Part A

A1
Amanda’s conduct throughout her interactions with Bhavika highlights a number of issues. The first of which
centres around the trust account and Bhavika’s wish to transfer the money under a different name. Rule 36 of
the Legal Profession Uniform General Rules 2015 (‘Uniform General Rules’) states under section (2),
subsection (e), ‘The receipt must contain the name of the person from whom the money was received.’
Explicitly outlining that Bhavika must use her name to record the deposit of money into the trust account.
Further, Section 147(3) of the Legal Profession Uniform Law (‘Uniform Law’) states, ‘A law practice must not
knowingly receive money or record receipt of money in the law practice’s trust records under a false name.’ and
holds a penalty of 100 penalty units.

Another issue for Amanda is Ben. Ben’s presence and involvement within the proceedings of Amanda and
Bhavika’s work only work to further complicate matters. After expressing a possible intention to commit a
serious indictable offence, Ben says, ‘Well, you can’t tell anyone about it. You’re my lawyer.’ However,
Bhavika is Amanda’s client, not Ben. Thus the duties to act in the client’s best interests, as outlined in Rule 4.1
of the Legal Profession Uniform Australian Solicitor’s Conduct Rules 2015 (‘Solicitor’s Conduct Rules’), and
further the duty of confidentiality under Rule 9 of the Solicitor’s Conduct Rules are not owed to Ben. Thus,
Amanda is able to communicate Ben’s disturbing comments to police or any other relevant authority if she so
desires.

Rule 8 of the Solicitor’s Conduct Rules outlines that a solicitor must, ‘follow a client’s lawful, proper and
competent instructions.’ Thus, Amanda should not send the letter to Bhavika’s ex-husband’s lawyer allegedly
claiming and threatening their client. Rule 22 outlines that, ‘A solicitor must not knowingly make a false or
misleading statement to an opponent in relation to the case.’ And further if this letter enters court proceedings
Rule 19.1 of the Solicitor’s Conduct Rules outlines that, ‘A solicitor must not knowingly or recklessly deceive
the court.’ Alongside Rules 24.1.1 and 34.1.1 of the Solicitor’s Conduct Rules which state respectively, ‘A
solicitor must not advise or suggest to a witness that false or misleading evidence should be given nor condone
another person doing so,’ ‘A solicitor must not in any action or communication associated with representing a
client make any statement to another person which grossly exceeds the legitimate assertion of the rights or
entitlements of the solicitor’s client, and which misleads or intimidates the other person,’ Thus, Amanda would
be in serious violation of a range of rules with possible serious consequences, which will be dealt with later.

Amanda also forgets to provide a written costs disclosure and does not get a signed costs agreement. In relation
to the written costs disclosure, section 174(1) of the Uniform Law states, ‘A law practice must, when or as soon
as practicable after instructions are initially given in a matter, provide the client with information disclosing the
basis on which legal costs will be calculated in the matter and an estimate of the total legal costs;’ and further,
under section 178 that, if these disclosure obligations aren’t followed then the costs agreement is void, the client
is not required to pay legal costs until they have been assessed with the consequences possibly constituting
unsatisfactory professional conduct or professional misconduct. However, rule 72A of the Uniform General
Rules provides for ‘where a law practice has contravened the disclosure obligations of Part 4.3 of the Uniform
Law in relation to a particular matter.’ And further continues to state that where the law practice ‘took
reasonable steps to comply with the disclosure obligation before becoming aware of the contravention’ and
‘rectified the contravention, as far as practicable, no later than 14 days after the date on which it became aware
of the contravention, by providing the client with the necessary information required to be disclosed’ provided
that ‘the contravention was not substantial and it would not be reasonable to expect that the client would have
made a different decision in any relevant respect.’ Thus, allowing Amanda to effectively save herself from
consequences by providing Bhavika with the relevant information within two weeks of Amanda finding out that
she had forgotten about it and had taken steps to comply before she found out. In relation to the costs agreement,
section 181(3)(a) of the Uniform Law states that, ‘A conditional costs agreement must be signed by the client’
with section 185(1) providing that, ‘A costs agreement that contravenes, or is entered into in contravention of,
any provision of this Division is void.’ Meaning that Amanda’s costs agreement with Bhavika is void until she
is able to successfully get Bhavika to sign onto it.

