THE UNIVERSITY OF NEW SOUTH WALES

UNSW LAW

LAWS1230/JURD7130 – LAWYERS, ETHICS & JUSTICE

TAKE HOME EXAM

Term 3, 2019

1. This take-home exam will be available at 9am on Friday 29 November 2019 on

Moodle.

2. All exams must be submitted by 4pm on Wednesday 4 December 2019. You must
submit two copies by that time. The hard copy is to be submitted to the Law
Student Services Assignment Box (Law Building, Level 2). The soft copy is due
via the Turnitin submission folder on the LEJ Moodle.

3. Candidates should place their name and student number on their answers.

4. Exams are not to be submitted by email.

5. Exams not submitted by the due date and time will attract a penalty of 10% per day
or part thereof.

6. The exam is divided into TWO questions. QUESTION ONE consists of PART A
and PART B. QUESTION TWO contains one question.

7. In relation to QUESTION ONE, the law of lawyering section numbers, key phrases
from the conduct or practice rules, and any abbreviated case names must be in the
body of the text, not in the footnotes. You may supply a key for the legislation. For
the cases, please provide a full citation as a footnote for their first mention. (You
need only provide the full citation for each case once.)

8. Footnotes will not be included in the word count. However, no substantive issues
can or should be put in them. You should use the Australian Guide to Legal
Citation (4th edition) for your references. You do not need to supply a bibliography.

9. The total word limit is 2250 words, and there are word limits for each part. The
penalties for exceeding the word limit will be applied at 2500 words. There will be
no leeway beyond 2500 words. You may use this leeway of 250 words however you
like, spread across your response. Your examiner will stop reading at 2500 words
 and will deduct marks as per the following: 10%+ up to 20% excess – 15% penalty;
20%+ up to 30% excess – 25% penalty; 30%+ excess and above – 30% penalty.
10. Please provide a word count at the end of your paper as well as on the cover
sheet. The examiners can verify this through your online submission.

11. All the professional rules and legislation should relate to NSW lawyers –
principally, the Legal Profession Uniform Law (NSW), the Legal Profession
Uniform Law Australian Solicitors’ Conduct Rules 2015 (SR), and the Legal
Profession Uniform Conduct (Barristers’) Rules 2015 (BR). All other relevant
legislation is to be found in your readings as displayed on Moodle or is cited in the
exam paper.

12. There must be no discussion between students about the exam paper during the
period when the exam is available. The academic and professional consequences of
breach of this rule are extremely serious, and have been enforced in this course.

15. This exam paper consists of eight (8) pages. Please check that you have
received all eight (8) pages.

16. Please read the instructions here and throughout the paper very carefully. It is
important that you read the paper in its entirety before beginning to answer it. Any
remaining concerns about the exam formalities should be directed via email to the
course convenor, Dr Catherine Bond, at catherine.bond@unsw.edu.au. Please do not
leave it to the last few hours before submission to ask for clarification.

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 HYPOTHETICAL FACT SCENARIO

Mina Hu is a solicitor who, until July 2018, worked as in-house counsel for the
privately-owned transport company AusBus. AusBus is a New South Wales company,
based in Kensington, NSW, that provides private bus services throughout the state.

The in-house counsel role was Mina’s first job out of law school, however it had taken
her almost a year to land this job after many failed applications. Mina was very
relieved to get the position as she had recently separated from her husband and had
custody of their six-month-old daughter. She started at the company in February 2017.

At AusBus, Mina worked with two other in-house counsel. The first was Rami
Padwar, who joined AusBus as a solicitor after being admitted to practice in July
2015. The second was Brett Baxter, who was the principal solicitor of the in-house
counsel team and began work at AusBus in January 2018. Mina, Rami and Brett
worked on day to day matters for AusBus (for example, contracts for the acquisition
of individual vehicles; basic employment contracts etc); larger tasks were outsourced
to the law firm
Scott & Nguyen. This firm, one of Australia’s biggest (and most expensive) with
branches worldwide, specialises in large-scale transportation and aviation matters.

In July 2018, three events occurred that had a significant impact on AusBus and its
legal team. First, Brett’s practising certificate was suspended for 12 months. This
followed an investigation by the Office of the Legal Services Commissioner
(‘OLSC’), where it was established that Brett, at his previous law firm, had made a
one-off, unauthorised withdrawal from a client trust account. Such an incident would
never normally be of interest to the press, but because Brett: a) withdrew the money to
help his brother, Billy, out of a gambling debt; and b) the Baxter family is a
well-known Australian family with family members in the NSW legal profession
since the 19th century, the story of Brett’s suspension was reported in a number of
Sydney newspapers. On the suspension of his practising certificate, Brett was put on
leave without pay.

