After discussion, he gives you the cash together with a written direction to deposit the money in an interest-bearing account with Westpac for a 6-month term in the name of Edges Solicitors. Dino also hands you $1,200 in cash and asks you to give the cash to Karen Assi with his compliments and apologies for the delay in payment of her fees for appearing on his behalf at the trial. At Appendix 2 are forms for an Edges Solicitors Law Practice Trust Account receipt (X2) and at Appendix 3 is the form of a deposit slip of Edges Solicitors Law Practice Trust Account. Q4 (a) Identify the types of money you received from Dino today and what you should do with that money (give reasons). (b) Identify the accounting records that are required to be completed and maintained regarding the money received from Dino? (c) What are your reporting obligations, if any, regarding the money received from Dino? (d) If any money is required to be deposited to 'Edges Solicitors trust bank account', complete the trust account receipt in Appendix 2 and, in anticipation of banking that money into the trust bank account, complete the deposit slip in Appendix 3. [You are not required to complete receipts in duplicate.]
a) Dino has provided $15,000 to invest and $1200 for the purpose of paying bill of Karen (transit money). The transit money to Karen must be deposited into the firms trust account and payment is to be made as soon as practicable. In relation to the investment money, it is to be held within the trust account of the firm for the client. b) For record keeping purposes, the transit money must be noted within the practice record and brief particulars must be made to identify the relevant transactions. This record must be maintained for a period of 7 years (s140(2) and (3) of LPUL). In relation to the investment monies, it should be deposited into an interest- bearing general trust account and adequate records include particulars of the amount and identifying it to the client must be made. Under rule 61, it sets out the general rules for the maintenance of controlled money. It states that the account name must include CMA or CMA/c for proper identification. c) As the money provided by Dino exceeds $10,00, it must be reported under the Financial Transactions Reports Act (Cth). d) See appendix 2 & 3 Thursday Sonal Singh attends her appointment. Ivana Measure's survey report has been received with her invoice for $800. After discussion, Sonal instructs us to send a letter of demand to Taylor Merdec requiring part of a fence between the two properties to be removed. Sonal hands you a cheque drawn on her personal bank account in favour of Ivana Measure for the $800 due. Q5 (a) What should you do with the cheque received from Sonal? (b) What accounting records, if any, are required to be completed?
a) The monies paid by Sonal is considered as transit money. Hence, the firm must deliver the payment to the other party as per the instructions of the client as soon as practicable. (s140 (1) of LPUL). b) For record keeping purposes, the transit money must be noted within the practice record and brief particulars must be made to identify the relevant transactions. This record must be maintained for a period of 7 years (s140(2) and (3) of LPUL). Alex Green tells you that Jim Payne and Valerie Sanders have arranged to collect their cheque this afternoon. There is a nil balance in the office account. A copy of the trust ledger in respect of the matter of their proposed purchase of the Seabreeze newsagency and the trust cheque awaiting your signature is at Appendix 4 . Q6 (a) Assuming you are authorised to sign trust cheques, or to send that money by way of EFT, should you sign the cheque or authorise the transfer of funds? (b) If the trust cheque is signed and handed to the clients in its present form, identify any consequences. a) The trust cheque has been issued for the amount of $2455, however, according to the trust ledger, the remaining balance should be $2500. Hence, due to this error, I cannot sign the cheque. Further, the cheque does not include the full name of the clients. b) If the trust cheque is issued, the incorrect amount will cause a deficiency within the trust account. According s148 of the LPUL, law practices are prohibited from causing a deficiency without a reasonable excuse. An error must be corrected as soon as possible. Under s154(1) of LPUL, the legal practitioner must provide written notice to the Law Society as soon as he or she is aware of the irregularity. Q7 Assume your first practising certificate was issued to you three months ago. Assume also that Joel Edge's brother, Mitchell, has been admitted but has never engaged in legal practice and Mitchell is not employed in the law practice and has no other connection with it. (a) Was Joel entitled to allocate the power to operate the trust and office accounts to both you and Mitchell during Joel's absence? (b) Was it appropriate for Joel to have allocated this power to both you and Mitchell?