With multiple contraventions of the Uniform Law, Uniform General Rules and the Solicitor’s Conduct Rules it’s
evident that Amanda will be punished. For her infringements in relation to the trust account, specifically
allowing Bhavika to use a false name to submit money into the account she would receive the penalty of 100
penalty units and possibly further punishment from the NSW Law Society or her firm. If she send the letter to
the opposition’s solicitor per the instructions of Bhavika she would possibly be committing perjury and under
sections 237 and 330 of the Crimes Act 1900 (NSW) could be facing serious punishment, possibly amounting to
imprisonment. For her contravention of the disclosure agreement she should receive no punishment, as per Rule
72A is she is to communicate to Bhavika the relevant information which she had forgotten to disclose, however,
if she is unable to for any reason then it will be up to the Law Society of NSW to determine whether her conduct
amounted to Unsatisfactory Professional Conduct (Section 296, Uniform Law) or Professional Misconduct
(Section 297, Uniform Law). Most likely will be Unsatisfactory Professional Conduct as this is a minor dent
within a larger career of 12-year experience with no prior disciplinary issues. Overall, amounting from her
multiple offences and contraventions of the specific laws surrounding the legal profession Amanda is unlikely to
receive a serious level of punishment, provided she does not send Bhavika’s letter and is able to clear up the
minor disputes throughout.

A2
The first of Colin’s issues is his mistake in relation to the settlement which in the end cost Donna $48,000. Colin
wishes to raise the doctrine of advocate’s immunity. However, the case of Giannarelli v Wraith determined that
for advocate’s immunity to be successfully invoked must have an ‘intimate connection’ to court work. Further,
Atwells v Jackson Lalic Lawyers Pty Ltd expressed that immunity doesn’t extend to negligent advice on
settlement offers as they don’t affect the judicial determination of the case and that there must be a ‘functional
connection between the advocate’s work and the judge’s decision.’ With even further support against advocate’s
immunity in relation to settlement offers being outlined in 2017 by Kendirjian v Lepore which further states that
immunity is not extended to settlements. Thus, Donna is able to sue Colin for his incompetence in the settlement
to possibly claim some or all of the money that was lost. Further, Colin may be in breach of Rule 4 of the
Solicitor’s Conduct Rules as 4.1.1 states, ‘A solicitor must also act in the best interests of a client in any matter
in which the solicitor represents the client’ which he did not do, considering he was negligent to the fact of
Donna’s underlying health condition.

Colin is also worried that Donna may bring further action in relation to a failure on his part to inquire about the
source of her injury and possible claims brought there. As outlined in Roberts v Cashman the solicitor possesses
a duty to be aware of the circumstances of the claim and to advise the client on the possible actions available.
Further, in relation to Colin’s duty to advise in relation to the settlement, Rule 7.1 of the Solicitor’s Conduct
Rules outlines that, ‘A solicitor must provide clear and timely advice to assist a client to understand relevant
legal issues and to make informed choices about action to be taken during the course of a matter, consistent with
the terms of the engagement.’ Thus, under Colin’s obligation to communicate his advice he should have been
clearer about the implications of taking of the drug company and the possible contingencies which may have
upset his case. It is also not unreasonable to expect a solicitor to enquire about medical anomalies or injuries in a
case which is centred around liability for injuries, especially considering that Colin has 4 years of experience
and has ‘primarily been working in the compensation team.’ Thus, a higher standard is expected of him to catch
inconsistencies and further possible claims.

In regards to relationships between clients and legal practitioners, there is no rule or law which explicitly states
that it is prohibited to any degree. However, Rule 12.1 of the Solicitor’s Conduct Rules broadly covers the
possible issues which may arise from such intimate relationships between a solicitor and client, ‘A solicitor must
not act for a client where there is a conflict between the duty to serve the best interests of a client and the
interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.’ Further authority on
relationships within the solicitor-client relationship comes from the 2004 case of Legal Practitioners Conduct
Board v Morel which highlights Morel, a solicitor, who engaged in multiple relationships with clients and
subsequently ended up with a multitude of conflicts of interest, which inevitable ended up with her being stuck
from the roll. Rather than taking on clients with personal relationships Colin should have advised Donna about
the possibilities and also advised her to seek independent counsel for simpler and an easier course of dealings.