Second, Mina received instructions from Paul Bell, an accountant at AusBus, to draw
up contracts relating to a takeover of AusBus by a Queensland company,
CentroTransit. A dispute subsequently arose between the two companies on the
amount of money required for the takeover, and a mediation was agreed upon. In
preparation for the mediation of the dispute, Paul asked Mina to review a range of
documents with a view to determining what price should be set by AusBus for the
takeover. One of the documents involved the assets and liabilities of AusBus. Mina
saw that, on this document, Paul had listed about 50 buses as in service, although she

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knew that 20 of these buses were actually decommissioned (no longer in service).
This made AusBus appear to have more assets than it in fact did. At the end of the
month, after the mediation run by Mina, AusBus was acquired by CentroTransit,
based on the price suggested by Mina and on Paul’s documents, as provided to
CentroTransit.

Third, at the July meeting of the AusBus Board of Directors it was decided that,
following the company changes and the negative press attention from Brett’s
suspension, the in-house counsel section of AusBus would be dissolved and Scott &
Nguyen would be formally retained to work on all AusBus legal matters. To ensure
Mina and Rami weren’t adversely affected, both were offered jobs as solicitors at
Scott & Nguyen. While Rami decided to pursue other options, Mina accepted the role
at the Sydney office of Scott & Nguyen and began work there on 14 August 2018.
Brett was not immediately offered a position but asked to come in for a meeting when
the suspension on his practising certificate had expired.

In September 2018, Brett’s brother Billy asked him (Brett) for advice regarding a
business opportunity that he (Billy) had been offered by a high school friend, Jason
Ryan. The business opportunity involved a rather suspect land development deal, but
Billy assured Brett that ‘Jason and I are smart and can pull it off.’ Brett told Billy he
didn’t want to know the details of the opportunity, but he agreed to write a number of
general contracts of sale that Billy could modify and use. Brett also provided Billy
with some official AusBus contracts that he (Brett) had drafted in the past.

On the morning of 26 November 2018, Brett was woken up by NSW Police with a
warrant to search his house. Brett was charged with various offences under the Crimes
Act 1900 (NSW), stemming from the contracts and AusBus documents he had given
Billy. Brett was released on bail and, a month later, the charges against Brett were
dropped due to a lack of evidence. However, on 20 December Brett was summoned to
a meeting at Scott & Nguyen. At the meeting, Brett was told that his position with
AusBus was officially terminated and that he would not be receiving an offer of
employment at Scott & Nguyen.

Brett was distraught at this and in late January 2019 he contacted former colleague
Rami, who was now working in a four-person practice, Wright’s Law, under principal
Tina Wright. Wright’s Law specialised in small family law and criminal matters. Brett
told Rami that he wanted Rami to do two things for him: a) represent him (Brett) in an
action for unfair dismissal against AusBus, as Rami knew what it was like to work at
AusBus; and b) represent Brett’s brother Billy in his forthcoming trial for fraud
offences under the NSW Crimes Act. Billy was not present at any point in the
meeting.

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Rami asked Brett what he could afford for legal fees; Brett said he could give Rami a
cheque for $50 000 that day, but that was all the money that he had and Rami would
have to keep his costs limited to that amount for both matters. Rami felt that a fixed
fee agreement for the $50 000 would be ok in relation to Billy’s criminal matter, and
he could do the unfair dismissal case on a non-win no-fee basis. However, as Rami
had never run either an unfair dismissal or a criminal law matter, he didn’t really
know and, as he was new at Wright’s Law, he also didn’t want to show his ignorance,
so he agreed to act for Brett and Billy on this basis. Rami and Brett signed a costs
agreement that day where Brett retained Wright’s Law to represent him and Billy.
Brett told Rami that, if he could keep Billy from serving any time in jail, he would
give Rami 50% of anything he won in his unfair dismissal case.

In February 2019, when AusBus and Scott & Nguyen received notification from
Wright’s Law that Brett had commenced an action for unfair dismissal in the Fair
Work Commission, Mina’s manager tasked her with dealing with this matter. Mina
decided to change the details on a number of the documents that had been given to her
by Paul when she was dealing with the CentroTransit takeover in July 2018. The
changes were designed to suggest that Brett had falsified the number of active buses
in AusBus’s fleet rather than Paul. Believing that she was the only AusBus employee,
other than Paul, to see these documents, in late February 2019 Mina sent the
documents to Rami and said that the evidence showed that it would be in Brett’s
interests to drop his matter.

Rami had briefed barrister Vicki Lin to represent Billy in court. Just prior to a meeting
with Vicki and Billy, Rami received an email from Mina concerning the falsification
of the documents in relation to the buses in the AusBus matter. He realised that she
must have meant to send that earlier email to her supervisor at Scott & Nguyen. At the
pretrial meeting between Rami, Vicki and Billy on 21 April, Rami gleefully told Vicki
about the email, and that he should win the unfair dismissal case. Vicki screamed at
him in response, ‘What kind of complete idiot are you, talking about your case when
we’re here to help Billy? Are you a complete nut case?’