a) Under rule 42, Joe is able to allocate the power to operate the trust accounts to any authorised legal practitioner associated or an authorised legal practitioner who holds a current Australian practising certificate. Thus, Joe can allocate Mitchell as he has been admitted. Similarly, I can also be allocated as I have been admitted as a legal practitioner. b) Under s135, an associate of the law practice may deal with trust money. Further, section 6 specifies that an employee may be considered as an associate. Therefore, in this instance Mitchell may not be able to the deal with the trust account as he has not practised within a firm and nor is he an employee of the firm. Further, I cannot be made responsible as my practice certificate is restricted due to the recent admission. Friday Tina Hudson's sale settled this morning. The balance sale proceeds that were paid into the PEXA environment by the purchaser of Tina's house was disbursed directly into Tina's personal bank account by PEXA in accordance with our direction. Previously, Tina provided written instructions authorising the payment of our costs and disbursements from the money held in trust on her behalf Q8 Even though Tina has authorised payment, before Tina's trust money can be withdrawn and transferred to the office account to pay the bill of costs, what must you now consider following the banking of the trust money? Prior to withdrawing the payment, the firm must obtain written directions from the client and to authorise the payments of the outstanding bills. Once written consent is received then, the firm must consider if the payment is to be made via EFT or cheque. Q9 (a) Identify the type of money that represented the balance sale proceeds as a result of Tina's authority to Edges Solicitors to do anything necessary to c omplete the e- conveyance on her behalf. (b) Identify the accounting records required to be completed and maintained regarding the balance sale proceeds.
a) The money would be categorised as controlled money b) Accounting records are necessary starting with the settlement completion record. Then because the parties agree on the amount and I have Tina's written instruction the money received is written direction money. The money should be paid according to instructions not into the trust account but yes into her bank account as soon as applicable keeping record of minimum of 7 years as per s 142. Late in the afternoon, Alex informs you that she has written up the trust account and discovered a small debit balance in the ledger account for the matter of Lau v Cousteau Limited. She says this personal injury matter settled recently and the proceeds of settlement received into trust. Included in the payments to be made out of the settlement was a payment to Paul Rakoi, an expert witness in the proceedings. His fees were $2,030.50 but by oversight the cheque drawn to him was for $2,035.00. She says Joel was in a huge hurry just before he left on leave and made a simple mistake. She also says the error would not have happened if the law practice had trust and office accounting software and it's time the law practice moved on from using antiquated handwritt en accounts. Alex has checked with Asher Zheng and unfortunately the cheque has been presented and paid. Q10 (a) What should you do about the deficiency that has occurred in the trust account? (b) Do you have any reporting obligations? (c) If the law practice had trust and office accounting software, would that have made it less likely for a debit balance to have arisen? Give reasons, if appropriate. a) If the trust cheque is issued with an incorrect amount, then, this will cause a deficiency within the trust account. According to s148 of the LPUL, law practices are prohibited from causing a deficiency without a reasonable excuse. An error must be corrected as soon as possible. b) Under s154(1) of LPUL, the legal practitioner must provide written notice to the Law Society as soon as he or she is aware of the irregularity. c) The use of an accounting system can arguably minimise the chances of human error. Therefore, issues such as the incorrect amount may be minimised. However, in the rare occasion that an error is made by the system then, Joe still would have amended the error manually.