The consequences of Colin’s actions are rather minor. There is nothing that can be done about his personal
relationship with Donna as it is not a relevant cause for any further action and does not influence any of the
other issues. However, the Office of the NSW Legal Services Commissioner may determine that, from the notes
in the interview, Colin’s conduct amounted to either Unsatisfactory Professional Conduct or even Professional
Misconduct. Looking at Colin’s failure to advise Donna about the further action possible in relation to the shoe,
due to the time limitation expiring for Colin to bring legal actions Donna is able to bring civil action against
Colin personally and possible claim damages for the loss of the possibility of money from that case, if it were
successful. In totality, Colin’s conduct within the first 4 years of his time at the firm highlight a possible future
danger. His incompetence in handling his duties, romantic escapades with a client and his forthcoming
reprimands and legal actions demonstrate a possible liability for a breach of rule 5.1.2(ii) of the Solicitor’s
Conduct Rules, ‘A solicitor must not engage in conduct, in the course of practice or otherwise, which is likely to
a material degree to; bring the profession into disrepute.’ However, he is yet to reach such a level of liability at
the current moment.

Part B
The legal profession functions primarily as a public service. The underlying duty of a lawyer is outlined in rule
3 of the Legal Profession Uniform Australian Solicitor’s Conduct Rules 2015 (‘Solicitor’s Conduct Rules’),
3 Paramount duty to the court and the administration of justice
3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the
extent of inconsistency with any other duty.
The key word in this provision is ‘paramount’ which outlines that the lawyer’s duty to the court and
administration of justice is the one responsibility which cannot be trumped. Thus, as the court operates as a
function of responsible domestic governance, the duty of a lawyer is undoubtedly to the public. There are
multiple primary avenues which emphasise the legal profession’s focus on public service which encompasses
the key legislation and rules as well as the public service programs of legal aid and other community legal
services. However, there are issues in regards to a general access to justice which need to be rectified to elevate
the public accessibility and utility of legal services.

A primary set of rules, laws and guidelines for legal practitioners to follow is evident through the plethora of
legislation governing lawyer’s conduct. The sheer number of pieces of legislation demonstrates the acute
attention to detail. The Legal Profession Uniform Law, Legal Profession Uniform Application Act 2014, Legal
Profession Uniform Australian Solicitor’s Conduct Rules 2015, Legal Profession Uniform Law Admission Rules
2015 and the Legal Profession Uniform General Rules 2015 all come together to effectively govern lawyer’s
conduct. Examples such as rule 4.1.1 of the Solicitor’s Conduct Rules outlines, ‘A solicitor must also act in the
best interests of a client in any matter in which the solicitor represents the client,’ a ‘fundamental ethical duty’
which establishes a fiduciary relationship between the solicitor and client. Yet, it also fosters a service
relationship. The solicitor’s primary concern is the ‘best interests’ of the client, not the avenue which makes the
firm the most money or the avenue which give the client the most money but the action upon which the client
desires the most. Whilst the lawyer is embedded with superior knowledge and an in depth understanding of the
law, their duties are effectively bound to the client and bound to the presentation of the profession as a whole.
Thus, in 2022 there is still an acute focus on public service as lawyers are legally bound to their client’s wishes.

Further developments in public service can be seen through community legal service programs such as legal aid.
The functionality of legal aid aims to promote the access of justice to the public. Lawyers are predominantly
effective, yet, are costly thus, legal aid functions to give individuals who are below a certain threshold free
access to legal services and representation. This threshold is known as the means test and the merits test. The
merits test assesses whether the matter has a reasonable prospect of success and whether the matter will be
financially viable for legal aid whilst the means test assesses the socio-economic position of the client to ensure
that they are in serious need of legal aid’s services. Although free legal services is public service it’s necessary
that it is only accessible to those who are unable to effectively afford private representation and advice.
Alongside legal aid is private firm’s pro bono work. Pro bono is Latin for, ‘for the public good’ and the
Australian Pro Bono Centre in 2007 advised that 35 hours for each lawyer should be completed per annum to
successfully promote a higher level of access to justice. The legal profession’s legal aid program as well as pro
bono work effectively demonstrates a focus on public service.

However, although the legal profession harbours a focus on public service, it’s difficult for the profession
effectively provide for the public. The sheer financial burden of taking a matter to court for both clients and
firms presents a significant economic barrier for individuals to achieve access to justice. On top of this, the time
taken for legal matters to be resolved leaves a large backlog of cases to be determined before the initial hearing
and proceeding trial or hearings. Yet, the time constraints can often be resolved by the more reconstructive
focused avenue of alternative dispute resolution through mediation, negotiation or conciliation.

In 2022 there is still a prime focus from the legal profession on the function of law as a public service. It is more
relevant now with the increasing accessibility and opportunities to bring forth legal action. However, the legal
system as a whole is in dire need of reconfiguration or reform to allow for lawyers and client to effectively and
quickly navigate their matters.