Vicki informed Billy and Rami that she had been approached by the barrister for the
Director of Public Prosecutions with a plea deal; if Billy would plead guilty to two
lesser charges, he would only serve six months’ in jail. Billy indicated he wanted to
plead guilty, confessing to Vicki and Rami that he was the mastermind behind the
fraud. Billy thought some time in prison might in fact be good for him, to help him
break contact with some of his current associates.

Rami instead recommended that Billy refuse the deal and suggested that Vicki run
Billy’s defence on the basis that his co-accused, Jason Ryan, was in fact responsible
for the fraud. As Rami noted, it was Jason who suggested Billy contact Brett about the

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legal advice and documents. Though she did not tell Rami this, Vicki disagreed with
Rami’s suggested approach as she thought that this approach would have minimal
chances of success, but she didn’t want to risk losing the work. As a result, Vicki
agreed to run the case this way and stated in her opening submissions that ‘Jason Ryan
is the real criminal here. Billy Baxter was a man who Jason took advantage of, to
smear his good name in the community.’

Billy, however, was found guilty by the jury and sentenced to 18 months in jail.
Although initially resigned to the sentence, Billy was furious when he discovered that
Brett had offered Rami money to keep him (Billy) out of jail. Billy told Rami that if
he had been acting in his best interests he would have advised Billy to take the plea
deal.
Meanwhile, on 1 July, Brett became furious on receiving a bill from Rami at Wright’s
Law for an additional $15 673 in fees for both the criminal and unfair dismissal
matters. A letter accompanying the bill stated that if Brett failed to pay the fees, or
arrange a payment plan, by 30 August 2019, Wright’s Law would no longer represent
him in his unfair dismissal action.

This anger was mitigated when Brett’s practising certificate was reinstated on 1
August 2019; however, on 7 and 22 August, then again on 10 September, Brett
received voice mails on his phone from a Legal & Investigation Officer at the OLSC,
advising him that action is proceeding against him for giving legal advice to Billy
while his practising certificate was suspended and the charges laid against him by the
police (though later dropped). Brett did not return these calls, nor did he pay the
Wright’s Law bill by 30 August. On 8 September he received a letter from Rami
stating that Wright’s Law was withdrawing their representation in his unfair dismissal
matter.

END OF HYPOTHETICAL FACT SCENARIO

EXAMINATION QUESTIONS COMMENCE NEXT PAGE

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QUESTION ONE

You are required to answer QUESTION ONE PART A and PART B below.

PART A: IDENTIFICATION AND APPLICATION

PART A (a) and (b) is worth 50% (50 marks). The total word limit for PART A is 900
words.

(a) From the Hypothetical Fact Scenario above, identify the ethics issues and
apply the ‘law of lawyering’ (conduct rules, legislative provisions and case principles)
to the behaviour of: Mina, Rami, Brett and Vicki in the scenario.

This section may be presented as a table or in point form and must be structured to
cover: ethics issue(s) – law of lawyering – application to facts.

(b) At the end of the table, you are required to write a sentence or two about the
potential liability and disciplinary consequences for each of Mina, Rami and Vicki,
taking into account all the issues related to them that you have outlined in relation to
(a) above.

PART B: ACCOUNTABILITY

PART B (a) and (b) is worth 30% (30 marks). The total word limit for PART B is 700
words.

(a) You are a Senior Legal & Investigation Officer at the OLSC and have been tasked
with determining, based on the information provided in the Hypothetical Fact
Scenario, whether Brett should be permitted to continue to practice; should have his
practising certificate suspended again; or should have his practising certificate
cancelled. Write your determination, providing reasons for your decision.

(15 Marks)

(b) With reference to the LEJ course materials including the readings on models of
lawyering, behavioural ethics and any applicable cases:

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 (i) What factors or arguments/justifications might have caused Mina to act
as she did in forging the documents?

(ii) What measures could/should have implemented within Scott &

Nguyen to ensure Mina did not act as she did?

(15 Marks)

QUESTION TWO: CRITICAL ANALYSIS AND REFLECTION

QUESTION TWO is worth 20% (20 marks) and the total word limit for QUESTION
TWO is 650 words.

Critically analyse the following statement, with reference to the LEJ materials
(including court and/or tribunal decisions and scholarly literature).

‘Excessive proximity to business clients, and their money, seems to have produced
elements of imitation unlikely to enhance professionalism. The phenomenon of the
big – and bigger and bigger – law firm should not simply be witnessed as if it were a
force of nature.’

Bret Walker SC, ‘Has passivity contributed to the rise of corrupt lawyers?’
St James Ethics Centre, 24 October 2005

In your response you may examine the applicability of the statement to the profession
as a whole, and it’s impact on the concept of ‘access to justice’.

END OF EXAMINATION