Appendix 1 Appendix 1 Trust Account Ledger ACCOUNT NAME: Sprowle, Jack and Jill v Davis Peaches Pty Limited ADDRESS: 6/6 Conclave Avenue, Seaside MATTER: Damages claim in Federal Court DATE 20XX RECEIVED FROM OR PAID TO PURPOSE REC/CH Q/ JNL NO. DR CR DR/C R BAL (Four months ago) Fr J. Sprowle On a/c c/d - initial advice R231 2,500 0 0 CR 2,50 0 0 0 Office Account Ledger ACCOUNT NAME: Sprowle, Jack and Jill v Davis Peaches Pty Limited ADDRESS: 6/6 Conclave Avenue, Seaside MATTER: Damages claim in Federal Court DATE 20XX RECEIVED FROM OR PAID TO PURPOSE REC/CH Q/ JNL NO. DR CR DR/C R BAL (Two days ago) Costs rendered - advice re prospects of success CJ213 2,000 00 DR 2,00 0 0 0
Appendix 2 Appendix 2 EDGES SOLICITORS 118201 PO Box 2 Your capital City 20xx ABN 62 751 281 333 Received from Dino Demarco the sum of Fifteen Thousand dollars and Zero cents Cash For and on behalf of Dino Temarco : (client name) (matter description) For: Controlled money to behalf in interest bearing account Ledger Account / Matter Reference # Received by: Simah Ahmadzay on behalf of: Joe Edge Edges Solicitors Law Practice Trust Account
EDGES SOLICITORS 118202 PO Box 2 Your capital City 20xx ABN 62 751 281 333 Received from Dino Demarco the sum of One Thousand Two Hundred dollars and Zero cents $ Cheque/Cash For and on behalf of Dino Demarco : (client name) (matter description) For: Karen Assi - Counsel Fees Ledger Account / Matter Reference # Received by: Simah Ahmadzay on behalf of: Joe Edge Edges Solicitors Law Practice Trust Account
Appendix 3 Appendix 3 Trust Account Deposit Slip COLLEGE BANK 20xx THE SUM OF Sixteen Thousand Two Hundred Dollars NOTES 16,200 COIN TELLER COMM NO. ITEMS PAID IN BY James Tennant CHEQUES as herein 2 (signature) FOR CREDIT OF Edges Solicitors Law Practice TOTAL $ 16,200 Account No 123 456 789 TRUST ACCOUNT Proceeds of Cheques etc. will not be available until cleared PARTICULARS OF CHEQUES, ETC. DRAWER BANK PLACE AMOUNT 1. Simah Ahmadzay Westpac Melbourne 15,000 2. Simah Ahmadzay Westpac Melbourne 1,200 3. 4. 5.
Appendix 4 Appendix 4 Trust Account Ledger ACCOUNT NAME: J. Payne and V.Sanders purchase of Seabreeze newsagency ADDRESS: 10 Amy Street Seabreeze ACCOUNT NUMBER/ MATTER REFERENCE: 2022/XX DATE 20XX RECEIVED FROM OR PAID TO PURPOSE REC/CHQ/ JNL NO. DR CR DR/CR BAL (Three months ago) Fr Payne & Sanders On a/c c/d R231 5,000 00 CR 5,000 00 (Two months ago) To ASIC Incorporation fees C231 545 00 CR 4,455 00 Two months ago) to Edges Office account For costs C233 2,455 00 CR 2,000 00 COLLEGE BANK COLLEGE BANK 46333 (today) Date (today) Payee J. Payne & V. Sanders A/c 2022/XX Detail refund of balance of moneys held in trust on completion of matter Chq $ 2455.00 Pay J. Payne & V. Sanders or bearer the sum of Two thousand four hundred and fifty five dollars $ 2,455.00 EDGES SOLICITORS Law Practice TRUST ACCOUNT Not Negotia ble 46333 "•46333 '•082'"000•'123'456789"• Activity 3.2 - Accounting and billing
ITEMISED BILL OF COSTS PURSUANT TO COSTS AGREEMENT ENTERED INTO ON [ DATE OF COSTS AGREEMENT ] [Note: delete, amend or leave each item below as appropriate then note your reasons in the memo on page 5 of this document.] Item No Date Type Billed By Description Units TOTAL Invoice # 1 03/09/20xx TA LL T/F client - requests urgent appointment - sheriff intends to remove client's business equipment in execution of D/J obtained against client 3 $ 195.00 Unbilled 2 05/09/20xx PA LL PA on client - taking instructions to set aside D/J by A - One Catering P/L - see Statement of Claim - client to provide chronology 15 $ 975.00 Unbilled 3 06/09/20xx READ SL Peruse Statement of claim 3 $ 150.00 Unbilled 4 06/09/20xx Admin BB Open file, trust and office ledger accounts 1 $ 20.00 Unbilled 5 06/09/20xx D SL Email to client to advise trust account details 3 $ 150.00 Unbilled 6 06/09/20xx D LL Draft costs agreement 3 $ 195.00 Unbilled 7 06/09/20xx TA SL T/T sheriff's office (after waiting on line for 55 min) - will not execute against client's property if app to S/A D/J filed or Pl sol advises that in order 10 $ 500.00 Unbilled
