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SOME ETHICAL DILEMMAS

S Stuart Clark

4 May 2015

© Clayton Utz

SOME QUESTIONS TO CONSIDER
Stop An Abortion?
 A woman

is pregnant
 The father has fallen out with his partner
 The father has a fundamental moral objection to
abortion
 You are instructed that the abortion would be unlawful
 The abortion will be performed in the next 60 minutes
 The father wishes to stop the abortion proceeding
 Will you apply for an ex parte injunction?

SOME QUESTIONS TO CONSIDER Overturn A Murder Conviction?  A man is convicted of brutally beating a woman to death with a heavy pipe wrench  He is convicted on the basis of his confession  He is sentenced to life imprisonment  The conviction is confirmed by Court of Appeal (twice) and in the High Court  Your potential client claims it was a 'fit up'  Will you act?  How hard will you run the case? .

including genocide  Will you accept instructions to defend the accused? .SOME QUESTIONS TO CONSIDER Defend Participants In Genocide?  A multinational mining company operates a mine in the Democratic People's Republic of the Congo (DRC)  Rebel soldiers commit mass murder of villagers living near the mine site  The mining company's helicopter and trucks/drivers transported the troops to the village  The company and its employees are charged with multiple offences.

totalitarian African regime  The NGO holds documents evidencing wrongdoing on the part of its employees in collecting that material  If used by the regime. the documents could establish a claim for damages that might destroy the NGO and expose its employees to action by the African government  No proceedings are on currently on foot against the NGO/its employees although they have been mooted  The NGO seeks advice on the need to retain all of its historical records  What advice would you provide? .SOME QUESTIONS TO CONSIDER Advise On A Document Retention Policy  You are acting for an NGO that has collected material relating to a multinational corporation supporting a repressive.

SOME QUESTIONS TO CONSIDER Disclose Evidence That Will Damage Your Client's Case?  You are defending product liability claim involving a medical device  Client has pleaded and asserted no physical defect  You conduct electron microscopy and see a chip on the device  The defect was probably caused by the microscopy  Your client instructs you not to disclose the existence of the chip to its opponent or the Court  What do you do? .

ETHICAL ISSUES IN PRACTISE Large Firm Approach Ethical & Professional Responsibility » » » » » » Critical issue for all firms Priority issue for graduate training Conduct regular training sessions Ethics committees and advisors (GC's office) Assessed regularly and for promotion Quickest way to get the sack! Key focus area for regulators » Can end your career as a lawyer .

ETHICAL ISSUES IN PRACTISE In most cases the issue will be - » Straightforward » Not Controversial » Easily resolved › Apply the rules › Use common sense! Don’t sit on a problem » Ask for help – advice .support Don't assume it has or will be recognised! .

ETHICAL ISSUES IN PRACTISE Pretty well every day you are likely to have to consider your Duty to the court Duty to your client Duty to fellow practitioners Duty to your partners/employer .

ETHICAL ISSUES IN PRACTICE Should that document be included in the list of documents? Can we plead fraud or misconduct? What can I say in the negotiations? Can I give an undertaking? Can we/should we act in that deal? Do I have to tell the judge that? .

” * Duty of disclosure to the court Duty not abuse the court’s process Duty not to corrupt the administration of justice Duty to conduct cases efficiently * D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 .DUTY TO THE COURT “ … [the lawyer’s] … duty to the court is paramount.

DUTY TO THE COURT Australian Solicitors’ Conduct Rules Duty of disclosure » » » » Must not deceive or mislead the court Must correct any misleading statement ASAP Must draw binding authority to the court's attention Ex parte applications › Must disclose all matters (other than privileged) adverse to clients case Reputation with judges and colleagues .

DUTY TO THE COURT Australian Solicitors’ Conduct Rules Your independence is fundamental » Not just a mouthpiece for the client » Must exercise forensic judgment » Must have a proper basis for allegation. submission or question » Must not allow proceedings to be used in way that constitutes an abuse of process .

DUTY TO THE COURT "Overriding purpose … is facilitate just. 56 Civil Procedure Act. quick and cheap resolution of the real issues in the proceedings." *  Court must give effect to overriding purpose  Parties have duty to assist the court  Lawyer's conduct must not cause party to breach its duty to the court * s. NSW (2005) .

DUTY TO THE CLIENT Duty of Confidentiality Home Pub/coffee In shop the lift On planes What about that folder? .

DUTY TO THE CLIENT Conflicts Basic rule – don’t act against your own client! Deemed knowledge » Contracting out Informed consent » Information barriers Commercial conflicts Problems for plaintiffs’ lawyers .

THE CAB RANK RULE Doesn’t apply to solicitors Consequences of acting for ‘unpopular’ clients or causes » How do you decide if you should act? » Should you put aside personal beliefs and prejudices? » How far would you be prepared to go? » What about your partners and employees? .

SOME QUESTIONS TO CONSIDER Stop An Abortion?  A woman is pregnant  The father has fallen out with his partner  The father has a fundamental moral objection to abortion  You are instructed that the abortion would be unlawful  The abortion will be performed in the next 60 minutes  The father wishes to stop the abortion proceeding  Will you apply for an ex parte injunction? .

SOME QUESTIONS TO CONSIDER Overturn A Murder Conviction?  A man is convicted of brutally beating a woman to death with a heavy pipe wrench  He is convicted on the basis of his confession  He is sentenced to life imprisonment  The conviction is confirmed by the Court of Appeal (twice) and in the High Court  Your potential client claims it was a 'fit up'  Will you act?  How hard will you run the case? .

including genocide  Will you accept instructions to defend the accused? .SOME QUESTIONS TO CONSIDER Defend Participants In Genocide?  A multinational mining company operates a mine in the Democratic People's Republic of the Congo (DRC)  Rebel soldiers commit mass murder of villagers living near the mine site  The mining company's helicopter and trucks/drivers transported the troops to the village  The company and its employees are charged with multiple offences.

although they have been mooted  The company seeks advice on the need to retain all of its historical records  What advice would you provide? .SOME QUESTIONS TO CONSIDER Advise On A Document Retention Policy  You are acting for a multinational tobacco company  The company holds many documents  Some documents might be used in evidence in future litigation. some documents might establish a claim for damages that could bankrupt the company and expose its employees to claims and abuse  No proceedings are on currently on foot against the company/its employees.  If used by a plaintiff.

SOME QUESTIONS TO CONSIDER Disclose Evidence That Will Damage Your Client's Case?  You are defending product liability claim involving a medical device  Client has pleaded and asserted no physical defect  You conduct electron microscopy and see a chip on the device  The defect was probably caused by the microscopy  Your client instructs you not to disclose the existence of the chip to its opponent or the Court  What do you do? .

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