Item No Date Type Billed By Description Units TOTAL Invoice # 8 06/09/20xx Admin SL Retrieving previous client file from archives 3 $150.00 Unbilled 9 06/09/20xx D SL Letter to client advising re prospects of success and enclosing costs agreement 6 $ 300.00 Unbilled 10 10/09/20xx D SL Apply for company search A-One Catering P/L 3 $ 150.00 Unbilled 11 10/09/20xx D SL Apply for business name search "Main Event" 2 $ 100.00 Unbilled 12 10/09/20xx TA SL T/T solicitor for Pl. Advising we act and instructed to S/A D/J - request sheriff be called off 2 $ 100.00 Unbilled 13 14/09/20xx READ SL Peruse client statement 5 $ 250.00 Unbilled 14 14/09/20xx READ SL Peruse signed costs agreement 1 $ 50.00 Unbilled 15 14/09/20xx READ SL Peruse business name search 1 $ 50.00 Unbilled 16 14/09/20xx READ SL Peruse company search 1 $ 50.00 Unbilled 17 14/09/20xx R SL Research County Court Civil Procedure Rules 2018 and in particular (22.23 Setting aside judgement) 20 $ 1,000.00 Unbilled 18 15/09/20xx D SL Draft Summons 5 $ 250.00 Unbilled 19 15/09/20xx D SL Draft Affidavit of client 20 $ 1,000.00 Unbilled 20 15/09/20xx D SL Draft Notice of Defence Draft Form 4A: Overarching Obligations Certification 5 $ 250.00 Unbilled
Item No Date Type Billed By Description Units TOTAL Invoice # Draft Form 4B: Proper Basis Certification 21 16/09/20xx E BB Engrossing Summons, Affidavit and Defence 5 $ 100.00 Unbilled 22 20/09/20xx D SL Email to client attaching Summons, Affidavit and Defence for approval 2 $ 100.00 Unbilled 23 25/09/20xx TA SL T/T client - not in left message to call 1 $ 50.00 Unbilled 24 25/09/20xx TA BB T/T client - not in left message to call 1 $ 20.00 Unbilled 25 26/09/20xx TA SL T/T client - not in left message to call 1 $ 50.00 Unbilled 26 26/09/20xx TA SL T/F client - Affidavit OK - he to attend office Monday to sign Affidavit 3 $ 150.00 Unbilled 27 29/09/20xx PA SL Attend on client, witness Affidavit, discussion. 10 $ 500.00 Unbilled 28 29/09/20xx PA SL Attend Quikcopy 3 $ 150.00 Unbilled 29 29/09/20xx D SL Email Pl sols attaching copy Summons, Affidavit and Defence to be filed asap 2 $ 100.00 Unbilled 30 29/09/20xx TA SL T/T County Court to ascertain available dates for return of Summons. 3 $ 150.00 Unbilled 31 02/10/20XX D SL Letter to registration agent to file Summons incl. 2 $ 100.00 Unbilled
Item No Date Type Billed By Description Units TOTAL Invoice # note as to suitable date for return of Summons. 32 04/10/20xx D SL Letter to sol for Pl. enclosing Summons and Affidavit by way of service 2 $ 100.00 Unbilled 33 04/10/20xx D SL Letter to client confirming Summons filed and enclosing copies of docs 2 $ 100.00 Unbilled 34 11/10/20xx READ SL Peruse letter from Pl sol encl Affidavit 1 $ 50.00 Unbilled 35 11/10/20xx READ SL Peruse Affidavit of Jamie Twist 4 $ 200.00 Unbilled 36 11/10/20xx READ SL Peruse Affidavit of Nigella Wentworth 5 $ 250.00 Unbilled 37 12/10/20xx PA SL Meeting with barrister to discuss matter & prospects 15 $ 750.00 Unbilled 38 12/10/20xx D SL Letter to client enclosing copies of Pl sol letter and enclosures and seeking instructions 2 $ 100.00 Unbilled 39 15/10/20xx TA SL T/F client discussing Affidavit of Twist and Wentworth 5 $ 200.00 Unbilled 40 18/10/20xx TA SL T/T sol for Pl discussing possibility of Pl consent to S/A D/J - no agreement 3 $ 150.00 Unbilled 41 18/10/20xx R SL Consider if expert witnesses will be needed for hearing 5 $ 250.00 Unbilled
Item No Date Type Billed By Description Units TOTAL Invoice # 42 18/10/20xx TA SL T/T client advising of discussions with Pl sol 3 $ 150.00 Unbilled 43 19/10/20xx PA SL PA on LL discussing file generally & documents required incl whether experts will be needed 10 $ 500.00 Unbilled 44 19/10/20xx PA SL Collating documents for hearing 15 $ 1,250.00 Unbilled 45 19/10/20xx PA SL Preparing for hearing 25 $ 1,250.00 Unbilled 46 19/10/20xx PA LL PA on SL discussing file including whether to require Twist or Wentworth to attend for cross exam 10 $ 650.00 Unbilled 47 19/10/20xx TA SL T/T on client arranging to meet at County Court 1 $ 50.00 Unbilled 48 22/10/20xx TVL SL Travel to County Court by taxi 4 $ 200.00 Unbilled 49 22/10/20xx CA SL Attend County Court including discussions with client, Pl sol and appearance before Judge J 21 $ 1,050.00 Unbilled 50 22/10/20xx TVL SL Return travel from County Court to office by train 5 $ 250.00 Unbilled 51 22/10/20xx CS&C LL General care skill and consideration 10 $ 650.00 Unbilled 52 22/10/20xx D LL Email to SL instruct to prepare itemised bill 1 $ 65.00 Unbilled 53 22/10/20xx READ SL Peruse LL email 1 $ 50.00 Unbilled
Item No Date Type Billed By Description Units TOTAL Invoice # 54 today D SL Drafting itemised bill 10 $ 500.00 Unbilled 55 today D SL Letter to client reporting on outcome of Summons and enclose bill and TAS 4 $ 200.00 Unbilled Disbursements Costs pursuant to Order 3 of His Honour J dated 22/10/xx payable to the Plaintiff $880.00 $ 10870 Total $ 11750 Less amount proposed to be transferred from Trust $ 5000 BALANCE DUE AND OWING $ 6750 [Note: GST can be ignored for the purposes of this activity.] Activity 4.1 - Facilitating access to justice You have been given links to Milu v Smith [2003] QSC 430 and Milu v Smith [2004] QSC 27. Read both these cases and answer the following questions: a) Mr Martinovic represented the father of the deceased at the coronial inquest and on the father's application for judicial review of the coroner's finding. Specify: I. the different professional duties which were breached by Mr Martinovic; In this case the court stated that Mr Martinovic's' allegations that there had been a breach of natural justice and bias on part of the coroner representing the deceased family had been unfounded. Moyniham J stated the following: "any competent barrister in Mr Martinovic's position giving proper attention to the prospects of success would have concluded that there was no arguable basis for the review". As a result, the court found that the actions of Mr Martinovic had either amounted to acting recklessly or completely ignored his duty to the court. II. give examples from the cases of how those duties were breached. Mr Martinovic breached these obligations throughout the case when he made accusations against the coroner which he later was unable to provide evidence for. Mr Martinovic also withdrew accusations of bias only to reinstate that bias had occurred by the coroner amounting to a breach on
natural justice. Mr Martinovic also failed to take seriously his duty to the court by considering whether or not the matter in which he was acting has any reasonable prospect of success. b) Mr Martinovic accepted instructions to act for his client on a pro bono basis. Did this have any impact on the court's decision in this matter? No. The defence argued that the case was pro-bono and that Mr Martinovic was young and experienced. Moyniham J stated the following: "I do not accept that pro bono representatives are necessarily inexperienced or that they have a lesser obligation to the court and to their clients that would otherwise be the case". He went on to add that the proper course for young and inexperienced counsel would be to decline to accept direct instructions. In addition to being referred for possible disciplinary action, Mr Martinovic was ordered to pay the Department of Transport and the At torney General's costs of the judicial review application on an indemnity basis. On what basis can the courts make a personal cost order against a legal practitioner? The courts power to award costs are generally extensive and can cover a wide array of c ircumstances. The court's jurisdiction to make a costs order may arise when there has been serious neglect, incompetence or misconduct on part of the legal practitioner. In the matter at hand, Mr Martinovic was ordered to pay costs on an indemnity basis for his professional misconduct. 2a) a) Can you accept instructions from Indira and act for her as an independent legal practitioner? In answering this question, please consider: i. Your practising certificate conditions; and Under the circumstances I cann ot accept instructions and act on Indira's behalf. The Legal Profession Uniform Law (Application Act 2014) requires those possessing a practicing certificate to engage in supervised legal practice for a period of 18 to 24 months before taking matter on their own. In this case I have only 6 months supervised training. ii. Your professional indemnity insurance. The Act requires lawyers to hold or be covered by an approved insurance policy. In the case at hand, it is difficult to ascertain whether I would be covered by the practice. Given that the practice does not have the resources to provide legal advice on a pro bono basis it may be unlikely that their insurance would extend to me. b) Does your answer to 2(a)(i) differ if you were more than 2 years post admission when Indira contacted you? Not necessarily. I may be able to convince my employer that I would like to take Indira on as a personal pro bono matter and would do the work myself, however, the firm may still decline as they may view it as a burden and a strain on their limited resources.
c) Can Indira seek assistance from Legal Aid in this matter? Which tests apply in determining whether Indira will be entitled to Legal Aid? Legal aid is assessed by assessing your financial situation using a means test, assessing what your case is about and the benefit you are likely to get from your legal case. If she were eligible then she would be granted legal aid. 3) Identify a social group or cause deserving of your support and legal assistance and: (a) Explain why you have an interest in that social group or cause? People from the lower ranks of the economic ladder. It is important to help those who may not be able to afford professional legal advice through more traditional channels (private firms) as many are unaware of their legal rights and or obligations. This can result in a miscarriage of justice against them, not based on any misconduct, but simply due to the inability to afford legal advice. b) Give an example/s of what opportunities exist for pro bono services for this social group or cause. The Victorian Bar Pro Bono Committee oversees the pro bono assistance provided to both individuals and community groups. They provide legal advice by qualified lawyers to people from marginalised and disadvantaged backgrounds. They are located in Williams street Melbourne 4 a) Identify some of the issues raised in your interview with Barney and Marron. The solicitor in this case failed to ascertain adequate details from Barney. Instead, he has allowed Marron to do most of the talking and explaining of the facts. A greater effort should have been made to establish better communication directly with Barney. If Barney were to then instruct that his son would do most of the talking on his behalf then the interview could have proceeded in such a manner, but, even then, it would be important to make sure Barney understood and confirmed the details his son was giving you b) Are there any actual or potential conflicts in this matter? If a client is unable, incapable or unwilling to provide instructions or make legal decisions, the necessity to appoint a decision-maker may arise. In this case it may be that Marron will play that role, however, the lawyer would need more information in order to ascertain whether or not this is the case. c) As you have no experience in possession proceedings, will you need to be supervised if you are allocated this matter? In your answer, refer to any relevant ASCR and/or case law. It is preferable that I would be supervised. It would help avoid any potential breach of professional conduct. Under Rule 37 of the Australian Solicitors Conduct Rules 2015 solicitors who are responsible for a matter must exercise reasonable supervision over employees working on the matter. In this case, it would be worth having the firms instructing solicitor supervise your work see: Legal Services Commissioner v Michael Vincent Baker [2005]. Activity 4.2 - Workplace Conduct
1. What are some of the issues raised in the scenario? The law practice has recently hired Taylor as a graduate solicitor and Baily is a managing partner, which effectively makes him her boss. As such, their relationship should be strictly professional. Bailey has touched Taylor inappropriately at work on several occasions. He recently requested that she hug him, despite the fact she was clearly uncomfortable and that it was evidently a highly inappropriate request. Bailey's behaviour would likely constitute a breach of rule 41.1.2 of the ASCR. Furthermore, he has also sent her inappropriate emails. When she rebuffed his advances, he proceeded to issue a veiled threat suggesting her professional future would be compromised if she complained. This would likely amount to a further breach of the ASCR, specially rule 42.1.3. Moreover, there is clearly an imbalance of power between Taylor and Bailey. Bailey abused his position as managing partner to intimidate Taylor after he said he would stop supervising her if she complained about his conduct. Bailey insinuated that he will not promote Taylor if she continues to rebuff his advances. While he claimed such an action would be due to her quality of work, it is evident from the facts that it was designed as a threat. 2. Is the conduct towards Taylor sexual harassment or bullying, or a combination of the two? Provide reasons for your answer. Bailey's conduct is a combination of sexual harassment and bullying. Sexual harassment is prohibited under the federal Sex Discrimination Act 1984 and includes any: - Unwelcome sexual advance - Unwelcome request for sexual favours, or - Other unwelcome conduct of a sexual nature that would offend, humiliate, or intimidate someone. Not only is Bailey's conduct highly inappropriate, but it is also illegal. In my view, Bailey's behaviour is sex-based harassment, and it clearly meets the legal threshold for sexual harassment. In Victoria, sexual harassment includes unwelcome touching, hugging, cornering, or kissing. Taylor has "felt pressure to repeatedly hug" Bailey. She has also felt coerced and has "reluctantly hugged Bailey". It is irrelevant whether Bailey believes the relationship is reciprocal, he is Taylor's superior and should not be harassing a subordinate. Taylor feels compromised both personally and professionally. It could be argued that Bailey's emails constitute "repeated or inappropriate advances online", which may also amount to sexual harassment. As mentioned above, Bailey is likely in breach of rule 41.1.2 of the ASCR, which forbids sexual harassment. Bailey is also bullying Taylor . He has implied that Taylor's employment relies on whether she agrees to form a relationship with him. This was further highlighted when Bailey mentioned promotion following Taylor's decision to rebuff his advances. He ridiculed her by comparing her work to what could be achieved by a "money". It is evident that he is using his position to intimidate her and coerce her into a situation in which she clearly does not want to be in. According to Fair Work, some forms of sexual harassment can also be considered bullying if the behaviour is repeated or
continuous. Taylor has felt coerced and pressured into repeatedly hugging Bailey, which would suggest Bailey is simultaneously sexually harassing and bullying Taylor. 3. Would you view this scenario differently if Bailey was not a Managing Partner? Why? The power imbalance between Bailey and Taylor is a key factor. However, it is unlikely that I would view the scenario too differently if Bailey was not a managing partner. Taylor is being pressured into a relationship by a colleague and feels coerced and clearly uncomfortable. When Taylor asked Bailey to stop his behaviour, he instead threatened and bullied her. 4. If you became aware of the same situation occurring to a work colleague, what would you do? I would encourage Taylor to submit a formal complaint to HR and if I had witnessed any of the behaviour, I would offer to support her. If Bailey's conduct continued to escalate, I could make a complaint myself to the LSBC. However, it would be far better to ob tain Taylor's consent before doing so.
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